NOTE: This disposition is nonprecedential.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 administrative or judicial [forum].” Stovall retained the right, however, 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 unacceptable 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 agreement. The administrative judge determined, moreover, 

that Stovall failed to provide any credible evidence supporting his claim that he had met the performance standards 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 decision 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 carry 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 credible 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 unsupported 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’ settlement 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 substantiate 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 performance 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 agreement, to remove him from his position.

Finally, we reject Stovall’s argument that the December 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 performance 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 Systems Protection Board dismissing Stovall’s appeal for lack 

of jurisdiction.

AFFIRMED