Cooper v. Department of Veterans Affairs , 515 F. App'x 897 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ALEXANDER L. COOPER,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
______________________
2012-3112
______________________
Appeal from the Merit Systems Protection Board in
No. NY0752110003-I-1.
______________________
Decided: February 7, 2013
______________________
ALEXANDER L. COOPER, of Montrose, New York, pro
se.
P. DAVIS OLIVER, 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, Acting Assistant
Attorney General, JEANNE E. DAVIDSON, Director, and
REGINALD T. BLADES, JR., Assistant Director.
______________________
2 ALEXANDER COOPER v. DVA
Before RADER, Chief Judge, SCHALL and BRYSON, Circuit
Judges.
Alexander Cooper appeals the final decision of the
Merit Systems Protection Board dismissing his appeal of
his removal from his position with the Department of
Veterans Affairs (“DVA”). We affirm.
BACKGROUND
Prior to his removal, Mr. Cooper had been employed
at the DVA Hudson Valley Health Care System since
1989. He was initially hired as a temporary housekeeping
aide. After March 6, 2005, he worked as a pipe fitter for
the agency. On March 11, 2010, Mr. Cooper became
involved in an altercation with a coworker. Ignoring a
warning from his supervisor not to escalate the dispute,
Mr. Cooper struck the coworker in the face. He subse-
quently refused to take a sobriety test, and his supervisor
attributed the incident to his “apparent intoxication.”
The DVA decided to remove Mr. Cooper, effective Sep-
tember 3, 2010, both for failing to follow instructions and
for striking a coworker. He appealed that decision to the
Board.
While the appeal was pending, Mr. Cooper and the
DVA entered into a “Last Chance Agreement” (“LCA”) on
December 6, 2010. Pursuant to the LCA, the DVA agreed
to hold the decision to remove Mr. Cooper in abeyance for
two years. During that time Mr. Cooper would be subject
to “random urine and/or breath analyzer testing for
alcohol.” The DVA also suspended Mr. Cooper for 60
days, which ran during the time he appealed the initial
removal decision. Mr. Cooper explicitly waived “his right
to challenge his removal in the event that the Agency
effects the removal action being held in abeyance” due to
his failure to comply with the agreement. However, the
LCA provided that “Mr. Cooper has not waived any rights
ALEXANDER COOPER v. DVA 3
or claims, not specified above, that may arise after the
date this agreement is signed.” It also stated that “Mr.
Cooper had the right to consult with a representative of
his choice prior to signing to the agreement” and that he
had read and understood its terms. The administrative
judge assigned to Mr. Cooper’s appeal dismissed the case
on December 22 due to the settlement between the par-
ties.
On January 14, 2011, after Mr. Cooper had been
reinstated, a supervisor believed he smelled alcohol on
Mr. Cooper’s breath and instructed him to submit to a
breathalyzer test. Mr. Cooper reluctantly complied, and
the test measured his blood-alcohol level at .052 percent.
The DVA removed Mr. Cooper on January 22, citing his
violation of the LCA. Mr. Cooper appealed that decision.
A different administrative judge was assigned to that
appeal, and after reviewing the LCA, she stated that
“there are numerous problems with it.” She noted that
the LCA referred to Mr. Cooper’s “removal letter dated
June 16, 2010,” when in fact the removal letter was sent
on August 16. More fundamentally, the administrative
judge stated that “[i]t seems . . . that there are conflicting
provisions in the agreement and that—until now—no one
has considered the ramifications of the conflicting provi-
sions.” Those provisions “allow[ed] the agency to take two
adverse actions—a sixty-day suspension and a removal
action—against the appellant for the same misconduct.”
In addition, after considering both the DVA’s removal
letter and the agency’s written submissions, the adminis-
trative judge concluded that the decision to remove Mr.
Cooper “was not based on the incidents that were the
subject of [the] August 16, 2010 decision. Rather, the
appellant’s January 22, 2011 removal was based on the
incident of January 14, 2011.” In other words, the admin-
istrative judge believed that the DVA was not merely
effecting the decision to remove Mr. Cooper for violating
the LCA, but had actually removed him for the separate
4 ALEXANDER COOPER v. DVA
infraction of appearing at work intoxicated in January
2011. The administrative judge therefore directed the
parties to meet and confer to discuss the problems with
the LCA and suggested that they draft a new agreement.
Before the second administrative judge took any
further action, Mr. Cooper on May 26, 2011, filed a sepa-
rate challenge to the first administrative judge’s Decem-
ber 22, 2010, decision, which had dismissed his initial
appeal pursuant to the LCA. 1 Mr. Cooper argued that the
LCA was invalid because it permitted the DVA to disci-
pline him twice for his March 2010 misconduct. Because
that separate, original appeal could result in the invalida-
tion of the LCA—and therefore eliminate the DVA’s
grounds for removing Mr. Cooper—the second adminis-
trative judge dismissed his appeal from his January 22
removal action without prejudice. Mr. Cooper has not
sought review of that dismissal.
The full Board rejected Mr. Cooper’s challenge to
the LCA. Although it recognized that an employee has a
substantive right not to receive two disciplinary actions
for the same misconduct, it ruled that, by signing the
LCA, Mr. Cooper waived that right in the event he violat-
ed the terms of the LCA. The Board noted that it had
already recognized that an employee may waive certain
significant statutory rights, such as the right to an ap-
peal, by entering into an LCA. It reasoned that permit-
ting waivers of the right against repeated discipline would
encourage agencies to enter into LCAs to conserve re-
sources otherwise spent on an appeal, and to avoid unnec-
essarily removing a valuable employee while still
1 Because Mr. Cooper filed his appeal to the Board more
than 35 days after the administrative judge’s decision, his
appeal was untimely. 5 C.F.R. § 1201.114(e). The Board
did not address the issue of untimeliness, and that issue
is not involved in this appeal.
ALEXANDER COOPER v. DVA 5
imposing corrective action. Because Mr. Cooper’s waiver
was “lawful on its face, [and] was freely entered into by
the parties,” the Board rejected his challenge. Mr. Cooper
timely appeals the Board’s decision to this court.
DISCUSSION
The Board’s decision dismissing Mr. Cooper’s initial
appeal pursuant to the LCA is a “final order” over which
this court has jurisdiction. 5 U.S.C. § 7703(b)(1)(A). If
the LCA is invalid in its entirety, 2 the DVA’s decision to
effect his removal pursuant to that agreement would lack
foundation. By signing the LCA, Mr. Cooper explicitly
waived his right to challenge the DVA’s 2010 decision to
remove him. Therefore, to overcome that waiver, he must
show that the DVA acted in bad faith or took an arbitrary
or capricious action, or that the LCA is invalid for having
deprived him of a substantive right. McCall v. U.S.
Postal Serv., 839 F.2d 664, 667 (Fed. Cir. 1988). He
cannot meet that burden. 3
Mr. Cooper’s first objection to the LCA is that it did
not provide him the opportunity to complete substance
abuse treatment before returning to work. He has indi-
cated that he successfully completed several substance
abuse treatment programs and currently participates in
Alcoholics Anonymous. Mr. Cooper argues that the LCA
arbitrarily denied him the opportunity to complete these
programs—which he estimates would have required a
2 The LCA includes a severability clause that applies if
any individual provision is invalidated.
3 Mr. Cooper references the administrative judge’s obser-
vation that the LCA in one instance cites the incorrect
date for his initial removal letter. However, we agree
with the administrative judge that this is merely a “typo-
graphical error” that does not materially affect the mean-
ing or validity of the agreement’s terms.
6 ALEXANDER COOPER v. DVA
nine-month leave—before requiring him to return to
work.
“A last-chance agreement is a settlement agree-
ment, and a settlement agreement is a contract.” Link v.
Dep't of the Treasury, 51 F.3d 1577, 1582 (Fed. Cir. 1995).
By signing the LCA, Mr. Cooper was contractually bound
by its terms. The LCA required Mr. Cooper to return to
work and did not permit him to take an extended leave to
complete substance abuse treatment. Mr. Cooper does
not argue that he believed he was entitled to take time off
for treatment or that he did not freely consent to each
term of the LCA. The DVA did not act in bad faith or
arbitrarily in requiring Mr. Cooper to resume his duties,
and Mr. Cooper has no substantive right to extended
leave to receive substance abuse treatment. The Board
properly held that the LCA was valid without including
such a provision.
Mr. Cooper also argues, as he did before the Board,
that the LCA is invalid because it improperly subjected
him to two disciplinary actions for the same misconduct.
But including a suspension as a term of an LCA is not a
novel practice, see e.g., Jarman v. Dep’t of the Navy, 144
F.3d 794, 795 (Fed. Cir. 1998), and the Board did not
abuse its discretion or misstate the law by ruling that Mr.
Cooper voluntarily waived his rights not to be subject to
both a suspension and removal.
In fact, the 60-day suspension in this case was not
actually a separate disciplinary event. The LCA contem-
plated only one adverse action: removal. It held the
removal in abeyance and, in effect, limited the removal to
a 60-day suspension for as long as Mr. Cooper abided by
its terms. But if the DVA ultimately removed Mr. Cooper
for violating the LCA, it would effect the original, and
only, adverse action against him. The Board in this case
analogized the restriction against disciplining an employ-
ee twice to the constitutional bar against double jeopardy
ALEXANDER COOPER v. DVA 7
in the criminal context. We can extend that analogy by
comparing Mr. Cooper’s situation to that of a criminal
offender on probation. A portion of the offender’s sentence
is suspended, pending his successful completion of certain
requirements. Reinstating a probation violator’s full
sentence does not violate the prohibition against double
jeopardy. United States v. DiFrancesco, 449 U.S. 117, 137
(1980) (“[T]here is no double jeopardy protection against
revocation of probation.”). In this case, Mr. Coop-er’s
removal under the LCA would not constitute a second
adverse action. Therefore, the LCA did not violate Mr.
Cooper’s substantive right against repeated discipline,
even if he had not waived it.
As an alternative, Mr. Cooper restates the adminis-
trative judge’s suspicion that he was removed for appear-
ing at work intoxicated in January 2011, and that the
DVA did not simply effect its decision to remove him for
striking a coworker in 2010. This is an important distinc-
tion because Mr. Cooper waived only his right to contest
the August 2010 removal; he explicitly reserved the right
to challenge any new adverse action. See Alexander v.
U.S. Postal Serv., 264 F.3d 1067, 1070-71 (Fed. Cir. 2001)
(employee who signed an LCA did not waive right to
challenge removal decision based on later infraction).
Regarding the January 2011 incident, Mr. Cooper notes
that his .052 blood-alcohol level was significantly lower
than the New York state legal limit for driving under the
influence, and he states that he merely drank alcohol the
night before he went to work and took the breathalyzer
test. There is also some doubt that the breathalyzer test
demanded by Mr. Cooper’s supervisor was “random” in
the sense contemplated in the LCA; the agreement does
not explicitly subject Mr. Cooper to suspicion-based
sobriety tests on demand.
Regardless of the merits of these arguments, how-
ever, Mr. Cooper’s objections to his removal in 2011 are
not properly before us. Mr. Cooper has already appealed
8 ALEXANDER COOPER v. DVA
the DVA’s January 2011 decision to remove him. The
administrative judge dismissed that appeal without
prejudice so that he could pursue his challenge to the
December 2010 LCA, at issue here. He has not sought
review of the dismissal of his appeal from the January
2011 removal decision, and the Board did not rule on it.
As a result, the DVA’s later decision to remove Mr. Cooper
(or to effect the earlier decision to remove him) is not part
of this appeal. We therefore do not reach Mr. Cooper’s
challenge to that decision. We hold only that the Board
did not err in ruling that the LCA was valid and that Mr.
Cooper has thereby waived his right to challenge the
DVA’s 2010 removal decision. The effect this ruling will
have on Mr. Cooper’s ultimate removal depends on the
disposition of any further proceedings the Board may
conduct to review that adverse action.
No costs.
AFFIRMED