                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JESSIE LUMPKINS,                                DOCKET NUMBER
                   Appellant,                        AT-0752-13-0297-C-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: September 16, 2016
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Vaughn Simms, Ridgeland, Mississippi, for the appellant.

           Johnston B. Walker, Jackson, Mississippi, 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 compliance initial
     decision, which dismissed the petition for enforcement for lack of jurisdiction.
     Generally, we grant petitions such as this one only when: the initial decision
     contains erroneous findings of material fact; the initial decision is based on an


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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).
¶2         The appellant filed this petition for enforcement, alleging that the agency
     breached a last chance settlement agreement (LCSA) by assigning him to the
     wrong position under the agreement and by failing to provide him with
     appropriate orientation and training for that position.    Compliance File (CF),
     Tab 1 at 5, 15-21. Initially, the agency had proposed the appellant’s removal but,
     pursuant to the LCSA, reassigned him to a lower-graded position. Initial Appeal
     File (IAF), Tab 6, Subtabs 2a, 2f. The agreement, however, was executed prior to
     the filing of any Board appeal and thus was not entered into the record for
     enforcement purposes.      Compare id., Subtab 2a, with IAF, Tab 1.           Soon
     thereafter, the appellant sought to vacate the LCSA through the Board’s appeal
     process, arguing that he entered into the agreement under duress. IAF, Tab 1;
     Lumpkins v. Department of Veterans Affairs, MSPB Docket No. AT-0752-13-
     0297-I-1, Final Order at 2 (May 1, 2014). The administrative judge found that he
     had voluntarily entered into the LCSA and dismissed the appeal for lack of
     jurisdiction.    Lumpkins v. Department of Veterans Affairs, MSPB Docket
     No. AT-0752-13-0297-I-2, Final Order        at   4 (Jan.   9,   2015) (hereinafter
     Lumpkins II). On review, the Board affirmed the initial decision. Id. at 8. The
                                                                                     3

     appellant now seeks to enforce the LCSA. CF, Tab 1. The administrative judge
     dismissed this petition for enforcement based on lack of jurisdiction because he
     found that the appellant had never established the Board’s jurisdiction over the
     underlying appeal. CF, Tab 8, Compliance Initial Decision (CID) at 1-3.
¶3         On review, the appellant argues that the agency breached the LCSA by
     failing to “provide the reasonable training and orientation in order for the
     appellant to perform the job duties as prescribed in the position description” for
     the position to which he was reassigned. Petition for Review (PFR) File, Tab 1.
     The appellant also argues that the Board should consider this “new complaint . . .
     without a preconceived notion.” Id. He further contends that the agency can
     “breach the contract without repercussion,” whereas his own breach would have
     led to his removal. Id.
¶4         We have reviewed the appellant’s arguments.      The administrative judge,
     however, properly dismissed this petition for lack of jurisdiction. CID at 1, 3.
     The administrative judge explained that the appellant offered no evidence and
     argument addressing the jurisdictional issue in response to his order to show
     cause, and that the Board may enforce a settlement agreement only when that
     agreement has been entered into the record for enforcement purposes. CID at 2
     (citing Chapman v. Tennessee Valley Authority, 67 M.S.P.R. 246, 249 (1995)). In
     addition, this petition for enforcement arose after the Board declined to find
     jurisdiction over the underlying appeal. Lumpkins II at 8. As a result, the only
     proper action the administrative judge could have taken was to dismiss the
     petition for enforcement for lack of jurisdiction.   See, e.g., Hunt v. Office of
     Personnel Management, 114 M.S.P.R. 590, ¶¶ 5-6 (2010).          Accordingly, we
     affirm the initial decision.
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                   NOTICE TO THE APPELLANT REGARDING
                      YOUR FURTHER REVIEW RIGHTS
         You have the right to request review of this final decision by the U.S.
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

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 U.S. 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.
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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:                          ______________________________
                                        Jennifer Everling
                                        Acting Clerk of the Board
Washington, D.C.
