                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     DERRICK J. STOVALL,                             DOCKET NUMBER
                   Appellant,                        CH-0432-11-0471-C-1

                  v.

     DEPARTMENT OF DEFENSE,                          DATE: February 4, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Derrick J. Stovall, Indianapolis, Indiana, pro se.

           Benjamin B. Hamlow, Indianapolis, Indiana, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER
¶1        The appellant has filed a petition for review of the initial decision, which
     dismissed his petition for enforcement for lack of jurisdiction pursuant to the
     appeal rights waiver provision of the Last Chance Settlement Agreement (LCA)
     by which the parties settled his earlier appeal. For the reasons set forth below,


     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                           2

     we DENY the petition for review, VACATE on our own motion the compliance
     initial decision, and FORWARD the appellant’s petition for enforcement to the
     regional office to be docketed as a new appeal of his removal pursuant to the
     LCA.
¶2          The agency removed the appellant for unacceptable performance in 2011,
     which the appellant appealed to the Board.                 See MSPB Docket No.
     CH-0432-11-0471-I-1, Initial Appeal File (IAF), Tab 1, Tab 5 at 23, 27-32
     (removal notice). The parties resolved the appeal through a LCA. MSPB Docket
     No. CH-0432-11-0471-C-1, Compliance Appeal File (CF), Tab 4 at 24-27 (LCA).
     Under the terms of the LCA, the agency agreed to cancel the removal and return
     the appellant to work as a GS-5 military pay technician, and the appellant agreed
     to, inter alia, maintain acceptable performance for a 2-year last chance period
     from May 1, 2012, to April 30, 2014. Id. at 24-25. The LCA provided that, if the
     appellant failed to maintain acceptable performance in one or more critical
     elements during the last chance period, the agency could summarily remove him
     from federal service after notifying him of the deficiency and affording him at
     least 30 days to improve. Id. at 25. The LCA further provided that the appellant
     waived all appeal rights in connection with the summary removal, except the
     opportunity to file a petition for enforcement to enforce the terms of the LCA. 2
     Id.   The administrative judge found the LCA lawful on its face and that the
     parties entered into the agreement voluntarily and with understanding of its terms.

     2
        The LCA specifically stated that, if the appellant chose to file a petition for
     enforcement, he would have the burden of showing that the agency implemented the
     summary removal in bad faith because either: (1) it lacked a valid basis on which to
     find his performance unacceptable; or (2) it did not afford him notice of and an
     opportunity to correct his unacceptable performance as provided by the LCA. CF, Tab
     4 at 25. We note that, as discussed further below, this is a misstatement of the Board
     procedures available to an appellant who seeks to challenge a removal action taken
     pursuant to a LCA containing an appeal rights waiver. However, because this mutual
     mistake of law is not material, i.e., does not go to the heart of the agreement, the LCA
     need not be set aside. See Potter v. Department of Veterans Affairs, 111 M.S.P.R. 374,
     ¶ 9 (2009).
                                                                                             3

     IAF, Tab 29, Initial Decision (ID) at 2. Accordingly, the administrative judge
     entered the LCA into the record for enforcement purposes and dismissed the
     appeal as settled. ID at 2.
¶3          The agency returned the appellant to work and issued him performance
     standards for his new position.       CF, Tab 4 at 106-10, 114-17, 122-25.            On
     February 26, 2014, the appellant’s supervisor officially notified him that his
     performance was deemed unacceptable and gave him 30 days to improve. 3 Id. at
     68-71. The appellant’s performance apparently did not improve sufficiently and,
     on April 29, 2014, the agency summarily removed the appellant from federal
     service due to unacceptable performance in accordance with the terms of the
     LCA. Id. at 22-23.
¶4          The appellant appealed the removal, which, pursuant to the terms of the
     LCA, he characterized as a petition for enforcement. CF, Tab 1 at 6; see supra,
     n.2.   Therein, he argued that the agency had implemented his removal in bad
     faith, harassed him, violated various rules and regulations, discriminated and
     retaliated against him, and failed to follow proper procedures for removing him.
     CF, Tab 1 at 6.       The regional office docketed the appeal as a petition for
     enforcement of the LCA, and the administrative judge issued an acknowledgment
     order advising the parties of their respective burdens regarding compliance with
     the LCA. CF, Tab 2 at 1-2. The appellant subsequently submitted an additional
     pleading and the agency responded in opposition to the petition for enforcement,
     arguing that it should be dismissed for lack of jurisdiction pursuant to the appeal
     rights waiver in the LCA. CF, Tabs 3-4. Without holding the requested hearing,
     the administrative judge dismissed the petition for enforcement for lack of

     3
       Although the notice of unacceptable performance is dated February 26, 2013, th is
     appears to be a typographical error. CF, Tab 4 at 68. The acknowledgment page and
     references within the letter indicate that the agency issued the notice in 2014, not 2013.
     See id. at 68-71. The date by which the appellant had to improve his performance is
     also reflected incorrectly; it should have been March 26, 2014, rather than March 26,
     2013. See id. at 68.
                                                                                      4

     jurisdiction based on the appeal rights waiver in the LCA.            CF, Tab 5,
     Compliance Initial Decision (CID).
¶5        The appellant has filed a petition for review of the compliance initial
     decision. Petition for Review (PFR) File, Tab 3. The agency has submitted a
     response opposing the appellant’s petition for review, which it asserts is
     untimely, and the appellant has filed a reply. PFR File, Tabs 5, 7.

     The appellant’s petition for review was timely filed.
¶6         As an initial matter, the agency has requested that we dismiss the
     appellant’s petition for review as untimely filed. PFR File, Tab 5 at 11-12. On
     August 25, 2014, the final day to submit a petition for review of the compliance
     initial decision, the appellant requested a 90-day extension of time to file. PFR
     File, Tab 1.   The Clerk of the Board granted a 30-day extension, making any
     petition for review due on or by September 24, 2014.        PFR File, Tab 2.    On
     September 24, 2014, the appellant faxed his petition for review to the Chicago
     Regional Office. 4 PFR File, Tab 3. The regional office forwarded the petition to
     the Office of the Clerk of the Board on September 25, 2014. Id. at 1. The Board
     has held that receipt of an otherwise timely petition in the wrong Board office
     will not preclude a determination on the merits. Wiggins v. Office of Personnel
     Management, 61 M.S.P.R. 537, 539 (1994). Thus, because he timely filed his
     petition for review with the regional office, we will consider the appellant’s
     petition for review.

     The administrative judge erred by treating the appellant’s submission as a petition
     for enforcement.
¶7         Where, as here, an appellant challenges a removal action taken pursuant to a
     LCA, the Board has held that the appellant’s request should be docketed as a new
     appeal of the removal action and not as a petition for enforcement of the LCA.


     4
       The time and date stamp from the fax machine shows that the appellant faxed the
     petition for review at 5:49 p.m. on September 24, 2014. PFR File, Tab 3.
                                                                                       5

     Trotta v. U.S. Postal Service, 73 M.S.P.R. 6, 9 (1997). In the instant case, the
     regional office docketed the appellant’s submission as a petition for enforcement,
     and the administrative judge subsequently issued an acknowledgment order
     setting forth the burdens of proof applicable to an enforcement proceeding. See
     CF, Tab 2. Although the administrative judge actually treated the matter as a new
     appeal of the removal action taken pursuant to the LCA in the compliance initial
     decision, see CID, her original treatment of the matter as a petition for
     enforcement was in error and, as discussed below, adversely affected the
     appellant’s substantive rights, see Trotta, 73 M.S.P.R. at 9; see also Panter v.
     Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (an adjudicatory error
     that is prejudicial to a party’s substantive rights may provide a basis for reversal
     of the initial decision).

     The administrative judge failed to give the appellant proper Burgess notice.
¶8         The Board lacks jurisdiction over an action taken pursuant to a LCA in
     which an appellant waives his right to appeal to the Board unless the appellant
     establishes that the appeal rights waiver should not be enforced. Easterling v.
     U.S. Postal Service, 110 M.S.P.R. 41, ¶ 12 (2008). Because this issue raises a
     question of Board jurisdiction, the administrative judge must apprise the appellant
     of what he must submit to establish that the Board has jurisdiction over his
     appeal. Trotta, 73 M.S.P.R. at 11 (citing Burgess v. Merit Systems Protection
     Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985)). Here, the administrative judge’s
     acknowledgment order did not advise the appellant of the showing he was
     required to make to establish Board jurisdiction, i.e., that, in light of the waiver
     of appeal rights contained in the LCA, he was required to show that the waiver
     should not act as a bar to the Board’s adjudication of his appeal because: (1) he
     complied with the LCA; (2) the agency materially breached the LCA or acted in
     bad faith; (3) he did not voluntarily enter into the LCA; or (4) the LCA resulted
     from fraud or mutual mistake. Willis v. Department of Defense, 105 M.S.P.R.
     466, ¶ 17 (2007); see CF, Tab 2. The administrative judge should also have made
                                                                                           6

     the appellant aware that he was required “to make nonfrivolous allegation[s] . . .
     supported by some factual evidence, and that the production of such evidence
     would be necessary for him to show entitlement to a hearing on his appeal.”
     Trotta, 73 M.S.P.R. at 11 (quoting Little v. U.S. Postal Service, 53 M.S.P.R. 32,
     35 (1992)). Thus, the administrative judge did not provide the appellant proper
     Burgess notice.
¶9         It is well settled, though, that an administrative judge’s failure to provide an
     appellant with proper Burgess notice can be cured if the agency’s pleadings
     contain the notice that was lacking in the acknowledgment order or the initial
     decision puts the appellant on notice of what he must do to establish jurisdiction,
     thus affording him the opportunity to meet his jurisdictional burden in the
     petition for review.    Easterling, 110 M.S.P.R. 41, ¶ 11.          We find that the
     compliance initial decision correctly sets forth the four conditions by which an
     appellant could establish that an appeal rights waiver should not be enforced. 5
     See CID at 3 (citing Rhett v. U.S. Postal Service, 113 M.S.P.R. 178, ¶ 13 (2010)).
     However, neither the agency’s response nor the compliance initial decision
     notified the appellant that, in order to establish entitlement to a hearing, he was
     required   to provide some       factual   evidence    supporting his nonfrivolous
     allegations. See CF, Tab 4; CID; see also Trotta, 73 M.S.P.R. at 11. We find that
     this omission adversely affected the appellant’s substantive rights, and he is
     entitled to further proceedings so that the administrative judge may inform the
     appellant of his burden of proof on this issue and afford him an opportunity to
     show that his appeal is within the Board’s jurisdiction. See Little, 53 M.S.P.R. at
     35; see also Panter, 22 M.S.P.R. at 282.

     5
       The administrative judge incorrectly noted that this standard applied to the
     enforceability of the entire LCA, not just the appeal rights waiver provision. However,
     we find that this misstatement did not have any adverse effect on any party’s rights and
     was harmless. See Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127 (1981) (an
     administrative judge’s procedural error is of no legal consequence unless it is shown to
     have adversely affected a party’s substantive rights).
                                                                                        7

                                              ORDER
¶10        In light of the above, we DENY the appellant’s petition for review,
      VACATE on our own motion the compliance initial decision, and FORWARD the
      appellant’s petition for enforcement to the regional office to be docketed as a new
      appeal of his removal pursuant to the LCA. On appeal, the administrative judge
      shall give the appellant explicit notice of the law and his burden of proof to
      establish Board jurisdiction over an appeal of a removal taken pursuant to a LCA
      containing a waiver of appeal rights and permit him an opportunity to respond
      and submit evidence.

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
           You have the right to request the United States Court of Appeals for the
      Federal Circuit to review this final decision. You must submit your request to the
      court at the following address:
                                United States Court of Appeals
                                    for the Federal Circuit
                                  717 Madison Place, N.W.
                                   Washington, DC 20439

      The court must receive your request for review no later than 60 calendar days
      after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
      2012). If you choose to file, be very careful to file on time. The court has held
      that normally it does not have the authority to waive this statutory deadline and
      that filings that do not comply with the deadline must be dismissed. See Pinat v.
      Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
           If you need further information about your right to appeal this decision to
      court, you should refer to the federal law that gives you this right. It is found in
      Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
      Dec. 27, 2012). You may read this law as well as other sections of the United
      States   Code,    at   our   website,    http://www.mspb.gov/appeals/uscode.htm.
                                                                                8

Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court’s "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
     If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
