Bennie Mann v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BENNIE MANN, DOCKET NUMBER

Appellant, SF-0752-15-0529-I-1

v.

DEPARTMENT OF VETERANS DATE: June 9, 2016

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Edward Hu, Esquire, Riverside, California, for the appellant.

Maureen Ney, Esquire, Los Angeles, California, 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 for lack of jurisdiction. 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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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. See

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).

BACKGROUND

¶2 Effective June 13, 2014, the agency removed the appellant from his Motor

Vehicle Operator position at the agency’s Riverside National Cemetery for

allegedly violating the terms of a Last Chance Agreement (LCA) executed

on November 14, 2011. Initial Appeal File (IAF), Tab 4 at 12, 14. Specifically,

in March and April 2014, the appellant failed to properly park a Government

vehicle and failed to follow the agency’s gravesite verification procedures. Id.

at 14. The appellant’s removal, which was held in abeyance by the LCA, was

based on the original charge of conduct unbecoming a Federal employee. Id.

at 15.

¶3 The appellant filed an appeal of his removal and requested a hearing. IAF,

Tab 1. In an acknowledgment order, the administrative judge informed the

appellant that the Board may not have jurisdiction over his appeal because he

signed an LCA waiving future appeal rights in the event he was removed for

violating the agreement. IAF, Tab 2 at 4-5. The administrative judge apprised

the appellant of his burden of making a nonfrivolous allegation of jurisdiction and

3

ordered the appellant to file evidence and argument on the jurisdictional issue.

IAF, Tab 2 at 4-5, Tab 5 at 4. The appellant responded. IAF, Tabs 6, 10.

¶4 Without holding the requested hearing, the administrative judge issued an

initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 13, Initial

Decision (ID) at 1, 9. He found that the appellant failed to make a nonfrivolous

allegation that he complied with the LCA. ID at 7-8. He further found that the

appellant’s waiver of appeal rights is enforceable. ID at 8. The appellant has

filed a petition for review. Petition for Review (PFR) File, Tab 1.

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 The appellant has the burden of proving the Board’s jurisdiction by a

preponderance of the evidence. 2 5 C.F.R. § 1201.56(b)(2)(i)(A). If an appellant

makes a nonfrivolous allegation 3 of Board jurisdiction over an appeal, he is

entitled to a hearing on the jurisdictional question. Garcia v. Department of

Homeland Security, 437 F.3d 1322, 1344 (Fed. Cir. 2006) (en banc).

¶6 The Board lacks jurisdiction over an action taken pursuant to an LCA in

which an appellant waives his right to appeal to the Board. Rhett v. U.S. Postal

Service, 113 M.S.P.R. 178, ¶ 13 (2010). To establish that a waiver of appeal

rights in an LCA should not be enforced, an appellant must show one of the

following: (1) he complied with the LCA; (2) the agency materially breached the

LCA or acted in bad faith; (3) he did not voluntarily enter into the LCA; or

(4) the LCA resulted from fraud or mutual mistake. Id. If an appellant raises a

nonfrivolous factual issue of compliance with a settlement agreement, the Board

must resolve that issue before addressing the scope of and applicability of a

waiver of appeal rights in the settlement agreement. Id.

2

A preponderance of the evidence is the degree of relevant evidence that a reasonable

person, considering the record as a whole, would accept as sufficient to find that a

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).

3

A nonfrivolous allegation is an assertion that, if proven, could establish the matter at

issue. 5 C.F.R. § 1201.4(s).

4

¶7 As the administrative judge properly found, the appellant has failed to

nonfrivolously allege that he complied with the LCA. ID at 7-8. In his petition

for review, the appellant argues that he did not breach the LCA because his

actions were not “intentional or willful” and “did not rise to the level of

misconduct by a federal employee.” PFR File, Tab 1 at 6. We do not agree.

Paragraph 2b of the LCA states the following:

The Employee agrees to demonstrate his reliability, dependability, and

trustworthiness for Federal employment by maintaining acceptable

standards of conduct and performance. The Employee understands that for

the duration of this Agreement, one instance of noncompliance with this

Agreement, including, but not limited to, disrespectful conduct; unexcused

tardiness; absence without leave; failure to comply with instructions; and/or

any other validated unethical misconduct, will be cause for immediate

removal.

IAF, Tab 4 at 65. The appellant does not dispute the facts surrounding his

alleged breach of the LCA. PFR File, Tab 1 at 7; IAF, Tab 1 at 2, Tab 4 at 19,

61, Tab 6 at 11. We find that, by failing to properly park a Government vehicle

and follow gravesite verification procedures, the appellant did not maintain

acceptable standards of conduct and performance as a Motor Vehicle Operator.

IAF, Tab 4 at 14, 56. We also do not interpret the LCA as creating an

“intentional or willful” standard of misconduct. See Link v. Department of the

Treasury, 51 F.3d 1577, 1582 (Fed. Cir. 1995) (finding that an LCA is subject to

contract law, and therefore breach can be established by proving material

noncompliance, regardless of motive).

¶8 The appellant next argues that the LCA is invalid because it was the result

of coercion and duress. PFR File, Tab 1 at 4-5. Specifically, he alleges that he

accepted the LCA because he had no other alternatives at the time. Id. at 5. He

further explains that his personal circumstances after his removal caused him to

be “financially and emotionally in distress.” Id. He also contends that he relied

on his union representative, who never fully explained to him the terms of the

LCA and the gravity of the agreement. Id. The administrative judge found that

5

the appellant freely and voluntarily entered into the LCA, and found no mutual

mistake in the execution of the LCA. ID at 8. He further found that the appellant

failed to make a nonfrivolous allegation that he entered into the LCA while

emotionally distressed. Id.

¶9 To establish that a settlement agreement was fraudulent as a result of

coercion or duress, a party must prove that he involuntarily accepted the other

party’s terms, that circumstances permitted no alternatives, and that such

circumstances were the result of the other party’s coercive acts. Bahrke v.

U.S. Postal Service, 98 M.S.P.R. 513, ¶ 12 (2005). The fact that an appellant

must choose between two unpleasant alternatives, such as signing the LCA or

facing immediate removal, does not render his choice involuntary. Id. Here, the

appellant’s explanation of difficult personal circumstances after his removal is

not relevant to whether he voluntarily entered into the LCA. Further, as to his

claim that his union representative did not clearly explain the ramifications of the

LCA to him, the appellant is responsible for the errors of his chosen

representative. Sofio v. Internal Revenue Service, 7 M.S.P.R. 667, 670 (1981).

Thus, we find that the appellant has failed to make a nonfrivolous allegation that

the LCA is invalid.

¶10 Finally, we must consider the scope and applicability of the waiver of

appeal rights in the LCA. See Rhett, 113 M.S.P.R. 178, ¶ 17. The administrative

judge properly found that the language of the LCA constitutes a clear,

comprehensive, unequivocal, and decisive waiver of Board appeal rights. ID at 8;

IAF, Tab 4 at 65-67; see Rhett, 113 M.S.P.R. 178, ¶ 17. The appellant admits that

he agreed to waive his future appeal rights in the LCA, but alleges that the agency

agreed to amend the LCA in December 2014 to allow him to appeal his removal

to the Board. PFR File, Tab 1 at 5-6. To support his argument, the appellant

resubmits a letter dated July 17, 2015, describing interactions among the office of

U.S. Representative Mark Takano, the agency, and his union representative on

behalf of the appellant. Id. at 11-12; IAF, Tab 10 at 9-10. The letter states that,

6

in December 2014, the new Director of the Riverside National Cemetery and the

union representative met at Representative Takano’s office and agreed to “look

into alternative dispute mechanisms before going to the Merit Systems Protection

Board.” PFR File, Tab 1 at 11. Even assuming that the agency agreed to

consider “alternative dispute mechanisms,” that fact does not prove that the LCA

was amended to eliminate the waiver provision. Thus, we find that the

appellant’s waiver of appeal rights is enforceable.

¶11 Accordingly, we agree with the administrative judge’s conclusion that the

appellant failed to make a nonfrivolous allegation of jurisdiction. ID at 9. We

also agree with the administrative judge’s finding that the Board lacks

independent jurisdiction over the appellant’s claim that he was subjected to bias

and unfair treatment by the agency. Id.; see Wren v. Department of the Army,

2 M.S.P.R. 1, 2 (1980) (finding that a prohibited personnel practice under

5 U.S.C. § 2302(b) is not an independent source of Board jurisdiction), aff’d,

681 F.2d 867 (D.C. Cir. 1982).

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

7

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.

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: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.