NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3116
THOMAS E. JONES,
Petitioner,
v.
DEPARTMENT OF THE INTERIOR,
Respondent.
Thomas E. Jones, of Washington, DC, pro se.
Dawn E. Goodman, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With her on
the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General; Jeanne E.
Davidson, Director, and Franklin E. White, Jr., Assistant Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3116
THOMAS E. JONES,
Petitioner,
v.
DEPARTMENT OF THE INTERIOR,
Respondent.
Petition for review of the Merit Systems Protection Board in DC0752070663-I-1.
___________________________
DECIDED: June 6, 2008
___________________________
Before BRYSON, Circuit Judge, ARCHER, Senior Circuit Judge, and PROST, Circuit
Judge.
PER CURIAM.
DECISION
Thomas E. Jones appeals from the decision of the Merit Systems Protection
Board that it lacked jurisdiction over an appeal from an action by the Department of the
Interior removing him from his position with the National Park Service. Because the
Board properly held that it lacked jurisdiction over Mr. Jones’s appeal, we affirm.
BACKGROUND
Beginning in June 1991, Mr. Jones was employed as a laborer for the Division of
Maintenance at the National Park Service, an agency of the Department of the Interior.
In October 2004, the Department placed Mr. Jones on leave restriction “because of
problems in the area of leave request procedures, failure to gain proper approvals, or
abuse of leave privileges . . . .” The letter providing notice of the leave restrictions
stated that the restrictions would remain in effect for one year and that failure to abide
by the leave requirements would result in Mr. Jones being placed in absent without
leave status.
In May 2005, a maintenance supervisor suspected that Mr. Jones was
intoxicated at the start of his morning shift. Officers of the United States Park Police
who were called to the scene determined that Mr. Jones had a blood alcohol
concentration of approximately 0.25 percent, well above the legal limit of 0.08 percent.
That incident led to a proposed removal action. The notice of proposed removal
included three charges: (1) impairment while on duty; (2) failure to comply with leave
restriction requirements; and (3) unauthorized absences.
After an oral hearing at which Mr. Jones was present, the Department
determined that Mr. Jones’s actions were “inappropriate and will not be condoned . . .
[and] that the proposed penalty of removal is appropriate.” However, the Department
representative determined that, “based on [Mr. Jones’s] length of service and [his]
attempt to achieve sobriety,” the Department would suspend the removal in exchange
for Mr. Jones’s entering into a last chance agreement. The terms of the agreement
included a number of restrictions on his requests for sick and annual leave. In addition,
2008-3116 2
the agreement provided that Mr. Jones would be considered to be in breach of the
agreement if he accumulated three or more hours of unauthorized absences while the
agreement was in effect. The agreement further provided that Mr. Jones would
“voluntarily waive all rights to challenge any disciplinary or adverse action proposed or
taken against [him] that is related to any misconduct covered by this agreement which
occurs during the life of this agreement” including “[a]n appeal to the Merit Systems
Protection Board.” In the presence of his union representative, Mr. Jones entered into
the agreement. The written agreement bears Mr. Jones’s initials at the bottom of each
page except the first, and it bears his signature on the last page.
Approximately a year later, in May 2007, Mr. Jones was sent another notice of
proposed removal. The basis for the removal was the allegation that Mr. Jones had
accumulated 41 hours of unauthorized absences, in violation of the last chance
agreement. The letter stated that Mr. Jones would be removed from his position
effective on May 8, 2007. Mr. Jones appealed that removal action to the Merit Systems
Protection Board. The administrative judge who was assigned to the appeal determined
that the Board did not have jurisdiction to consider the circumstances of the removal
because of Mr. Jones’s waiver of his appeal rights in the last chance agreement. That
decision became the final decision of the Board, and Mr. Jones then petitioned for
review by this court.
DISCUSSION
A government employee can waive the right to appeal adverse employment
actions to the Merit Systems Protection Board by entering into a last chance agreement
such as the one Mr. Jones entered into in this case. See, e.g., Gibson v. Dep’t of
2008-3116 3
Veterans Affairs, 160 F.3d 722, 725 (Fed. Cir. 1998). After signing such a last chance
agreement in which the employee gives up the right to appeal the underlying agency
action, the only way the employee can invoke Board jurisdiction and obtain relief from
the Board is to show either (1) that the employee complied with the last chance
agreement, or (2) that the agency breached the agreement, or (3) that the employee did
not knowingly and voluntarily enter into the agreement. Buchanan v. Dep’t of Energy,
247 F.3d 1333, 1338 (Fed. Cir. 2001).
Mr. Jones argues in essence that he entered into the last chance agreement
involuntarily. In particular, he alleges that the details of the agreement and the reason
he had to enter into it were not explained to him, and he contends that he should not
have been required to sign a last chance agreement in the first place. As the
administrative judge found, however, the factual record is to the contrary. The last
chance agreement explicitly explains why Mr. Jones had to either enter into the
agreement or face removal from his position. In a section labeled “Description of
Misconduct,” the agreement lists the three charges that formed the basis of the original
removal proposal in September 2005 and that would have been the subject of a
removal proceeding had Mr. Jones not agreed to enter into the last chance agreement.
Moreover, Mr. Jones was accompanied by his union representative at the meeting at
which the last chance agreement was negotiated, and he indicated by signing the
agreement that he understood its terms and was entering it voluntarily. Thus,
substantial evidence supports the Board’s finding that there is no merit to Mr. Jones’s
argument that he entered into the last chance agreement involuntarily. Because Mr.
2008-3116 4
Jones waived his rights to appeal to the Board in that agreement, the Board properly
refused to consider the merits of his removal.
Mr. Jones also argues that no other disciplinary actions had been taken against
him before May 2006. However, under the last chance agreement, the Department was
not required to give Mr. Jones any additional warnings that he was engaging in
misconduct. Therefore, Mr. Jones’s argument that there were no other disciplinary
actions taken against him does not change the fact that a single disciplinary action—the
one that was the subject of the proposed notice of removal—was all that was required
under the last chance agreement to trigger Mr. Jones’s removal.
Finally, Mr. Jones asserts that he had more than 100 hours of annual leave and
40 hours of sick leave remaining when he was terminated. In the proceedings below,
Mr. Jones argued that he thought any unauthorized absence would simply result in the
deduction of time from his total accumulated leave. However, the reason for Mr.
Jones’s removal was not that he did not have enough leave time, but that he did not
follow the proper procedures for taking leave. The descriptions of the leave policies that
were provided to Mr. Jones on several occasions set forth that an employee must call
the appropriate supervisor in advance in order to schedule leave except in certain
emergency situations (which typically require proper documentation after the
emergency has passed). Mr. Jones was terminated for failing to follow those
procedures, not because he did not have enough leave to cover his absences.
Moreover, his May 2007 notice of removal indicated that Mr. Jones was to be
compensated for any unused annual leave time, so his removal did not result in the
forfeiture of any accumulated leave.
2008-3116 5