Andrew Dale Faris v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ANDREW DALE FARIS,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2024-2004, 2024-2005
______________________
Petitions for review of the Merit Systems Protection
Board in Nos. CH-0353-20-0494-I-1, CH-0752-20-0205-I-1.
______________________
Decided: September 11, 2025
______________________
ANDREW D ALE F ARIS , Indianapolis, IN, pro se.
K ELLY WINSHIP , Office of the General Counsel, United
States Merit Systems Protection Board, Washington, DC,
for respondent. Also represented by ALLISON J ANE B OYLE,
K ATHERINE M ICHELLE SMITH .
______________________
Before CHEN, L INN, and HUGHES , Circuit Judges.
P ER CURIAM .
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FARIS v. MSPB 2
Andrew Faris petitions for review of two final orders
from the Merit Systems Protection Board (Board), which
dismissed his two appeals for lack of jurisdiction.1 Faris v.
United States Postal Serv., No. CH-0752-20-0205-I-1, 2024
WL 1855117 (M.S.P.B. Apr. 26, 2024) (Final Order I);
Faris. v. United States Postal Serv., No. CH-0752-20-0205-
I-1, 2020 WL 1678108 (Apr. 3, 2020) (Initial Decision I)2;
Faris v. United States Postal Serv., No. CH-0353-20-0494-
I-1, 2024 WL 1911387 (M.S.P.B. Apr. 30, 2024) (Final Or-
der II); Faris v. United States Postal Serv., No. CH-0353-
20-0494-I-1, 2021 WL 779667 (Feb. 23, 2021) (Initial Deci-
sion II). 3 We affirm.
BACKGROUND
Mr. Faris worked as a Laborer Custodial for the United
States Postal Service (USPS). In 2018, he received a warn-
ing letter based on several instances of unscheduled leave
and going absent without leave (AWOL). Despite receiving
this warning letter, Mr. Faris kept taking unscheduled ab-
sences. In light of these repeated infractions, the USPS is-
sued him a Notice of Proposed Removal.
On November 19, 2019, Mr. Faris, through the help of
his union representative, entered into a Last Chance
Agreement (LCA), which presented a “final opportunity for
1 In both final orders, the full Board denied
Mr. Faris’s petition for review, thereby making the admin-
istrative judge’s initial decision final. See 5 C.F.R.
§ 1201.113(b).
2 Because the electronic version of this decision lacks
page designations, we employ the pagination used in the
decision at SAppx. 10–25. “SAppx” refers to the appendix
filed with the government’s informal brief.
3 Because the electronic version of this decision lacks
page designations, we employ the pagination used in the
decision at SAppx. 75–96.
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FARIS v. MSPB 3
[Mr. Faris] to salvage his career with the [United States]
Postal Service.” Initial Decision I, 2020 WL 1678108, at 3
(citation omitted). The LCA provided specific terms con-
cerning attendance requirements: Mr. Faris could have
(1) no more than three unscheduled absences during any
six month period, and (2) no instances of going AWOL—
any violation of these terms would result in removal. Id.
Per the LCA, Mr. Faris also waived his right to appeal to
the Board. Id.
The USPS reported Mr. Faris as AWOL on November
20, 2019 for over 3 hours. Accordingly, on December 2,
2019, the USPS proposed Mr. Faris’s removal.
While that proposal was pending, however, he sus-
tained injuries in an off-duty car accident on December 14,
2019. And because these injuries prevented Mr. Faris from
carrying out his normal job functions, his first-line super-
visor, Ms. Jenkins, sent over a light duty request form. She
advised him to have his physician complete the form.
On January 3, 2020, Mr. Faris emailed Ms. Jenkins
and Mr. Vaughn, the District Maintenance Manager,
claiming to have attached the filled-out light duty request
form. He also spoke to Ms. Jenkins on the phone later that
day and claimed that during the call “she told him he was
fired.” Initial Decision II, 2021 WL 779667, at 2. On Feb-
ruary 3, 2020, Mr. Vaughn issued a decision to remove
Mr. Faris effective February 14, 2020. Id.
Mr. Faris filed two appeals to the Board. In his first
appeal, he contested his removal. See Initial Decision I,
2020 WL 1678108, at 1. The Board dismissed his appeal
for lack of jurisdiction, explaining that Mr. Faris waived
his appeal rights in the LCA.
In his second appeal, Mr. Faris focused on the period of
time between January 3, 2020—when he supposedly heard
over the phone that he was fired—and February 14, 2020—
his actual termination date. The Board construed
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FARIS v. MSPB 4
Mr. Faris’s argument as raising two distinct challenges:
(1) a restoration-to-duty claim, see 5 U.S.C. § 8151, and
(2) a constructive suspension claim. The Board dismissed
both claims for lack of jurisdiction, explaining that he
failed to establish, with preponderant evidence, at least
one element of each claim. See Initial Decision II, 2021 WL
779667, at 4–14.
The full Board denied both of Mr. Faris’s petitions for
review. See Final Order I, 2024 WL 1855117, at *2; Final
Order II, 2024 WL 1911387, at *2. He now petitions for our
review, and we granted Mr. Faris’s motion to consolidate
both appeals. We have jurisdiction under 28 U.S.C.
§ 1295(a)(9).
D ISCUSSION
We review de novo the Board’s determinations concern-
ing jurisdiction but review for substantial evidence factual
findings that underlie the Board’s jurisdictional analysis.
Younies v. MSPB, 662 F.3d 1215, 1218 (Fed. Cir. 2011). We
first address Mr. Faris’s challenges to his removal, before
addressing Mr. Faris’s constructive suspension claim.4
I. Removal
“It is settled that an employee can waive the right to
appeal in a last-chance agreement.” Gibson v. Dep’t of Vet-
erans Affs., 160 F.3d 722, 725 (Fed. Cir. 1998). That said,
an employee can still overcome a waiver if he (1) proves
compliance with the last-chance agreement, (2) proves the
agency breached the agreement, or otherwise (3) proves he
did not knowingly and voluntarily enter into the agree-
ment. Buchanan v. Dep’t of Energy, 247 F.3d 1333, 1338
(Fed. Cir. 2001).
4 Mr. Faris does not challenge the Board’s decision
on his restoration-of-duty claim. See generally, Pet’r’s In-
formal. Br.
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FARIS v. MSPB 5
Mr. Faris, on appeal, first claims to have entered into
the LCA unknowingly and involuntarily. See Pet’r’s Infor-
mal Br. 12.5 We are not persuaded.
For one, Mr. Faris never raised this argument to the
Board. See Initial Decision, 2020 WL 1678108, at 6. And
we decline to consider it in the first instance on appeal. See
Bosley v. MSPB, 162 F.3d 665, 668 (Fed. Cir. 1998) (“A
party in an MSPB proceeding must raise an issue before
the administrative judge if the issue is to be preserved for
review in this court. Thus, if the party fails to raise an is-
sue in the administrative proceeding or raises an issue for
the first time in a petition for review by the full Board, this
court will not consider the issue.”).
Moreover, Mr. Faris offers no evidence—let alone pre-
ponderant evidence—supporting his lack of knowledge or
involuntariness in entering into the LCA. Instead, he ex-
plains that he “did not think the postal service was serious”
in enforcing the LCA because of “a past practice of non-en-
forcement.” Pet’r’s Informal Br. 12. But if anything, be-
lieving that the USPS would not enforce certain terms of
the LCA presupposes an awareness of those terms in the
first place.
Mr. Faris next alleges that he never went AWOL, and
therefore, fully complied with the LCA. Id. at 15–17. He
contends that, although the USPS reported him as AWOL
for 3.51 hours, the USPS’s time conversion table enumer-
ates only 0.50 or 0.52 as options for calculating hours—0.51
does not exist. So because one cannot go AWOL for 3.51
hours, Mr. Faris argues, he could not have gone AWOL at
all. But again, he never raised this argument to the Board,
so we decline to consider it on appeal. See Bosley, 162 F.3d
at 668. In any event, we find Mr. Faris’s position
5 Because Mr. Faris’s brief lacks page numbers, we
employ the ECF pagination.
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FARIS v. MSPB 6
unpersuasive because, among other issues, he never ex-
plains why the USPS must always follow the referenced
timetable’s precision when computing time.
II. Constructive Suspension
Aside from challenging his ultimate removal, Mr. Faris
also contended, before the Board, that the USPS prevented
him from working between January 3, 2020 and February
14, 2020. The Board construed this argument as a con-
structive suspension claim.
“‘[C]onstructive suspensions’ are within the jurisdic-
tion of the MSPB.” Perez v. MSPB, 931 F.2d 853, 855 (Fed.
Cir. 1991). But to establish jurisdiction over a constructive
suspension claim, the employee must prove, by preponder-
ant evidence, that (1) he lacked a meaningful choice in the
matter and (2) the agency’s wrongful actions deprived him
of that choice. See Rosario-Fabregas v. MSPB, 833 F.3d
1342, 1346 (Fed. Cir. 2016).
Mr. Faris, on appeal, has not identified any wrongful
actions undertaken by the USPS. To the extent Mr. Faris
points to Ms. Jenkins’ statements during their phone call
on January 3, 2020 as a premature termination, and thus,
a wrongful action, we disagree. The Board found it un-
likely that Ms. Jenkins, on that phone call, actually termi-
nated Mr. Faris, or that she otherwise pressured Mr. Faris
into believing that he was fired. And to reach that finding,
the Board relied on a credibility determination. See Initial
Decision II, 2021 WL 779667, at 10 (“As an initial matter,
I find that Appellant’s testimony that Ms. Jenkins told him
he was fired on January 3, 2020 lacks credibility.”).
“[C]redibility determinations by the [B]oard are ‘virtually
unreviewable.’” Wright v. U.S. Postal Serv., 183 F.3d 1328,
1334 (Fed. Cir. 1999) (citation omitted).
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FARIS v. MSPB 7
CONCLUSION
We have considered Mr. Faris’s remaining arguments
and find them unpersuasive.6 We therefore affirm.
AFFIRMED
COSTS
No costs.
6 Mr. Faris also filed a motion requesting us to (1)
take judicial notice of emails between him and Mr. Vaughn
following his phone call with Ms. Jenkins and to (2) deny
the Government’s motion for oral argument because the re-
sponse brief was supposedly untimely. See ECF No. 28. In
light of our court’s clarification on the timing deadlines,
see ECF. No. 31, he withdrew the second basis, see ECF No.
31.
We grant Mr. Faris’s motion to take judicial notice. For
the reasons discussed supra Discussion Section II, how-
ever, we find Mr. Faris’s reliance on these emails unper-
suasive.
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