Lawrence Mattison v. Department of Veterans Affairs ( 2023 )

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THIS ORDER IS NONPRECEDENTIAL 1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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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