Case: 20-1320 Document: 34 Page: 1 Filed: 05/10/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CHRISTOPHER L. COPELAND,
Petitioner
v.
DEPARTMENT OF THE ARMY,
Respondent
______________________
2020-1320
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-0752-19-0516-I-1.
______________________
Decided: May 10, 2021
______________________
CHRISTOPHER L. COPELAND, Topeka, KS, pro se.
RAFIQUE OMAR ANDERSON, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent. Also represented by
BRIAN MATTHEW BOYNTON, STEVEN JOHN GILLINGHAM,
ROBERT EDWARD KIRSCHMAN, JR.; PATRICK L. GARY, Civil-
ian Personnel Litigation Branch, United States Army Liti-
gation Division, Fort Belvoir, VA.
______________________
Case: 20-1320 Document: 34 Page: 2 Filed: 05/10/2021
2 COPELAND v. ARMY
Before MOORE, TARANTO, and HUGHES, Circuit Judges.
PER CURIAM.
Christopher Copeland appeals a final decision of the
Merit Systems Protection Board dismissing his appeal for
lack of jurisdiction. J.A. 9–10; see also Copeland v. Dep’t of
the Army, No. DA-0752-19-0516-I-1, 2019 WL 5529895
(M.S.P.B. Oct. 23, 2019). Because the Board did not im-
properly dismiss, we affirm.
BACKGROUND
Mr. Copeland worked as a sandblaster for the Army.
On August 7, 2017, he was reported for being intoxicated
in a work area and cited for Public Intoxication. J.A. 50.
Based on that incident, the Army proposed removing Mr.
Copeland from employment. Id. To avoid removal, Mr.
Copeland entered into a Last Chance Agreement (LCA)
with the Army. J.A. 46. For a period of two years begin-
ning on November 20, 2017, he agreed to “avoid alcohol
consumption prior to and during the hours of work,” to
“never report to work or perform official duties with alcohol
and/or an illegal substance in [his] system,” and to submit
to random alcohol testing. J.A. 46–47; see also J.A. 48–49.
The LCA noted that failure to comply with any of those re-
quirements would constitute breach, J.A. 47–48, and that
any breach could result in Mr. Copeland’s removal “imme-
diately without prior notice,” J.A. 48. Mr. Copeland ex-
pressly “waive[d] all appeal rights,” including those to the
Merit Systems Protection Board. J.A. 48.
On May 13, 2019, Mr. Copeland submitted to random
alcohol breathalyzer tests that indicated a blood alcohol
level of 0.081 and 0.085. J.A. 59. The Directorate for Emer-
gency Services Law Enforcement Division cited Mr.
Copeland for “Public Intoxication Endangering.” J.A. 54.
On May 16, 2019, the Army advised Mr. Copeland of his
removal effective May 21, 2019, because he breached the
LCA by “being on duty under the influence of alcohol.” J.A.
Case: 20-1320 Document: 34 Page: 3 Filed: 05/10/2021
COPELAND v. ARMY 3
54. The Army advised Mr. Copeland he could appeal the
removal decision if he believed it breached the LCA. J.A.
55.
Mr. Copeland appealed his removal to the Board. The
Board determined Mr. Copeland failed to prove it had ju-
risdiction over his appeal because he did not show he com-
plied with the LCA. It therefore dismissed his appeal. On
November 27, 2020, the Board decision became final. Mr.
Copeland appeals. We have jurisdiction under 28 U.S.C.
§ 1295(a)(9).
DISCUSSION
Our review of Board decisions is limited. We must af-
firm a Board’s decision unless we find it to be arbitrary,
capricious, an abuse of discretion, or otherwise not in ac-
cordance with law; obtained without procedures required
by law, rule, or regulation having been followed; or unsup-
ported by substantial evidence. 5 U.S.C. § 7703(c). “It is
settled that an employee can waive the right to appeal in a
last-chance agreement.” Gibson v. Dep’t of Veterans Affs.,
160 F.3d 722, 725 (Fed. Cir. 1998). To overcome a waiver,
an employee must show that (1) he complied with the
agreement; (2) the agency materially breached the agree-
ment; or (3) he did not enter into the agreement knowingly
and voluntarily. See Buchanan v. Dep’t of Energy, 247 F.3d
1333, 1338 (Fed. Cir. 2001); Link v. Dep’t of Treasury, 51
F.3d 1577, 1582 (Fed. Cir. 1995).
Mr. Copeland does not argue that the Army breached
the LCA or contest that he voluntarily entered into it. In-
stead, he presents two arguments for how he complied with
the LCA and, thus, did not waive his appeal rights. Nei-
ther argument is persuasive.
First, he argues that the district court’s dismissal of his
citation for public intoxication shows he complied with the
LCA. The government declined to prosecute the criminal
citation because “it was based on an Intoxilyzer test that
Case: 20-1320 Document: 34 Page: 4 Filed: 05/10/2021
4 COPELAND v. ARMY
was given for administrative compliance purposes only.”
J.A. 69. The dismissal said nothing that casts doubt on the
accuracy of the Intoxilyzer results, J.A. 68, which showed
a blood alcohol level of 0.081 and 0.085, J.A. 59. We see no
error in the Board’s determination that the district court’s
dismissal does not demonstrate Mr. Copeland complied
with the LCA. See J.A. 9.
Second, Mr. Copeland argues, with no evidentiary sup-
port of any kind, that he was not under the influence of
alcohol. The government responds that this argument is
waived. Government Informal Resp. Br. at 11. Given Mr.
Copeland argued that he did not breach the LCA, that the
breathalyzer was not properly calibrated or was broken,
and that he had previously received false positive breatha-
lyzer results, we understand Mr. Copeland to have argued
that he was not intoxicated while on duty. Durr v. Nichol-
son, 400 F.3d 1375, 1380 (Fed. Cir. 2005) (“pro se pleadings
are to be liberally construed”). The Board’s dismissal for
lack of jurisdiction, however, was based at least in part on
the intoxilyzer results showing Mr. Copeland was intoxi-
cated while on duty. Substantial evidence, therefore, sup-
ports the Board’s finding that Mr. Copeland failed to show
he complied with the LCA. On this record, we see no error
in the Board’s dismissal.
CONCLUSION
We have considered Mr. Copeland’s other arguments
and conclude that they are without merit. Because Mr.
Copeland failed to overcome his waiver of his appeal rights
by showing he complied with the LCA, we affirm the deci-
sion of the Board.
AFFIRMED
COSTS
No costs.