                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JOSEPH P. CARSON,                               DOCKET NUMBER
                   Appellant,                        AT-1221-15-0092-W-1

                  v.

     OFFICE OF SPECIAL COUNSEL,                      DATE: August 17, 2015
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Joseph P. Carson, Knoxville, Tennessee, pro se.

           Pamela Gault, Esquire, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed his individual right of action (IRA) appeal for lack of jurisdiction.
     Generally, we grant petitions such as this 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

     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     the law to the facts of the case; the 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, and based on the
     following points and authorities, 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. Except as expressly MODIFIED by
     this Final Order to dismiss the appeal based on adjudicatory efficiency, and to
     acknowledge and decline to address the appellant’s claims against the Board, we
     AFFIRM the initial decision.

                                      BACKGROUND
¶2         The appellant, an employee of the Department of Energy (DOE), has filed a
     number of IRA appeals, alleging that various agencies, including DOE, the Office
     of Special Counsel (OSC), and the Board, took personnel actions against him in
     retaliation for protected disclosures. Initial Appeal File (IAF), Tab 1 at 5; see,
     e.g., Carson v. Department of Energy, MSPB Docket No. AT-1221-14-0520-W-1,
     Final Order at 2 (May 21, 2015); Carson v. Office of Special Counsel, MSPB
     Docket No. AT-1221-14-0620-W-1 (Carson I), Final Order at 2 (Mar. 25, 2015);
     Carson v. Merit Systems Protection Board, MSPB Docket No. AT-1221-14-0637-
     W-1, Initial Decision at 2 (Nov. 6, 2014).
¶3         In the present IRA appeal, the appellant alleged that, in reprisal for his
     whistleblowing activities, OSC failed or refused to properly investigate, process,
     and resolve his whistleblower complaints regarding DOE and the Board. IAF,
     Tab 1 at 4, 8, Tab 17 at 8-13.      OSC moved to dismiss the appeal based on
     adjudicatory efficiency or collateral estoppel due to an initial decision in one of
                                                                                           3

     the appellant’s prior IRA appeals, Carson I. IAF, Tab 20 at 3-5; see Carson I,
     Initial Decision (July 25, 2014).
¶4          After issuing orders setting forth the requirements for establishing
     jurisdiction over an IRA appeal, and then considering the appellant’s responses,
     the administrative judge dismissed the appeal for lack of jurisdiction without
     holding the requested hearing. IAF, Tab 25, Initial Decision (ID); see IAF, Tab 1
     at 2, Tab 3 at 1-4, Tab 6 at 4, Tab 8 at 2-4, Tab 17. The administrative judge
     denied the agency’s request to dismiss the appeal based on collateral estoppel
     because a petition for review was pending in Carson I and he did not address the
     agency’s alternative argument that the appeal should be dismissed based on
     adjudicatory efficiency.     ID at 2-3; see IAF, Tab 20 at 3-5.           Instead, the
     administrative judge dismissed the appeal on the ground that the appellant failed
     to raise a nonfrivolous allegation that OSC took or failed to take a personnel
     action against him. 2 ID at 3-4.
¶5          The appellant has filed a timely petition for review. Petition for Review
     (PFR) File, Tab 3. The agency has filed a response, and the appellant has filed a
     reply. 3   PFR File, Tabs 10, 21.     In addition, the appellant has filed motions
     seeking leave to submit additional evidence and argument on review. PFR File,
     Tabs 7, 11, 17, 20.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶6          The Board’s jurisdiction is limited to those matters over which it has been
     given jurisdiction by law, rule, or regulation.          Maddox v. Merit Systems

     2
       On review, the appellant claims that the administrative judge found that he raised a
     nonfrivolous allegation that he engaged in protected activity by filing whistleblower
     complaints with OSC. Petition for Review (PFR) File, Tab 21 at 4-5.                The
     administrative judge did not make any such finding. See ID. Regardless, because we
     resolve this appeal on other grounds, we do not reach this issue.
     3
       On April 1, 2015, the Clerk of the Board granted the appellant an extension of time to
     file a reply and ordered him to file an amended reply to replace an unauthorized
     pleading filed in the interim. PFR File, Tab 18 at 1-2; see PFR File, Tabs 16, 21.
                                                                                        4

     Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The Board has jurisdiction
     over an IRA appeal if the appellant exhausts his administrative remedies before
     OSC and makes nonfrivolous allegations that: (1) he made a disclosure described
     under 5 U.S.C. § 2302(b)(8), or engaged in protected activity described
     under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or
     protected activity was a contributing factor in the agency’s decision to take or fail
     to take a personnel action as defined by 5 U.S.C. § 2302(a).            5 U.S.C. §§
     1214(a)(3), 1221(e)(1); Yunus v. Department of Veterans Affairs, 242 F.3d 1367,
     1371 (Fed. Cir. 2001).
     The Board will not address the appellant’s allegations against it.
¶7         On review, as he did below, the appellant argues that the Board violates the
     law and enables OSC’s violations of law by failing to conduct “special studies”
     pursuant to 5 U.S.C. § 1204(a)(3).     PFR File, Tab 3 at 4-13; see IAF, Tab 5
     at 4-5, 7, Tab 9 at 5. For the first time on review, he additionally contends that
     the Board’s failure to conduct special studies was itself a personnel action, and
     that the Board took a personnel action against him through its “failure or refusal
     to address” his whistleblower disclosures regarding OSC.          PFR File, Tab 3
     at 10-11, 13-14.
¶8         The appellant previously raised the issue of whether the Board took a
     personnel action against him by failing to conduct special studies, including
     studies of OSC, in another appeal against the Board, Carson v. Merit Systems
     Protection Board, MSPB Docket No. AT-1221-14-0637-W-1.               The appeal was
     assigned to an administrative law judge, who dismissed it for lack of jurisdiction.
     See Carson v. Merit Systems Protection Board, MSPB Docket No. AT-1221-14-
     0637-W-1, Initial Decision at 2, 5-7 (Nov. 6, 2014). The initial decision became
     the Board’s final decision after all three Board members recused themselves from
     considering the appellant’s petition for review.        Carson v. Merit Systems
     Protection Board, MSPB Docket No. AT-1221-14-0637-W-1, Order (Dec. 23,
     2014); see 5 C.F.R. § 1200.3(b).       Because the Board’s members previously
                                                                                          5

      recused themselves from considering this issue, the Board will not address it
      further.   The current two Board members similarly recuse themselves from
      addressing the appellant’s new allegation that the Board took a personnel action
      against him by failing or refusing to address his whistleblower disclosures
      regarding OSC. See PFR File, Tab 3 at 13-14.
¶9          The Board does not, however, recuse itself from the appellant’s claims
      against OSC. On review, he argues that the Board members cannot adjudicate
      these claims due to a conflict of interest. 4 PFR File, Tab 3 at 4-5.
¶10         We find that the appellant’s generalized assertion that the Board enables
      violations of law by OSC, a separate and distinct agency, is insufficient to
      warrant the Board’s recusal from adjudicating his claims against OSC based upon
      allegations   of    bias.       See    generally    Oliver     v.   Department      of
      Transportation, 1 M.S.P.R. 382, 386 (1980) (in making a claim of bias or
      prejudice against an administrative judge, a party must overcome the presumption
      of honesty and integrity that accompanies administrative adjudicators). Similarly,
      we find that the appellant has failed to establish that recusal is warranted based
      upon the appearance of a conflict of interest. See generally Shoaf v. Department
      of Agriculture, 97 M.S.P.R. 68, ¶¶ 7-12 (2004) (an administrative judge did not
      abuse his discretion in denying a recusal motion where the appellant failed to
      allege facts that would reasonably cause an objective observer to question the
      administrative judge’s impartiality), aff’d, 158 F. App’x 267 (Fed. Cir. 2005).
      The appellant’s claims against OSC are dismissed based on adjudicatory
      efficiency.
¶11         In response to the appellant’s petition for review, OSC reiterates its
      argument, raised below, that the appeal should be dismissed based on
      adjudicatory efficiency or collateral estoppel. PFR File, Tab 10 at 5; see IAF,

      4
        Below, the appellant raised similar arguments in moving to recuse the administrative
      judge. IAF, Tab 5 at 4-5, 7. The administrative judge denied the request and also
      denied the appellant’s motion to certify the issue for an interlocutory appeal. IAF,
      Tab 8 at 2, Tab 9 at 4-6; ID at 4 n.1.
                                                                                             6

      Tab 20 at 3-5. We agree that the instant appeal should be dismissed based on
      adjudicatory efficiency. 5
¶12         When an appellant files an appeal that raises the same claims raised in an
      earlier appeal before the decision in the earlier appeal has become final, the
      Board may dismiss the subsequent claims based upon adjudicatory efficiency.
      Bean v. U.S. Postal Service, 120 M.S.P.R. 447, ¶ 5 (2013); Zgonc v. Department
      of Defense, 103 M.S.P.R. 666, ¶ 6 (2006) (same), aff’d, 230 F. App’x 967 (Fed.
      Cir. 2007). Appeals may be dismissed in the interest of adjudicatory efficiency
      where an identity of issues exists and the controlling issues in the appeal will be
      determined     in    a       prior   appeal.       Kinler    v.    General      Services
      Administration, 44 M.S.P.R. 262, 263 (1990).
¶13         In Carson I, an administrative judge found that the appellant failed to raise
      a nonfrivolous allegation that OSC’s failure or refusal to resolve his alleged
      protected disclosures constituted a personnel action. Carson I, ID at 3-4. The
      appellant filed a petition for review of the initial decision in Carson I, which the
      Board denied approximately 2 months after the initial decision in the instant
      appeal was issued. Carson I, Final Order at 1-2. We found that he failed to raise
      a nonfrivolous allegation that OSC’s investigations and prosecutorial decisions
      constitute personnel actions within the meaning of 5 U.S.C. § 2302(a)(2)(A). Id.
      at 4-6. Subsequently, he appealed our decision in Carson I to the United States
      Court of Appeals for the Federal Circuit (Federal Circuit), where his appeal
      remains pending. 6

      5
        On review, the appellant contends that the administrative judge did not provide him
      with notice of the elements of proof for collateral estoppel and adjudicatory efficiency.
      PFR File, Tab 21 at 5-6. However, this oversight was cured by the agency’s pleading
      below, which provided this information. See IAF, Tab 20 at 3-5; Mapstone v.
      Department of the Interior, 106 M.S.P.R. 691, ¶ 9 (2007) (an administrative judge’s
      failure to provide an appellant with proper jurisdictional notice can be cured if the
      agency’s pleadings contain the notice that was otherwise lacking).
      6
        Collateral estoppel may only be applied when there is a final judgment in the previous
      litigation. Zgonc, 103 M.S.P.R. 666, ¶ 6. Because the Federal Circuit will review the
                                                                                               7

¶14         We find that the determinative jurisdictional issue in the present appeal—
      whether the appellant raised a nonfrivolous allegation that OSC’s investigations
      and prosecutorial decisions constitute personnel actions within the meaning
      of 5 U.S.C. § 2302(a)(2)(A)—is identical to the determinative jurisdictional issue
      in Carson I. 7 See IAF, Tab 25; ID at 3-4; Carson I, Final Order at 4-6. Because
      the controlling jurisdictional issue regarding the appellant’s claims against OSC
      in the instant appeal will be determined by the Federal Circuit in Carson I, we
      find that his claims against OSC should be dismissed based upon adjudicatory
      efficiency. 8
      The appellant has not shown that the new evidence that he submits and desires to
      submit on review is material.
¶15         With his petition for review, the appellant submits two documents that he
      contends constitute new and material evidence: (1) a January 22, 2015 notice of
      proposed rulemaking regarding a proposal to amend OSC’s regulations; and
      (2) what he characterizes as a “whistleblower disclosure” regarding the notice of

      issue of the Board’s jurisdiction over Carson I de novo, we find that the present appeal
      should not be dismissed based on collateral estoppel. See Cataulin v. U.S. Postal
      Service, 41 M.S.P.R. 681, 683 (1989) (a judgment pending on appeal may be given
      collateral estoppel effect, unless the appeal removes the entire case to the appellate
      court and constitutes a proceeding de novo); Lively v. Department of the Navy,
      31 M.S.P.R. 318, 321 (1986) (same); see also Stoyanov v. Department of the Navy,
      474 F.3d 1377, 1379 (Fed. Cir. 2007) (the Federal Circuit reviews the Board’s
      jurisdictional findings de novo).
      7
        We have considered the appellant’s argument on review that his claims in the present
      appeal differ from his claims in Carson I because here he alleged that OSC failed to
      protect him from reprisal. PFR File, Tab 21 at 7-8. However, the sole basis for his
      allegation that OSC failed to protect him from reprisal is that it did not properly
      investigate, process, and resolve his whistleblower complaints, which are the same
      claims he raised in Carson I. See IAF, Tab 1 at 4, 8, Tab 17 at 8-13. Therefore, the
      argument does not alter our conclusion that the determinative jurisdictional issues in the
      two appeals are identical.
      8
        However, although we find that the appeal should be dismissed based on adjudicatory
      efficiency, the administrative judge did not err in declining to dismiss the appeal on that
      basis. See, e.g., Kroeger v. U.S. Postal Service, 865 F.2d 235, 239 (Fed. Cir. 1988)
      (“where the requirements are met, it would not be error (though it may waste judicial
      resources) to decline to apply collateral estoppel”).
                                                                                               8

      proposed rulemaking. PFR File, Tab 1. In addition, on March 2, 2015, he filed a
      motion seeking leave to submit additional evidence in support of his appeal,
      including letters: (1) from OSC in response to the “whistleblower disclosure”;
      and (2) from the appellant to the Tennessee Board of Architectural and
      Engineering Examiners concerning a professional misconduct complaint, both
      dated February 23, 2015. 9 PFR File, Tab 7.
¶16         The Board generally will not consider evidence submitted for the first time
      on review absent a showing that:            (1) the documents and the information
      contained therein were unavailable before the record closed despite due diligence;
      and (2) the evidence is of sufficient weight to warrant an outcome different from
      that of the initial decision. Carson v. Department of Energy, 109 M.S.P.R. 213,
      ¶ 21 (2008), aff’d, 357 F. App’x 293 (Fed. Cir. 2009); see 5 C.F.R.
      § 1201.115(d). The appellant has failed to demonstrate that the evidence at issue
      is relevant to the Board’s dismissal on the grounds of adjudicatory efficiency, and
      accordingly, the evidence is not material to the outcome of his case. See Russo v.
      Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (the Board will not grant a
      petition for review based on new evidence absent a showing that it is of sufficient
      weight to warrant an outcome different from that of the initial decision).
      Accordingly, we will not consider the new evidence submitted on review and
      DENY the appellant’s March 2, 2015 motion for leave to file additional evidence.
      See 5 C.F.R. § 1201.114(a)(5) (providing that nonstandard pleadings are only
      accepted on review based on a showing of the nature and need for the pleading).

      9
        On March 27, March 31, and April 8, the appellant also filed motions for leave to
      submit the Board’s final order in Carson I on review, and to submit new argument in
      his reply regarding the order in Carson I. PFR File, Tabs 11, 17, 20. We have taken
      official notice of our order in Carson I, and it is unnecessary for the appellant to submit
      it on review. See 5 C.F.R. § 1201.64 (allowing the Board to take official notice of
      matters that can be verified). Further, we find that his three motions for leave are moot
      because he submitted, and we have reviewed, his arguments regarding the effect of
      Carson I on the instant appeal. PFR File, Tab 1 at 6-8, 10. However, having
      considered these arguments, we find that they do not alter our conclusion that his
      claims against OSC should be dismissed based on adjudicatory efficiency. Id.
                                                                                    9

                   NOTICE TO THE APPELLANT REGARDING
                      YOUR FURTHER REVIEW RIGHTS
        The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request review of this final decision by the United States Court of Appeals for the
Federal Circuit.
        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).
        If you want to request review of the Board’s decision concerning your
claims    of   prohibited   personnel   practices   under   5   U.S.C.   § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both.    Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
        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 United States 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 United
                                                                                 10

States   Code,     at   our     website,   http://www.mspb.gov/appeals/uscode.htm.
Additional information about the United States Court of Appeals for the Federal
Circuit 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.
Additional information about other courts of appeals can be found at their
respective          websites,          which          can        be        accessed
through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
     If you are interested in securing pro bono representation for an appeal to the
United States 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.
