Filed: Jul. 15, 2016
Latest Update: Mar. 03, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD LAWRENCE E. MATTISON, DOCKET NUMBER Appellant, DC-0752-16-0350-I-1 v. DEPARTMENT OF VETERANS DATE: July 15, 2016 AFFAIRS, Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Lawrence E. Mattison, Hampton, Virginia, pro se. Timothy M. O’Boyle, Esquire, Hampton, Virginia, 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
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD LAWRENCE E. MATTISON, DOCKET NUMBER Appellant, DC-0752-16-0350-I-1 v. DEPARTMENT OF VETERANS DATE: July 15, 2016 AFFAIRS, Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Lawrence E. Mattison, Hampton, Virginia, pro se. Timothy M. O’Boyle, Esquire, Hampton, Virginia, 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 ..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LAWRENCE E. MATTISON, DOCKET NUMBER
Appellant, DC-0752-16-0350-I-1
v.
DEPARTMENT OF VETERANS DATE: July 15, 2016
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Lawrence E. Mattison, Hampton, Virginia, pro se.
Timothy M. O’Boyle, Esquire, Hampton, Virginia, 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 removal appeal without prejudice. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. 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 The appellant held the position of Housekeeping Aid at an agency medical
center in Hampton, Virginia. Initial Appeal File (IAF), Tab 12 at 10. In
August 2015, the agency indefinitely suspended him in connection with his arrest
for violating a protective order and stalking another agency employee. 2 Id.
at 36-40. Later, in December 2015, the agency proposed his removal for
(1) conduct unbecoming and (2) failure to follow supervisory instructions. Id.
at 27-34. After the appellant responded to that proposal,
id. at 14-26, the
deciding official upheld his removal, id. at 10-13. In the instant appeal, the
appellant challenged his removal. IAF, Tab 1.
¶3 The agency filed a motion to dismiss the removal appeal without prejudice
because the appeal involved the same or similar allegations as those underlying
the appellant’s criminal charges, which were pending in Virginia Circuit Court. 3
2
In a separate appeal, the appellant has challenged his indefinite suspension. See
Mattison v. Department of Veterans Affairs, MSPB Docket No. DC-0752-15-1058-I-1,
Initial Appeal File (1058 IAF), Tab 1.
3
The appellant’s criminal charges were reportedly pending in Virginia Circuit Court, on
appeal from his conviction in the General District Court for the City of Hampton,
Virginia. IAF, Tab 7 at 4, 7, 9, Tab 11 at 1. In the Commonwealth of Virginia, the
3
IAF, Tab 7 at 4-5, 7, 9. The appellant responded, similarly requesting dismissal
without prejudice, but asking that discovery continue. IAF, Tab 11 at 1-2.
¶4 The administrative judge dismissed the removal appeal without prejudice.
IAF, Tab 14, Initial Decision (ID) at 1-3. While doing so, she denied the
appellant’s request to proceed with discovery. ID at 2-3. The appellant has filed
a petition for review. Petition for Review (PFR) File, Tab 2. 4 The agency has
filed a response, PFR File, Tab 4, and the appellant has replied, PFR File, Tab 5.
¶5 Dismissal without prejudice is a procedural option within an administrative
judge’s broad discretion, and it is the Board’s policy to stay removal proceedings
where, as here, criminal proceedings involving the same matter are pending. See,
e.g., Rittgers v. Department of the Army, 117 M.S.P.R. 182, ¶¶ 8-12 (2011). On
review, the appellant appears to assert that the administrative judge erred in
denying his request to proceed with discovery despite the dismissal. 5 E.g., PFR
File, Tab 2 at 1-2.
appellant has the right to a jury trial during this de novo appeal. Va. Code Ann.
§§ 16.1-132, 16.1-136.
4
Although the appellant has, at times, characterized his pleading as an interlocutory
appeal, we have construed it as a petition for review. See, e.g., PFR File, Tab 2 at 4;
compare 5 C.F.R. § 1201.91 (explaining interlocutory appeals with the Board), with
5 C.F.R. § 1201.114 (explaining the procedures for a petition for review).
5
Below, the appellant agreed to dismissal of his appeal without prejudice while his
criminal charges were pending. IAF, Tab 11 at 2. Therefore, to the extent that he now
suggests that dismissal may not have been appropriate due to some distinguishing
factors between the charges underlying his removal and those underlying his criminal
case, we need not address the argument. PFR File, Tab 2 at 5; see Banks v. Department
of the Air Force, 4 M.S.P.R. 268, 271 (1980) (finding that the Board generally will not
consider an argument raised for the first time in a petition for review absent a showing
that it is based on new and material evidence not previously available despite the
party’s due diligence). Similarly, we need not address the appellant’s new questioning
of why the administrative judge dismissed the instant appeal without prejudice, but did
not do the same in his indefinite suspension appeal. PFR File, Tab 2 at 7; see Banks,
4 M.S.P.R. at 271; see also Rittgers, 117 M.S.P.R. 182, ¶¶ 8-12 (explaining why, in
general, it is appropriate to dismiss a removal appeal while there is an ongoing criminal
case concerning the same conduct but unnecessary in the context of an indefinite
suspension appeal).
4
¶6 The Board addressed an analogous situation in Henderson v. U.S. Postal
Service, 52 M.S.P.R. 592, 596-97 (1992). In Henderson, an administrative judge
dismissed a removal appeal without prejudice pending resolution of criminal
charges that were closely linked to the charges underlying the removal. Id.
at 596. On review, the appellant in that case asserted that she was being
prejudiced by the agency’s failure to turn over discovery materials. Id. at 597.
The Board dismissed the argument, noting that the appellant had failed to show
how her rights had been affected by this discovery matter during the temporary
dismissal of her appeal. Id. Similarly, the appellant’s arguments concerning
discovery in the instant appeal are unavailing. PFR File, Tab 2. The appellant
has not shown that it was necessary to proceed with discovery during the period
of dismissal without prejudice and while his criminal charges were pending. Cf.
Keay v. U.S. Postal Service, 57 M.S.P.R. 331, 336 (1993) (recognizing that, in the
context of a stay while an appellant’s criminal charges were pending, the Board
may allow certain discovery to continue in particular circumstances, such as to
preserve evidence that may otherwise be lost). If the appellant has discovery
matters that need to be addressed, then he can raise them with the administrative
judge after the refiling of his removal appeal. See generally Lewis v. Department
of the Air Force, 69 M.S.P.R. 40, 44 (1995) (recognizing that, where an appeal
has been dismissed without prejudice to refiling in an initial decision, the Board
will not consider arguments raised on review concerning matters that should be
considered by the administrative judge once the case has been refiled).
¶7 On review, the appellant also suggests that the administrative judge has
exhibited bias and should she recuse from further participating in his removal
appeal. PFR File, Tab 2 at 1, 12. We disagree. The dismissal without prejudice
was not an abuse of discretion, and there is no indication of bias in the
administrative judge’s discovery ruling. See Bieber v. Department of the
Army, 287 F.3d 1358, 362-63 (Fed. Cir. 2002) (observing that an administrative
judge’s conduct during the course of a Board proceeding warrants a new
5
adjudication only if the administrative judge’s comments or actions evidence “a
deep-seated favoritism or antagonism that would make fair judgment impossible”)
(quoting Liteky v. United States, 510 U.S. 540, 555 (1994)). Accordingly, we
find no merit to the appellant’s arguments and no basis for disturbing the initial
decision, dismissing his removal appeal without prejudice.
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).
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.
6
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
