                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JESSIE LUMPKINS,                                DOCKET NUMBER
                   Appellant,                        AT-0752-13-0297-I-2

                  v.

     DEPARTMENT OF VETERANS                          DATE: January 9, 2015
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Vaughn Simms, Ridgeland, Mississippi, for the appellant.

           Johnston B. Walker, Jackson, Mississippi, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed the appeal for lack of Board 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 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
     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, and based on the following points and authorities, 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         This case is back before the Board after we affirmed dismissal of the prior
     appeal without prejudice and forwarded the case to the regional office for
     refiling.   See Lumpkins v. Department of Veterans Affairs, MSPB Docket No.
     AT-0752-13-0297-I-1 (I-1), Final Order at 5 (May 1, 2014) (hereinafter “Final
     Order”). The appellant was the Police Chief, GS-0080-13, at the G.V. “Sonny”
     Montgomery Medical Center, Department of Veterans Affairs, in Jackson,
     Mississippi. Final Order at 2. After initially proposing his removal, the agency
     reassigned him to a lower-graded position as a Safety and Occupational Health
     Specialist, GS-0018-11, pursuant to a predecisional last-chance settlement
     agreement (LCSA). Id.; see I-1, Initial Appeal File (IAF), Tab 6 at 6-9. The
     appellant argued on appeal that he entered into the LCSA under duress and that
     the agency discriminated against him based on color and disability. Final Order
     at 2 & n.2.      Because the appellant was under the care of a psychiatrist and
     claimed that the medications he was taking affected his cognition, the
     administrative judge ordered him to (1) provide a statement from a medical doctor
     or other mental health professional indicating whether he would be able to
     understand the Board’s proceedings and to assist his designated representative,
                                                                                      3

     and (2) submit an affidavit or declaration indicating whether he was able to
     comprehend and understand the terms and conditions of the settlement agreement
     when he signed it on January 3, 2013.        Id. at 2-3.   The administrative judge
     further ordered him to show cause as to why the appeal should not be dismissed
     without prejudice if he did not submit these items or if he was unable to
     understand the Board’s proceedings or to assist his designated representative
     during the proceedings. Id. After the appellant failed to respond within 14 days,
     the administrative judge issued an initial decision dismissing the appeal without
     prejudice, subject to refiling when one of a group of enumerated conditions was
     met. Id. at 3. The appellant argued that he had complied with the administrative
     judge’s order, presenting a facsimile transmission he claimed to have sent to the
     regional office. Id. at 3-4. Even if the administrative judge had received the
     facsimile, the appellant had not included an affidavit or declaration indicating
     that he “was able to comprehend and understand the terms and conditions of the
     settlement agreement when he signed it on January 3, 2013,” as ordered. Id. at 4;
     see I-1, IAF, Tab 9 at 2. The Board concluded that dismissal without prejudice
     was in the best interest of administrative efficiency and of fairness and forwarded
     the appeal to the regional office for refiling. Final Order at 4-5.
¶3         The Acknowledgment Order Upon Remand advised the appellant regarding
     the outstanding jurisdictional issue, which had not been adjudicated prior to
     dismissal.    Lumpkins v. Department of Veterans Affairs, MSPB Docket No.
     AT-0752-13-0297-I-2 (I-2), IAF, Tab 2 at 1-4. Namely, the appellant signed a
     predecisional settlement agreement under which the agency agreed to hold his
     removal from federal service in abeyance and reassign him to a lower-grade
     position.    Id. at 2.   Such an agreement is presumed to be voluntary, and a
     voluntary reduction to a lower-graded position is not appealable to the Board.
     See Koczan v. Department of the Army, 42 M.S.P.R. 160, 164-65 (1989). The
     jurisdictional order advised the appellant regarding how he could establish that he
     had not freely and voluntarily entered into the settlement agreement. He asserted
                                                                                           4

     that he was mentally incapacitated when the agreement was signed. See I-2, IAF,
     Tab 2 at 3-4.
¶4           After considering the appellant’s responses during the pendency of this and
     the earlier appeal, the administrative judge found that the appellant had
     voluntarily entered into the settlement agreement.          I-2, IAF, Tab 5, Initial
     Decision (ID) at 5-9. The administrative judge found that the appellant failed to
     nonfrivolously allege that he was mentally incapable of entering into a settlement
     agreement. ID at 5-9. He dismissed the appeal for lack of Board jurisdiction. ID
     at 9.
¶5           On review, the appellant advances several arguments for reversing or
     vacating the initial decision. 2 I-2, Petition for Review (PFR) File, Tab 1 at 1-4.
     He argues that the administrative judge improperly concluded that he signed the
     settlement agreement voluntarily. Id. He argues that he was not given adequate
     time to consider the ramifications of the agreement and that the agency
     intimidated him into signing it by making removal the only other option. Id. at 1.
     He also argues that the agency’s decision letter regarding his removal was poorly
     written and substantively incomplete, e.g., the agency failed to discuss the
     Douglas factors. 3 Id. at 2-3.




     2
       The petition for review includes several attachments. To the extent that the appellant
     is seeking to submit additional evidence on review, we find that he has failed to submit
     new and material evidence that would support granting his petition. See 5 C.F.R.
     § 1201.115(d). The Board generally will not consider evidence submitted for the first
     time with the petition for review absent a showing that it was unavailable before the
     record was closed despite the party’s due diligence. Avansino v. U.S. Postal Service,
     3 M.S.P.R. 211, 214 (1980). All of the documents appended to the petition for review
     pre-date the close of the record below and were previously submitted for the record.
     See Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980) (evidence that is
     already a part of the record is not new).
     3
       See Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981). We note that
     the agency file included a separate document addressing the Douglas factors. See I-1,
     IAF, Tab 6 at 17.
                                                                                          5

¶6        As the administrative judge explained, however, the appellant entered into
     the LCSA in lieu of the agency’s taking an adverse action under chapter 75. ID
     at 4. The Board will consider a settlement agreement reached outside of a Board
     proceeding to determine its effect on the Board appeal and any waiver of Board
     appeal rights. Swidecki v. U.S. Postal Service, 101 M.S.P.R. 110, ¶ 7 (2006). An
     appellant may challenge the validity of the settlement agreement if he believes
     that the agreement was unlawful, involuntary, or resulted from fraud or mutual
     mistake. Id., ¶ 13. He may also challenge the enforceability of any waiver of
     Board appeal rights contained in such an agreement. A waiver of Board appeal
     rights is enforceable if its terms are comprehensive, freely made, and fair, and
     execution of the waiver did not result from agency duress or bad faith. Id., ¶ 17.
¶7        In deciding whether the appellant freely and voluntarily entered into the
     settlement agreement, the Board considers “whether the appellant was represented
     below; whether he has demonstrated that he was mentally impaired at the time of
     the settlement agreement; and whether he has otherwise shown that he was unable
     to understand the nature of the settlement agreement fully or to assist his
     representative in the appeal.” Clede v. Department of the Air Force, 72 M.S.P.R.
     279, 283 (1996), aff’d, 113 F.3d 1257 (Fed. Cir. 1997) (Table). The Board also
     will review any medical evidence submitted by the appellant to determine
     whether it is sufficient to show mental incapacity at the time the agreement was
     signed. See, e.g., id. at 286 (the appellant’s scant documentary medical evidence
     was insufficient to compel a finding that he was incapable of understanding the
     nature   of   the   agreement       he   signed);   Krzewinski   v.   U.S.   Postal
     Service, 72 M.S.P.R. 353, 361-62 (1996) (the appellant’s medical and other
     evidence was sufficient to raise a nonfrivolous allegation of involuntariness based
     on mental incapacity and duress).
¶8        The appellant argues that he signed the LCSA waiving his appeal rights
     under duress because he had inadequate time to consider the agreement when he
     signed it below. I-2, PFR File, Tab 1 at 1. The record does not support his
                                                                                         6

      assertion. The appellant signed the agreement not once, but twice, and a week
      elapsed before he signed the agreement the second time. When he initially signed
      the agreement on December 27, 2012, he wrote in the signature block that he was
      signing under duress. See I-1, IAF, Tab 8 at 18.      After the agency informed him
      that his notation invalidated the LCSA because it signified a lack of agreement on
      his part, see id. at 12, he signed a new copy of the agreement on January 3, 2013,
      I-1, IAF, Tab 6 at 6-9. We note as well that he was represented when he signed
      the LCSA. Id. at 9.
¶9         The appellant argues that he was intimidated into signing the LCSA because
      the only other choice he was given at the time was removal. I-2, PFR File, Tab 1
      at 1. Such a choice in itself, however, does not render a settlement agreement
      involuntary. See Soler-Minardo v. Department of Defense, 92 M.S.P.R. 100, ¶ 9
      (2002) (the fact that the appellant was faced with either a demotion or a possible
      removal did not render her acceptance of the demotion involuntary).           As for
      whether the removal letter included all of the necessary content, the issue is not
      before the Board because the appellant was removed. His assertions regarding
      duress are thus unavailing.
¶10        The appellant also argues that the Board should have remanded the case to
      another administrative judge. I-2, PFR File, Tab 1 at 1. However, the record on
      review for the first appeal does not include any request to reassign the appeal to
      another administrative judge or argue that the administrative judge was biased.
      See I-1, PFR File, Tab 1.       Remand to the administrative judge that presided
      during an earlier stage of the case was administratively efficient because the
      judge was already familiar with the underlying facts and issues.
¶11        The appellant asserts that the administrative judge decided the appeal
      “hastily” without affording him the right to due process. I-2, PFR File, Tab 1
      at 1. Here, it appears that the appellant might have expected the administrative
      judge to hold a hearing.      To be entitled to a jurisdictional hearing, however, an
      appellant must offer nonfrivolous allegations that the Board had jurisdiction over
                                                                                           7

      his appeal. Briscoe v. Department of Veterans Affairs, 55 F.3d 1571, 1573 (Fed.
      Cir. 1995). The appellant did not do so.
¶12         The appellant also asserts that the administrative judge failed to
      acknowledge that he responded to the order regarding his mental status during the
      earlier appeal.   I-2, PFR File, Tab 1 at 1; see I-1, IAF, Tab 9.         Even if the
      administrative judge erred in stating that the appellant had not followed his order,
      see I-1, IAF, Tab 11 at 2, the Board forwarded the case to the regional office for
      refiling, specifically noting that continued development of the record might be in
      order, see Final Order at 4-5 & n.3. The appellant thus suffered no prejudice to
      his substantive rights. See Panter v. Department of the Air Force, 22 M.S.P.R.
      281, 282 (1984) (an adjudicatory error that is not prejudicial to a party’s
      substantive rights provides no basis for reversal of an initial decision).         His
      assertions regarding adjudicatory error are unavailing.
¶13         The appellant argues that the agency breached the settlement agreement by
      failing to provide him with appropriate orientation and training for his position as
      a Safety and Occupational Health Specialist. I-2, PFR File, Tab 1 at 1-2. He also
      asserts that he is not performing the duties of a Safety and Occupational Health
      Specialist, and, instead, he is performing the duties of a lower-graded
      position. Id. at 1-3. Where an employee raises a nonfrivolous factual issue of the
      agency’s compliance with an LCSA, the Board must resolve that issue before
      addressing the scope and applicability of his waiver of appeal rights. Stewart v.
      U.S. Postal Service, 926 F.2d 1146, 1148 (Fed. Cir. 1991). Here, the LCSA does
      not on its face promise anything more specific than “appropriate orientation and
      training” for the position. See I-2, PFR File, Tab 1 at 2; I-1, IAF, Tab 6 at 6. The
      appellant is also performing his assigned duties in the position at well above the
      acceptable level. 4   See I-2, IAF, Tab 3 at 6-14.      The appellant thus failed to

      4
        The appellant additionally asserts that the administrative judge required him to
      “divulge[] his medical status to the two individuals that were not the decision maker.”
      I-2, PFR File, Tab 1 at 1. In the Final Order for the earlier appeal, we explained that
                                                                                        8

nonfrivolously allege that the agency breached the LCSA.               Accordingly, we
conclude that the administrative judge properly dismissed the appeal for lack of
Board jurisdiction and we deny the petition for review.

                   NOTICE TO THE APPELLANT REGARDING
                      YOUR FURTHER REVIEW RIGHTS
         You have the right to request review of this final decision by the United
States 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).
         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


the agency had contacted the appellant’s representative to obtain a release for his
medical records, but he had refused to release those records. Final Order at 4 n.3. In
the petition for review, the appellant stated that he would release the records if he were
ordered to produce them. Id. The appellant had the opportunity to release these records
for consideration while the refiled appeal was pending. See I-2, IAF, Tab 4.
                                                                            9

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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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.
