A recent Federal Circuit case affirmed the dismissal by the MSPB for lack of jurisdiction of a petition seeking to set aside an employee’s removal under a “last chance” agreement. (Strothers v. United States Postal Service, U.S.C.A.F.C. No. 05-3342 (non precedent), 6/13/06)
The Postal Service removed Mr. Strothers in 2003 from his mail processing clerk position for failure to meet attendance requirements. The parties signed a last chance settlement agreement, which held the removal action in abeyance in return for Strothers’ waiver of his appeal rights and his promise to regularly show up for work and to comply with leave request procedures.
Several months later, the agency informed Strothers that since he had not complied with the agreement, his removal was reinstated. (Opinion p. 2)
In his appeal to the Board, Mr. Strothers did not claim that he had complied with the agreement. Instead he made arguments of bad faith by the agency and lack of mental capacity on his part to understand the agreement at the time he entered into it.
The AJ ordered Strothers to submit evidence showing why the Board had jurisdiction. In response, he submitted arguments and assertions that the AJ found failed to constitute evidence. So the AJ dismissed his appeal for lack of jurisdiction since he could not overcome the waiver of his appeal rights in the last chance agreement. (pp. 2-3)The full Board denied review so the AJ decision became the final decision. (Strothers v United States Postal Serv., No. PH-0752-04-0495-I-1 (M.S.P.B. July 18, 2005 Final Order)
After reviewing the Board’s handling of the case, the appeals court affirmed the dismissal for lack of jurisdiction.