UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JAMES A. HARDY,

Appellant,

v.

DEPARTMENT OF THE ARMY,

Agency.

DOCKET NUMBER

AT-0752-14-0344-I-1

DATE: December 5, 2014

THIS ORDER IS NONPRECEDENTIAL1

Joshua Klinger, Denver, Colorado, for the appellant.

Anne M. Norfolk, Fort Benning, Georgia, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

REMAND ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

dismissed the appellant’s removal appeal for lack of jurisdiction pursuant to an 

appeal rights waiver in a last chance settlement agreement (LCA). For the 

reasons discussed below, we GRANT the appellant’s petition for review and 

 1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

REMAND the case to the regional office for further adjudication in accordance 

with this Order.

BACKGROUND

¶2 The agency proposed to remove the appellant, a GS-8 lead firefighter, for 

use of a controlled substance after he tested positive for marijuana use. Initial 

Appeal File (IAF), Tab 5, Subtab 13. In lieu of removal, the parties entered into 

a LCA, in which the agency agreed to hold the removal in abeyance for 1 year, 

and the appellant agreed to participate in a drug rehabilitation program, provide 

proof of his enrollment, and submit to drug testing. Id., Subtab 9 at 1. He also 

agreed not to report to work under the influence of any drug or engage in any 

misconduct or unprofessional behavior and waived his Board appeal rights if the 

agency reinstated his removal due to any violation of these terms. Id. at 1-2. 

¶3 The agency later reinstated the removal based on the appellant’s alleged 

breach of the LCA. IAF, Tab 5, Subtabs 4-5. The agency charged that the 

appellant violated the LCA when, on November 20, 2013, he was the initial fire 

officer on scene but failed to observe adequate safety policy and procedures 

associated with the mitigation of a natural gas leak and was derelict in the 

performance of his duties because he “spent less than seven minutes investigating 

the scene, failed to use the appropriate detection equipment or even observe the 

lock on the gas line before declaring the scene safe.” IAF, Tab 5, Subtab 5 at 1-2. 

The agency appears to contend that the appellant should have used the 

Combustible Gas Indicator (CO1 or “sniffer”) instead of or in addition to the 

multi-gas (“4 gas”) monitor and that he was negligent when he declared the scene 

“fire safe” over the radio while the odor of natural gas was still easily detectible. 

See id.; see also Petition for Review (PFR) File, Tab 3 at 6-7.

¶4 The appellant timely appealed the removal to the Board, arguing that he did 

not violate the LCA and that the action was based on racial discrimination and 

retaliation for whistleblowing. IAF, Tab 1 at 4. The agency moved to dismiss the 
3

appeal for lack of jurisdiction pursuant to the appeal rights waiver in the LCA.

IAF, Tab 3 at 3. The appellant responded that the Board should find jurisdiction 

over his appeal because: (1) he did not breach the LCA; and (2) the agency 

materially breached the LCA. IAF, Tab 6 at 4-8. The administrative judge issued 

an initial decision without holding the requested hearing, finding that the Board 

lacked jurisdiction because the LCA was valid; the appellant violated the LCA 

when he failed to perform his duties satisfactorily and completely on November 

20, 2013; and the appellant failed to show that the agency breached the LCA. 

IAF, Tab 7, Initial Decision (ID) at 3-4.

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 The appellant has filed a petition for review, arguing that the administrative 

judge erred by: (1) failing to provide notice of the jurisdictional issue; 

(2) improperly making credibility determinations, weighing evidence, and 

resolving conflicting assertions without a hearing; and (3) denying the appellant a 

jurisdictional hearing although he made a nonfrivolous allegation of jurisdiction. 

PFR File, Tab 1 at 6-12. The agency has responded in opposition, and the 

appellant has submitted a reply. PFR File, Tabs 3-4.

¶6 As a preliminary matter, we find that the administrative judge’s failure to 

provide the appellant with Burgess notice—i.e., explicit information about the 

evidence and arguments he must present in order to nonfrivolously allege the 

Board’s jurisdiction—was cured because the agency’s motion to dismiss put the 

appellant on notice of what he must do to establish jurisdiction. See Burgess v. 

Merit Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985); Scott v. 

Department of Justice, 105 M.S.P.R. 482, ¶ 6 (2007). Specifically, the agency 

explained that in order to establish that the waiver of appeal rights should not be 

enforced, the appellant must show that: he complied with the agreement; the 

agency materially breached the agreement or acted in bad faith; he did not 

voluntarily enter into the agreement; or the agreement resulted from fraud or 
4

mutual mistake. IAF, Tab 3 at 3 (citing Easterling v. U.S. Postal Service,

110 M.S.P.R. 41, ¶ 12 (2008)). Thus, the appellant was informed below of his 

jurisdictional burden. IAF, Tab 6; see Scott, 105 M.S.P.R. 482, ¶ 6.

¶7 As the appellant was provided adequate notice, we turn to whether he made

a nonfrivolous allegation that he complied with the LCA. Where an employee 

raises a nonfrivolous factual issue of compliance with an LCA, the Board must 

resolve that issue before addressing the scope and applicability of a waiver of 

appeal rights. Stewart v. U.S. Postal Service, 926 F.2d 1146, 1148 (Fed. Cir. 

1991). Further, where an appellant makes a nonfrivolous allegation of fact that 

he did not breach a LCA, a jurisdictional hearing is warranted to resolve the issue 

of compliance. See Williams v. Department of the Treasury, 52 M.S.P.R. 344, 

347 (1991). A nonfrivolous allegation of fact is one that, if proven, would 

establish a prima facie case that the appellant did not breach the LCA. See 

Briscoe v. Department of Veterans Affairs, 63 M.S.P.R. 137, 140 (1994), aff’d, 

55 F.3d 1571 (Fed. Cir. 1995) (Table). Here, as discussed below, we find that the

appellant’s assertions that he did not violate the LCA are nonfrivolous. 

¶8 First, in his sworn statement, the appellant asserts that that he did not 

breach the LCA because he properly handled the natural gas leak and followed all 

agency policies on November 20, 2013. See IAF, Tab 6 at 13-15. Three of the 

appellant’s coworkers attested that either the 4 gas monitor or the CO1 was an 

appropriate detection device to use when responding to a natural gas leak. 2

 Id. at 

10, 11, 16-17. Further, in an apparent factual contradiction to the agency’s 

allegation that the appellant failed to “observe the lock on the gas line,” IAF, Tab 

5, Subtab 5 at 2, the appellant attested that he “notic[ed] that the gas meter had 

been locked out,” IAF, Tab 6 at 14. For the agency’s part, it failed to submit 

documentary evidence regarding adequate handling of a natural gas leak to 

 2 The appellant’s co-workers refer to Standard Operating Procedure #10, section 4.3, 

which apparently governs the protocol for responding to natural gas emergencies, IAF, 

Tab 6 at 9-10, 12, but neither party submitted a copy of it.
5

support its position. See IAF, Tab 5. Specifically, the agency has not provided 

any documentary evidence to support its apparent contentions that using the 4 gas 

meter rather than the CO1 and/or declaring the facility or scene “fire safe” after 

determining that there was no leak inside the building, proceeding to monitor the 

outside area, and calling in additional resources from the gas company constituted 

a dereliction of duty or was inconsistent with agency policy. See IAF, Tabs 3, 5; 

see also PFR File, Tab 3. As such, the administrative judge erred by accepting

the agency’s mere factual contradiction of the appellant’s nonfrivolous 

allegations of jurisdiction. See McLoughlin v. Department of the Treasury, 

78 M.S.P.R. 150, 155 (1998). Accordingly, on remand the administrative judge 

must undertake additional fact-finding to determine whether the appellant failed 

to observe established policy and procedure and/or was derelict in the 

performance of his duties. 

¶9 Second, the appellant nonfrivolously alleged that, even if the agency’s 

allegations were true, such conduct did not constitute a breach of the LCA. IAF, 

Tab 6 at 7. A party breaches a contract when he is in material noncompliance 

with the terms of the contract. Walker-King v. Department of Veterans Affairs,

119 M.S.P.R. 414, ¶ 9 (2013). A breach of a settlement agreement is material 

when it relates to a matter of vital importance or goes to the essence of the 

contract. Kitt v. Department of the Navy, 116 M.S.P.R. 680, ¶ 11 (2011). The 

Board interprets settlements pursuant to principles of contract law and examines 

whether the written understanding is clearly stated and, if ambiguous, ascertains 

the parties’ intent at the time the agreement was made. See King v. Department 

of the Navy, 130 F.3d 1031, 1033 (Fed. Cir. 1997). Pursuant to the express terms 

of the LCA, paragraph 4, the parties agreed that violation of the “terms stated 

below,” in paragraph 4(a)—misconduct, unprofessional behavior, or reporting to 

work under the influence of drugs—would result in breach of the agreement, 

immediate reinstatement of the removal without prior notice to the appellant, and 
6

waiver of the appellant’s right to appeal the removal. 3 IAF, Tab 5, Subtab 9 at 

1-2. The administrative judge relied on paragraph 3, not paragraph 4, of the LCA 

to find breach, concluding that the appellant failed to comply with the LCA 

because he “failed to perform his duties satisfactorily and completely on 

November 20, 2013.” ID at 3. Unlike paragraph 4, which expressly states which 

terms the appellant must satisfy to avoid breach, paragraph 3 generally provides 

that the decision to hold the appellant’s removal in abeyance is an “opportunity” 

for the appellant to demonstrate “that he can be rehabilitated, perform his duties 

satisfactorily and completely, and conduct himself properly.” 4 IAF, Tab 5, 

Subtab 9 at 1. It appears that paragraph 3 does not impose an affirmative 

obligation on the appellant but, rather, is descriptive of the purpose of the 

 3 In relevant part, paragraph 4 states:

The Employee voluntarily agrees to comply with the terms stated below. The 

Employee agrees that failure to satisfy any of these terms will result in breach of 

this agreement and management may initiate the Employee’s removal from federal 

service; the removal will be effected immediately without prior notice; and such 

removal would promote the efficiency of the service. The proposed removal that is 

being held in abeyance will be the stated basis for the removal from federal service. 

The Employee’s removal will be effective on a date chosen by the Agency, and the 

Employee waives any entitlement to advanced written notice of removal. The 

Employee also waives any and all rights to pursue further administrative or legal 

action against the Agency or its employees regarding the removal . . . .

In relevant part, paragraph 4(a) states:

Employee will not engage in any misconduct in the workplace or which has a nexus 

to his employment; will not report to work under the influence of drugs, including 

properly–prescribed drugs that affect his ability to perform his duties; and will 

conduct himself in a professional manner at all times.

IAF, Tab 5, Subtab 9 at 1-2.

4 In full, paragraph 3 provides: 

The decision to hold the Employee’s removal in abeyance is a last chance 

opportunity for the Employee to demonstrate that he can be rehabilitated, perform 

his duties satisfactorily and completely, and conduct himself properly without 

violating the law, [Department of Defense] or Army Regulations and policies, and 

management directives, as more fully described in paragraph 4 below. 

IAF, Tab 5, Subtab 9 at 1.
7

agreement. Accordingly, on remand, the administrative judge must determine 

whether the appellant’s alleged failure to follow established policy and procedure 

and/or derelict performance of duties on November 20, 2013, amounted to a 

material breach of the LCA. 

¶10 Lastly, pursuant to the express terms of the LCA, the appellant agreed to 

waive his notice and appeal rights only if he engaged in misconduct, arrived at 

work under the influence of any drug, or acted in an unprofessional manner; 

however, he retained those rights in relation to an action taken for any other 

reason. See IAF, Tab 5, Subtab 9; see also Harris v. Department of the Air 

Force, 81 M.S.P.R. 537, ¶¶ 5, 12-13 (1999) (where the agreement specifically 

linked the waiver of appeal rights to drug-related misconduct, the appellant 

retained the right to appeal actions taken against him that were not related to drug 

activity). The agency has not alleged that the appellant was under the influence 

of drugs, and the administrative judge made no finding as to whether the 

appellant’s alleged dereliction of duties and failure to observe adequate safety 

policy and procedures, even if true, amounted to misconduct or unprofessional 

behavior. See IAF, Tabs 3, 5. Accordingly, on remand, the administrative judge 

must determine whether the appellant’s actions constitute “misconduct” or 

“unprofessional” behavior as set forth in the LCA so as to result in immediate 

reinstatement of the removal and waiver of the appellant’s rights to advanced 

notice and to appeal his removal to the Board.

ORDER

¶11 For the reasons discussed above, we REMAND this case to the regional 

office for a jurisdictional hearing, additional fact-finding, and further 

adjudication to determine whether: (1) the appellant was derelict in his duties 

and/or failed to observe established policy and procedures on November 20, 

2013; (2) if so, whether the appellant’s actions constituted a material breach of 

the LCA; and (3) if so, whether the appellant’s actions constituted “misconduct” 
8

or “unprofessional” behavior as to invoke the advanced notice and appeal rights 

waivers of the LCA. If the administrative judge resolves any of the above in the 

negative, the appellant’s removal must be reversed and he is entitled to notice and 

an opportunity to respond to any subsequent adverse action based upon the 

occurrences of November 20, 2013. See Harris, 81 M.S.P.R. 537, ¶ 5.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board