Camp v. Department of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DONNA R. CAMP,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
______________________
2013-3008
______________________
Petition for review of the Merit Systems Protection
Board in No. SF0752120714-I-1.
______________________
Decided: April 10, 2013
______________________
DONNA R. CAMP, of San Diego, California, pro se.
J. HUNTER BENNETT, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With him
on the brief were STUART F. DELERY, Principal Deputy
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and REGINALD T. BLADES, JR., Assistant Director.
______________________
2 DONNA CAMP v. DVA
Before DYK, SCHALL, and PROST, Circuit Judges.
PER CURIAM.
Petitioner Donna Camp seeks review of a decision of
the Merit Systems Protection Board (“Board”) dismissing
her case for lack of jurisdiction. See Camp v. Dep’t of
Veterans Affairs, No. SF0752120714-I-1, slip op. at 4
(M.S.P.B. Sept. 13, 2012) (“Initial Decision”). We affirm.
BACKGROUND
Ms. Camp was an employee with the U.S. Department
of Veterans Affairs (“VA”), working in a call center for the
San Diego Healthcare System. In February 2011, the VA
proposed removing Ms. Camp from her position for disre-
spectful behavior toward a veteran. She had previously
been suspended twice for similar conduct. The VA pro-
vided Ms. Camp with an opportunity to respond, and she
met with a Deciding Officer. After considering the evi-
dence supporting the charges, her past discipline, and her
years of service, the Deciding Officer decided to remove
Ms. Camp from her position.
In May 2011, Ms. Camp and the VA entered into a
Last Chance Agreement (“Agreement”) under which Ms.
Camp’s removal would be held in abeyance if she abided
by the terms of the Agreement for one year. Among other
provisions, Ms. Camp agreed that she would “not engage
in any acts of misconduct,” and that if she “fail[ed] to
comply with any term of th[e] Agreement on even one
occasion during the period of one (1) calendar year,” the
VA could “effect the previously proposed removal without
prior notice.” Agreement ¶¶ 4.a, 4.i. Ms. Camp also
“waive[d] her right to challenge her removal in the event
that the Agency effects the previously proposed removal.”
Id. ¶ 4.j. The waiver provision includes “a waiver of [Ms.
Camp’s] right to appeal her removal to the MSPB [Merit
DONNA CAMP v. DVA 3
Systems Protection Board].” Id. The Agreement further
recites:
[Ms. Camp] has read this entire Agreement, has
consulted with an attorney or representative or
has freely decided not to consult with an attorney
or representative, that she has not been induced
to enter into this Agreement by any promises or
representations other than those expressly stated
in this Agreement, that she understands all terms
of this Agreement, and that she has not been co-
erced into entering into this Agreement.
Id. ¶ 4.l. On the signature page, the Agreement further
states that Ms. Camp “acknowledges that she has read
and considered each of the provisions of this agreement
and that she voluntarily enters into the agreement with
full knowledge of the consequences,” and that “THE
PARTIES TO THIS AGREEMENT HEREBY SIGNIFY
THEIR VOLUNTARY, KNOWING AND
UNCONDITIONAL ACCEPTANCE OF EACH AND
EVERY TERM OF THIS AGREEMENT, WITHOUT
RESERVATION.” Id. ¶ 8.k. Ms. Camp signed the
Agreement, as did her union representative.
In October 2011, the VA removed Ms. Camp based on
the terms of the Last Chance Agreement. Ms. Camp
appealed her removal to the Board. The administrative
judge who was assigned to the case advised Ms. Camp
that the Board might not have jurisdiction to hear her
appeal because of the waiver provision in her Agreement.
Ms. Camp responded that she had not wanted to sign
the Agreement. According to Ms. Camp, when the VA
proposed her removal, it gave her a choice of signing the
Agreement or accepting a demotion, which would involve
a transfer to another area at a lower pay grade. Ms.
Camp said she told her union representative she wanted
to choose the demotion, but her representative did not
respond by the deadline for selecting that option. As a
4 DONNA CAMP v. DVA
result, she was left with the option of signing the Agree-
ment or being removed. In order to avoid losing her job,
she signed the Agreement.
After considering Ms. Camp’s response, the adminis-
trative judge held that Ms. Camp had failed to make a
non-frivolous allegation that the waiver provision in her
Last Chance Agreement was not enforceable, and that the
Board therefore did not have jurisdiction to hear her
appeal. Initial Decision at 3-4. Ms. Camp did not seek
further review by the Board, and the administrative
judge’s initial decision became final on October 18, 2012.
Ms. Camp appealed the Board’s decision to this court.
DISCUSSION
This court’s review of the Merit Systems Protection
Board is limited. We must affirm a decision of the Board
unless it was “(1) arbitrary, capricious, an abuse of discre-
tion, 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). Whether the Board has
jurisdiction over an appeal is a question of law that this
court reviews without deference, while underlying find-
ings of fact are reviewed for substantial evidence. Parrott
v. Merit Sys. Prot. Bd., 519 F.3d 1328, 1334 (Fed. Cir.
2008).
It is settled law that a federal employee can waive the
right to appeal removal in a last-chance agreement.
Gibson v. Dep’t of Veterans Affairs, 160 F.3d 722, 725
(Fed. Cir. 1998). If the employee is later removed under
the terms of the last-chance agreement, the Board will
lack jurisdiction to review the merits of the removal. See
id. at 727. There is an exception to this rule, however.
Ms. Camp can establish that her waiver of appeal is
unenforceable and that the Board therefore has jurisdic-
tion to hear her appeal if she can show one of the follow-
ing: (1) that she complied with the terms of the Last
DONNA CAMP v. DVA 5
Chance Agreement; (2) that the VA breached the Agree-
ment; or (3) that she did not knowingly and voluntarily
enter into the Agreement. Buchanan v. Dep’t of Energy,
247 F.3d 1333, 1338 (Fed. Cir. 2001).
Ms. Camp has not alleged that she complied with the
Last Chance Agreement or that the VA has breached the
Agreement. Therefore, the only remaining question is
whether Ms. Camp knowingly and voluntarily entered
into the Agreement. The administrative judge found that
Ms. Camp had not shown that her decision to sign the
Agreement was involuntary or coerced. See Initial Deci-
sion at 3.
As described by Ms. Camp, the circumstances sur-
rounding her decision to sign the Agreement are as fol-
lows. She claims she wanted to choose the demotion
instead of signing the Agreement, but because her union
representative failed to act before the deadline for select-
ing the demotion, she was left with no choice but to sign
the Agreement.
Unfortunately for Ms. Camp, any potential failings by
her union representative leading up to her decision to sign
the Agreement are not within the scope of our review on
appeal. We are limited to reviewing whether, when Ms.
Camp ultimately entered into the Agreement, she did so
knowingly and voluntarily. Based on the record before us,
we must conclude that she did.
Ms. Camp’s Agreement with the VA explicitly states
that she “has read and considered each of the provisions
of this agreement and that she voluntarily enters into the
agreement with full knowledge of the consequences.”
Agreement ¶ 8.k (emphasis added). This and similar
provisions in the Agreement indicate that Ms. Camp did
indeed sign the Agreement knowingly and voluntarily.
Of course, once the deadline for selecting a demotion
had passed, Ms. Camp may have subjectively felt that she
6 DONNA CAMP v. DVA
had no reasonable choice but to enter into the Agreement.
However, it is not accurate to say that she had “no
choice.” She had two options. She could in fact sign the
Agreement and return to her job in the call center to work
for a year under the strict terms of the Agreement. Or
she could refuse to sign the Agreement, in which case she
would face immediate removal but would also have the
ability to appeal her removal to the Board. Both options
may have been unattractive to Ms. Camp. But as this
court has previously explained, “the fact that an employee
is faced with an unpleasant situation or that his choice is
limited to two unattractive options does not make the
employee’s decision any less voluntary.” Staats v. U.S.
Postal Serv., 99 F.3d 1120, 1124 (Fed. Cir. 1996); see also
Rodriguez v. Dep’t of State, 450 F. App’x 965, 967-68 (Fed.
Cir. 2011) (affirming the Board’s dismissal of a federal
employee’s appeal in circumstances similar to those of Ms.
Camp). Therefore, the fact that Ms. Camp faced an
unpleasant choice—the prospect of immediate removal or
returning to her previous job under the strict terms of the
Agreement—does not mean her decision to accept the
Agreement was involuntary.
Accordingly, Ms. Camp has failed to show that her de-
cision to sign the Last Chance Agreement was involun-
tary or coerced. Therefore, we must affirm the
administrative judge’s conclusions that Ms. Camp’s
waiver of appeal in the Agreement is enforceable and that
the Board lacked jurisdiction to hear her appeal.
AFFIRMED
COSTS
Each party shall bear its own costs.