                 NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                   is not citable as precedent. It is a public record.

    United States Court of Appeals for the Federal Circuit


                                        05-3352


                                 CHARLES E. POSEY,

                                                      Petitioner,


                                           v.


                            DEPARTMENT OF DEFENSE,

                                                      Respondent.


                           ____________________________

                           DECIDED: April 28, 2006
                           ____________________________


Before SCHALL, BRYSON, and DYK, Circuit Judges.

PER CURIAM.


                                      DECISION

      Charles E. Posey petitions for review of the final decision of the Merit Systems

Protection Board (“Board”) that denied his request for corrective action in an individual

right of action (“IRA”) appeal. Posey v. Dep’t of Defense, No. AT1221030888-W-1,

(M.S.P.B. July 7, 2005) (“Final Decision”).     We affirm-in-part, reverse-in-part, and

remand.
                                       DISCUSSION

                                           I.

       Mr. Posey was employed by the Department of Defense’s Defense Commissary

Agency (“DeCA”) as Grocery Department Manager at the Fort McClellan Commissary.

On September 10, 1998, he was placed on a 30-day performance improvement plan

(“PIP”).   On November 8, 1998, Mr. Posey sent a letter to Congressman Robert

Aderholt identifying occasions of mismanagement at the Fort McClellan Commissary.

Subsequently, in a February 9, 1999 letter to Congressman Aderholt, DeCA’s Inspector

General stated that the issues set forth in Mr. Posey’s letter “are being reviewed.”

Shortly thereafter, in a letter received on February 24, 1999, but dated February 22, Mr.

Posey was notified that he “marginally met” the fully successful level and was being

“formally notified” that he had satisfactorily completed the 30-day PIP. On February 26,

1999, however, Mr. Posey received another letter, dated February 24, placing him on a

60-day PIP for less than satisfactory performance subsequent to October 9, 1998, the

day that the first PIP period ended.

       On March 5, 1999, the Inspector General sent a detailed response to

Congressman Aderholt. The Inspector General noted that both the deputy commissary

officer and the commissary officer “indicate that they have had to intervene and perform

some of the management tasks expected of Mr. Posey in order to ensure mission

accomplishment.”    In August of 1999, Mr. Posey received a negative performance

appraisal and on September 22, 1999, he received a proposed removal for

unsuccessful performance under the February 26, 1999 PIP. Before Mr. Posey was

removed and while represented by counsel, he entered into a last chance agreement




05-3352                                    2
(“LCA”), dated January 11, 2000. In the LCA, Mr. Posey waived his appeal rights

before the Board and the Equal Employment Opportunity Commission with respect to

“any action resulting from violation of [the LCA]” and any matters that led to the LCA.

The LCA provided in relevant part:

                      Mr. Posey agrees to waive appeal rights to the Merit
             Systems Protection Board or complaint rights to the Equal
             Employment Opportunity Commission concerning this action
             or any court filing regarding any action resulting from
             violation of this Last Chance Agreement, including
             reinstatement of the separation action. Mr. Posey agrees to
             waive due process rights for any action initiated for violation
             of this Last Chance Agreement during the period.
                                             ...
                      It is understood by the undersigned that this
             agreement is in full and complete settlement of all
             outstanding administrative or EEO complaints or appeals, in
             this or any other forum, filed by the below named employee
             or on his behalf regarding any matters related to the
             operative facts of this settlement agreement. Mr. Posey
             agrees to voluntarily withdraw any outstanding administrative
             complaint or appeal, and to request any grievance be
             withdrawn. It is understood that settlement is contingent
             upon those complaints, appeals, or grievances being
             withdrawn. Further, it is understood that in withdrawing all
             appeals or complains, Mr. Posey waives his rights to any
             hearing or further appeal or other action on matters raised.
             It is further stipulated that the withdrawals are made without
             any threat of coercion, intimidation, promise, or inducement
             other than the terms set forth in this agreement.

On April 12, 2000, DeCA removed Mr. Posey from his position for failure to maintain a

fully satisfactory performance level, as required by the LCA.

                                            II.

      Mr. Posey did not seek to appeal his removal directly to the Board. Rather, in

due course, he sought to challenge his removal by initiating an IRA proceeding before

the Office of Special Counsel (“OSC”). Mr. Posey alleged that DeCA had retaliated




05-3352                                     3
against him for his whistleblowing activities by taking the following personnel actions

against him: (1) his placement on the September 1998 PIP; (2) his placement on the

February 1999 PIP; (3) the August 1999 negative performance appraisal; (4) the

removal action that never occurred because he accepted the LCA; and (5) his

termination based upon violation of the LCA. In a June 30, 2003 letter, OSC notified Mr.

Posey that it was closing its investigation in the matter.

       Following OSC’s action, Mr. Posey filed an IRA with the Board. In an initial

decision, the administrative judge (“AJ”) to whom the appeal was assigned denied Mr.

Posey’s request for corrective action. Posey v. Dep’t of Defense, No. AT1221030888-

W-1, slip op. (M.S.P.B. Dec. 23, 2003) (“Initial Decision”). The AJ ruled that because

Mr. Posey’s whistleblowing disclosure to Congressman Aderholt postdated DeCA’s

decision to place him on a PIP in September of 1998, it could not have been a

contributing factor in that personnel action. Initial Decision, slip op. at 3. The AJ did

find, however, that Mr. Posey’s whistleblowing disclosure to Congressman Aderholt

“was a contributing factor in his placement on the February 24, 1999 PIP, as well as in

his August 1999 performance appraisal which led to his removal.” Initial Decision, slip

op. at 4-5. Nevertheless, the AJ found that DeCA had shown “by clear and convincing

evidence that [it] would have placed [Mr. Posey] on a PIP on February 24, 1999, and

given him a less than satisfactory performance rating in August 1999” in the absence of

the whistleblowing.    Id., slip op. at 5.   Finally, the AJ ruled that the Board lacked

“jurisdiction over the proposed removal that was never effected because of the LCA or

the removal action that was based upon the appellant’s performance following the LCA.




05-3352                                       4
For, under the provisions of the LCA, the appellant waived all appeal rights to the Board

including his right to file an IRA.” Id., slip op. at 3.

       The Initial Decision became the final decision of the Board when the Board

denied Mr. Posey’s petition for review for failure to meet the criteria for review set forth

at 5 C.F.R. § 1201.115(d). Final Decision. This appeal followed. We have jurisdiction

pursuant to 28 U.S.C. § 1295(a)(9).

                                                III.

       Mr. Posey’s first contention on appeal is that his superiors retaliated against him

for his whistleblowing by placing him on the PIP and by giving him an unsatisfactory

performance appraisal, both of which, in turn, resulted in the LCA.               It is the

government’s position that the LCA was a settlement agreement, as a result of which

Mr. Posey waived his right to challenge the 1999 PIP and 1999 negative performance

appraisal.

       We agree with the government. “The Board’s review of an employee’s removal

pursuant to a last-chance settlement agreement is limited.”         Buchanan v. Dep’t of

Energy, 247 F.3d 1333, 1338 (Fed. Cir. 2001). We have stated that “[i]t is settled that

an employee can waive the right to appeal in a last-chance agreement.”

       By entering into the LCA, Mr. Posey waived his right to argue that his placement

on the PIP in February of 1999, the unsatisfactory performance appraisal that he

received in August of 1999, or the LCA itself were tainted by retaliation for

whistleblowing. We turn now to the second contention that Mr. Posey raises on appeal.




05-3352                                          5
                                             IV.

       In his appeal to the Board, Mr. Posey also argued that his removal while he was

under the LCA was in retaliation for whistleblowing. Thus, he stated:

                      I was offered a ninety (90) day last chance
              agreement. . . . My desire . . . at the time was to prove my
              abilities as well as reach retirement when the base closed in
              September 2000. However, from the onset of my return to
              duty January 12, 2000, Mr. Ray and Mr. Wolfe made it
              impossible for me to perform my duties under the stress and
              impossible odds they put me through due to retaliation for
              my whistleblowing.

As seen above, the AJ ruled that the LCA deprived the Board of jurisdiction to consider

this claim.

       In his opening brief before us, Mr. Posey states that the AJ “failed to allow Posey

to present evidence that the LCA was flawed and bias [sic].” He also states that the AJ

erred “in failing to allow the plaintiff (Posey) to present evidence of bias on the part of

his supervisor.” In his reply brief, Mr. Posey states: “It is clear by the record that the

supervisor Mr. Ray had a bias toward the Petitioner prior to the LCA and it is reasonable

to consider that the same supervisor would maintain that bias during the LCA period.

Therefore, it would also be reasonable to consider that the LCA would be flawed due to

the bias of the supervisor.” In view of (i) Mr. Posey’s claims before the Board; (ii) the

AJ’s ruling that Mr. Posey had been the victim of retaliation in the past; and (iii) the AJ’s

ruling that he lacked jurisdiction to consider Mr. Posey’s contention that he suffered

retaliation while he was under the LCA, we understand Mr. Posy to be arguing that the

AJ erred by failing to consider his claim that his removal during the period of the LCA

was in retaliation for his previous whistleblowing.




05-3352                                      6
       Mr. Posey could overcome the waiver of appeal rights in the LCA if he

established before the Board that DeCA breached the agreement. Link v. Dep’t of

Treasury, 51 F.3d 1577, 1582 (Fed. Cir. 1995). Because it is an implied term of every

agreement that each party will act in good faith towards the other, a party may breach

an agreement by acting in bad faith. Id. Obviously, if Mr. Posey’s supervisors retaliated

against him while he was subject to the LCA, they acted in bad faith, and DeCA thereby

breached the agreement. For these reasons, the AJ erred in ruling that he lacked

jurisdiction to consider this part of Mr. Posey’s appeal.

                                             V.

       The Board did not err in ruling that, by entering into the LCA, Mr. Posey waived

his right to challenge (i) his placement on the PIP in February of 1999 and (ii) the

unsatisfactory performance appraisal he received in August of 1999. Neither did the

Board err in ruling that, by entering into the LCA, Mr. Posey waived his right to argue

that the agreement itself was the product of retaliation for whistleblowing. In those

respects, the decision of the Board is affirmed. The Board did err, however, in ruling

that, by entering into the LCA, Mr. Posey waived the right to argue that his supervisors

retaliated against him while he was subject to the agreement. In that respect, the

decision of the Board is reversed. The case is remanded to the Board for consideration

of this latter claim.   On remand, the first order of business will be for the AJ to

determine—after hearing from the parties—whether Mr. Posey is entitled to an

evidentiary hearing on his claim of retaliation during the period of the LCA.       See

Buchanan, 247 F. 3d at 1333.




05-3352                                      7
       In sum, we affirm-in-part, reverse-in-part, and remand for further proceedings

consistent with this opinion.




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