                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     CEASAR ASHLEY,                                  DOCKET NUMBER
                  Appellant,                         NY-0752-14-0365-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: April 3, 2015
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           William Davis, Montrose, New York, for the appellant.

           Erin Conroy, Esquire, Brooklyn, New York, 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        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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 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.     Except as expressly MODIFIED by this Final
     Order to address the appellant’s argument that he did not receive consideration
     for signing a last chance agreement (LCA), we AFFIRM the initial decision.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2        The appellant was employed by the agency as a Motor Vehicle Operator.
     Initial Appeal File (IAF), Tab 4 at 14. He was issued a proposed removal letter
     from his position for unauthorized absence, failure to follow proper leave
     requesting procedures, and being on duty under the influence of a drug. Id. at 27.
     However, the parties entered into an LCA wherein the agency agreed to hold his
     removal in abeyance. Id. at 24-26. Pursuant to the LCA, the appellant agreed
     that he would be subjected to random drug testing for a 2-year period. Id. at 24.
     Further, he agreed that if he refused to submit to such testing, or such testing
     revealed that he was under the influence of drugs, he would be removed from
     federal service. Id. Approximately 1 year after he entered into the LCA, the
     appellant underwent a drug test and tested positive for cocaine. Id. at 19-21.
     The appellant does not dispute that he tested positive for cocaine. See IAF, Tab
                                                                                               3

     11 at 3. He was removed from the agency, effective August 18, 2014, due to a
     breach of the LCA. 2 IAF, Tab 4 at 17.
¶3         The appellant filed this appeal challenging the agency’s decision to remove
     him, arguing that he entered into the LCA not knowing or fully understanding the
     agreement. IAF, Tab 1 at 6. The administrative judge issued an initial decision
     dismissing the appeal for lack of jurisdiction, without holding the requested
     hearing. IAF, Tab 12, Initial Decision (ID) at 2, 4. The appellant filed a petition
     for review. 3 Petition for Review (PFR) File, Tab 1. The agency has responded to
     the appellant’s petition for review. PFR File, Tab 3.

     The Board lacks jurisdiction over the appellant’s removal because it was issued
     pursuant to an enforceable LCA.
¶4         The Board’s jurisdiction is limited to those matters over which it has been
     given jurisdiction by law, rule, or regulation.             Maddox v. Merit Systems
     Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The Board lacks jurisdiction
     over an action taken pursuant to an LCA in which the appellant waives his Board
     appeal rights. Smith v. Department of the Interior, 113 M.S.P.R. 592, ¶ 6 (2010).
     To establish that a waiver of appeal rights in an LCA is unenforceable, the
     appellant must show that:         (1) he complied with the LCA; (2) the agency

     2
       In the initial decision, the administrative judge stated that the appellant was removed
     on August 18, 2013. Initial Appeal File (IAF), Tab 12, Initial Decision (ID) at 2. Th is
     typographical error does not warrant review of the initial decision. 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).
     3
       Below and on petition for review, the appellant’s representative alleges that the
     agency issued a 14-day suspension to him in reprisal for h is participation in the appeal.
     Petition for Review (PFR) File, Tab 1 at 8; IAF, Tab 10 at 6. He indicated on review
     that his case was pending with the Office of Special Counsel (OSC) and the Board.
     PFR File, Tab 1 at 8. To the extent that the representative is referring to Davis v.
     Department of Veterans Affairs, MSPB Docket NY-1221-15-0027-W-2, we will not
     address this matter because the administrative judge has not yet issued an initial
     decision in that case. See Santos v. Department of Transportation, 48 M.S.P.R. 579,
     581 (1991) (finding that the appellant’s petition for review, filed before the
     administrative judge issued an initial decision, was premature).
                                                                                         4

     materially breached the LCA or acted in bad faith; (3) he did not voluntarily enter
     into the LCA; or (4) the LCA was the result of fraud or mutual mistake. Id.
¶5          An LCA is a settlement agreement, which is a contract.                Black v.
     Department of Transportation, 116 M.S.P.R. 87, ¶ 16 (2011). In construing the
     terms of a settlement agreement, the Board looks to the words of the agreement
     itself, which are of paramount importance, and assigns them their ordinary
     meaning unless the parties intended otherwise. Smith, 113 M.S.P.R. 592, ¶ 8.
     The plain meaning of a settlement agreement’s terms control. Id.
¶6          The administrative judge found that the appellant did not comply with the
     LCA and thus waived his Board appeal rights.        ID at 3-4. We agree on both
     counts.
¶7          The appellant entered into the LCA in August 2013 and tested positive for
     cocaine in July 2014, which was within the time period covered by the LCA.
     IAF, Tab 5 at 21-22, 24, 26. Because he tested positive for cocaine, he was not
     compliant with the LCA. Id. at 24.
¶8          For the first time on review, the appellant argues that he did not test
     positive for cocaine for a year, and therefore removal is too severe a penalty.
     PFR File, Tab 1 at 6. The Board will not consider an argument raised for the first
     time in a petition for review absent a showing that it is based on new and material
     evidence not previously available despite the party’s due diligence.         Banks v.
     Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). The appellant has not
     demonstrated such diligence here. Nonetheless, even if we were to consider this
     argument, we would not find it persuasive because the appellant does not dispute
     that he tested positive for cocaine within the 2-year time period covered by the
     LCA.
¶9          The agency acted in accord with the LCA and thus its removal of the
     appellant   was   not   in   bad   faith.   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).
     Further, the appellant and his union representative signed the LCA. IAF, Tab 4 at
                                                                                             5

      26.   By signing the LCA, the appellant acknowledged that he understood the
      agreement and was signing it without reservation, duress, or coercion. See id. at
      24-26. The Board does not have jurisdiction over an action taken pursuant to an
      LCA in which an appellant waives his right to appeal to the Board, such as in the
      instant case. 4 See Merriweather v. Department of Transportation, 64 M.S.P.R.
      365, 375 (1994), aff’d, 56 F.3d 83 (Fed. Cir. 1995) (Table).
¶10         Below and on petition for review, the appellant argues that he did not know
      or fully understand the terms of the LCA. PFR File, Tab 1 at 3; IAF, Tab 1 at 6.
      In addition, he argues that he signed the LCA under duress and that if he had not
      signed the LCA he would have been removed. PFR File, Tab 1 at 3; IAF, Tab 1
      at 6. The administrative judge found that the appellant did not establish that the
      LCA was unenforceable. ID at 3-4. We again agree.
¶11         A party challenging the validity of a settlement agreement bears a heavy
      burden    of showing a basis for          invalidation.     Bahrke     v. U.S. Postal
      Service, 98 M.S.P.R. 513, ¶ 11 (2005). An appellant may show that an LCA is
      invalid, and therefore that the Board has jurisdiction over his appeal, by
      establishing that the agreement is unlawful, was involuntary, or was the result of
      fraud or mutual mistake. Vasquez v. U.S. Postal Service, 65 M.S.P.R. 128, 131
      (1994).
¶12         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 alternative, and that such
      circumstances     were    the   result   of   the   other    party’s   coercive     acts.

      4
        The appellant argues on review that the LCA was the result of bad faith by the agency
      and that the agency should have issued progressive discip line instead of removal and
      provided him with the opportunity to file a grievance or appeal the removal. PFR File,
      Tab 1 at 4-5. Below, the appellant argued that he was “not cognizant in the manner to
      waive his just cause and progressive d iscipline protections under the terms of the
      [collective bargaining agreement].” IAF, Tab 11 at 4. However, the LCA clearly
      indicates that should his removal occur, the appellant waives all appeal rights including
      those under the negotiated grievance procedures. IAF, Tab 4 at 25.
                                                                                           6

      Bahrke, 98 M.S.P.R. 513, ¶ 12. 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.
¶13           In the instant case, pursuant to the LCA, a positive drug test was to result in
      the appellant’s removal with no rights to contest the removal to the Board. IAF,
      Tab 4 at 24-25. The appellant acknowledged that he understood these terms. Id.
      He has provided no evidence to support his bare allegation that he did not
      comprehend the settlement agreement. Thus, we find that the appellant has not
      shown that he involuntarily entered into the agreement. See Wade v. Department
      of Veterans Affairs, 61 M.S.P.R. 580, 584 (1994) (declining to find a settlement
      agreement invalid where the appellant submitted no evidence showing that he was
      unable to understand the nature of the agreement).
¶14           We also decline to find that the LCA resulted from duress. The appellant
      was merely faced with two unpleasant alternatives and voluntarily chose to sign
      the LCA rather than be removed. The fact that he elected to sign the LCA does
      not render it invalid.
¶15           On petition for review, the appellant alleges that the agency unilaterally
      created the LCA and exempted his union representative from negotiating the
      LCA. PFR File, Tab 1 at 4. Despite the appellant’s allegation that his union did
      not represent him in securing the LCA, the agreement indicates that he had been
      represented by a union representative.         IAF, Tab 4 at 25.   Further, his union
      representative signed the LCA. Id. at 26.

      The appellant received consideration under the terms of the LCA.
¶16           Below and on petition for review, the appellant alleges that his waiver of
      appeal rights is unenforceable because he did not receive any consideration. PFR
      File, Tab 1 at 8; see IAF, Tab 11 at 4. We disagree. 5



      5
          We modify the initial decision to address this argument.
                                                                                                 7

¶17         To have an enforceable contract, there must be consideration, i.e.,
      performance or a return promise that must be bargained for and does not involve
      performance of a pre-existing duty. Black, 116 M.S.P.R. 87, ¶ 17. In the instant
      case, per the LCA, the appellant received consideration in the form of an
      opportunity to demonstrate compliance with the LCA and retain his position. See
      IAF, Tab 4 at 25. He has not alleged that the agency was otherwise obligated to
      provide him with this opportunity. See Black, 116 M.S.P.R. 87, ¶ 19.

      The appellant has not shown that the administrative judge was biased against him.
¶18         On petition for review, the appellant argues that the administrative judge
      “from the outset” found that the Board lacked jurisdiction over his appeal and
      favored the agency. PFR File, Tab 1 at 3. To prevail on a claim of bias by an
      administrative judge, an appellant must overcome the presumption of honesty and
      integrity that accompanies administrative adjudicators. Oliver v. Department of
      Transportation, 1 M.S.P.R. 382, 386 (1980). An administrative judge’s conduct
      during the course of a Board proceeding warrants a new adjudication only if the
      administrative judge’s comments or actions evidence “a deep-seated favoritism or
      antagonism that would make fair judgment impossible.” Bieber v. Department of
      the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United
      States, 510 U.S. 540, 555 (1994)). Here, the appellant’s bare allegations neither
      overcome the presumption of honesty and integrity nor demonstrate deep-seated
      favoritism or antagonism.

      The appellant has not demonstrated due diligence in obtaining the new evidence
      he provides on review.
¶19         The appellant provided documents with his petition for review. 6 PFR File,
      Tab 1 at 10-30. He resubmitted his arguments and affidavits from coworkers that

      6
        To the extent that the appellant is alleging, for the first time on review, that the agency
      has retaliated against him for whistleblowing, PFR File, Tab 1 at 7, we have not
      considered this claim. Allegations of whistleblower reprisal do not provide an
      independent basis for Board jurisdiction. See Barrios v. Department of the Interior,
      100 M.S.P.R. 300, ¶ 5 (2005). In order to establish jurisdiction over a whistleb lower
                                                                                            8

      he provided below. Id. at 10-20; see IAF, Tabs 5, 11. Further, he submitted for
      the first time on review additional affidavits from coworkers, which are all dated
      September 2014. PFR File, Tab 1 at 21-30.
¶20         Under 5 C.F.R. § 1201.115, the Board 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).              Because the
      appellant does not explain why he did not submit these additional affidavits
      below, we decline to consider them.

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
            The initial decision, as supplemented by this Final Order, constitutes the
      Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
      request the United States Court of Appeals for the Federal Circuit to review this
      final decision.   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




      retaliation claim involving an action that is not otherwise appealab le to the Board, an
      appellant must show, inter alia, that he exhausted his administrative remedies before
      OSC regarding that claim. I d. Because the Board lacks jurisdiction over the appellant’s
      removal and there is no indication that the appellant has exhausted his remedy before
      OSC regarding his potential whistleblower retaliation claim, we decline to consider it.
                                                                                  9

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 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.
