UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

LAWRENCE E. MATTISON,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

DC-0752-16-0350-I-1

DATE: July 15, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board