UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

CATE JENKINS,

Appellant,

v.

ENVIRONMENTAL PROTECTION 

AGENCY,

Agency.

DOCKET NUMBER

DC-0752-11-0348-B-6

DATE: January 5, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board