                     NOTE: This disposition is nonprecedential.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                       NOTE: This disposition is nonprecedential.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
