Lawrence Mattison v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

LAWRENCE E. MATTISON, DOCKET NUMBER

Appellant, DC-0752-16-0350-I-3

v.

DEPARTMENT OF VETERANS DATE: February 27, 2023

AFFAIRS,

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Lawrence E. Mattison, Hampton, Virginia, pro se.

Timothy M. O’Boyle, Esquire, Hampton, Virginia, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

REMAND ORDER

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

sustained his removal. For the reasons discussed below, we GRANT the

appellant’s petition for review, VACATE the initial decision, and REMAND 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 administ rative 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

case to the regional office for further adjudication in accordance with this

Remand Order.

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant held the position of Housekeeping Aid (Leader) at an agency

medical center in Hampton, Virginia. Mattison v. Department of Veterans

Affairs, MSPB Docket No. DC-0752-16-0350-I-1, 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, the agency proposed and effectuated his

removal based on the same underlying circumstances. Id. at 10-34.

¶3 The appellant filed a Board appeal challenging his removal. IAF, Tab 1.

The administrative judge dismissed the initial appeal, without prejudice , while the

appellant faced related criminal charges. IAF, Tab 14. The Board affirmed.

Mattison v. Department of Veterans Affairs, MSPB Docket No. DC-0752-16-

0350-I-1, Final Order (July 15, 2016). After the resolution of his criminal matter,

the appellant requested additional time to refile his removal appeal. Mattison v.

Department of Veterans Affairs, MSPB Docket No. DC-0752-16-0350-I-2, Appeal

File (I-2 AF), Tab 1. The administrative judge granted that request, and the

appellant refiled in November 2016. I-2 AF, Tab 2; Mattison v. Department of

Veterans Affairs, MSPB Docket No. DC-0752-16-0350-I-3, Appeal File (I-3 AF),

Tab 1.

¶4 Because the appellant was convicted of his criminal charges, the agency

requested that the administrative judge apply collateral estoppel and preclude the

appellant from relitigating the administrative charges at issue in this removal

appeal. I-3 AF, Tab 15. Over the appellant’s objections, e.g., I-3 AF, Tabs 11,

25, the administrative judge granted that request, I-3 AF, Tab 44 at 2. Therefore,

2

The appellant unsuccessfully challenged his indefinite suspension in a separate appeal.

Mattison v. Department of Veterans Affairs, 123 M.S.P.R. 492 (2016).

3

she held a hearing that was limited to evidence pertaining to the agency’s choice

of penalty and the appellant’s affirmative defenses. Id. After doing so, the

administrative judge affirmed the appellant’s removal. I-3 AF, Tab 59, Initial

Decision (ID). She sustained the agency’s charges based on collateral estoppel

and found no merit to the appellant’s various affirmative defenses and other such

claims. ID at 4-15. Finally, the administrative judge found that removal was a

reasonable penalty and that the appellant failed to establish his disparate penalty

claim. ID at 15-19.

¶5 The appellant has filed a petition for review. Mattison v. Department of

Veterans Affairs, MSPB Docket No. DC-0752-16-0350-I-3, Petition for Review

(PFR) File, Tabs 1, 3. The agency has filed a response and the appellant has

replied. PFR File, Tabs 6-7. The appellant has requested leave to submit

additional pleadings, PFR File, Tabs 11-12, 17, but that request is denied. 3

The administrative judge erred in applying collateral estoppel.

¶6 The agency removed the appellant based on two charges, conduct

unbecoming and failure to follow supervisory instructions. IAF, Tab 12 at 11, 27.

The administrative judge sustained the charges, finding that the appellant was

collaterally estopped from relitigating the facts underlying his Virginia Circuit

Court conviction under Va. Code Ann. § 18.2-60.3, stalking, and Va. Code Ann.

§ 18.2-429, causing telephone or pager to ring with intent to annoy. ID at 4 -9; I-3

AF, Tab 15 at 14-15, Tabs 30, 43.

3

In his first request to submit additional pleadings on review, the appellant cites his pro

se status and asserts that he intended to present “a potential illegal act in the initiation

of criminal proceedings that would nullify the agency’s use of any outcome from those

proceedings.” PFR File, Tab 11 at 4. In the second, the appellant appeared to indicate

that an additional pleading he wished to submit was a request for subpoena. PFR File,

Tab 12 at 4. In a much later filing, the appellant requested permission to present

additional argument regarding collateral estoppel and to amend his request for relief in

this appeal. We find no basis for allowing any pleadings beyond those already accepted

into the record. See 5 C.F.R. § 1201.114(a)(5) (limiting the pleadings parties may

submit in connection to a petition for review, and providing that additional pleadings

will not be accepted absent leave of the Clerk of the Board).

4

¶7 Though not raised by either party on review, we find that the administrative

judge mistakenly relied on the wrong standards for collateral estoppel. I -3 AF,

Tab 8 at 2-3, Tab 30, Tab 43; ID at 4-9. As further detailed below, under the

proper standards, the requirements for collateral estoppel are not satisfied in this

case.

¶8 Under the Board’s standards for collateral estoppel, a party is barred from

relitigating an issue that was previously litigated if: (1) the issue is identical to

that involved in the prior action; (2) the issue was actually litigated in the prior

action; (3) the determination on the issue in the prior action was necessary to the

resulting judgment; and (4) the party against whom issue preclusion is sought had

a full and fair opportunity to litigate the issue in the prior action, either as a party

to the earlier action or one whose interests were otherwise fully represented in

that action. McNeil v. Department of Defense, 100 M.S.P.R. 146, ¶ 15 (2005).

However, in a case such as this, in which the prior action resulted in a criminal

conviction in state court, the Board must apply that state’s collateral estoppel

standards. Mosby v. Department of Housing and Urban Development,

114 M.S.P.R. 674, ¶¶ 5-6 (2010) (applying District of Columbia collateral

estoppel standards).

¶9 As the U.S. Court of Appeals for the Federal Circuit has recognized, “[t]he

Full Faith and Credit Clause of the Federal Constitution, as implemented by

28 U.S.C. § 1738, requires that state court judgments be given the same

preclusive effect in later federal actions as they would be given under the laws of

the state in which the judgments were rendered.” Graybill v. U.S. Postal Service,

782 F.2d 1567, 1571-73 (Fed. Cir. 1986) (applying Maryland collateral estoppel

standards); cf. Miles v. Department of the Navy, 102 M.S.P.R. 316, ¶¶ 4, 9-10

(2006) (applying the Board’s collateral estoppel standards in the context of a

Federal court conviction for state and Federal crimes). Accordingly, it is

Virginia’s collateral estoppel standards that govern in this appeal.

5

¶10 Under Virginia law, collateral estoppel is appropriate if: (1) the same

parties or their privies were involved in both actions; (2) “the factual issue sought

to be litigated [was] actually litigated in the prior action”; (3) the factual issue

was necessary to the judgment rendered in the prior case; and (4) “the prior

action . . . resulted in a valid, final judgment against the party sought to be

precluded in the present action.” Weinberger v. Tucker, 510 F.3d 486, 491 (4th

Cir. 2007); see Whitley v. Commonwealth, 538 S.E.2d 296 (Va. 2000). However,

in Virginia, collateral estoppel also requires one additional element—mutuality. 4

Weinberger, 510 F.3d at 491.

¶11 The Supreme Court of Virginia discussed the mutuality requirement in

Selected Risks Insurance Co. v. Dean, 355 S.E.2d 579 (Va. 1987). The court

recognized its longstanding conclusion that mutuality is lacking in the context of

a criminal judgment and subsequent civil action arising from the same

circumstances. Id. at 580-81. In doing so, the court explained, “[t]he principle of

mutuality limits the influence of the initial adjudication by requiring that to be

effective the estoppel of the judgment must be mutual. Thus, a litigant is

generally prevented from invoking the preclusive force of a judgment unless he

would have been bound had the prior litigation of the issue reached the opposite

result.” Id. at 581; see Weinberger, 510 F.3d at 494 (discussing the mutuality

requirement).

¶12 Here, even if the other elements were satisfied, it is evident that the

mutuality requirement is not met. The agency would not have been bound by the

opposite result—a not guilty verdict in Virginia Circuit Court—so it may not

invoke the preclusive force of the appellant’s conviction. See Selected Risks

4

The administrative judge acknowledged the possibility of Virginia law governing in

this case. I-3 AF, Tab 43 at 3 n.1. However, in doing so, she cited Whitley, a case that

included no discussion of Virginia’s mutuality requirement. Id. Subsequent cases

verify that Virginia still requires mutuality. E.g., Ayala v. Aggressive Towing

& Transport, Inc., 661 S.E.2d 480, 482 (Va. 2008); Rawlings v. Lopez, 591 S.E.2d 691,

692 (Va. 2004).

6

Insurance Co., 355 S.E.2d at 581 (discussing the absence of mutuality in the

context of a criminal action followed by a civil action because a criminal

acquittal would reflect an inability to prove intent beyond a reasonable doubt but

would leave open the question of whether intent could be proven by preponderant

evidence). Accordingly, remand is required here for the agency to prove its

charges without the benefit of collateral estoppel. 5

¶13 On remand, the administrative judge should allow the parties to further

develop the record and hold a supplemental hearing, if the appellant requests

one. 6 If appropriate, the administrative judge may incorporate her other findings,

such as those pertaining to the appellant’s affirmative defenses, into a remand

initial decision. 7

The administrative judge did not commit any other procedural errors, nor did she

exhibit bias.

¶14 The appellant’s petition for review raises other procedural matters from

below. First, he argues that the administrative judge erred in denying his request

5

We recognize that the record already includes evidence pertaining to the agency’s

charges. E.g., IAF, Tab 12. Nevertheless, we find that it would be premature for us to

decide whether the agency proved those charges in this context, whe n both parties

relied on the administrative judge’s collateral estoppel rulings in determining what

evidence to submit and what testimony to elicit. See, e.g., IAF, Tabs 30, 37, 44.

6

On review, the appellant argues that the administrative judge erred in refusing to

admit some of the evidence he submitted here. PFR File, Tab 1 at 1-3, Tab 3 at 10, 17,

22-23. The evidence he cites, “Appellant’s exhibit 9-1,” reportedly consists of text

messages between the appellant and his accuser, as transcribed by the appellant in

preparation for this appeal. I-3 AF, Tab 36 at 120-25. It appears that the administrative

judge may have excluded this evidence, at least in part, because of her collateral

estoppel ruling. Therefore, the administrative judge should on remand revisit the matter

to explain whether and why she did or did not consider this evidence.

7

Because we are remanding for the agency to prove its charges, it would be premature

for us to address the appellant’s arguments concerning the penalty and his various

affirmative defenses. See, e.g., PFR File, Tab 3 at 21-25. However, if her

misapplication of collateral estoppel contributed to these matters, the administrative

judge should revisit her previous rulings on these issues.

7

for a courtesy copy of a hearing transcript, based on his indigence. PFR File,

Tab 3 at 18-19 (referring to I-3 AF, Tab 55). We disagree.

¶15 Pursuant to the Board’s regulations, a recording of the hearing is genera lly

prepared by a court reporter and included in the appeal file as the official hearing

record. 5 C.F.R. § 1201.53(a). The Board’s regulations do not require the

creation of a hearing transcript. Instead, they provide that a party may request

that the court reporter (not the Board) prepare a transcript, at the requesting

party’s expense. 5 C.F.R. § 1201.53(b). The Board will provide copies of

existing transcripts to the parties, free of charge. 5 C.F.R. § 1201.53(c)

(emphasis added). Because there was no transcript created , neither the Board nor

the agency are required to provide one to the appellant .

¶16 Throughout his petition, the appellant also refers to the fact that he

repeatedly requested to certify issues for interlocutory appeal. E.g., PFR File,

Tab 3 at 10-11, 16-17; I-3 AF, Tab 27, 34, 45-46, 57-58. To the extent that he is

suggesting that the administrative judge erred in denying those requests, we

disagree. See Lee v. Environmental Protection Agency, 115 M.S.P.R. 533,

¶¶ 22-23 (2010) (explaining that an administrative judge did not abuse her

discretion by denying the appellant’s request to certify for interlocutory appeal

the administrative judge’s denial of his recusal motion); 5 C.F.R. § 1201.92

(explaining the limited circumstances in which certifying a ruling for

interlocutory review is appropriate).

¶17 In addition to his procedural arguments, the appellant argues that the

administrative judge exhibited bias or otherwise acted inappropriately during the

adjudication of his appeal. For example, he alleges that the administrative judge

falsified the chronology of events to justify collateral estoppel. PFR File, Tab 3

at 9. He also referred to the administrative judge as a “prosecutor or cohort for

the agency” and alleged that she showed “extreme bias in favor of the agency.”

Id. at 17-18. The appellant further alleged that the administrative judge was

8

“colluding with the agency to deny [him the] right to work at any department of

[the agency].” Id. at 21.

¶18 In making a claim of bias or prejudice against an administrative judge, a

party must overcome the presumption of honesty and integrity that accompani es

administrative adjudicators. Oliver v. Department of Transportation, 1 M.S.P.R.

382, 386 (1980). An administrative judge’s conduct during the co urse of a Board

proceeding will warrant a new adjudication only if her comments or actions

evidence “a deep-seated favoritism or antagonism that would make fair judgment

impossible.” Bieber v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed.

Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)). Although

we have considered the appellant’s allegations, we are not persuaded. We find no

basis for concluding that the administrative judge exhibited bias or otherwise

acted inappropriately.

ORDER

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

for further adjudication in accordance with this Remand Order.

FOR THE BOARD: /s/ for

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.