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
06-3139
DEBORAH A. ROSELL,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
___________________________
DECIDED: August 14, 2006
___________________________
Before NEWMAN, RADER, and BRYSON, Circuit Judges.
RADER, Circuit Judge.
The Merit Systems Protection Board (Board) affirmed the Department of
Defense’s (Agency) decision to remove Deborah A. Rosell from her from her GS-15
Security Specialist position. See Rosell v. Dep’t of Def., DC-0752-04-0571-I-1
(M.S.P.B. Oct. 5, 2004) (Initial Decision); Rosell v. Dep’t of Def., DC-0752-04-0571-I-1
(M.S.P.B. Dec. 8, 2005) (Final Decision). Finding no reversible error, this court affirms.
I
On January 10, 2003, Ms. Rosell entered into a “Last Chance Agreement” (LCA).
The LCA held a November 12, 2002 Notice of Decision on Proposed Removal (2002
Notice of Decision) in abeyance as long as Ms. Rosell complied with all terms of the
LCA. The 2002 Notice of Decision was a result of Ms. Rosell testing positive for
cocaine metabolites during a random urinalysis testing. The LCA required Ms. Rosell
to, among other things, submit to a total of twenty-eight random drug urinalyses and test
negative for illegal drug use over the course of the succeeding nineteen months. The
LCA also required her to cooperate fully with the Agency, and to authorize the release
of all reasonable requests of medical information to the Agency.
Though the LCA was to expire in June 2004, the Agency and Ms. Rosell
amended the LCA (Amendment). Because the Agency was reorganizing, it was offering
separation initiatives to eligible employees under Voluntary Early Retirement Authority
(VERA) and Voluntary Separation Incentive Pay (VSIP). The Amendment facilitated
Ms. Rosell’s application for early retirement on April 30, 2004, under VERA and VSIP.
The Amendment changed the termination date of the LCA to April 30, 2004. The
Amendment was signed on April 15, 2004.
On April 19, 2004, Ms. Rosell reported, as ordered, for a random drug urinalysis.
On April 22, 2004, Greystone Health Sciences Corporation determined that Ms. Rosell’s
urine sample again tested positive for cocaine metabolites. On April 30, 2004, Ms.
Rosell received the Agency’s decision to remove her from employment, effective that
date, for violating the LCA. Ms. Rosell appealed the Agency’s decision to remove her
from employment for violating the LCA.
After granting a petition for review of the Board’s Initial Decision, the Board’s
Final Decision dismissed Ms. Rosell’s appeal for lack of jurisdiction because it found
she waived her Board appeal rights under the LCA. The LCA executed by Ms. Rosell
avers that her:
acceptance of this LCA is her voluntary, intentional, knowing and
unconditional waiver of her rights to grieve pursuant to the Agency’s
06-3139 2
administrative grievance system . . . or to file an appeal to the Merit
Systems Protection Board . . . or appeal a decision of the Board to the
U.S. court of Appeals for the Federal Circuit; or raise any claim arising out
of this Agreement before a court of competent jurisdiction except [to claim]
that the Agency breached this LCA.
(emphases added). The LCA further provided that if Ms. Rosell did not abide by any
terms of the LCA, that she would be “in breach of the [LCA] and the Agency [would]
implement her removal from federal service pursuant to the November 12, 2002, Notice
of Decision on Proposed Removal.” (emphases added).
II
Whether the Board has jurisdiction over an appeal is a question of law that this
court reviews de novo. Hayes v. United States Postal Serv., 390 F.3d 1373, 1376 (Fed.
Cir. 2004). Ms. Rosell has the burden of establishing jurisdiction before the Board by a
preponderance of the evidence. 5 C.F.R. § 1201.56(a)(2) (2006); Clark v. United States
Postal Serv., 989 F.2d 1164, 1167 (Fed. Cir. 1993). The Board has taken the position
that it lacks jurisdiction over adverse actions where, as here, an individual has waived
his or her appeal rights in a last-chance agreement. See, e.g., McCall v. United States
Postal Serv., 839 F.2d 664, 668-69 (Fed. Cir. 1988). It is settled that an employee can
waive the right to appeal a last-chance agreement. Gibson v. Dep’t of Veterans Affairs,
160 F.3d 722, 725 (Fed. Cir. 1998); McCall v. United States Postal Serv., 839 F.2d 664,
668 (Fed. Cir. 1988).
However, Ms. Rosell can establish that her waiver of appeal is not enforceable, if
she can show one of the following: (1) she complied with the LCA; (2) the Agency
materially breached the LCA; (3) she entered into the LCA involuntarily or under duress;
06-3139 3
or (4) that the LCA was a result of fraud or mutual mistake. Link v. Dep’t of Treasury,
51 F.3d 1577, 1581 (Fed. Cir. 1995); Gibson, 160 F.3d at 725.
Ms. Rosell challenges the validity of the LCA by arguing that her breach of the
LCA, which she executed while assigned with a former, now non-existent office, cannot
be grounds for removal. She also argues that the 2002 Notice of Decision was
improper because her supervisor did not engage in a “formal” decision-making process.
Neither argument affects the validity of the LCA.
Ms. Rosell, however, also claims that her April 30, 2004 removal is invalid
because it occurred after retirement. However, the separation was effective on April 30,
2004; she received the removal notice on April 30, 2004. Furthermore, her personnel
form with a removal, signed on May 17, 2004, does not control the actual date of the
Agency removal action. The personnel action occurred on April 30, 2004, when Dr.
Linton Wells, the Principal Deputy Assistant Secretary of Defense, approved the
decision notice.
Lastly, Ms. Rosell argues that the Medical Review Office violated Agency and
Department of Health and Human Services drug testing guidelines by reporting a
positive test result without first obtaining review by a medical review officer. However,
this sequence of events did not violate the LCA. The LCA contains no requirement that
a medical officer review any test results. In fact, under the LCA, Ms. Rosell agreed to
“release all reasonable requested medical information to the Agency . . . in order to
assure the Agency of her compliance with the LCA.”
06-3139 4
As a result, as the Board found, none of Ms. Rosell’s allegations can establish
that she did not waive her appeal rights in the LCA. Therefore, this court affirms the
Board’s decision to dismiss Ms. Rosell’s appeal for lack of jurisdiction.
06-3139 5