                      NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
                                      2008-3360

                                 BILLY R. FORTSON,

                                                      Petitioner,

                                           v.

                      DEPARTMENT OF VETERANS AFFAIRS,

                                                      Respondent.



      Billy R. Fortson, of Kannapolis, North Carolina, pro se.

       Richard P. Schroeder, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for respondent. With
him on the brief were Jeanne E. Davidson, Director, and Kenneth M. Dintzer, Assistant
Director.

Appealed from: Merit Systems Protection Board
                      NOTE: This disposition is nonprecedential.


     United States Court of Appeals for the Federal Circuit
                                       2008-3360

                                 BILLY R. FORTSON,

                                                               Petitioner,

                                           v.

                      DEPARTMENT OF VETERANS AFFAIRS,

                                                               Respondent.


    Petition for review of the Merit Systems Protection Board in DC0752080181-I-1.

                          __________________________

                           DECIDED: February 6, 2009
                           __________________________


Before MAYER, CLEVENGER, and RADER, Circuit Judges.

PER CURIAM.

      Billy R. Fortson appeals the final decision of the Merit Systems Protection Board

dismissing his appeal for lack of jurisdiction. See Fortson v. Dep’t of Veterans Affairs,

No. DC-0752-08-0181-I-1 (July 30, 2008). We affirm.

      Fortson was employed as a nursing assistant by the Department of Veterans

Affairs (“VA”). In September 2006, he entered into a Last Chance Agreement (“LCA”)

with the agency, under which he agreed to “maintain satisfactory attendance, conduct,

performance and working habits” and to waive his right to appeal any future removal
action. For its part, the VA agreed to hold its decision to remove Fortson “in abeyance”

while the LCA was in effect.

       In March 2007, the VA notified Fortson of its decision to remove him for

breaching the LCA by treating a veteran patient roughly when showering him and by

speaking harshly to him. Fortson subsequently appealed to the board, but his appeal

was dismissed for lack of jurisdiction. He then timely appealed to this court.

       The scope of our review of an appeal from a board decision is limited. We must

affirm such a decision unless it is: “(1) arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law; (2) obtained without procedures required by law,

rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5

U.S.C. § 7703(c) (2000); see Briggs v. Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed.

Cir. 2003).

       An employee who waives his appeal rights as a condition of an LCA may appeal

to the board if he makes a non-frivolous allegation that he did not enter into the

agreement voluntarily or that he did not violate its provisions. See Stewart v. United

States Postal Serv., 926 F.2d 1146, 114849 (Fed. Cir. 1991); McCall v. United States

Postal Serv., 839 F.2d 664, 667-68 (Fed. Cir. 1988). Here, the record establishes that

Fortson entered into the LCA voluntarily and that he breached the agreement by his

mistreatment of a veteran patient. The VA presented testimony from three employees

to support its allegation that Fortson had “roughed up” a patient while showering him on

February 12, 2007.     Although Fortson contends that the incident in question never

occurred, the board did not find his testimony credible.




2008-3360                                   2
      This court will not set aside credibility determinations made by the board unless

they are “inherently improbable or discredited by undisputed evidence or physical fact.”

Hanratty v. Dep’t of Transp., 819 F.2d 286, 288 (Fed. Cir. 1987) (citation and internal

quotation marks omitted).    Fortson fails to establish that the board erred when it

concluded that his uncorroborated and self-serving testimony was not credible. See

Hubbard v. United States, 480 F.3d 1327, 1332 (Fed. Cir. 2007) (A reviewing court

should not “second guess” the credibility determinations made by a trial court.); Bieber

v. Dep’t of the Army, 287 F.3d 1358, 1364 (Fed. Cir. 2002) (“The credibility

determinations of an administrative judge are virtually unreviewable on appeal.”).

      We have considered Fortson’s remaining arguments but find them unpersuasive.

Accordingly, the board’s decision dismissing his appeal for lack of jurisdiction is

affirmed.




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