Mark Grissom v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MARK GRISSOM, DOCKET NUMBER

Appellant, AT-0714-21-0175-M-1

v.

DEPARTMENT OF VETERANS DATE: October 18, 2024

AFFAIRS,

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Mark Grissom , Maylene, Alabama, pro se.

W. Robert Boulware , Montgomery, Alabama, for the agency.

Sophia Haynes , Esquire, Decatur, Georgia, for the agency.

Dana C. Heck , St. Petersburg, Florida, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner recused himself and did not participate in the adjudication of

this appeal.

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

REMAND ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

remanded to the agency for consideration of the factors enumerated in Douglas v.

Veterans Administration, 5 M.S.P.R. 280 (1981). Generally, we grant petitions

such as this one only in the following circumstances: 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. 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, AFFIRM the initial

decision, and REMAND the case to the Atlanta Regional Office for further

adjudication in accordance with this Remand Order.

BACKGROUND

¶2 The agency removed the appellant for failure to follow instructions pursuant

to 38 U.S.C. § 714. Grissom v. Department of Veterans Affairs, MSPB Docket

No. AT-0714-21-0175-I-1, Initial Appeal File, Tab 25, Initial Decision at 2. The

administrative judge issued an initial decision finding that the agency proved its

charge by substantial evidence, denying the appellant’s affirmative defense of

whistleblower reprisal, and finding the penalty of removal to be reasonable. Id.

at 2-40. The appellant appealed the final order to the U.S. Court of Appeals for

the Federal Circuit (Federal Circuit), and the court issued an opinion affirming

the administrative judge’s findings that the agency proved its charge and that the

3

appellant failed to prove his affirmative defenses. Grissom v. Department of

Veterans Affairs, No. 2021-2124, 2022 WL 17334715 (Fed. Cir. Nov. 30, 2022);

MSPB Docket No. AT-0714-21-0175-M-1, Remand File (M-1 RF), Tab 1. The

Federal Circuit observed that the agency deciding official testified that he did not

believe that he considered the Douglas factors 2 as required, and it therefore

vacated the administrative judge’s penalty analysis and remanded to the Board to

remand to the agency for a redetermination of the penalty. Grissom, 2022 WL

17334715, at *17-18. Upon return to the regional office, the administrative judge

issued an initial decision remanding to the agency for proper consideration of the

Douglas factors. M-1 RF, Tab 6, Initial Decision. The appellant has filed a

petition for review of the initial decision and 29 supplements. Grissom v.

Department of Veterans Affairs, MSPB Docket No. AT-0714-21-0175-M-1,

Petition for Review (M-1 PFR) File, Tabs 1 - 30. He has asserted the following

arguments: (1) the administrative judge erred in remanding to the agency for a

redetermination of the penalty; (2) the administrative judge erred by failing to

order damages; (3) the administrative judge was biased; and (4) the appellant has

new and material evidence related to the merits of the removal decision and his

affirmative defenses. 3 Id.

2

In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board

articulated a nonexhaustive list of factors relevant in assessing the penalty to impose for

an act of misconduct.

3

The agency filed a response to the petition for review, which was 2 days late.

M-1 PFR File, Tabs 31, 35. The agency argues that good cause exists for its filing

delay because of the size of the appellant’s submissions on review and because the

appellant would not be prejudiced by accepting the agency’s response. M-1 PFR File,

Tab 37 at 5. We recognize the size of the appellant’s submissions, but the agency has

not shown why that prevented it from filing a response to the petition for review or

seeking an extension to respond in a timely fashion. Accordingly, we find that the

agency has not shown good cause for the untimely filing, and we have not considered

the agency’s response to the appellant’s petition for review. 5 C.F.R. § 1201.114(g)

(2023).

4

DISCUSSION OF ARGUMENTS ON REVIEW

¶3 First, we find that the administrative judge did not err in remanding to the

agency for a redetermination of the penalty. M-1 PFR File, Tab 1 at 5-6. That is

what the Federal Circuit ordered. Grissom, 2022 WL 17334715, at *18 (“We

therefore vacate the penalty portion of the Board’s decision pertaining to the

Douglas factors and remand to the Board to remand to the [agency] for a

redetermination of the penalty.”); see also Connor v. Department of Veterans

Affairs, 8 F.4th 1319, 1326-27 (Fed. Cir. 2021) (stating that, if the Board

determines that the Department of Veterans Affairs (VA) failed to consider the

Douglas factors, the Board must remand to the VA for a redetermination of the

penalty).

¶4 Second, we find that the administrative judge did not err by failing to order

damages. M-1 PFR File, Tab 1 at 5-8. Any request for damages is premature

because there is not yet a final order in this appeal. 4 To the extent the appellant is

requesting attorney fees in connection with his appeal to the Federal Circuit, the

Board lacks the authority to award attorney fees incurred in connection with an

appeal of a Board decision to the Federal Circuit. Coradeschi v. Department of

Homeland Security, 109 M.S.P.R. 591, ¶ 8 (2008), aff’d, 326 F. App’x 566 (Fed.

Cir. 2009).

¶5 Third, we address the appellant’s claim that the administrative judge was

biased. M-1 PFR File, Tab 2 at 5-8 (asserting that the administrative judge

rushed the proceedings, denied consolidation of the appellant’s appeals, denied

his request for additional evidence to address purported perjury by agency

witnesses, ignored some of his evidence relating to the merits of the case, and

4

We disagree with the appellant’s assertion that the Federal Circuit vacated his

removal. M-1 PFR File, Tab 1 at 5. The Federal Circuit vacated the administrative

judge’s penalty analysis only and remanded to the Board with instructions to remand to

the agency for a redetermination of the penalty. Grissom, 2022 WL 17334715, at *18.

The Federal Circuit did not vacate the appellant’s removal outright. Cf. Sayers v.

Department of Veterans Affairs, 954 F.3d 1370, 1382 (Fed. Cir. 2020) (“Because the

[VA] cannot remove [the petitioner] under § 714 without the statute having

impermissible retroactive effect, we vacate [the petitioner’s] removal.”).

5

showed favoritism toward the agency). The appellant has not shown that he filed

a motion below requesting that the administrative judge recuse himself from the

case, and we have found no such request in the record. To the extent that the

appellant did not raise such an allegation below, he is precluded from raising it at

this time. See Gensburg v. Department of Veterans Affairs , 85 M.S.P.R. 198, ¶ 7

(2000); Lee v. U.S. Postal Service, 48 M.S.P.R. 274, 280-82 (1991). In any event,

the appellant’s disagreement with the administrative judge’s rulings and exercise

of his broad authority to control the course of the proceedings does not overcome

the presumption of honesty and integrity that accompanies administrative judges.

See Oliver v. Department of Transportation, 1 M.S.P.R. 382, 386 (1980) (finding

that, 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); see also Maloney v. Executive Office of the

President, 2022 MSPB 26, ¶ 38 (stating that the mere fact that the administrative

judge ruled against a party does not establish bias). The appellant’s arguments

concerning a potential conflict of interest are wholly unsupported, M -1 PFR File,

Tab 2 at 5, and his assertion that the Board’s Atlanta Regional Office has

numerous pending cases involving the VA does not warrant reassignment to

another regional office, M-1 PFR File, Tab 1 at 14.

¶6 Fourth, we address the appellant’s purported new and material evidence,

including copies of filings in other litigation in which the appellant is involved.

M-1 PFR File, Tabs 3-30. Many of the documents predate the initial decision and

are not new. See Grassell v. Department of Transportation, 40 M.S.P.R. 554, 564

(1989) (stating that, to constitute new and material evidence, the information

contained in the documents, not just the documents themselves, must have been

unavailable despite due diligence when the record closed); 5 C.F.R.

§ 1201.115(d). To the extent any of the evidence submitted on review is new, the

appellant has asserted that it relates to the merits of his removal and to his

affirmative defenses; however, the Federal Circuit affirmed the administrative

6

judge’s findings that the appellant failed to prove his affirmative defenses. 5 The

appellant has not explained how the documents are relevant to the remand of this

appeal for a redetermination of the penalty, and we find that they are not.

¶7 In closing, we address two other matters. The appellant requests that the

Board “waive it[s] jurisdiction in the [equal employment opportunity (EEO)

matters] taken before the [Equal Employment Opportunity Commission].”

M-1 PFR File, Tab 1 at 7. It is unclear what the appellant is seeking. The

appellant did not raise any EEO claims before the administrative judge. The

appellant also asks that the Board refer certain matters to the Office of Special

Counsel. Id. at 9. Pursuant to 5 U.S.C. § 1221(f)(3), if the Board finds that the

agency committed a prohibited personnel practice, it will refer a copy of the

decision to the Office of Special Counsel. However, the Board has not found that

the agency committed a prohibited personnel practice in this case.

5

After the record closed on review, the appellant filed a motion for leave to file an

additional pleading regarding a writ of certiorari he intended to file and other

documents concerning his due process rights. M-1 PFR File, Tab 40. Generally, the

Board’s regulations do not provide for such a pleading to be filed after the close of the

record. 5 C.F.R. § 1201.114(a)(5), (k) (2023). In order for such a filing to be accepted

by the Board, the appellant must describe the nature of and need for the pleading, and it

must contain new and material evidence or argument that was not readily available

before the record closed. 5 C.F.R. § 1201.114(a)(5), (k) (2023). We DENY the

appellant’s motion, as he failed to show the relevance of the documents to the single

issue in this appeal—the court-directed remand to the agency for a new penalty

determination.

7

ORDER

¶8 For the reasons discussed above, we remand this case to the regional office

for further adjudication in accordance with this Remand Order. On remand, the

administrative judge shall issue an initial decision remanding this matter to the

agency for it to make a new penalty determination. 6

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

6

The appellant’s concerns about his due process rights in connection with any future

proceedings are premature. M-1 PFR File, Tab 1 at 8. However, the agency should be

mindful of its obligations to provide the appellant with the necessary due process. See

Brenner v. Department of Veterans Affairs, 990 F.3d 1313, 1324 (Fed. Cir. 2021)

(observing that 38 U.S.C. § 714 maintains due process protections for employees);

Ward v. U.S. Postal Service, 634 F.3d 1274, 1279-80 (Fed. Cir. 2011); Stone v. Federal

Deposit Insurance Corporation, 179 F.3d 1368, 1375-77 (Fed. Cir. 1999).