                     NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                      is not citable as precedent. It is a public record.

 United States Court of Appeals for the Federal Circuit

                                       05-3264

                                   SAMUEL SMITH,

                                                           Petitioner,

                                           v.

                      DEPARTMENT OF VETERANS AFFAIRS,

                                                           Respondent.



                            ________________________

                            DECIDED: February 23, 2006
                            ________________________


Before MICHEL, Chief Judge, GAJARSA, and LINN, Circuit Judges.

PER CURIAM.

      Samuel Smith (“Smith”) petitions this court to review the final decision of the

Merit Systems Protection Board (“Board”) dismissing his appeal for lack of jurisdiction.

Smith v. Dep’t of Veterans Affairs, No. PH-0752-04-0119-I-1 (May 11, 2005) (Final

Order). Because Smith has not shown the Board erred, we affirm.

                                           I

      On January 31, 2003, Smith was removed from his position as a part-time food

service employee for the Department of Veterans Affairs (“agency”) based on the

sustained charge of using insulting, abusive, and obscene language.          Smith timely
appealed the agency’s decision to the Board.       The appeal was resolved by a last

chance settlement agreement (“LCSA”). The terms of the LCSA provided, in pertinent

part, that Smith must maintain conduct acceptable to his supervisors, and it stated that

Smith’s obligation “extends to all aspects of conduct affecting the workplace, including

but not limited to abusive/threatening language, aggressive behavior, punctuality,

attendance, and leave usage.” According to the LCSA, if Smith failed to comply with the

obligations under the agreement, the removal that was imposed on January 31, 2003

would immediately revive, with no further right to appeal concerning the removal or the

decision resulting in the revival of that removal. Upon execution of the LCSA, Smith

returned to work.

       On June 15, 2003, Smith was scheduled to report to duty for his 6:30 a.m. to

10:30 a.m. work shift. Smith failed to report to duty and did not inform his supervisor of

his absence. The agency provided notice to Smith of a proposed reprimand for his four

hours of absence without leave and failure to follow leave procedures. Pursuant to the

LCSA, on July 7, 2003, the agency revived the prior removal action, and Smith was

removed from his position. Smith appealed his removal to the Board.

       In an initial decision, the Administrative Judge (“AJ”) dismissed the appeal for

lack of jurisdiction because, under the LCSA, Smith waived his rights to appeal his

removal. Smith v. Dep’t of Veterans Affairs, No. PH-0752-04-0119-I-1 (July 21, 2004)

(Initial Decision).   Finding that it was Smith’s responsibility to check the posted

schedule, and that he was aware of the requirements of the LCSA, the AJ determined

that Smith’s unexcused absence violated the LCSA. Smith, slip op. at 9. In addition,

the AJ found that Smith had knowingly and voluntarily entered into the LCSA, and that




05-3264                                     2
the agency did not breach the LCSA. Id. at 6-9. Smith petitioned the Board for review

and was denied. The initial decision became final on May 11, 2005. Smith timely

appealed and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2000).

                                           II

                                          A

       Our scope of review in an appeal from a Board decision is limited. This court

must affirm the Board’s decision unless it is: “(1) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law; (2) obtained without procedures

required by law, rule, or regulation having been followed; or (3) unsupported by

substantial evidence.” 5 U.S.C. § 7703(c) (2000); see Walls v. Merit Sys. Prot. Bd., 29

F.3d 1578, 1581 (Fed. Cir. 1994). We must accept the Board’s factual determinations if

they are supported by "such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion." Brewer v. U.S. Postal Serv., 647 F.2d 1093, 1096

(Ct. Cl. 1981).

                                          B

       Smith argues that the Board erred in dismissing his petition for lack of

jurisdiction. We disagree.

       It is well established that government employees may waive their right of appeal

in exchange for a last chance opportunity to retain their employment.      See, e. g.,

Stewart v. U.S. Postal Serv., 926 F.2d 1146, 1148-49 (Fed. Cir. 1991); McCall v. U.S.

Postal Serv., 839 F.2d 664, 666-68 (Fed. Cir. 1988). To overcome a waiver of appeal

rights in an LCSA, the appellant must show that he complied with the agreement, that

the agency breached the agreement in a material way, or that he did not knowingly and




05-3264                                    3
voluntarily enter into the agreement. Link v. Dep’t of Treasury, 51 F.3d 1577, 1582-83

(Fed. Cir. 1995).

      Smith asserts that he did not waive his appeal rights in the LCSA because he

complied with the LCSA as “best as possible under the circumstances.” To support his

contention, Smith states that he was unaware of the posted work schedule and that his

absence was an honest mistake. The LCSA expressly provides that even one instance

of discipline will be cause for his immediate removal. Further, the Board found that it

was Smith’s responsibility to check the work schedule and that he was adequately

reminded of his obligations under the LCSA. Smith, slip op. at 4-6. Thus, the Board

correctly determined that Smith failed to show he complied with the LCSA.

      Smith further contends that the agency breached the LCSA because his removal

was discriminatory based on race. We lack the jurisdiction to decide Smith’s racial

discrimination and the claim before us is therefore waived. Smith makes no factual

allegations to support his contention. The Board correctly determined that Smith failed

to show that his removal was racially motivated or that he was treated differently than

similarly situated employees not members of his protected class. Smith, slip op. at 6.

      Finally, Smith alleges that witness statements used to support his initial removal

lacked credibility. Smith improperly attempts to raise an argument regarding evidence

supporting his initial removal. To the extent that Smith’s claim rests upon a challenge to

the presiding judge's credibility determination, such a determination is virtually

unreviewable by this court. Hambsch v. Dep't of Treasury, 796 F.2d 430, 436 (Fed. Cir.

1986). Thus, we decline to address Smith’s credibility challenge.




05-3264                                     4
       Smith fails to show that the Board made an error of law when it determined that

the parties had entered into a valid LCSA. The Board’s determination that Smith has

not shown that he complied with the LCSA or that the agency breached the LCSA is

supported by substantial evidence. Thus, the Board lacked jurisdiction to review his

petition.

                                          III

       We affirm the judgment of the Board. Each side shall bear its own costs.




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