Joseph P. Carson v. Office of Special Counsel ( 2015 )

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THIS FINAL ORDER IS NONPRECEDENTIAL 1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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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