UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ERIC LANE SEARCY,

Appellant,

v.

DEPARTMENT OF THE AIR FORCE,

Agency.

DOCKET NUMBER

AT-0752-17-0083-I-1

DATE: February 10, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

David Carl Jones, Warner Robins, Georgia, for the appellant.

Frank M. Wood, Esquire, Robins Air Force Base, Georgia, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

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

dismissed his removal appeal for lack of jurisdiction. Generally, we grant 

petitions such as this one only in the following circumstances: the initial decision

contains erroneous findings of material fact; the initial decision is based on an 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

erroneous interpretation of statute or regulation or the erroneous application of 

the law to the facts of the case; the administrative judge ’s rulings during either 

the course of the appeal or the initial decision were not consistent with required 

procedures or involved an abuse of discretion, and the resulting error affected the 

outcome of the case; or new and material evidence or legal argument is available 

that, despite the petitioner’s due diligence, was not available when the record 

closed. Title 5 of the Code of Federal Regulations, section 1201.115 

(5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we 

conclude that the petitioner has not established any basis under section 1201.115 

for granting the petition for review. Therefore, we DENY the petition for review 

and AFFIRM the initial decision, which is now the Board’s final decision. 

5 C.F.R. § 1201.113(b). 

BACKGROUND

¶2 The agency removed the appellant from his position of Sheet Metal 

Mechanic, effective October 21, 2016, for breaching a last chance agreement

(LCA) by failing to observe safety procedures and engaging in careless 

workmanship. Initial Appeal File (IAF), Tab 4 at 33-34. Under the terms of the 

LCA, the appellant agreed to refrain from any misconduct for a 2-year period 

beginning on December 15, 2014. Id. at 15-16, 31. The LCA provided that the 

agency could summarily remove the appellant during that 2-year period if he 

committed any misconduct, including, but not limited to, “failing to comply with 

any written rules or Air Force Instructions.” Id. at 16. The terms of the LCA

also specified that the appellant voluntarily agreed and understood that he waived 

his right to appeal any such removal. Id. at 16-17. 

¶3 The appellant’s removal stemmed from an incident on September 15, 2016, 

in which he violated agency instructions by backing up a 30-foot trailer into a 

building without a spotter. Id. at 33. During the incident, the appellant hit and 

damaged a bay door. Id. In the removal decision notice, the agency specified 
3

that the appellant violated Air Force Instruction (AFI) 91-203, Air Force 

Consolidated Occupational Safety Instruction, paragraph 32.4.3. Id. at 19-20, 33. 

That section states, in relevant part, “A spotter shall be posted when moving large 

equipment and vehicles backwards or in close quarters.” Id. The agency also 

specified that the appellant’s conduct violated AFI 24-301, Air Force Materiel 

Command Supplement, Transportation, Vehicle Operations, paragraph 2.4.13. Id.

at 21-22, 33. That paragraph also requires the use of a spotter under certain 

circumstances when backing up a vehicle. Id. The agency removed the appellant 

for violating the LCA by engaging in the specified misconduct. Id. at 33-34.

¶4 The appellant filed a timely appeal with the Board challenging his removal. 

IAF, Tab 1. The agency filed a motion to dismiss the appeal for lack of 

jurisdiction, arguing that the appellant waived his right to appeal the removal 

under the terms of LCA. IAF, Tab 4 at 6-8. The administrative judge issued an 

order specifically informing the appellant of what he needed to establish for the 

Board to have jurisdiction over his appeal. IAF, Tab 5. In response, the 

appellant argued that the LCA no longer applied because the agency changed his 

job duties when it transferred him to a different position than the one he occupied 

when he signed the LCA. IAF, Tab 6 at 5. The appellant also argued that the

LCA was no longer in effect because the action for which he was removed 

occurred more than 1 year after he signed the LCA. Id. The agency responded by 

arguing that the appellant was removed pursuant to a valid LCA, the terms of 

which included his agreement to waive his right to appeal his removal for

committing any misconduct during the 2-year period that the LCA was in effect. 

IAF, Tab 7 at 4-5. 

¶5 The administrative judge issued an initial decision dismissing the appeal for 

lack of jurisdiction based on her findings that the appellant’s waiver of his appeal 

rights in the LCA was valid and that his misconduct occurred during the 2-year 

period that the waiver was in effect. IAF, Tab 8, Initial Decision (ID) at 3-5. 

The administrative judge also found that the LCA applied regardless of the 
4

appellant’s position at the agency because the LCA did not prohibit the agency 

from reassigning him to other duties or positions. ID at 4. She dismissed the 

appeal without holding the hearing requested by the appellant based on her 

finding that there was no factual dispute relevant to the jurisdictional issue. ID 

at 1; IAF, Tab 1 at 2.

¶6 The appellant has filed a petition for review challenging the administrative 

judge’s decision to dismiss his appeal for lack of jurisdiction. Petition for 

Review (PFR) File, Tab 1. The agency has responded in opposition to his 

petition. PFR File, Tab 2.

DISCUSSION OF ARGUMENTS ON REVIEW

¶7 The appellant argues for the first time on review that he did not breach the 

LCA.

2

 PFR File, Tab 1 at 5-6. We disagree, and we explain below why we will 

consider this argument, even though it was not raised on appeal.

¶8 The appellant bears the burden of proving that his appeal is within the 

Board’s jurisdiction. Bruhn v. Department of Agriculture, 124 M.S.P.R. 1, ¶ 9 

(2016); 5 C.F.R. § 1201.56(b)(2)(i)(A). The Board lacks jurisdiction over an 

action taken pursuant to an LCA in which an appellant waives his right to appeal 

to the Board. Bruhn, 124 M.S.P.R. 1, ¶ 9. An appellant may establish that a 

waiver of appeal rights in a LCA should not be enforced by showing, as relevant 

here, that he complied with the LCA. Id. The appellant argues that only willful 

misconduct could violate the LCA, and he contends that his misconduct was not 

willful because he had a spotter, and the spotter told him it was clear but then

walked away without his knowledge. PFR File, Tab 1 at 5-6. 

¶9 The Board generally will not consider arguments raised for the first time in 

a petition for review. Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 

 

2 On review, the appellant does not dispute the administrative judge’s findings that the 

LCA was valid and in effect when the agency removed him. ID at 4-5; PFR File, Tab 1 

at 5. We decline to disturb these findings. 
5

(1980). However, there is an exception for arguments regarding the Board’s 

jurisdiction because this issue may be raised at any time during the Board 

proceedings. Pirkkala v. Department of Justice, 123 M.S.P.R. 288, ¶ 5 (2016). 

The plain language of the LCA provided that the agency could “summarily 

remove[]” the appellant for “failing to comply with any written rules or Air Force 

Instructions.” IAF, Tab 4 at 15-16, 31. The terms of the LCA did not specify 

that the appellant’s misconduct had to be willful to warrant his removal by the 

agency, and breach can be established by proving material noncompliance with 

the terms of the LCA “regardless of . . . motive.” Id. at 15-16; see Link v. 

Department of the Treasury, 51 F.3d 1577, 1582 (Fed. Cir. 1995). 

¶10 Because the appellant agreed to waive his right of appeal in the LCA, and 

he has failed to allege that the waiver is unenforceable under the applicable 

criteria, we find that the administrative judge properly dismissed his removal 

appeal for lack of jurisdiction. 

NOTICE OF APPEAL RIGHTS3

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By 

statute, the nature of your claims determines the time limit for seeking such 

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). 

Although we offer the following summary of available appeal rights, the Merit 

Systems Protection Board does not provide legal advice on which option is most 

appropriate for your situation and the rights described below do not represent a 

statement of how courts will rule regarding which cases fall within their 

jurisdiction. If you wish to seek review of this final decision, you should 

immediately review the law applicable to your claims and carefully follow all 

 

3

Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
6

filing time limits and requirements. Failure to file within the applicable time 

limit may result in the dismissal of your case by your chosen forum. 

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular 

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 
7

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a 

representative in this case, and your representative receives this decision before 

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of 

discrimination based on race, color, religion, sex, national origin, or a disabling 

condition, you may be entitled to representation by a court-appointed lawyer and 

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the 

address of the EEOC is: 
8

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or 

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 

disposition of allegations of a prohibited personnel practice described in section 

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), 

(B), (C), or (D),” then you may file a petition for judicial review either with the 

U.S. Court of Appeals for the Federal Circuit or any court of appeals of 

competent jurisdiction.4The court of appeals must receive your petition for 

review within 60 days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(B). 

 

4

The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 

132 Stat. 1510. 
9

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular 

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their 

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board