NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

ROBERT SEAN ROSS,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

DEPARTMENT OF THE TREASURY,

Intervenor

______________________ 

2021-2262

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. NY-0752-21-0008-I-1.

______________________ 

Decided: February 10, 2022

______________________ 

ROBERT SEAN ROSS, Ronkonkoma, NY, pro se. 

 KATRINA LEDERER, Office of General Counsel, United 

States Merit Systems Protection Board, Washington, DC, 

for respondent. Also represented by TRISTAN L. LEAVITT,

KATHERINE MICHELLE SMITH. 

 KELLY GEDDES, Commercial Litigation Branch, Civil 

Case: 21-2262 Document: 38 Page: 1 Filed: 02/10/2022
2 ROSS v. MSPB

Division, United States Department of Justice, Washington, DC, for intervenor. Also represented by BRIAN M.

BOYNTON, DEBORAH ANN BYNUM, PATRICIA M. MCCARTHY. 

 ______________________ 

Before LOURIE, BRYSON, and CUNNINGHAM, Circuit 

Judges.

PER CURIAM. 

Petitioner Robert Sean Ross seeks review of an order of 

the Merit Systems Protection Board (“MSPB” or “Board”) 

dismissing his Individual Right of Action (“IRA”) appeal for 

lack of jurisdiction. We affirm.

I 

Mr. Ross was employed by the Internal Revenue Service (“IRS”) as an Internal Revenue Agent. On October 18, 

2019, the IRS proposed removing Mr. Ross from his position based on conduct not at issue in this appeal. Supp. 

App’x 39–40. In settlement of that action, Mr. Ross, with 

the assistance of his union representative, entered into a 

Last Chance Agreement (“LCA”) with the IRS. The agreement was executed on March 4, 2020. Id. at 2.

Under the terms of the LCA, Mr. Ross would be suspended for 30 days, after which Mr. Ross was not to exhibit 

a lack of candor or fail to observe written regulations, orders, rules, or IRS procedures for two years. Id. at 85. As 

part of the LCA, Mr. Ross agreed that the IRS could terminate him if he breached the LCA. Id. at 86. The LCA further included a waiver of Mr. Ross’s appeal rights in the 

event of termination, with the exception that Mr. Ross 

could appeal to the MSPB “for the sole purpose of challenging the Agency's factual determination that he breached” 

the LCA. Id. Finally, the LCA provided that Mr. Ross 

“freely and willingly” entered into the LCA “without coercion or duress.” Id. at 87.

Case: 21-2262 Document: 38 Page: 2 Filed: 02/10/2022
ROSS v. MSPB 3

On June 19, 2020, Mr. Ross sent an email containing 

the last names of multiple taxpayers to five IRS staff members and to George Greenberg, his union representative. 

Supp. App’x at 74, 76. Mr. Ross sent the email to Mr. 

Greenberg’s unencrypted Gmail account because, according to Mr. Ross, Mr. Greenberg could not access his IRS 

email account due to the COVID-19 pandemic. Pet’r’s Br. 

4.

On September 11, 2020, Mr. Ross attempted to send an 

email to an accountant working on one of his cases. Id. at 

31. That email included a taxpayer’s name and Social Security number. Id. The IRS’s IT security system intercepted the message because it contained personally 

identifiable information and was sent to a non-IRS email 

address. Id. at 64.

On October 9, 2020, the IRS informed Mr. Ross that he 

was being terminated because those two email messages 

evidenced a breach of the LCA. Id. at 58–59. Specifically, 

the IRS noted that Mr. Ross had violated Internal Revenue 

Manual (“IRM”) 3.42.9.2.2, which states that “[e]mployees 

may not use e-mail to transmit SBU [sensitive but unclassified] data unless they use IRS secure messaging system.” 

Office of Disclosure, IRM 3.42.9.2.2(6) (Jan. 1, 2019). Under IRS rules, “personal data of taxpayers” or “Personally 

Identifiable Information (PII)” is a type of sensitive information that is covered by the IRM. Secure Messaging & 

Encryption, IRM 1.10.3.2.1(2) (Nov. 17, 2016). The IRM 

adds that “taxpayer, SBU, or PII information” should not 

be included “in email messages or attachments” unless 

IRS-approved encryption technology is used. Id. at 

1.10.3.2.1(3). Because the two emails sent by Mr. Ross included taxpayer names, and in one case, a Social Security 

number, the IRS determined that Mr. Ross had not complied with IRS procedures and therefore breached the LCA. 

Supp. App’x 58–59.

Case: 21-2262 Document: 38 Page: 3 Filed: 02/10/2022
4 ROSS v. MSPB

After receiving notice of his termination, Mr. Ross 

timely appealed his termination to the MSPB. Id. at 46. 

The administrative judge subsequently issued an order directing the parties to submit statements addressing the 

Board’s jurisdiction. Id. at 36. Because the LCA included 

a waiver of appeal rights, the administrative judge required Mr. Ross to nonfrivolously allege at least one of the 

following: (1) that he complied with the LCA; (2) that the 

agency materially breached the LCA or acted in bad faith; 

(3) that he did not voluntarily enter into the LCA; or (4) 

that the LCA was the product of fraud or mutual mistake. 

Id. (citing Bruhn v. Dep’t of Agric., 124 M.S.P.R. 1, 6 

(2016)).

First, Mr. Ross argued that he complied with the LCA. 

As to the June 19 email, Mr. Ross asserted that taxpayers’ 

last names alone are not PII, and therefore the email did 

not violate agency policy. Supp. App’x. 31. Mr. Ross also 

contended that the failure of the IRS’s IT security system 

to block the email was evidence that the email did not contain PII. Id. As to the September 11 email, Mr. Ross argued that he did not actually violate IRS policy because the 

email was intercepted by the IT security system, and therefore was never transmitted outside of the agency. Id. The 

administrative judge was not persuaded by these arguments and found that the emails “were in violation of the 

rules relating to the transmission of email outside the IRS.” 

Id. at 5.

Second, Mr. Ross argued that he did not voluntarily enter into the LCA because “the union told him that he did 

not have a choice but to sign it.” Id. The administrative 

judge found that argument to be unpersuasive in view of 

the fact that the LCA explicitly stated that Mr. Ross entered the agreement “freely and willingly . . . without coercion or duress on the part of anyone.” Id. (quoting Supp. 

App’x 87).

Case: 21-2262 Document: 38 Page: 4 Filed: 02/10/2022
ROSS v. MSPB 5

Third, Mr. Ross argued that the LCA resulted from 

fraud because his union representative told him that “entering into the LCA would result in his being reassigned to 

a different manager upon his return to work.” Supp. App’x 

5. The administrative judge found this argument unpersuasive because the LCA did not state that Mr. Ross would 

be reassigned to a different manager, and thus the agency 

did not breach the agreement with Mr. Ross or fraudulently mislead him. Id.

Finding that Mr. Ross had not raised any non-frivolous 

grounds for challenging the LCA or the IRS’s decision to 

remove him for violation of the LCA, the administrative 

judge concluded that the Board lacked jurisdiction over Mr. 

Ross’s appeal. Mr. Ross then appealed to this court.

II

Under 5 U.S.C. § 7703(c), we must affirm the decision 

of the MSPB unless 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) unsupported by substantial evidence. See also Hayes v. Dep’t of the Navy, 727 F.2d 

1535, 1537 (Fed. Cir. 1984). 

To overcome a waiver of appeal rights in a last chance 

agreement, an employee must show that (1) he complied 

with the agreement; (2) the agency materially breached the 

agreement; or (3) he did not enter into the agreement 

knowingly and voluntarily. Buchanan v. Dep’t of Energy, 

247 F.3d 1333, 1338 (Fed. Cir. 2001); Copeland v. Dep’t of 

Army, 847 F. App’x 919, 920 (Fed. Cir. 2021). 

A 

First, Mr. Ross raises several arguments that appear 

to be directed to whether he complied with the LCA. For 

example, he argues that “a last name does not give the taxpayer’s identity out,” apparently suggesting that a last 

name does not constitute PII. Pet’r’s Reply 1. Additionally, 

Case: 21-2262 Document: 38 Page: 5 Filed: 02/10/2022
6 ROSS v. MSPB

he claims that he acted in reliance on a statement from a 

union official that he should “send an email.” Id. at 2. Finally, he alleges that the circumstances surrounding the 

COVID-19 pandemic left him with no choice but to contact 

Mr. Greenberg at his Gmail account. Pet’r’s Br. 4.

Mr. Ross’s arguments fail to account for other evidence 

that he breached the LCA. Even if a taxpayer’s last name 

does not constitute PII (an assertion that the IRS disputes), 

he does not address on appeal the fact that the September 

11 email contained a taxpayer’s Social Security number. 

Mr. Ross also argued to the administrative judge that because the IRS’s IT security system intercepted the message, he did not violate any IRS procedures regarding the 

use of PII in emails. Supp. App’x 31. The agency, however, 

reasonably concluded that Mr. Ross had violated its policy 

against using email to transmit sensitive information. The 

IRM prohibits “includ[ing] taxpayer, SBU, or PII information in email messages” without using IRS-approved encryption technology. Secure Messaging & Encryption, IRM 

1.10.3.2.1(2) (Nov. 17, 2016). The IRM does not distinguish 

between messages that actually reach the intended recipient and those that do not. See id. Accordingly, the administrative judge was not required to credit Mr. Ross’s 

argument that the interception of his email by the IRS’s IT 

security system meant that there was no violation of the 

IRM.

Mr. Ross’s assertion that he had no choice but to send 

the June 19 email to Mr. Greenberg’s Gmail account is similarly unavailing. Even assuming that Mr. Ross had no 

other way to contact Mr. Greenberg, he has not explained 

why it was necessary to include taxpayer names in the 

email that he sent. 

Mr. Ross further argues that other IRS employees included the same taxpayer information in other emails in 

violation of the IRM. Pet’r’s Reply 1–2. Even if true, an 

assertion that another employee violated IRS policy is not 

Case: 21-2262 Document: 38 Page: 6 Filed: 02/10/2022
ROSS v. MSPB 7

evidence that Mr. Ross did not himself violate the policy. 

Mr. Ross adds that he had not completed the “updated 

training” regarding IRS internal policy. Pet’r’s Br. 4. But 

Mr. Ross’s assertion that he was not aware of the agency’s 

policy does not preclude a finding that he violated that policy. 

In view of the record evidence, the administrative judge 

was fully justified in concluding that Mr. Ross failed to 

make a non-frivolous showing that he did not breach the 

LCA.

B 

Second, Mr. Ross argues that he did not voluntarily enter into the LCA. Specifically, he argues that his union 

representative “forced [him] into signing” the LCA. Pet’r’s 

Br. 4. He adds that he “was told that [he] was being removed from the Service unless [he] signed the agreement.” 

Pet’r’s Reply 1. Aside from his own assertions, Mr. Ross 

points to no evidence in the record supporting those claims. 

The administrative judge explicitly considered Mr. Ross’s 

assertions and concluded that they did not outweigh the 

representation in the LCA that Mr. Ross “freely and willingly” entered into the LCA “without coercion or duress on 

the part of anyone.” Supp. App’x 5 (quoting Supp. App’x 

87). We therefore uphold the administrative judge’s finding that Mr. Ross failed to make a non-frivolous showing 

that he was forced to enter into the LCA. See Jones v. Dep’t 

of Interior, 321 F. App’x 925, 927 (Fed. Cir. 2008). 

C 

Third, Mr. Ross appears to argue that the agency engaged in fraud or acted in bad faith, which are factors that 

the Board considered in its analysis. See Supp. App’x 2. 

Mr. Ross contends that his manager “constantly harassed” 

him and “never [gave him] a chance to improve to her 

standards,” despite his satisfactory performance under 

previous managers. Pet’r’s Br. 4. In Mr. Ross’s view, this 

Case: 21-2262 Document: 38 Page: 7 Filed: 02/10/2022
8 ROSS v. MSPB

was evidence that the IRS “had intent to remove [him].” Id. 

The administrative judge was not required to treat that evidence as indicative of bad faith, especially given the administrative judge’s finding that Mr. Ross engaged in 

conduct that violated the LCA. 

Relatedly, Mr. Ross argued before the Board that his 

union representative told him he would be transferred to a 

different manager after returning to work. Supp. App’x 4. 

The administrative judge considered that argument and 

rejected it because “the [LCA] did not state that [Mr. Ross] 

would be reassigned to another manager.” Id. at 5.

We therefore conclude that Mr. Ross has not made a 

non-frivolous showing that the IRS acted in bad faith or 

that the LCA was the product of fraud on the part of the 

agency.

III

We have considered Mr. Ross’s remaining arguments 

and find them unpersuasive. Accordingly, the Board’s dismissal of Mr. Ross’s appeal for lack of jurisdiction is affirmed.

AFFIRMED

COSTS

No costs.

Case: 21-2262 Document: 38 Page: 8 Filed: 02/10/2022