Allen v. DVA , 651 F. App'x 972 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CAULTON D. ALLEN,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2015-3224
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-07-0694-C-6.
______________________
Decided: June 7, 2016
______________________
CAULTON D. ALLEN, Fort Washington, MD, pro se.
WILLIAM JAMES GRIMALDI, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent. Also represent-
ed by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
ALLISON KIDD-MILLER; GIA MARIE CHEMSIAN, Office of
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________
2 ALLEN v. DVA
Before PROST, Chief Judge, O’MALLEY, and CHEN, Cir-
cuit Judges.
PER CURIAM.
Caulton D. Allen appeals from the final decision of the
Merit Systems Protection Board (Board) in Allen v. Dep’t
of Veteran Affairs, No. DC-0752-07-0694-C-6, which
denied his fourth petition for enforcement of a settlement
agreement with the Department of Veterans Affairs (the
agency). For the reasons discussed below, we affirm.
BACKGROUND
In 2007, the agency removed Mr. Allen from his posi-
tion as an Equal Opportunity Specialist, GS-0360-12. Mr.
Allen filed a petition for review with the Board challeng-
ing his removal. Shortly after, on August 30, 2007, the
parties agreed to resolve the appeal through a settlement
agreement. In the parties’ settlement agreement, Mr.
Allen agreed to, among other things, waive and withdraw
in their entirety all proceedings against the agency,
including his appeal, and to refrain from bringing any
future proceedings against the agency, with the exception
of any claims arising from a breach of the settlement
agreement. J.A. 22–23 ¶¶ 1–6. In return, the agency
agreed to “immediately cancel [Mr. Allen’s] removal and
reinstate him, effective May 26, 2007, for the purpose of
facilitating his resignation.” J.A. 24 ¶ 9. The agreement
also obligated the agency to:
[R]emove any and all information related to [Mr.
Allen’s] removal action from [his] Official Person-
nel File (OPF), change his removal to voluntary
resignation, and make the following changes:
a. SF 50–B Notification of Personnel Ac-
tion. Removal, dated May 26, 2007, will be
canceled and removed, and [agency] will
substitute a form SF 50–B Notification of
ALLEN v. DVA 3
Personnel Action reflecting [Mr. Allen’s]
resignation.
b. SF–50–B Notification of Personnel Ac-
tion. Suspension, dated August 28, 2006,
will be cancelled and removed.
J.A. 24 ¶ 10. The agency also agreed that Human Re-
source Officer Jeanette Anderson, or her successor, if
contacted regarding any employment inquiry or reference
for Mr. Allen, would provide only the specific information
contained in an exhibit to the agreement (Exhibit C),
unless otherwise required by law. J.A. 24–25 ¶ 12.
The administrative judge presiding over the appeal
determined that the settlement agreement was lawful on
its face, freely reached by the parties, and that the parties
understood the terms of the agreement. Accordingly, the
judge entered the agreement into the record for enforce-
ment purposes and dismissed Mr. Allen’s appeal. See
Allen v. Dep’t of Veteran Affairs, No. DC-0752-07-0694-I-1,
2007 WL 4199611 (M.S.P.B. Sep. 6, 2007).
Mr. Allen has subsequently challenged the agency’s
compliance with the terms of the agreement on multiple
occasions. Much of that history is detailed in this court’s
prior opinion regarding Mr. Allen’s first and second
petitions for enforcement of the agreement, Allen v. Dep’t
of Veteran Affairs, 420 F. App’x. 980 (Fed. Cir. 2011). We
recount below the portions of that long history relevant to
this appeal.
After the parties executed the settlement agreement,
on December 30, 2008, Mr. Allen applied to the Depart-
ment of Labor’s Office of Workers’ Compensation Pro-
grams (OWCP) for disability retirement benefits, claiming
that he sustained a compensable, work-related “mental
disorder/psychiatric illness.” Mr. Allen alleged that he
sustained serious emotional injury after being subjected
to hostility and harassment from his supervisor prior to
4 ALLEN v. DVA
his separation from the agency. In connection with Mr.
Allen’s benefits application, OWCP sent the agency a
letter requesting specific information regarding the accu-
racy of Mr. Allen’s claim. The letter also asked whether
Mr. Allen had any performance or conduct problems. Ms.
Anderson responded to these inquiries in narrative form
and also enclosed supporting documentary evidence,
including copies of Mr. Allen’s removal notice and other
documents related to his removal.
On May 11, 2009, Mr. Allen filed a petition for en-
forcement of the settlement agreement, alleging that the
agency breached the agreement by (1) providing infor-
mation to OWCP that it had agreed to expunge from Mr.
Allen’s OPF and (2) disclosing information other than
what was contained in Exhibit C, despite having no legal
obligation to do so. The agency responded that it had in
fact purged the removal-related documents from his OPF
pursuant to the agreement. It then argued that its disclo-
sure did not violate the settlement agreement because the
information came from a file other than Mr. Allen’s OPF.
On June 10, 2009, the administrative judge issued an
initial decision denying Mr. Allen’s enforcement petition,
finding that Mr. Allen failed to prove the agency breached
the agreement. See Allen v. Dep’t of Veteran Affairs, No.
DC-0752-07-0694-C-3, 2009 WL 2253664 (M.S.P.B. June
10, 2009). Mr. Allen filed a petition for review and the
Board affirmed the initial decision. Allen v. Dep’t of
Veteran Affairs, 2009 M.S.P.B. 238 (M.S.P.B. Dec. 29,
2009). The Board concluded that the agreement only
required the agency to expunge removal-related infor-
mation from Mr. Allen’s OPF and not from all agency-
maintained files. The Board also found that the agency
complied with the settlement agreement by removing
from Mr. Allen’s OPF all documents related to his remov-
al. Finally, the Board also concluded that the agency was
required by law to provide the disclosed information to
OWCP and, in any event, Mr. Allen did not bargain for
ALLEN v. DVA 5
non-disclosure to OWCP. Mr. Allen timely appealed the
Board’s final decision to this court on February 24, 2010,
in Allen v. Dep’t of Veteran Affairs, Docket No. 2010-3178.
While Mr. Allen’s appeal to this court was pending, on
March 19, 2010, OWCP notified Mr. Allen that he was not
eligible for the requested benefits due to his resignation
from the agency. The agency subsequently revealed to
Mr. Allen that the removal-related documents shared
with OWCP were separately maintained in an “unofficial
settlement file.” Mr. Allen filed a second petition for
enforcement on April 20, 2010, this time alleging that the
agency breached the agreement by maintaining removal-
related documents in his “OPF and/or another unauthor-
ized secret personnel file.” The petition also claimed that
the agency had been “dishonest” about the location of his
OPF since his resignation. On May 26, 2010, the admin-
istrative judge denied Mr. Allen’s second petition. See
Allen v. Dep’t of Veteran Affairs, No. DC-0752-07-0694-C-
4, 2010 WL 2532749 (M.S.P.B. May 26, 2010). The Board
held that collateral estoppel barred Mr. Allen from reliti-
gating these issues because the Board’s earlier 2009 Final
Decision specifically found that all removal-related docu-
ments were expunged from his OPF and that the reten-
tion of these documents outside of his OPF did not breach
the terms of the settlement agreement. That decision
became final on June 30, 2010. On August 30, 2010, Mr.
Allen appealed to this court in Allen v. Dep’t of Veteran
Affairs, Docket No. 2010-3178, and his two appeals were
consolidated.
In the first appeal (No. 2010-3088), Mr. Allen argued
that the Board erred in finding that the agency did not
materially breach the parties’ agreement by retaining
removal-related documents and furnishing them to
OWCP. He also argued that the Board “failed to address
[his] claims of bias exhibited by the [administrative judge]
during compliance proceedings” and, instead, “exhibit[ed]
its own bias by presenting arguments on behalf of the
6 ALLEN v. DVA
agency.” In the second appeal (No. 2010-3178), Mr. Allen
argued that the administrative judge misapplied the
collateral estoppel doctrine and improperly barred him
from litigating the “issue of whether documents related to
[his] removal action were properly expunged from [his]
OPF.” On May 13, 2011, we affirmed both of the Board’s
final decisions in Allen v. Dep’t of Veteran Affairs, 420 F.
App’x. 980 (Fed. Cir. 2011).
As to Mr. Allen’s first petition for enforcement, we
agreed with the Board that the plain language of the
agreement required only the removal of documents from
his OPF. We also concluded that the Board’s finding that
the agency was required by law to disclose the documents
to OWCP was not arbitrary, capricious, an abuse of dis-
cretion, or otherwise not in accordance with the law.
Finally, we found meritless Mr. Allen’s arguments that
the Board was biased against him and that he was im-
properly denied an evidentiary hearing. As to Mr. Allen’s
second petition for enforcement, we found that the Board
properly applied the collateral estoppel doctrine to bar
Mr. Allen’s second challenge to the agency’s retention of
removal-related documents.
Mr. Allen then filed a third petition for enforcement of
the settlement agreement, in which he alleged the agency
breached the agreement in connection with a reference
check. In response to an inquiry from a potential employ-
er regarding Mr. Allen’s work performance, trustworthi-
ness, and interpersonal skills, Ms. Anderson indicated
that she could not speak to Mr. Allen’s work performance
and trustworthiness because she was a Human Resources
Officer and not his supervisor. According to Mr. Allen,
this response suggested that Ms. Anderson was limited in
the information she could provide regarding his employ-
ment history and, thus, was a breach of the settlement
agreement. The administrative judge disagreed and
denied the petition for enforcement. Allen v. Dep’t of
Veteran Affairs, No. DC-0752-07-0694-C-5, 2012 WL
ALLEN v. DVA 7
2869818 (M.S.P.B. May 31, 2012). The administrative
judge found the settlement agreement “specifically pro-
vided [Ms. Anderson] could tell prospective employers she
was not ‘[Mr. Allen’s] supervisor’” and “adding that she
was a ‘Human Resources Officer’ only supplements the
statement she was not his supervisor, and is not a state-
ment that is contradictory to the essence of the contract.”
Id. On petition for review, the Board affirmed the initial
decision. See Allen v. Dep’t of Veteran Affairs, No. DC-
0752-07-0694-C-5, 2013 WL 9668780 (M.S.P.B. Feb. 1,
2013). Mr. Allen did not appeal the Board’s final decision.
On December 31, 2014, Mr. Allen filed the current pe-
tition for enforcement—the fourth alleging that the agen-
cy breached the parties’ settlement agreement. In the
petition, Mr. Allen sought to have the agreement deemed
invalid and unenforceable for failure to satisfy the re-
quirements of the Age Discrimination in Employment Act
(ADEA) and the Older Workers Benefits Protection Act
(OWBPA). J.A. 19–21; J.A. 27. According to Mr. Allen,
“any ‘knowing and voluntary’ waiver of rights under the
ADEA in a settlement agreement must specifically refer
to the rights or claims under the ADEA in the paragraph
that references the benefits that it covers and must refer
to the ADEA by name in connection with the waiver.”
J.A. 19. Mr. Allen alleged that the agreement was defec-
tive for failing to satisfy this requirement and, thus, must
be set aside. Mr. Allen also alleged that the agency
materially breached the agreement by engaging in re-
peated acts of post-settlement retaliation. J.A. 28–31.
Finally, he again argued that the agency materially
breached the agreement by continuing to maintain docu-
ments related to his removal in 2007. J.A. 31–32.
The administrative judge issued an initial decision
denying Mr. Allen’s fourth petition for enforcement. Allen
v. Dep’t of Veteran Affairs, No. DC-0752-07-0694-C-6,
2015 WL 4485924 (M.S.P.B. July 17, 2015). As to Mr.
Allen’s challenge to the validity of the agreement, the
8 ALLEN v. DVA
administrative judge concluded there is nothing in the
cited regulations to indicate the parties’ 2007 settlement
agreement failed to comply with the requirements of the
ADEA or OWBPA. The administrative judge went on to
state that, in any event, even if Mr. Allen had a valid
claim that the parties’ agreement was inconsistent with
the requirements of the OWBPA, the Board’s compliance
jurisdiction under a petition for enforcement of a settle-
ment agreement does not cover issues as to the validity of
that agreement. The judge also found that none of Mr.
Allen’s examples of “retaliatory post-settlement behavior”
constituted material breaches of the settlement agree-
ment. And the judge found that the Board had already
evaluated and rejected Mr. Allen’s argument as to the
retention of removal-documents, barring him from again
raising this argument under the collateral estoppel doc-
trine.
Mr. Allen chose not to file a petition for review with
the full Board and the administrative judge’s initial
decision became the final decision of the Board. Mr. Allen
now seeks review from this court. We have jurisdiction
over the appeal pursuant to 28 U.S.C. § 1295(a)(9).
STANDARD OF REVIEW
Our review of Board decisions is limited by statute.
Hamel v. President’s Comm’n on Exec. Exch., 987 F.2d
1561, 1564 (Fed. Cir. 1993) (“We review Board decisions
under a very narrow standard.”). We can set a Board
decision aside only if it is “(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) unsupport-
ed by substantial evidence.” 5 U.S.C. § 7703(c); see Briggs
v. Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir.
2003). The petitioner bears the burden of establishing
any errors in the Board’s decision. Harris v. Dep’t of
Veterans Affairs, 142 F.3d 1463, 1467 (Fed. Cir. 1998).
ALLEN v. DVA 9
DISCUSSION
In this appeal, Mr. Allen contends that the adminis-
trative judge (1) erred in refusing to invalidate the set-
tlement agreement; (2) erred in finding that the agency
did not breach the agreement; and (3) was biased against
Mr. Allen and deprived him of a fair opportunity to pre-
sent his case in violation of his right to due process.
Because the administrative judge’s decision was not
arbitrary, capricious, an abuse of discretion, or otherwise
in conflict with law, and was supported by substantial
evidence, we affirm. We address each of Mr. Allen’s
arguments in turn.
I.
Mr. Allen first argues that the Board should have in-
validated the parties’ settlement agreement because it
does not meet the strict requirements set forth in the
OWBPA regarding waiver of employment-related bene-
fits. Pet. Inf. Br. at 1–2. We have previously noted,
however, that a petitioner may not challenge the validity
of a settlement agreement in an appeal arising from a
petition for enforcement. Harris, 142 F.3d at 1468 (Fed.
Cir. 1998) (noting that, under Board precedent, the peti-
tioner may not question validity of a settlement agree-
ment in a petition for enforcement because “the Board
only entertains allegations that a settlement agreement is
invalid in a petition for review”); see also Hatcher v. Dep’t
of Justice, 76 M.S.P.R. 97, 99 (M.S.P.B. 1997) (“It is well-
settled that an attack on the validity of a settlement
agreement must be made in the form of a petition for
review of the initial decision, and not in a petition for
enforcement.”).
The proper vehicle for Mr. Allen to challenge the va-
lidity of the agreement would have been in a petition for
review of the September 6, 2007 initial decision in Allen v.
Dep’t of Veteran Affairs, No. DC-0752-07-0694-I-1, 2007
WL 4199611 (M.S.P.B. Sep. 6, 2007), that dismissed his
10 ALLEN v. DVA
appeal as settled. The administrative judge thus correctly
recognized that it did not possess jurisdiction to entertain
Mr. Allen’s validity challenge based on the alleged failure
to satisfy the requirements of the OWBPA.
II.
Mr. Allen also argues that the agency breached the
agreement by engaging in a pattern of retaliatory actions
designed to deny him the benefits of the settlement
agreement in violation of the implied covenant of good
faith. Pet. Inf. Br. 3–8. He identifies eight specific in-
stances where the agency allegedly submitted incomplete,
inaccurate, and untimely information in connection with
his claims for benefits. Mr. Allen does not argue that
each of these separate acts breach the express terms of
the contract. Id. He instead contends that:
When all eight (8) examples of retaliatory acts are
reviewed together, they clearly demonstrate a pat-
tern of animosity, hostility, and determination by
Agency employees, specifically Agency HR em-
ployee Jeanette Anderson, to deprive the Petition-
er of the benefits that he received as a bargain for
in exchange for agreeing to withdraw his appeal of
the Agency’s fabricated charges of misconduct.
Id. at 4. Having reviewed the record, we agree with the
administrative judge that Mr. Allen failed to establish
that the agency breached the agreement by engaging in
bad faith retaliation.
A settlement agreement is a contract, the interpreta-
tion of which is a matter of law reviewed by this court de
novo. Harris, 142 F.3d at 1467 (Fed. Cir. 1998). Whether
a settlement agreement has been breached is a factual
finding, which we review for substantial evidence. See
Thomas v. Dep’t of Hous. & Urban Dev., 124 F.3d 1439,
1441–42 (Fed. Cir. 1997). Every contract contains an
implied covenant that the parties fulfill their respective
ALLEN v. DVA 11
contractual obligations in good faith. See Link v. Dep’t of
the Treasury, 51 F.3d 1577, 1582 (Fed. Cir. 1995). Thus, a
party breaches its obligation of good faith and fair dealing
by acting in bad faith with respect to a settlement term.
Id. “Bad faith” is not simply bad judgment or negligence
but instead implies conscious wrongdoing because of
dishonest purpose or moral obliquity. See Silva v. U.S.
Postal Service, 59 M.S.P.R. 268, 272 (1993) (quoting
Black’s Law Dictionary (6th Ed.), aff’d, 40 F.3d 1250 (Fed.
Cir. 1994) (Table)).
Without any citation to evidence in the record, Mr. Al-
len argues “[t]he [a]gency’s ‘bad faith’ is embedded in the
fact that Agency Office of Resolution Management em-
ployees are still angry and humiliated that it had to
resolve [his] appeal of his wrongful termination based on
fabricated charges of misconduct by allowing him to be
reinstated, resign, give him a ‘clean record’, and access to
employment related benefits that he was entitled to claim
and receive, rather than end his employment based on
fabricated charges of misconduct.” Pet. Inf. Br. at 4. The
record on appeal, however, shows that Mr. Allen only
made allegations that isolated actions of incorrect and/or
delayed processing of benefits claims were purposeful; he
did not support those bare allegations with any actual
evidence of conscious wrongdoing. Although Mr. Allen
argues the administrative judge failed to properly consid-
er all material and relevant facts, he does not identify the
specific facts of dishonest purpose that he believes the
administrative judge overlooked. Accordingly, Mr. Allen
has not carried his burden of demonstrating error in the
administrative judge’s failure to find bad faith.
The administrative judge also properly concluded that
Mr. Allen is precluded from once again relitigating the
agency’s retention of removal documents. See Stephen
Slesinger, Inc. v. Disney Enter., Inc., 702 F.3d 640, 644
(Fed. Cir. 2012) (“The doctrine of issue preclusion, or
collateral estoppel, protects the finality of judgments by
12 ALLEN v. DVA
preclud[ing] relitigation in a second suit of issues actually
litigated and determined in the first suit.” (citations and
internal quotation marks omitted)). We already affirmed
the Board’s prior application of collateral estoppel to bar
Mr. Allen’s challenge to the retention of removal-related
documents. See Allen, 420 F. App’x at 991.
We, therefore, cannot conclude that the administra-
tive judge’s decision rejecting Mr. Allen’s claims of breach
of the settlement agreement is arbitrary, capricious, or
unsupported by substantial evidence. 1
III.
Last, Mr. Allen claims that the administrative judge
was biased against him and violated his right to due
process. Pet. Inf. Br. at 9–12. In support of his claim of
bias, Mr. Allen cites the administrative judge’s refusal to
1 Mr. Allen also appears to argue that, alternative-
ly, the settlement agreement is invalid because the agen-
cy’s post-settlement actions demonstrate that the agency
engaged in bad faith when it negotiated the settlement
terms. Pet. Inf. Br. at 4. He urges that the agency “made
illusory promises designed to entice [him] into settling
their dispute and once he withdrew his right to a hearing,
the [a]gency’s bargain, the [a]gency intended to deny him
the benefit of his bargain.” Pet Inf. Reply Br. at 24–25.
To the extent that this is a distinct invalidity argument
based on “bad faith” in the formation of the contract,
rather than a post-settlement breach of the implied
covenant of good faith, it is similarly flawed for lack of
jurisdiction in this petition for enforcement. We also note
that these bald allegations of bad faith, unsupported by
any corroborating evidence, fall far short of meeting the
“heavy burden” to prove that the settlement agreement
was invalid. Asberry v. United States Postal Serv., 692
F.2d 1378, 1380 (Fed. Cir. 1982).
ALLEN v. DVA 13
hold both an evidentiary hearing and obtain a handwrit-
ing expert to authenticate the signatures on four declara-
tions of Ms. Anderson submitted by the agency in
response to Mr. Allen’s various petitions for enforcement.
Id. Because of the perceived bias by the administrative
judge, Mr. Allen requests this court remand his case for
review by an impartial “Special Panel” rather than the
Board. Id. at 8–9.
According to Mr. Allen, the signatures in each of Ms.
Anderson’s declarations are different, thus indicating that
each declaration must not have been signed by Ms. An-
derson. Id. at 9. Mr. Allen contends this is evidence that
the agency engaged in fraud upon the Board. Id. Mr.
Allen argues the administrative judge’s determination
that the signatures appear sufficiently similar to indicate
they were signed by the same person is “erroneous and an
attempt to conceal the errors in adjudication that have
been intentionally committed at the [Board] in an effort to
bind [Mr. Allen] to an invalid settlement agreement
because of the costs financially to the [a]gency, as well as
the reputations of the [agency] and [Board], if the [Board]
dare overturn the parties’ 2007 settlement agreement.”
Id.
To establish bias by the administrative judge or the
Board, the appellant must make a showing of “a
deepseated favoritism or antagonism that would make
fair judgment impossible[.]” Bieber v. Dep’t of the Army,
287 F.3d 1358, 1362 (Fed. Cir. 2002) (quoting Liteky v.
United States, 510 U.S. 540, 555 (1994)). Here, as in Mr.
Allen’s previous appeal to this court, Allen, 420 F. App’x
at 989, his allegations of bias are nothing more than
assertions of abuse of discretion and legal error. In any
event, they lack merit.
There is no right to an evidentiary hearing in a peti-
tion for enforcement, and the decision to hold such a
hearing is within the sound discretion of the Board. See 5
14 ALLEN v. DVA
C.F.R. § 1201.183(a)(3); see also Allen, 420 F. App’x at
989. Mr. Allen’s argument that the judge was required to
have a handwriting expert review the contested signa-
tures pursuant to Federal Rule of Evidence 901(a) is also
misplaced because the Federal Rules of Evidence do not
apply to Board hearings. Yanopoulos v. Department of
Navy, 796 F.2d 468, 471 (Fed. Cir. 1986). Regardless, Mr.
Allen has not established that the perceived inconsisten-
cies relate to a material issue of fact in his petition for
enforcement.
Mr. Allen has also not shown how the administrative
judge’s exercise of discretion is evidence of favoritism or
antagonism, and so he does not come close to meeting the
high standard set out in Bieber. The record in the pre-
sent case establishes that the administrative judge ap-
plied settled law to the facts of Mr. Allen’s case, and that
his conclusions based on those facts were supported by
substantial evidence. Mr. Allen has, therefore, not shown
that the administrative judge was biased against him or
that his right to due process was violated. 2
2 Mr. Allen dedicates much of his argument to re-
counting the alleged bias of the administrative judge that
he previously accused of bias in Allen, 420 F. App’x 980.
Pet. Inf. Br. at 10–11. However, Mr. Allen does not
demonstrate why the actions of the previous administra-
tive judge should be attributed to the administrative
judge presiding over the petition that is the subject of this
appeal and, in any event, this court already considered
those allegations of bias and found them without merit.
Id. at 989.
ALLEN v. DVA 15
CONCLUSION
We have considered all of the arguments raised in Mr.
Allen’s informal brief. We find them unpersuasive. Ac-
cordingly, the decision of the Board is affirmed. 3
AFFIRMED
COSTS
Costs awarded to the Department of Veterans Affairs.
3 We have also considered both of Mr. Allen’s belat-
ed motions filed on May 26, 2016 and find them to be
without merit. In the first motion, Mr. Allen seeks to
have his appeal transferred to the District Court for the
District of Columbia on the grounds that we (1) lack
jurisdiction over his appeal and (2) have exhibited such
extreme bias against him in the past that we are incapa-
ble of issuing an impartial decision in this case. In the
second motion, Mr. Allen seeks to withdraw his purported
challenge that the allegedly retaliatory post-settlement
acts were motivated by illegal discrimination under Title
VII on the grounds that we lack jurisdiction over that
issue. As to the jurisdictional issue, we have reviewed the
available record and find that the illegal discrimination
Mr. Allen now references was neither put forth as a basis
for his petition for review nor in his appeal to this court.
Thus, this appeal is not excluded from our jurisdiction as
one of discrimination pursuant to the provisions of 5
U.S.C. §§ 7702, 7703(b)(1), and we retain exclusive juris-
diction. See Meehan v. U.S. Postal Serv., 718 F.2d 1069,
1074 (Fed. Cir. 1983). As to Mr. Allen’s allegations of this
court’s bias, we find that, like his prior allegations of bias
against the Board and its administrative judges, they too
lack any merit. We, therefore, deny Mr. Allen’s request to
transfer his appeal.