Case: 22-1332 Document: 39 Page: 1 Filed: 11/30/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARK GRISSOM,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2022-1332
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-1221-21-0204-W-1.
______________________
Decided: November 30, 2022
______________________
MARK D. GRISSOM, Maylene, AL, pro se.
KATRINA LEDERER, Office of General Counsel, United
States Merit Systems Protection Board, Washington, DC,
for respondent. Also represented by KATHERINE MICHELLE
SMITH.
______________________
Before STOLL, BRYSON, and CUNNINGHAM, Circuit Judges.
PER CURIAM.
Case: 22-1332 Document: 39 Page: 2 Filed: 11/30/2022
2 GRISSOM v. MSPB
Petitioner Mark D. Grissom challenges the Merit Sys-
tems Protection Board’s dismissal of his individual right of
action appeal for lack of jurisdiction. We affirm.
BACKGROUND
Mr. Grissom was employed as an Administrative Of-
ficer at the VA Medical Center in Tuscaloosa, Alabama. In
the Board proceeding below, Mr. Grissom alleged he had
made fifteen protected disclosures regarding alleged pro-
hibited or illegal activities at the VA Medical Center, for
example regarding staffing issues and certain manage-
ment and personnel practices. See Appx. 1 7–9.
In February 2018, Mr. Grissom filed an initial com-
plaint with the Office of Special Counsel (OSC), which was
later amended to allege that the agency retaliated against
him for his whistleblowing activities by issuing a proposed
removal letter in August 2020 and a written decision in De-
cember 2020 to remove him effective January 5, 2021.
Appx. 2–3.
On January 11, 2021, while his OSC complaint was
pending, Mr. Grissom appealed his December 2020 re-
moval as an unlawful adverse action, alleging among other
things that the removal was based on illegal retaliation for
some of the same whistleblowing activities identified in his
OSC complaint. We will refer to this separate action as the
Removal Appeal. See Grissom v. Dep’t of Veterans Affs.,
M.S.P.B. Docket No. AT-0714-21-0175-I-1. The Board ulti-
mately affirmed the VA’s removal of Mr. Grissom and, par-
ticularly relevant to this appeal, found that the
government had shown by clear and convincing evidence
that it would have removed Mr. Grissom even in the ab-
sence of his protected disclosures. See generally Grissom
1 Citations to “Appx.” refer to the Appendix
attached to the appellee’s brief.
Case: 22-1332 Document: 39 Page: 3 Filed: 11/30/2022
GRISSOM v. MSPB 3
v. Dep’t of Veterans Affs., No. AT-0714-21-0175-I-1,
2021
WL 2527076 (M.S.P.B. June 16, 2021).
On January 12, 2021, OSC informed Mr. Grissom that
it had terminated its investigation into his complaint and
that he had the right to file an individual right of action
(IRA) appeal with the Merit Systems Protection Board
(Board). Appx. 3. On January 27, 2021, Mr. Grissom did
so, alleging “a regular pattern of abusive retaliation culmi-
nating in his retaliatory removal from federal service effec-
tive January 5, 2021.”
Id.
The Board has jurisdiction over an IRA appeal if the
appellant has exhausted his administrative remedies be-
fore OSC and makes nonfrivolous allegations that (1) he
made a protected disclosure under
5 U.S.C. § 2302(b)(8) or
engaged in protected activity described in
5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or
protected activity was a contributing factor in the agency’s
decision to take or fail to take a personnel action as defined
by
5 U.S.C. § 2302(a). The administrative judge (AJ) in
Mr. Grissom’s IRA appeal issued an order informing
Mr. Grissom of his burden “to show that the Board should
not dismiss the appeal for lack of jurisdiction.”
Id. On Oc-
tober 27, 2021, after considering the parties’ responses, the
AJ issued an initial decision dismissing the IRA appeal for
lack of jurisdiction.
Specifically, the AJ determined that Mr. Grissom was
“barred by collateral estoppel from relitigating his claim
concerning his December 2020 removal” based on the
Board’s final decision in the Removal Appeal. Appx. 21. In
addition, after noting that Mr. Grissom had asserted nine
of the fifteen alleged protected disclosures in the Removal
Appeal (Disclosures 6, 8–15), Appx. 10–11, the AJ took of-
ficial notice of the Board’s findings in the Removal Appeal,
including that “the agency established by clear and con-
vincing evidence that it would have proposed [Mr. Gris-
som]’s removal even in the absence of his protected
Case: 22-1332 Document: 39 Page: 4 Filed: 11/30/2022
4 GRISSOM v. MSPB
activity,” Appx. 22. For Disclosures 1 and 3, the AJ found
that Mr. Grissom did not identify these to OSC and there-
fore did not exhaust his remedy with OSC prior to filing his
IRA appeal. Appx. 11–12. For the remaining disclosures,
the AJ found that Mr. Grissom did not present either
(1) non-frivolous allegations of protected activity; or
(2) non-frivolous allegations that the disclosure was a con-
tributing factor to any personnel action. See Appx. 13–17;
Appx. 22–24. The AJ’s decision became the Board’s final
decision on December 1, 2021. See Appx. 24.
Mr. Grissom appeals the Board’s decision. We have ju-
risdiction under
28 U.S.C. § 1295(a)(9).
DISCUSSION
We review determinations regarding the Board’s juris-
diction de novo. Parrott v. Merit Sys. Prot. Bd.,
519 F.3d
1328, 1334 (Fed. Cir. 2008). Mr. Grissom argues that the
AJ improperly (1) denied jurisdiction for one of the alleged
retaliatory actions because Mr. Grissom already litigated
that claim in the Removal Appeal and (2) took official no-
tice as to findings from the Removal Appeal. See Appel-
lant’s Br. 2–3. We review each alleged error in turn. 2
First, we address Mr. Grissom’s argument that the AJ
denied him due process in finding the Board lacked juris-
diction over his claim that his December 2020 removal con-
stituted retaliation for whistleblowing because he had
already litigated that claim in his Removal Appeal. Appel-
lant’s Br. 2. The AJ determined that Mr. Grissom was
“barred by collateral estoppel from relitigating his claim
concerning his December 2020 removal” based on the
Board’s final decision in the Removal Appeal. Appx. 21.
Specifically, the AJ found that Mr. Grissom was “barred by
2 The AJ made several findings without relying on
the Removal Appeal. We do not disturb these findings as
they are not subject to Mr. Grissom’s arguments.
Case: 22-1332 Document: 39 Page: 5 Filed: 11/30/2022
GRISSOM v. MSPB 5
collateral estoppel” because he raised identical issues in
the Removal Appeal, the determination in the Removal Ap-
peal “was necessary to the resulting judgment,” and he was
a party in the Removal Appeal.
Id. (citing Baney v. Dep’t
of Justice,
109 M.S.P.R. 242, 246 ¶ 8 (2008)).
“It is well established that collateral estoppel, also
known as issue preclusion, applies in the administrative
context.” SynQor, Inc v. Vicor Corp.,
988 F.3d 1341, 1347
(Fed. Cir. 2021) (quoting MaxLinear, Inc. v. CF CRESPE
LLC,
880 F.3d 1373, 1376 (Fed. Cir. 2018)). Collateral es-
toppel applies when: “(1) the issues are identical to those
in a prior proceeding, (2) the issues were actually litigated,
(3) the determination of the issues was necessary to the re-
sulting judgment, and (4) the party defending against pre-
clusion had a full and fair opportunity to litigate the
issues.” Banner v. United States,
238 F.3d 1348, 1354
(Fed. Cir. 2001) (citing Jet, Inc. v. Sewage Aeration Sys.,
223 F.3d 1360, 1365–66 (Fed. Cir. 2000)).
We discern no error in the AJ’s determination that the
requirements for collateral estoppel were satisfied. We
note that the Removal Appeal is the subject of Appeal
No. 21-2124, filed by Mr. Grissom and decided by us today
in a separate opinion. In that separate opinion, we hold
that substantial evidence supports the Board’s determina-
tion that the government showed by clear and convincing
evidence that it would have removed Mr. Grissom even
without his whistleblowing activity. We thus affirm the
Board’s decision that the agency’s personnel action was not
retaliatory in response to the alleged whistleblowing. Ac-
cordingly, because we see no error in the AJ’s application
of collateral estoppel, we affirm.
We recognize that “[w]here a judgment—or a part
thereof—is reversed or vacated on appeal, there is no final
judgment as to issues not actually resolved by the appellate
court.” Berman v. Dep’t of Interior, 447 F. App’x 186, 191
(Fed. Cir. 2011); see Rumsfeld v. Freedom NY, Inc., 329
Case: 22-1332 Document: 39 Page: 6 Filed: 11/30/2022
6 GRISSOM v. MSPB
F.3d 1320, 1332 (Fed. Cir. 2003) (“[A] vacated judgment
‘has no preclusive force either as a matter of collateral or
direct estoppel or as a matter of the law of the case.’”) (ci-
tations omitted). While our concurrent opinion in Mr. Gris-
som’s Appeal No. 21-2124 vacated the agency’s removal
action for failure to consider the Douglas factors, there is
still a final determination as to the non-retaliatory nature
of Mr. Grissom’s December 2020 removal. Accordingly, our
concurrent opinion does not alter our conclusion in this
case.
We next consider Mr. Grissom’s argument that the AJ
erred by taking official notice of certain fact findings in the
Removal Appeal to avoid inconsistent results. We do not
reach this issue, however, because the factual disputes un-
derlying Mr. Grissom’s argument are identical to those
previously litigated and affirmed in our concurrent opinion
in the Removal Appeal. See Appx. 7–11; Appx. 21–22;
Grissom v. Dep’t of Veterans Affs., Appeal No. 21-2124. The
determination of these issues—including that the govern-
ment showed by clear and convincing evidence that it
would have taken the personnel action even without his
whistleblowing activity—was necessary to the resulting
judgment, and Mr. Grissom had a full and fair opportunity
to litigate the issues. Because the requirements of collat-
eral estoppel are satisfied, Mr. Grissom is precluded from
relitigating these issues. See Banner,
238 F.3d at 1354; see
also Mintzmyer v. Dep’t of Interior,
84 F.3d 419, 423
(Fed. Cir. 1996). Accordingly, Mr. Grissom has not as-
serted non-frivolous allegations that the disclosures were a
contributing factor to any personnel action and the Board
properly determined that it lacked jurisdiction.
Finally, Mr. Grissom argues that he was denied the
right to submit evidence before the AJ. Appellant’s Br. 2,
3, 12. But he has not described what evidence he should
have been allowed to introduce or when or how he was de-
nied the opportunity to present evidence. Accordingly, we
are not persuaded by Mr. Grissom’s argument.
Case: 22-1332 Document: 39 Page: 7 Filed: 11/30/2022
GRISSOM v. MSPB 7
CONCLUSION
We have considered Mr. Grissom’s remaining argu-
ments and find them unpersuasive. For the foregoing rea-
sons, we affirm the Board’s decision.
AFFIRMED
COSTS
No costs.
