                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     TERRANCE MIGUEL PETERSON,                       DOCKET NUMBER
                  Appellant,                         PH-752S-14-0445-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: August 11, 2014
       AFFAIRS,
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Terrance Miguel Peterson, Newark, Delaware, pro se.

           Marcus S. Graham, Esquire, Pittsburgh, Pennsylvania, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice 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 due
     to his failure to exhaust his administrative remedies before the Office of Special
     Counsel (OSC). Generally, we grant petitions such as this one only when: the

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 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, VACATE the initial
     decision, and DISMISS the appeal in the interest of judicial efficiency.
¶2         The appellant works as a Health Technician at the agency’s Wilmington,
     Delaware Medical Center. Initial Appeal File (IAF), Tab 7, Subtab 4H at 1. The
     agency suspended the appellant for 10 days in December 2013 based on a charge
     of conduct unbecoming of a federal employee. The appellant initiated a Board
     appeal, alleging that the suspension was in retaliation for prior whistleblowing
     activity. IAF, Tab 1 at 4, 6. The administrative judge issued an acknowledgment
     order, in which he ordered the appellant to submit evidence and argument in
     support of Board jurisdiction. IAF, Tab 2 at 2. The appellant responded to the
     administrative judge’s order. IAF, Tab 4.
¶3         The administrative judge issued an initial decision that dismissed the appeal
     for lack of jurisdiction. IAF, Tab 11, Initial Decision (ID) at 1. He found that the
     appellant had not exhausted his administrative remedies with OSC regarding the
     suspension. ID at 4. Specifically, the OSC complaint and closeout letter that the
     appellant included in his appeal predated his 10-day suspension. ID at 4. The
     appellant has filed a timely petition for review and included a new OSC close out
     letter dated the day after the administrative judge issued his initial decision.
                                                                                        3

     Petition for Review (PFR) File, Tab 1 at 7-8. The agency has not responded to
     the petition for review.
     On review, the appellant has submitted evidence that he properly exhausted his
     administrative remedies with OSC.
¶4            The Board has jurisdiction over an IRA appeal if the appellant has
     exhausted his administrative remedies before OSC, and makes nonfrivolous
     allegations that: (1) he engaged in whistleblowing activity by making a protected
     disclosure; and (2) the disclosure was a contributing factor in the agency’s
     decision to take or fail to take a personnel action.      Kukoyi v. Department of
     Veterans Affairs, 111 M.S.P.R. 404, ¶ 10 (2009). If the appellant satisfies each of
     these jurisdictional requirements, he has the right to a hearing on the merits of his
     claim. Id.
¶5            The administrative judge should have apprised the appellant of the means
     by which he may show that he has satisfied the exhaustion requirement. See id.,
     ¶ 14.     Here, the administrative judge provided no notice of how the appellant
     could meet the jurisdictional requirements for an IRA appeal; the administrative
     judge issued only an acknowledgment order that directed the appellant to file
     evidence and argument that the Board had jurisdiction over the appeal.          IAF,
     Tab 2 at 2. When the Board’s jurisdiction is in doubt, an appellant must receive
     explicit information on what is required to establish an appealable jurisdictional
     issue.     Alvarez v. Department of Homeland Security, 112 M.S.P.R. 434, ¶ 9
     (2009) (citing Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643-44
     (Fed. Cir. 1985)). The administrative judge’s error was not cured by the agency’s
     sole pleading. IAF, Tab 7; see Harris v. U.S. Postal Service, 112 M.S.P.R. 186,
     ¶¶ 9, 12 (2009) (finding an agency’s pleadings sufficient to meet the notice
     requirement). Thus, the administrative judge failed to provide the appellant with
     adequate notice of the requirements to establish Board jurisdiction over an IRA
     appeal, including the exhaustion requirement.
                                                                                         4

¶6         On review, the appellant has provided new evidence, OSC’s final decision
     letter, which may be sufficient to satisfy his burden to make a nonfrivolous
     allegation that he exhausted his remedies before OSC, provided he can establish
     that the suspension, which was the subject of his OSC complaint, is the same
     10-day suspension on which he filed his IRA appeal. PFR File, Tab 1 at 6-8; cf.
     Clarke v. Department of Veterans Affairs, 121 M.S.P.R. 154 ¶ 12 (2014) (to
     satisfy the exhaustion requirement, an appellant must inform OSC of the precise
     ground of his charge of whistleblowing, giving OSC sufficient basis to pursue an
     investigation that might lead to corrective action). We find OSC’s final decision
     letter to be new and material evidence under 5 C.F.R. § 1201.115(d).           OSC’s
     closeout letter is dated March 25, 2014, the day after the administrative judge
     issued his initial decision dismissing the appeal. PFR File, Tab 1 at 6; ID at 1.
     The letter notes that the appellant asserted that he made protected disclosures that
     were a contributing factor in the agency’s decision to suspend him. PFR File,
     Tab 1 at 7. Even if the evidence were not new and material, the Board accepts
     the evidence on review due to the failure to provide proper notice below. See
     Boughton v. Department of Agriculture, 94 M.S.P.R. 347, ¶ 6 (2003). Therefore,
     we vacate the portion of the initial decision that dismissed the appeal for failure
     to exhaust.
     Even though the appellant may have exhausted his administrative remedies with
     OSC, we dismiss the appeal in the interest of judicial efficiency because the
     appellant has another docketed appeal challenging the same action.
¶7         Having found evidence that the appellant exhausted his OSC remedies, we
     would ordinarily remand this appeal for a determination on jurisdiction, and, if
     appropriate, a hearing on the merits.       See Kukoyi, 111 M.S.P.R. 404, ¶ 19.
     However, we find remand unnecessary in this appeal. Courts have the inherent
     authority, in the interest of judicial efficiency, to dismiss an action because of the
     pendency of another action, so long as an identity of issues exists and the
     controlling issues in the dismissed action will be determined in the other lawsuit.
                                                                                      5

Kinler v. General Services Administration, 44 M.S.P.R. 262, 263 (1990). In most
cases of judicial efficiency, we would dismiss the subsequent appeal and the prior
appeal would be adjudicated. Id.; O’Leary v. Office of Personnel Management,
90 M.S.P.R. 124, ¶ 7 (2001). However, in this appeal, we are dismissing the prior
appeal for the processing of the subsequent appeal which is pending before with
the Northeast Regional Office. See Peterson v. Department of Veterans Affairs,
MSPB Docket No. PH-1221-14-0618-W-1. The subsequent appeal was properly
docketed as an IRA appeal, while the present appeal was not. The appellant in
the subsequent appeal has also challenged the 10-day suspension and alleges the
agency took the action partly in response to his protected disclosures. MSPB
Docket No. PH-1221-14-0618-W-1, Initial Appeal File, Tab 1 at 3, 5.                 The
appellant has included the same OSC documentation that he also submitted with
his petition for review in the pending appeal. Id. at 11-13. We find that the two
appeals share an identity of issues. We also find that the controlling issue of the
present appeal, whether the appellant has made a nonfrivolous allegation of
jurisdiction for an IRA appeal, also will be determined in the other pending
appeal.    Because the pending subsequent appeal addresses the same issue
presently before us, we deny the appellant’s petition for review and dismiss the
appeal in the interest of judicial efficiency. 2

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
       This Final Order constitutes the Board’s final decision in this matter.
5 C.F.R. § 1201.113. You have the right to request the United States Court of
Appeals for the Federal Circuit to review this final decision. You must submit
your request to the court at the following address:



2
  The subsequent appeal has been joined with an additional appeal involving the parties.
See Peterson v. Department of Veterans Affairs, MSPB Docket No. PH-0752-14-0706-
I-1.
                                                                                  6

                          United States 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).
      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 States 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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
                                                                           7

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.
