The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CATE JENKINS, DOCKET NUMBER
Appellant, DC-0752-11-0348-B-6
v.
ENVIRONMENTAL PROTECTION DATE: January 5, 2016
AGENCY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Kathryn Douglass, Esquire, and Paula Dinerstein, Esquire,
Washington, D.C., for the appellant.
Mick G. Harrison, Esquire, Bloomington, Indiana, for the appellant.
Joanna M. DeLucia, Esquire, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
dismissed the appeal without prejudice. Generally, we grant petitions such as this
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
one only when: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. See title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
¶2 On December 30, 2010, the agency removed the appellant from the GS-13
position of Environmental Scientist. See Jenkins v. Environmental Protection
Agency, 118 M.S.P.R. 161, ¶ 2 (2012). The appellant appealed the agency’s
action, and the administrative judge affirmed. Id., ¶ 3. The appellant filed a
petition for review of the initial decision, and the Board reversed the agency’s
action, finding that the agency denied the appellant her constitutional right to due
process. Id. The Board remanded the appeal to allow the appellant to develop
the record, including engaging in further discovery, on her affirmative defense
alleging that the agency’s action constituted retaliation for whistleblowing. Id.
¶3 On remand, the administrative judge granted the parties’ motions to dismiss
the appeal without prejudice to its subsequent refiling a number of times. See
Refiled Appeal File (RAF), Tab 6, Initial Decision (ID). On May 21, 2015, the
administrative judge dismissed the appeal without prejudice for the sixth time
because of the ongoing litigation before the Department of Labor (DOL). ID at 3.
He also determined that the Washington Regional Office would refile the appeal
on the appellant’s behalf on December 16, 2015. Id.
3
¶4 Dismissal without prejudice is a procedural option that is left to the sound
discretion of the administrative judge. Milner v. Department of
Justice, 87 M.S.P.R. 660, ¶ 13 (2001). Here, the administrative judge dismissed
the appellant’s appeal because of ongoing litigation before DOL regarding similar
environmental whistleblowing issues involved in the remand appeal. 2 The
administrative judge correctly acknowledged that the two appeals shared a
common issue, whether the appellant’s removal constituted retaliation for
whistleblowing, which is an appropriate basis to grant dismissal without
prejudice. See Wheeler v. Department of Defense, 113 M.S.P.R. 519, ¶ 7 (2010).
The Board had held that, in light of overlapping issues in ongoing litigation by
the appellant in another forum, a decision in the other forum might properly be
given collateral estoppel effect. See Wilson v. Department of Veterans
Affairs, 102 M.S.P.R. 70, ¶ 10 (2006). Similarly, here, because of overlapping
issues, findings in the appellant’s complaint pending before DOL properly might
be given collateral estoppel effect in this appeal.
¶5 The agency argues that dismissal without prejudice is inappropriate under
Wilson, 102 M.S.P.R. 70. Petition for Review (PFR) File, Tab 1. The agency
asserts that Wilson and this case are similar because DOL has not issued a
decision and the record does not indicate an approximate date on which a decision
is expected. It also asserts that until DOL issues its decision, there could be no
assurance that DOL would make any findings that could be given collateral
estoppel effect. The agency’s assertions are unavailing. On April 15, 2015,
shortly before the Board’s administrative judge dismissed this appeal without
prejudice, the DOL administrative law judge adjudicating the appellant’s
complaint issued a recommended decision in the appellant’s favor. PFR File,
2
The appellant brought actions before DOL under various environmental whistleblower
statutes, including the Clean Air Act, the Solid Waste Disposal Act, the Comprehensive
Environmental Response, Compensation and Liability Act, the Toxic Substances
Control Act, and the Federal Water Pollution Control Act. See Petition for Review File,
Tab 7 at 51.
4
Tab 8 at 10. An appeal of that decision currently is pending before DOL’s
Appeal Review Board (ARB). If the recommended decision is upheld, then there
is the possibility that at least portions of that decision could be given collateral
estoppel effect. Further, even though there is not an approximate date on which a
decision is expected from DOL’s ARB, the Board’s administrative judge did not
dismiss without prejudice pending the issuance of that decision. Rather, as noted,
he set a date certain for refiling the appeal. ID at 3. Cf. Argabright v.
Department of Defense, 113 M.S.P.R. 152, ¶ 6 (2010) (finding that the Board
disfavors dismissals without prejudice that do not contain a specific refiling date,
especially where it is unclear when the matter underlying the dismissal will be
resolved).
¶6 Accordingly, we find that the administrative judge did not abuse his
discretion in dismissing this appeal without prejudice. We forward this matter to
the region for docketing as a refiled appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S. Court
of Appeals for the Federal Circuit. You must submit your request to the court at
the following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
5
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm. Additional information is
available at the court’s website, www.cafc.uscourts.gov. Of particular relevance
is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained
within the court’s Rules of Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for an appeal to the
U.S. Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.