The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CARLOS JOSE CACERES-GARCIA, DOCKET NUMBER
Appellant, PH-0752-24-0082-I-1
v.
DEPARTMENT OF VETERANS DATE: December 10, 2025
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Francisco J. Reyes , Guaynabo, Puerto Rico, for the appellant.
Joved Gonzalez-Rivera , Mayaguez, Puerto Rico, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
James J. Woodruff II, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal for lack of jurisdiction on the basis that he did not
make a nonfrivolous allegation of Board jurisdiction. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
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A nonprecedential order is one that the Board has determined does not add significantly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 Parties may cite nonprecedential orders, but such orders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
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. 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. We VACATE the initial decision and
DISMISS the appeal for lack of jurisdiction because the appellant elected to
challenge his removal through the negotiated grievance process.
BACKGROUND
The appellant was employed as a GS-06 Pharmacy Technician in San Juan,
Puerto Rico. Initial Appeal File (IAF), Tab 1 at 1, Tab 5 at 13. The agency
removed him effective July 7, 2023, based on charges of unauthorized absence
without leave (AWOL) and failure to follow leave requesting procedures.
IAF, Tab 5 at 27-30. In the removal decision, the agency advised the appellant that
he could file an appeal at the Board or file a grievance through the negotiated
grievance procedure, but not both. Id. at 27-29. The agency explained that the
appellant would be deemed to have elected his forum based on where he filed first.
Id. at 28-30. On July 7, 2023, the appellant, through his union representative, filed
a Step III grievance challenging his removal and requesting that the removal be
held in abeyance until a decision was reached on the grievance. Id. at 25. The
agency agreed. Id. at 24.
On August 8, 2023, the appellant, the union, and the agency entered into a
Last Chance Agreement (LCA), which held the appellant’s removal in abeyance for
2 years. Id. at 21-23. Under the terms of the LCA, the appellant agreed to abide by
3
certain conditions during the 2-year abeyance period. Id. at 21-22. Among these
conditions were that he would have no instances of AWOL or tardiness. Id.
Failure to abide by any of these conditions would result in the enforcement of the
July 7, 2023 removal. Id. at 22. The appellant agreed that he understood “that if he
does not accept this Last Chance Agreement, he only has the right to continue
through Arbitration since he has already appealed the removal decision action
through the negotiated grievance procedure.” Id. at 22.
On October 5, 2023, the appellant was allegedly 15 minutes late to his duty
station, and he was reported as AWOL for those 15 minutes. Id. at 17. On
October 30, 2023, the deciding official issued the appellant a letter titled
“Enforcement of Decision – Removal.” Id. at 15-16. The letter explained that
because the appellant was charged with AWOL, and thus was in violation of the
LCA, the agency was enforcing his removal. Id. The agency effectuated the
appellant’s removal the next day. Id. at 13.
On November 9, 2023, the appellant filed the instant appeal challenging
his removal. IAF, Tab 1. The appellant disputed that he was AWOL on
October 5, 2023. Id. at 2. Without holding the appellant’s requested hearing, the
administrative judge issued an initial decision, which dismissed the appeal for lack
of jurisdiction. IAF, Tab 1 at 1, Tab 12, Initial Decision (ID) at 1, 8. The
administrative judge found that the appellant did not nonfrivolously allege either
that he complied with the LCA, that the agency breached the LCA, or that the
waiver provision of the LCA was otherwise unenforceable. ID at 4-8.
The appellant has timely filed a petition for review. Petition for Review
(PFR) File, Tab 1. On review, the appellant reargues that “the agency notified the
appellant that it activated the last chance agreement without providing due process
to that new allegation and terminate[d] his employment.” Id. at 5. The agency has
responded to the petition for review. PFR File, Tab 3.
4
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant reasserts on review that he was not tardy or AWOL on
October 5, 2023. PFR File, Tab 1 at 5-8. The agency argues, as it did below, that
because the appellant first filed a grievance challenging his removal, the Board
does not have jurisdiction to consider his appeal. IAF, Tab 5 at 4; PFR File, Tab 3
at 5. We agree with the agency. Therefore, we vacate the initial decision because
we need not reach the issue of whether the appellant nonfrivolously alleged that he
complied with the LCA. ID at 4-8.
The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems Protection
Board, 759 F.2d 9, 10 (Fed. Cir. 1985). An adverse action that falls within the
Board’s jurisdiction and also falls within the coverage of the negotiated grievance
procedure may be raised at the Board or under the negotiated grievance procedure,
but not both. 5 U.S.C. § 7121(e)(1); Whitaker v. Merit Systems Protection Board,
784 F.2d 1109, 1110 (Fed. Cir. 1986); 5 C.F.R. § 1201.3(c)(1)(i). An employee is
deemed to have made an election between the two procedures at such time as the
employee timely files a Board appeal or timely files a grievance in writing in
accordance with the provisions of the parties’ negotiated grievance procedure,
whichever occurs first. 5 U.S.C. § 7121(e)(1); 5 C.F.R. § 1201.3(c)(2). When an
employee files a grievance before appealing the agency action to the Board, the
employee is deemed to have exercised his option under 5 U.S.C. § 7121, and he
5
retains no statutory right to Board review under chapter 75. 2 Rolon v. Department
of Veterans Affairs, 53 M.S.P.R. 362, 365 (1992).
On July 7, 2023, the appellant, through his union representative, filed a
Step III grievance, in which he challenged his removal and asked that his removal
be held in abeyance until a decision was reached on the grievance. IAF, Tab 5
at 25. The appellant’s Board appeal challenging his removal was not filed until
November 9, 2023. IAF, Tab 1. Therefore, the appellant made a binding election
to challenge his removal through the negotiated grievance procedures.
5 U.S.C. § 7121(e)(1); 5 C.F.R. § 1201.3(c)(2). This election removed any
challenge to the appellant’s removal from the Board’s jurisdiction.
5 U.S.C. § 7121(e)(1); Rolon, 53 M.S.P.R. at 364-66.
The appellant argues that even if his filing of a grievance was an election to
challenge his initial July 7, 2023 removal through the negotiated grievance
procedures, his October 31, 2023 removal was a new action against him and “[t]he
agency notified the appellant that it activated the last chance agreement without
providing due process to that new allegation and terminate his employment.”
PFR File, Tab 1 at 5. Although the Board retains jurisdiction over discrete adverse
actions that do not relate back to an earlier filed grievance, that is not the case here.
Rolon, 53 M.S.P.R at 365-66 (holding that because the suspension that the
appellant sought to appeal at the Board was the mitigated penalty that he received
pursuant to the final grievance decision on his removal, the Board did not have
jurisdiction over his suspension).
2
An employee who first files a grievance, and thus has exercised his option under
5 U.S.C. § 7121, retains a limited right to seek Board review of the final grievance
decision if his case involves an allegation of a prohibited personnel practice under
5 U.S.C. § 2302(b)(1). 5 U.S.C. § 7121(d). The appellant has not alleged that his union
invoked arbitration on his behalf in connection with his reinstituted removal or that an
arbitration decision has been issued. Therefore, there is no arbitration decision over
which the board could exercise such jurisdiction. See Stroud v. Department of Veterans
Affairs, 2022 MSPB 43, ¶ 25 (concluding that the Board lacked jurisdiction to review a
final arbitration under 5 U.S.C. § 7121(d) when the appellant did not allege that such a
decision was issued).
6
Here, the appellant’s removal directly related back to the grievance process
and was therefore not a new agency action. Instead, the agency “decided to enforce
the LCA endorsed by [the appellant’s] signature on August 8, 2023, and to remove
[him] from [his] position . . . effective immediately.” Id. Because the appellant
elected to pursue his grievance remedy, his removal is outside the Board’s
jurisdiction. Rolon, 53 M.S.P.R. 362, 365-66; IAF, Tab 5 at 13-17. We therefore
dismiss this appeal for lack of jurisdiction because the appellant elected to proceed
through the negotiated grievance process.
NOTICE OF APPEAL RIGHTS 3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review
of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims
determines the time limit for seeking such review and the appropriate forum with
which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of
available appeal rights, the Merit Systems Protection Board does not provide legal
advice on which option is most appropriate for your situation and the rights
described below do not represent a statement of how courts will rule regarding
which cases fall within their jurisdiction. If you wish to seek review of this final
decision, you should immediately review the law applicable to your claims and
carefully follow all filing time limits and requirements. Failure to file within the
applicable time limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review below
to decide which one applies to your particular case. If you have questions about
whether a particular forum is the appropriate one to review your case, you should
contact that forum for more information.
3
Since the issuance of the initial decision in this matter, the Board may have updated the
notice of review rights included in final decisions. As indicated in the notice, the Board
cannot advise which option is most appropriate in any matter.
7
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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. The
Board neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of discrimination.
This option applies to you only if you have claimed that you were affected by an
action that is appealable to the Board and that such action was based, in whole or in
part, on unlawful discrimination. If so, you may obtain judicial review of this
decision—including a disposition of your discrimination claims —by filing a civil
action with an appropriate U.S. district court (not the U.S. Court of Appeals for the
Federal Circuit), within 30 calendar days after you receive this decision.
5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. 420
8
(2017). If you have a representative in this case, and your representative receives
this decision before you do, then you must file with the district court no later than
30 calendar days after your representative receives this decision. If the action
involves a claim of discrimination based on race, color, religion, sex, national
origin, or a disabling condition, you may be entitled to representation by a
court-appointed lawyer and to waiver of any requirement of prepayment of fees,
costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding all
other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and
your representative receives this decision before you do, then you must file with the
EEOC no later than 30 calendar days after your representative receives this
decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
9
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If
so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review
either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals
of competent jurisdiction. 4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, and 11.
4
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB
decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the
Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All
Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat.
1510.
10
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. The
Board neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.