                           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             THIS FINAL ORDER IS NONPRECEDENTIAL 1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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.
