                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DERRICK J. STOVALL,                             DOCKET NUMBER
                   Appellant,                        CH-0752-15-0245-I-1

                  v.

     DEPARTMENT OF DEFENSE,                          DATE: September 28, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Thomas J. Gaunt, Esquire, Indianapolis, Indiana, for the appellant.

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


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed his removal appeal for lack of jurisdiction pursuant to the appeal rights
     waiver provision of the last chance agreement (LCA) by which the parties settled
     his earlier appeal. Generally, we grant petitions such as this one only when: the
     initial decision contains erroneous findings of material fact; the initial decision is

     1
        A nonprecedential order is one that the Board has determined does not add
     significantly 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 Parties may cite nonprecedential orders,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

     based on an erroneous interpretation of statute or regulation or the erroneous
     application of the law to the facts of the case; the administrative judge’s rulings
     during either the course of the appeal or the initial decision were not consistent
     with required procedures or involved an abuse of discretion, and the resulting
     error affected the outcome of the case; or new and material evidence or legal
     argument is available that, despite the petitioner’s due diligence, was not
     available when the record closed. See Title 5 of the Code of Federal Regulations,
     section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
     appeal, we conclude that the petitioner has not established any basis under
     section 1201.115 for granting the petition for review. Therefore, we DENY the
     petition for review and AFFIRM the initial decision, which is now the Board’s
     final decision. 5 C.F.R. § 1201.113(b).

                                     BACKGROUND
¶2        The agency removed the appellant for unacceptable performance in 2011,
     which action he appealed to the Board and the parties subsequently resolved
     through a LCA. Initial Appeal File (IAF), Tab 5 at 22-25. Under the terms of the
     LCA, the agency agreed to cancel the removal and return the appellant to work,
     and he agreed to, among other things, maintain acceptable performance for a
     2-year last chance period from May 1, 2012, to April 30, 2014. Id. at 22-23. 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 23.   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. Id. The administrative judge entered the LCA into
     the record for purposes of enforcement, finding it lawful on its face and that the
     parties entered into it voluntarily and with understanding of its terms, and
                                                                                              3

     dismissed the appeal as settled. Stovall v. Department of Defense, MSPB Docket
     No. CH-0432-11-0471-I-1, Initial Decision (Dec. 23, 2011).
¶3         One day before the end of the last chance period, on April 29, 2014, the
     agency summarily removed the appellant in accordance with the LCA due to
     unacceptable performance in critical element 2(b), which required him to
     maintain an average accuracy rating of 96% to 99%. IAF, Tab 5 at 19-21. The
     appellant appealed the removal to the Board, which he styled as a petition for
     enforcement of the LCA, and the administrative judge dismissed the appeal for
     lack of jurisdiction on the basis of the appeal rights waiver in the LCA. Stovall v.
     Department of Defense, MSPB Docket No. CH-0432-11-0471-C-1, Compliance
     Initial Decision at 1 (July 21, 2014). The appellant petitioned for review, and the
     Board found that the administrative judge had failed to give the appellant the
     correct   jurisdictional   notice   and    forwarded    the   self-styled   petition   for
     enforcement to the regional office for docketing as a new appeal of the removal
     pursuant to the LCA.          Stovall v. Department of Defense, MSPB Docket
     No. CH-0432-11-0471-C-1, Final Order at 5-7 (Feb. 4, 2015).              After docketing
     the new appeal, the administrative judge provided the appellant notice of his
     jurisdictional burden and afforded him 15 calendar days to respond. IAF, Tab 3.
     After considering the appellant’s submissions, the administrative judge dismissed
     the appeal, finding that the appellant failed to make a nonfrivolous allegation that
     would permit the Board to assert jurisdiction over his appeal notwithstanding the
     appeal rights waiver in the LCA. 2 IAF, Tab 10, Initial Decision (ID).




     2
       The regional office did not include a copy of the appellant’s petition for enforcement
     in the new appeal file, but rather included a copy of the appellant’s 2011 petition for
     appeal form. See IAF, Tab 1. We discern no prejudice to the appellant caused by this
     error. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (finding
     that adjudicatory error that is not prejudicial to a party’s substantive rights provides no
     basis for reversal of an initial decision).
                                                                                            4

¶4         The appellant has filed a petition for review, and the agency has responded
     in opposition to the appellant’s petition for review. Petition for Review (PFR)
     File, Tabs 3, 5.

                        DISCUSSION OF ARGUMENTS ON REVIEW
¶5         The Board lacks jurisdiction over an action taken pursuant to a LCA in
     which an appellant waives his right to appeal to the Board. Willis v. Department
     of Defense, 105 M.S.P.R. 466, ¶ 17 (2007). As the administrative judge correctly
     explained in her order on jurisdiction, to establish that a waiver of appeal rights
     in a LCA should not be enforced, an appellant must show one of the following:
     (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.        Id.; IAF, Tab 3.     Where an appellant
     raises a nonfrivolous factual issue of compliance with a LCA, the Board must
     resolve that issue before addressing the scope and applicability of a waiver of
     appeal rights in the LCA.         Willis, 105 M.S.P.R. 466, ¶ 18.         Nonfrivolous
     allegations of Board jurisdiction are allegations of fact that, if proven, could
     establish a prima facie case that the Board has jurisdiction over the matter at
     issue. Id.
¶6         On review, the appellant argues that the administrative judge erred in
     dismissing his case for lack of jurisdiction because, among other things, the
     agency violated the LCA and acted in bad faith by changing the performance
     standards after the parties entered into the LCA and failing to afford him a
     meaningful opportunity to improve his performance. 3            PFR File, Tab 3.      In


     3
       The appellant also argues that the agency violated the collective bargaining agreement
     and internal agency regulations and policies and harassed him, discriminated against
     him, and retaliated against him. PFR File, Tab 3 at 12-13. Even if true, however, these
     allegations are irrelevant to the dispositive issue, i.e., whether the Board may exercise
     jurisdiction over the removal appeal notwithstanding the waiver of appeal rights in the
     LCA. See Willis, 105 M.S.P.R. 466, ¶ 17. Further, for the first time on review, the
     appellant argues that the LCA is vague and contrary to public policy. PFR File, Tab 3
                                                                                              5

     support of his petition for review, the appellant submits an “affidavit” reasserting
     many of the arguments made in his petition for review. 4 Id. at 9-10.
¶7         As the administrative judge correctly determined, however, the appellant
     has failed to nonfrivolously allege that the agency materially breached the LCA
     or acted in bad faith. ID at 3. Although the appellant alleges that the agency
     changed his performance standards and the way it calculated his accuracy rating
     during the last chance period, he has failed to provide any evidence in support of
     his contention. See PFR File, Tab 3; see also IAF, Tabs 4, 6, 8. The agency, in
     contrast, has submitted copies of the appellant’s performance plan, quarterly
     performance reviews, production reports, and memoranda for the record showing
     that he was below the minimum accuracy rate of 96% for much of the 2-year last
     chance period and that his supervisor repeatedly met with him to discuss the
     accuracy rating and offer help to improve his performance. IAF, Tab 5. None of
     these documents indicate that the agency materially changed the appellant’s
     performance standards or the manner by which his performance was evaluated
     during the last chance period. See id. Moreover, the LCA explicitly provided
     that the appellant’s performance “will be deemed unacceptable if the Agency, i[n]
     its sole discretion, determines that Appellant has failed to meet a critical element
     of his position” and that he “agrees and understands that his performance will be
     evaluated in accordance with his position standards and applicable Agency


     at 2-4.    However, the appellant sought “enforcement” of the LCA before the
     administrative judge and did not raise any challenge to the validity of the LCA at that
     time, see MSPB Docket No. CH-0432-11-0471-C-1, IAF, Tabs 1, 3, or in the
     proceeding below, see IAF, Tabs 4, 6, 8. Thus, we need not consider his assertions
     raised for the first time on review. See Ringo v. Department of Defense, 122 M.S.P.R.
     91, ¶ 8 n.* (2015).
     4
       The agency argues that the Board should not consider the appellant’s affidavit
     because, among other reasons, he has submitted it for the first time on review and has
     failed to show that the information therein was unavailable prior to the close of the
     record below. PFR File, Tab 5 at 21-22. Because the affidavit contains arguments
     relevant to this appeal, we have considered the allegations therein as part of the petition
     for review.
                                                                                        6

     policy.”   Id. at 23.     The appellant has not alleged that the agency failed to
     evaluate his performance in accordance with his position standards and agency
     policy and thus has not shown that the agency materially breached the LCA. See
     PFR File, Tab 3 at 5-6.
¶8        The appellant also argues that the agency breached the LCA and acted in
     bad faith by failing to give him a “fair and meaningful opportunity to improve”
     prior to removing him. Id. at 5, 9. The LCA provided that, if the appellant’s
     performance was unacceptable during the last chance period, the agency could
     summarily remove him after giving him notice of his unacceptable performance
     and allowing him at least 30 days to improve. IAF, Tab 5 at 23. In accordance
     with this term, the agency notified the appellant on February 26, 2014, that his
     performance was deficient and allowed him 30 days to improve. 5 Id. at 30-33.
     The appellant failed to improve his performance sufficiently during the 30-day
     period, and the agency notified him on April 29, 2014, that it was removing him
     pursuant to the LCA. Id. at 20-21. Accordingly, we find that the administrative
     judge correctly found no merit to the appellant’s argument that the agency
     breached the LCA or acted in bad faith.
¶9        As the appellant has failed to show that the LCA should not be enforced, we
     must next address the scope and applicability of the waiver of appeal rights
     provision in the agreement. Rhett v. U.S. Postal Service, 113 M.S.P.R. 178, ¶ 17
     (2010).    As noted above, 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, after affording him notice of the deficiency and
     30 days to improve, summarily remove him without first placing him on a new
     performance improvement plan. IAF, Tab 5 at 23. The LCA further provided
     that the appellant “freely and voluntarily waives his rights under title 5 of the
     United States Code, and/or applicable collective bargaining agreement, to both
     5
       The agency repeatedly cautioned the appellant about his performance during the last
     chance period. See IAF, Tab 5 at 43-123.
                                                                                           7

      (1) notice of and an opportunity to respond to the removal action and (2) appeal
      the removal action in any administrative or judicial form, or under the terms of
      any applicable collective bargaining agreement.” 6 Id. The final terms of the LCA
      reflect that the appellant “acknowledges that he fully understands all of the
      provisions of this agreement and has entered into this agreement knowingly and
      voluntarily after full deliberation” and that “the parties knowingly give up certain
      rights afforded them so as to avoid the cost and uncertainty of further
      administrative processing or litigation.” 7 Id. at 24-25. We find that this language
      constitutes a clear and unequivocal waiver of the appellant’s right to appeal the
      April 29, 2014 removal to the Board. See Rhett, 113 M.S.P.R. 178, ¶ 17.
¶10         For the foregoing reasons, we find that the Board lacks jurisdiction over the
      appellant’s appeal of the April 29, 2014 removal, and the administrative judge
      correctly dismissed it for lack of jurisdiction.

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the
      United States Court of Appeals for the Federal Circuit. 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



      6
       Contrary to the appellant’s argument on review, it is well settled that a knowing and
      voluntary waiver of Board appeal rights in an LCA is not void as a matter of public
      policy. McCall v. U.S. Postal Service, 839 F.2d 664, 666-67 (Fed. Cir. 1988); Harris v.
      Department of the Air Force, 81 M.S.P.R. 537, ¶ 11 (1999).
      7
        The LCA provided that the parties agreed to a 21-day acceptance period during which
      the appellant could consider the agreement and consult with legal counsel prior to
      executing the agreement. IAF, Tab 5 at 23. It further provided that the appellant could
      revoke the agreement at any time during the 7 days following the execution of the
      agreement. Id. at 23-24.
                                                                                     8

      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.
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 an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at   http://www.mspb.gov/probono        for     information   regarding   pro     bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit.   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.
