NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
BEN DINKINS, JR.,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
__________________________
2010-3033
__________________________
Petition for review of the Merit Systems Protection
Board in DC0752090358-I-1.
____________________________
Decided: November 5, 2010
____________________________
DAVID A. BRANCH, Law Offices of David A. Branch and
Associates, PLLC, Washington, DC, for petitioner.
L. MISHA PREHEIM, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With her
on the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and BRIAN M. SIMKIN,
Assistant Director. Of counsel on the brief was ALICE L.A.
DINKINS v. USPS 2
COVINGTON, Office of the General Counsel, United States
Postal Service, of Washington, DC.
__________________________
Before RADER, Chief Judge, and LOURIE and DYK, Circuit
Judges.
PER CURIAM.
DECISION
Ben Dinkins, Jr. appeals from the final decision of the
Merit Systems Protection Board (“the Board”) dismissing
his appeal challenging the United States Postal Service’s
(“the Postal Service”) decision to remove him from the
position of mail handler at the Postal Service. Dinkins v.
United States Postal Service, MSPB Docket No.
DC0752090358-I-1 (June 11, 2009). Because the Board
correctly found that it lacked jurisdiction based on
Dinkins’ waiver of his right to appeal his removal, we
affirm.
BACKGROUND
Dinkins was employed at the Postal Service as a PS-4
mail handler. On July 6, 2007, the Postal Service pro-
posed to remove Dinkins, and after giving him an oppor-
tunity to reply to its proposal, issued a final decision
removing him from his position on August 2, 2007. On
November 29, 2007, the Postal Service and Dinkins
entered into a Last Chance Agreement (“LCA”) under
which Dinkins would return to his position but was
required to maintain a satisfactory attendance record
during the next six months. Specifically, he could have no
more than three unscheduled absences and no instances
of absence without leave (“AWOL”) during the six month
period of the LCA. Under the LCA, Dinkins waived his
3 DINKINS v. USPS
right to appeal any subsequent removal based on the
prior proposal.
On May 22, 2008, the Postal Service proposed to re-
move Dinkins based on his breach of the LCA. The notice
cited Dinkins’ attendance records as showing numerous
unscheduled absences and being AWOL during the six
month period following the LCA. The union initiated a
grievance of the proposed removal. On June 2, 2008, the
Postal Service settled the grievance with the union by
extending the LCA for an additional year, until May 22,
2009. The settlement agreement was signed by a union
representative, Terry Stokes.
On December 3, 2008, the Postal Service again pro-
posed to remove Dinkins for violation of the LCA, specifi-
cally for numerous unscheduled absences as well as for
being AWOL for 136 hours since the settlement agree-
ment had been entered into. On January 14, 2009, the
Postal Service issued its final decision removing Dinkins
from his position. Dinkins appealed the removal to the
MSPB.
On appeal, the administrative judge held that the
Board lacked jurisdiction to entertain Dinkins’ appeal
because Dinkins had entered into an LCA that waived his
right to appeal. Dinkins argued that the LCA had not
been extended beyond the initial six months because he
never authorized the union to agree to any extension, and
that his right to appeal had therefore not been waived.
The AJ rejected that argument, crediting instead the
testimony from Dinkins’ supervisors that Dinkins had
authorized the union to enter into the agreement and was
aware of the settlement reached on his behalf. Moreover,
the AJ found that Dinkins had violated the LCA in May
2008 and the Postal Service could have removed Dinkins
at that time without entertaining the grievance filed by
DINKINS v. USPS 4
the union and extending the LCA by another year. Thus,
the AJ dismissed the case, holding that Dinkins had
failed to make nonfrivolous allegations that would give
the Board jurisdiction to entertain his appeal.
Dinkins petitioned the Board for review. The Board
denied Dinkins’ petition and the AJ’s initial decision
became the final decision of the Board. Dinkins timely
appealed.
DISCUSSION
The scope of our review in an appeal from a Board de-
cision is generally limited. We can only set aside the
Board’s decision if it was “(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) unsup-
ported by substantial evidence.” 5 U.S.C. § 7703(c); see
Briggs v. Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed.
Cir. 2003). Whether the Board has jurisdiction over an
appeal is a question of law, which we review de novo.
Delalat v. Dep’t of Air Force, 557 F.3d 1342, 1343 (Fed.
Cir. 2009).
Dinkins argues that the Board’s decision that he had
waived his right to appeal his removal was arbitrary,
capricious, and unsupported by substantial evidence. He
argues that the LCA that he entered into with the Postal
Service could only be amended in writing and with his
consent. He contends that he never executed a written
agreement to change, alter, or amend the LCA and, in
fact, was not aware of the settlement reached by the
union until weeks later, at which point he informed the
union shop steward that he was not agreeable to the
settlement. Thus, he argues, the settlement reached by
the union was a new agreement entered into without his
consent, thereby rendering any extension of the prior LCA
5 DINKINS v. USPS
involuntary and ineffective. According to Dinkins, the
AJ’s decision to interpret the later settlement as extend-
ing the LCA and imposing the terms of the LCA on
Dinkins, including waiver of any appeal rights, was
improper. Dinkins also argues that the settlement
agreement entered into by the union requiring him, an
employee with documented medical issues, to take no
more than three days of unscheduled leave over an entire
year, was simply unconscionable.
The government argues that the AJ evaluated the
credibility of the witnesses at the hearing and properly
found that Dinkins had failed to meet his heavy burden of
demonstrating that the union agreed to an extension of
the LCA without his consent. The government points out
that the AJ credited the testimony of one of Dinkins'
supervisors, who testified that she held a meeting with
Dinkins to inform him of the specific terms of the settle-
ment agreement, in response to which Dinkins “hugged
her, thanked her, and stated that ‘he would do better.’” A
second supervisor confirmed that testimony. The gov-
ernment further argues that Dinkins ratified the settle-
ment by continuing to work in his position for almost six
months. The government notes that the settlement
agreement simply states that the LCA shall remain in
effect for one additional year. The government therefore
contends that the waiver clause in the LCA is binding
upon Dinkins.
We conclude that the Board correctly determined that
it lacked jurisdiction based upon Dinkins’ waiver. The
Board derives its jurisdiction by law, rule, or regulation.
5 U.S.C. § 7701(a). When a preference-eligible Postal
Service employee, entitled to a Board appeal, settles a
union-negotiated grievance proceeding, that course of
action is presumed to be voluntary and may divest the
Board of jurisdiction over the underlying matter. Mays v.
DINKINS v. USPS 6
U.S. Postal Serv., 995 F.2d 1056, 1058-59 (Fed. Cir. 1993).
Even when a settlement agreement does not explicitly
abandon the right to a Board appeal, the Board lacks
jurisdiction unless the agreement expressly reserves the
employee’s right to seek Board review. Id. at 1060 (“The
burden is on the employee to expressly reserve the [right
of appeal] if he chooses to settle a grievance.”). An em-
ployee seeking to establish Board jurisdiction bears a
heavy burden to show the involuntariness of a settlement.
Asberry v. U.S. Postal Serv., 692 F.2d 1378, 1380 (Fed.
Cir. 1982).
We are not persuaded by Dinkins’ argument that the
union entered into a grievance settlement with the Postal
Service without his consent. Dinkins does not dispute
that the union filed the grievance on his behalf. The AJ
found, based upon her determinations of witness credibil-
ity, that Dinkins had previously filed grievances and was
fully aware of the grievance procedures as well as the fact
that the union representative could enter into a grievance
settlement on his behalf. The AJ also credited witness
testimony that Dinkins was informed of the settlement
agreement shortly after the settlement and he expressed
his appreciation to his supervisor for obtaining the set-
tlement. We therefore find no error in the AJ’s conclusion
that Dinkins had failed to meet his heavy burden to show
the involuntariness of the settlement and was bound by
the agreement entered into by the union. See Mays, 995
F.2d at 1058-59 (upholding the finding of voluntariness of
a settlement agreement that was signed by the union
representative rather than the employee). Moreover, by
returning to work, Dinkins ratified the settlement negoti-
ated by the union and established his assent to the
agreement by accepting the fruits of the settlement. Id.
The grievance settlement plainly states that the LCA
shall be extended for an additional year and that Dinkins
7 DINKINS v. USPS
would be subject to removal for failure to comply with any
of the terms of the LCA. Under the LCA, Dinkins waived
his right to appeal any future removal based on the prior
notice. We also agree with the Board that the Postal
Service could have simply removed Dinkins for his origi-
nal violation of the LCA. Dinkins does not dispute that
he had numerous unscheduled absences and was AWOL
during the initial six month term of the LCA. We are not
persuaded by Dinkins’ logic that by extending the LCA
and providing him with another opportunity to improve
his job attendance, the Postal Service reinstated his
previously waived appeal rights. Lastly, we decline to
address Dinkins’ unconscionability argument because he
did not raise it below.
Because we conclude that the grievance settlement
extended the LCA and that Dinkins expressly waived his
right to appeal any subsequent removal as part of his
Last Chance Agreement, there is no basis for Board
jurisdiction in this case. Accordingly, we affirm the
Board’s decision dismissing the appeal for lack of jurisdic-
tion.
AFFIRMED
COSTS
No costs.