                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JOSEPH O. HAMLIN,                               DOCKET NUMBER
                   Appellant,                        DC-0752-15-0696-I-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: July 15, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Neil C. Bonney, Esquire, Virginia Beach, Virginia, for the appellant.

           Patricia Holt, Esquire, Norfolk, 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 for lack of jurisdiction pursuant to an appeal rights
     waiver in a Last Chance Agreement (LCA). 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 or

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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).

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2        In 2013, the agency proposed to remove the appellant, a WG-10 Rigger, for
     careless performance of his duties, violation of established procedures by failing
     to preserve an accident scene, and lack of candor.      Initial Appeal File (IAF),
     Tab 9 at 14. On May 17, 2013, the parties entered into an LCA, which provided
     that the agency would hold the appellant’s removal in abeyance for 2 years and
     that he would instead serve a 14-day suspension and, during the 2‑year period,
     “maintain conduct that is acceptable to the agency.”      Id. at 11-13. The LCA
     further provided that “any one incident of misconduct or unacceptable
     performance, as determined by the Agency, may be cause for immediate
     removal.” Id. at 11. The LCA also provided that the appellant waived any right
     to appeal any agency action related to his violation of the LCA. Id. at 11‑12.
¶3        On April 17, 2015, the agency notified the appellant that he would be
     removed, effective upon his receipt of the notice, for violating the LCA on two
     occasions.   IAF, Tab 1 at 8‑11.     The notice explained that the first incident
     occurred on November 20, 2014, when the appellant, while in charge of a loading
     operation: failed to properly complete the pre-lift paperwork or submit it for
                                                                                       3

     supervisory review before starting the job; failed to complete proper verification
     and calculations of the rigging configuration capacity; failed to properly rig the
     trailer, resulting in observable damage to the trailer; and failed to report the
     damage to his supervisors as required. Id. at 9. The notice further provided that
     the second incident occurred on February 24, 2015, when the appellant, while
     assigned as a rigger in a loading operation, was disruptive of a safety briefing and
     was disrespectful and argumentative to the officers in charge in voicing his
     disagreement with their determination that it was safe to proceed with the
     operation despite ice and snow on the pier. Id. at 10-11.
¶4        The appellant timely appealed his removal to the Board and requested a
     hearing.   IAF, Tab 1 at 1-2.    In an acknowledgment order, the administrative
     judge informed the appellant that the Board may not have jurisdiction over his
     appeal because he had signed an LCA waiving future appeal rights in the event of
     his removal for violating the agreement. IAF, Tab 2 at 2. The administrative
     judge apprised the appellant of his burden of making a nonfrivolous allegation of
     jurisdiction and ordered him to file evidence and argument on the jurisdictional
     issue. Id. The appellant responded, arguing that the appeal rights waiver should
     not be enforced because he had complied with the LCA and the agency had acted
     in bad faith and removed him in retaliation for “rais[ing] safety concerns about an
     unsafe loading of explosives” on February 24, 2015.         IAF, Tab 5 at 4-9. The
     agency moved to dismiss the appeal for lack of jurisdiction. IAF, Tab 9.
¶5        Without holding the requested hearing, the administrative judge issued an
     initial decision finding that the appellant failed to nonfrivolously allege that the
     waiver of appeal rights in the LCA should not be enforced and dismissing the
     appeal for lack of jurisdiction. IAF, Tab 10, Initial Decision (ID) at 5-11. The
     appellant has timely filed a petition for review of the initial decision, and the
     agency has responded in opposition to the appellant’s petition for review.
     Petition for Review (PFR) File, Tabs 1, 3.
                                                                                       4

¶6        The appellant has the burden of proving the Board’s jurisdiction by a
     preponderance of the evidence. 5 C.F.R. § 1201.56(b)(2)(i)(A). The Board lacks
     jurisdiction over an action taken pursuant to an LCA in which an appellant waives
     his right to appeal to the Board. Willis v. Department of Defense, 105 M.S.P.R.
     466, ¶ 17 (2007). To establish that a waiver of appeal rights in an LCA should
     not be enforced, an appellant must show that: (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.    Where an appellant raises a nonfrivolous factual issue of
     compliance with an LCA, the Board must resolve that issue before addressing the
     scope of and applicability of a waiver of appeal rights in the LCA.
     Willis, 105 M.S.P.R. 466, ¶ 18. Nonfrivolous allegations of Board jurisdiction
     are allegations of fact that, if proven, could establish a prima facie case that the
     Board has jurisdiction over the matter at issue. Id.
¶7         Here, the appellant claims that he complied with the LCA and that the
     agency retaliated against him and acted in bad faith by removing him because he
     had alleged that conditions were too dangerous to safely complete an operation on
     February 24, 2015. IAF, Tabs 1, 5. The administrative judge concluded that the
     appellant failed to nonfrivolously allege that he complied with the LCA and that
     the agency had a legitimate basis to find that each incident, standing alone,
     violated the LCA and warranted the appellant’s removal pursuant to the LCA. ID
     at 6-11. The administrative judge also determined that the appellant’s allegations
     that agency officials acted in bad faith and retaliated against him for disclosing
     safety concerns were insufficient to satisfy his burden of raising a nonfrivolous
     allegation to support a jurisdictional hearing. ID at 11. Lastly, the administrative
     judge explained that the Board lacks jurisdiction to consider the appellant’s
                                                                                             5

     reprisal claim in the absence of an otherwise appealable action. 2 Id.        On review,
     the appellant argues that the “real reason” the agency removed him was because
     of his whistleblowing activity, i.e., raising concerns about the safety of the
     operation on February 24, 2015, and asserts that he is entitled to a hearing to
     determine “whether his whistleblowing was the underlying reason for his
     removal.” PFR File, Tab 1 at 5.
¶8        As noted above, one way an appellant may establish that an appeal rights
     waiver should not be enforced is by showing that he complied with the LCA.
     Willis, 105 M.S.P.R. 466, ¶ 17. Pursuant to the express terms of the LCA, “any
     one incident of misconduct or unacceptable performance, as determined by the
     Agency, may be cause for immediate removal.” IAF, Tab 9 at 11. Thus, the
     agency could remove the appellant for any single incident of unacceptable
     conduct or performance, as determined by the agency, during the 2‑year last
     chance period.     Id.   The appellant does not dispute that he engaged in the
     behavior as alleged by the agency on November 20, 2014, and February 24, 2015,
     or that such performance and conduct was unacceptable, but argues that the
     agency removed him in retaliation for his alleged whistleblowing.             PFR File,
     Tab 1. Even if the appellant’s contention regarding the agency’s motive were
     true, however, it provides no basis to disturb the administrative judge’s findings
     that the appellant exhibited unacceptable conduct and performance on two
     occasions during the 2-year last chance period and that such conduct and
     performance violated the LCA. ID at 5-11. Accordingly, we find no basis to
     disturb   the   administrative   judge’s   finding   that   the   appellant    failed   to
     nonfrivolously allege that he complied with the LCA.



     2
       The administrative judge noted, however, that the Board may have jurisdiction to
     consider the appellant’s whistleblower reprisal allegations in the context of an
     individual right of action appeal in the event that the appellant exhausts his
     administrative remedies before the Office of Special Counsel. ID at 11 n.4.
                                                                                         6

¶9         Another way an appellant may overcome an appeal rights waiver in an LCA
      is by showing that the agency breached the LCA by acting in bad faith regarding
      a term of the agreement. Posey v. Department of Defense, 106 M.S.P.R. 472, ¶ 8
      (2007). To establish a breach of an LCA based on the implied covenant of good
      faith regarding a reinstatement term, the appellant must show that the agency’s
      proven retaliatory or harassing actions, under the totality of the circumstances,
      amount to an unjustified and substantial deprivation of rights. Id.; Kuykendall v.
      Department of Veterans Affairs, 68 M.S.P.R. 314, 323-25 (1995). Here, although
      the appellant has alleged that the agency was motivated by retaliatory animus
      when it removed him pursuant to the LCA, he has not alleged that the agency’s
      purportedly retaliatory actions amounted to an unjustified deprivation of his
      rights. PFR File, Tab 1 at 5. Specifically, as discussed above, the appellant does
      not dispute the administrative judge’s finding, with which we agree, that he
      violated the LCA by exhibiting unacceptable conduct and performance on two
      occasions during the last chance period. ID at 5-11; PFR File, Tab 1; IAF, Tab 9
      at 11.   Because the appellant violated the LCA, the agency was justified in
      removing him pursuant to the LCA and it did not act in bad faith by removing
      him pursuant to the LCA. See Lizzio v. Department of the Army, 110 M.S.P.R.
      442, ¶ 18 (2009), aff’d, 374 F. App’x 973 (Fed. Cir. 2010). Therefore, we discern
      no basis to disturb the administrative judge’s finding that the appellant has failed
      to nonfrivolously allege that the agency breached the LCA or acted in bad faith.
¶10        As the appellant has failed to show that the appeal rights waiver should not
      be enforced, we must next address the scope and applicability of the waiver of
      appeal   rights   provision   in   the   agreement.      Rhett   v.   U.S.   Postal
      Service, 113 M.S.P.R. 178, ¶ 17 (2010). As noted above, the LCA provided that
      “any one incident of misconduct or unacceptable performance . . . may be cause
      for immediate removal.” IAF, Tab 9 at 11. The LCA further provided that the
      appellant agreed to “voluntarily waive all rights to challenge, and all procedural
      rights for any disciplinary/adverse action (including, but not limited to, removal)
                                                                                     7

that may be taken against him related to [violating] this agreement. The waived
rights include, but are not limited to, the right to appeal to the Merit Systems
Protection Board[.]” Id. at 11-12. The final terms of the LCA reflect that the
parties have “read this agreement, they fully understand its provisions and agree
to all of its terms and conditions and [ ] voluntarily enter it of their own free will,
without reservation, duress, or coercion on the part of anyone,” and that the
appellant “agrees that he is mentally and physically fit so as to be able to
understand and comply with this agreement in its entirety.” Id. at 12. We find
that this language constitutes a clear and unequivocal waiver of the appellant’s
right to appeal his April 17, 2015 removal to the Board. See Rhett, 113 M.S.P.R.
178, ¶ 17. Because, for the reasons noted above, the appellant has not shown that
this waiver is unenforceable, we find that the Board lacks jurisdiction over his
appeal of the April 17, 2015 removal, and the administrative judge correctly
dismissed it for lack of adverse action jurisdiction.

                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:
                           United States 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).
                                                                                         8

         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 United States 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 United
States     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:                                    ______________________________
                                                  Jennifer Everling
                                                  Acting Clerk of the Board
Washington, D.C.
