NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DERRICK J. STOVALL,
Petitioner
v.
DEPARTMENT OF DEFENSE,
Respondent
______________________
2016-1261
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-0752-15-0245-I-1.
______________________
Decided: May 6, 2016
______________________
DERRICK J. STOVALL, Indianapolis, IN, pro se.
ERIC JOHN SINGLEY, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., DEBORAH
A. BYNUM.
______________________
Before NEWMAN, MAYER, and CHEN, Circuit Judges.
2 STOVALL v. DEFENSE
PER CURIAM.
Derrick J. Stovall appeals a final decision of the Merit
Systems Protection Board (“board”) dismissing his appeal
for lack of jurisdiction. See Stovall v. Dep’t of Defense, No.
CH-0752-15-0245-I-1, 2015 MSPB LEXIS 8323 (Sept. 28,
2015) (“Board Decision”). For the reasons discussed
below, we affirm.
BACKGROUND
The Department of Defense (“agency”) removed
Stovall from his position for substandard performance in
2011. Stovall appealed to the board, and the parties
subsequently entered into a settlement agreement.
Under the terms of that agreement, the agency assented
to the cancellation of Stovall’s removal and he agreed to
maintain acceptable performance during the two-year
period between May 1, 2012 and April 30, 2014. The
settlement agreement stipulated that if Stovall failed to
maintain acceptable performance during this two-year
period, the agency had the right to remove him from the
federal service after notifying him that his performance
had been deficient and affording him at least thirty days
to improve. The agreement further provided that if
Stovall was removed for deficient performance, he waived
the right to “appeal the removal action in any administra-
tive or judicial [forum].” Stovall retained the right, how-
ever, to file a petition for enforcement of the terms of the
settlement agreement. See Board Decision, 2015 MSPB
LEXIS 8323, at *3.
On April 29, 2014, the agency removed Stovall for un-
acceptable performance in critical element 2(b), which
required him to maintain an average accuracy rating of
between 96% and 99% when processing military pay
cases. Id. at *4. Stovall appealed to the board, but an
administrative judge dismissed his appeal for lack of
jurisdiction. The judge concluded that Stovall had failed
to non-frivolously allege that the agency acted in bad faith
STOVALL v. DEFENSE 3
or coerced him into entering into the settlement agree-
ment. The administrative judge determined, moreover,
that Stovall failed to provide any credible evidence sup-
porting his claim that he had met the performance stand-
ards required by the settlement agreement. On appeal,
the full board affirmed. Id. at *8–13.
Stovall then filed a timely appeal with this court. We
have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
The scope of our review of an appeal from a board de-
cision is circumscribed by statute. We may set aside such
a decision only if it is: “(1) arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law; (2)
obtained without procedures required by law, rule, or
regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c); see Briggs v.
Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003).
Whether the board possesses jurisdiction to adjudicate an
appeal is a question of law which we review de novo. See
Clark v. Merit Sys. Prot. Bd., 361 F.3d 647, 649 (Fed. Cir.
2004).
As the board correctly concluded, Stovall failed to car-
ry his burden of establishing jurisdiction over his appeal.
See Campion v. Merit Sys. Prot. Bd., 326 F.3d 1210, 1212–
13 (Fed. Cir. 2003) (explaining that the petitioner bears
the burden of establishing the board’s jurisdiction by
preponderant evidence); see also Asberry v. U.S. Postal
Serv., 692 F.2d 1378, 1380 (Fed. Cir. 1982) (emphasizing
that a party seeking to upend a settlement agreement
bears a heavy burden). Where an employee waives his
appeal rights by entering into a last chance settlement
agreement, the board can exercise jurisdiction over a
challenge to a subsequent removal action only if the
employee non-frivolously alleges that: (1) he did not
knowingly and voluntarily enter into the settlement
agreement; (2) he fulfilled the requirements of that
4 STOVALL v. DEFENSE
agreement; or (3) the agency materially breached the
agreement or acted in bad faith. See Buchanan v. Dep’t of
Energy, 247 F.3d 1333, 1338 (Fed. Cir. 2001); Link v.
Dep’t of the Treasury, 51 F.3d 1577, 1582 (Fed. Cir. 1995).
On appeal, Stovall argues that he did not knowingly
and voluntarily enter into the 2011 settlement agreement
with the agency. He fails, however, to provide any credi-
ble evidence to support this contention. To the contrary,
when he executed the agreement, Stovall specifically
acknowledged that he fully understood all of its provisions
and that he entered into it “knowingly and voluntarily
after full deliberation and opportunity to discuss its effect
and meaning with those persons and advisors he [chose]
to consult.” We reject, therefore, Stovall’s wholly unsup-
ported allegation that the agency coerced him into signing
the settlement agreement. See Tiburzi v. Dep’t of Justice,
269 F.3d 1346, 1355 (Fed. Cir. 2001) (“A bare allegation of
coercion is not sufficient to set aside the parties’ settle-
ment agreement.”).
Likewise unpersuasive is Stovall’s claim that he met
the performance standards required by the settlement
agreement. Pursuant to paragraph 5 of the agreement,
Stovall stipulated that his performance would be deemed
unacceptable if he failed to meet a critical element of his
position at any time between May 1, 2012 and April 30,
2014. Under critical element 2(b), Stovall was required to
process military pay cases with an average accuracy rate
of at least 96%. The record shows, however, that Stovall
repeatedly failed to meet this requirement. For example,
in the period between May 2013 and July 2013, Stovall’s
accuracy rate was only 89.35%.
The record contains nothing, moreover, to substanti-
ate Stovall’s assertion that the agency acted in bad faith.
As the board correctly noted, although Stovall “was below
the minimum accuracy rate of 96% for much of the 2-year
last chance period,” his supervisor met with him repeated-
STOVALL v. DEFENSE 5
ly to discuss his accuracy rating and to offer assistance in
improving his performance. Board Decision, 2015 MSPB
LEXIS 8323, at *8–9. It was not until February 2014,
after Stovall had been given ample opportunity to rectify
his performance deficiencies, that the agency issued a
written notice informing him that his performance was
unacceptable and that he would be removed if his perfor-
mance did not improve within thirty days. Because
Stovall did not meet the minimum 96% average accuracy
standard during this thirty-day period, the agency had
the right, under the plain terms of the settlement agree-
ment, to remove him from his position.
Finally, we reject Stovall’s argument that the Decem-
ber 2011 settlement agreement was not a “last chance”
agreement. Although the settlement agreement did not
use the phrase “last chance,” it clearly stated that Stovall
would be given one opportunity to improve his perfor-
mance and that the agency had the right to remove him
from the federal service if he failed to do so.
CONCLUSION
Accordingly, we affirm the decision of the Merit Sys-
tems Protection Board dismissing Stovall’s appeal for lack
of jurisdiction.
AFFIRMED