NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

CHRISTOPHER L. COPELAND,

Petitioner

v.

DEPARTMENT OF THE ARMY,

Respondent

______________________

2020-1320

______________________

Petition for review of the Merit Systems Protection 

Board in No. DA-0752-19-0516-I-1.

______________________

Decided: May 10, 2021

______________________

CHRISTOPHER L. COPELAND, Topeka, KS, pro se. 

 RAFIQUE OMAR ANDERSON, Commercial Litigation 

Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by

BRIAN MATTHEW BOYNTON, STEVEN JOHN GILLINGHAM,

ROBERT EDWARD KIRSCHMAN, JR.; PATRICK L. GARY, Civilian Personnel Litigation Branch, United States Army Litigation Division, Fort Belvoir, VA.

 ______________________

Case: 20-1320 Document: 34 Page: 1 Filed: 05/10/2021
2 COPELAND v. ARMY

Before MOORE, TARANTO, and HUGHES, Circuit Judges.

PER CURIAM.

Christopher Copeland appeals a final decision of the 

Merit Systems Protection Board dismissing his appeal for 

lack of jurisdiction. J.A. 9–10; see also Copeland v. Dep’t of 

the Army, No. DA-0752-19-0516-I-1, 2019 WL 5529895 

(M.S.P.B. Oct. 23, 2019). Because the Board did not improperly dismiss, we affirm.

BACKGROUND

Mr. Copeland worked as a sandblaster for the Army. 

On August 7, 2017, he was reported for being intoxicated 

in a work area and cited for Public Intoxication. J.A. 50. 

Based on that incident, the Army proposed removing Mr. 

Copeland from employment. Id. To avoid removal, Mr. 

Copeland entered into a Last Chance Agreement (LCA) 

with the Army. J.A. 46. For a period of two years beginning on November 20, 2017, he agreed to “avoid alcohol 

consumption prior to and during the hours of work,” to 

“never report to work or perform official duties with alcohol 

and/or an illegal substance in [his] system,” and to submit 

to random alcohol testing. J.A. 46–47; see also J.A. 48–49. 

The LCA noted that failure to comply with any of those requirements would constitute breach, J.A. 47–48, and that 

any breach could result in Mr. Copeland’s removal “immediately without prior notice,” J.A. 48. Mr. Copeland expressly “waive[d] all appeal rights,” including those to the 

Merit Systems Protection Board. J.A. 48. 

On May 13, 2019, Mr. Copeland submitted to random 

alcohol breathalyzer tests that indicated a blood alcohol 

level of 0.081 and 0.085. J.A. 59. The Directorate for Emergency Services Law Enforcement Division cited Mr. 

Copeland for “Public Intoxication Endangering.” J.A. 54. 

On May 16, 2019, the Army advised Mr. Copeland of his 

removal effective May 21, 2019, because he breached the 

LCA by “being on duty under the influence of alcohol.” J.A. 

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COPELAND v. ARMY 3

54. The Army advised Mr. Copeland he could appeal the 

removal decision if he believed it breached the LCA. J.A. 

55.

Mr. Copeland appealed his removal to the Board. The 

Board determined Mr. Copeland failed to prove it had jurisdiction over his appeal because he did not show he complied with the LCA. It therefore dismissed his appeal. On 

November 27, 2020, the Board decision became final. Mr. 

Copeland appeals. We have jurisdiction under 28 U.S.C. 

§ 1295(a)(9). 

DISCUSSION

Our review of Board decisions is limited. We must affirm a Board’s decision unless we find it to be arbitrary, 

capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required 

by law, rule, or regulation having been followed; or unsupported by substantial evidence. 5 U.S.C. § 7703(c). “It is 

settled that an employee can waive the right to appeal in a 

last-chance agreement.” Gibson v. Dep’t of Veterans Affs., 

160 F.3d 722, 725 (Fed. Cir. 1998). To overcome a waiver, 

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. See Buchanan v. Dep’t of Energy, 247 F.3d 

1333, 1338 (Fed. Cir. 2001); Link v. Dep’t of Treasury, 51 

F.3d 1577, 1582 (Fed. Cir. 1995). 

Mr. Copeland does not argue that the Army breached 

the LCA or contest that he voluntarily entered into it. Instead, he presents two arguments for how he complied with 

the LCA and, thus, did not waive his appeal rights. Neither argument is persuasive. 

First, he argues that the district court’s dismissal of his 

citation for public intoxication shows he complied with the 

LCA. The government declined to prosecute the criminal 

citation because “it was based on an Intoxilyzer test that 

Case: 20-1320 Document: 34 Page: 3 Filed: 05/10/2021
4 COPELAND v. ARMY

was given for administrative compliance purposes only.” 

J.A. 69. The dismissal said nothing that casts doubt on the 

accuracy of the Intoxilyzer results, J.A. 68, which showed 

a blood alcohol level of 0.081 and 0.085, J.A. 59. We see no 

error in the Board’s determination that the district court’s 

dismissal does not demonstrate Mr. Copeland complied 

with the LCA. See J.A. 9.

Second, Mr. Copeland argues, with no evidentiary support of any kind, that he was not under the influence of 

alcohol. The government responds that this argument is 

waived. Government Informal Resp. Br. at 11. Given Mr. 

Copeland argued that he did not breach the LCA, that the 

breathalyzer was not properly calibrated or was broken, 

and that he had previously received false positive breathalyzer results, we understand Mr. Copeland to have argued 

that he was not intoxicated while on duty. Durr v. Nicholson, 400 F.3d 1375, 1380 (Fed. Cir. 2005) (“pro se pleadings 

are to be liberally construed”). The Board’s dismissal for 

lack of jurisdiction, however, was based at least in part on 

the intoxilyzer results showing Mr. Copeland was intoxicated while on duty. Substantial evidence, therefore, supports the Board’s finding that Mr. Copeland failed to show 

he complied with the LCA. On this record, we see no error 

in the Board’s dismissal. 

CONCLUSION

We have considered Mr. Copeland’s other arguments 

and conclude that they are without merit. Because Mr. 

Copeland failed to overcome his waiver of his appeal rights 

by showing he complied with the LCA, we affirm the decision of the Board.

AFFIRMED

COSTS

No costs.

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