Give Me One More Last Chance (Before You Say We’re Through!)

A federal employee charged with using abusive and obscene language signed a last chance agreement. When he didn’t show up for work, the agency reinstated the removal action and a court finds that he had waived his right of appeal.

A recent Federal Circuit Court of Appeals decision affirmed the Merit Systems Protection Board’s (MSPB) dismissal of an employee’s removal appeal for lack of jurisdiction thanks to a "last chance agreement" the employee had signed with the agency. (Smith v. Department of Veterans Affairs, U.S.C.A.F.C. No. 05-3264 (non precedent), 2/23/06)

The Department of Veterans Affair removed Mr. Smith based on a charge of using insulting, abusive, and obscene language. He appealed to the MSPB.

The parties resolved the appeal through a last chance agreement. Smith agreed to maintain acceptable conduct in "all aspects of conduct affecting the workplace, including…language, aggressive behavior, punctuality, attendance, and leave usage." (Opinion p. 2) If he did not, then the agreement provided that the removal action would be reinstated and Smith gave up any further right to appeal. In return, Smith was returned to work at the agency.

Smith tripped up by failing to report for duty and not informing his supervisor. The agency promptly revived the prior removal action. Smith went back to the MSPB. However, finding that Smith’s unexcused absence violated the last chance agreement, the appeal was dismissed for lack of jurisdiction since he had waived his rights to appeal his removal in the agreement. (Smith v. Dep’t of Veterans Affairs, No. PH-0752-04-0119-I-1 (July 21, 2004))

The appeals court disagreed with Smith’s argument that the Board had erred in dismissing his petition for lack of jurisdiction. "It is well established that government employees may waive their right of appeal in exchange for a last chance opportunity to retain their employment…To overcome a waiver of appeal…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 voluntarily enter into the agreement. (citations omitted, pp. 3-4)

The court was unsympathetic with Smith’s argument that he had complied with the agreement as "best as possible under the circumstances." It also cast aside his attempt to argue that he had been discriminated against, pointing out the court had no jurisdiction to decide his race discrimination claim. As for Smith’s argument that witnesses in the original removal action against him "lacked credibility," the court characterized the credibility determination made by the Board as "virtually unreviewable by this court." (p. 4)

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.