The opinion
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THIS FINAL ORDER IS NONPRECEDENTIAL 1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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.