John T. Webster v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOHN T. WEBSTER, DOCKET NUMBER

Appellant, CH-0752-14-0268-I-1

v.

DEPARTMENT OF VETERANS DATE: September 5, 2014

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

John T. Webster, Glenwood, Illinois, pro se.

Timothy B. Morgan, Esquire, Chicago, Illinois, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice 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. 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 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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interpretation of statute or regulation or the erroneous application of the law to

the facts of the case; the 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, and based on the following

points and authorities, 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).

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 In a letter dated January 7, 2014, the agency notified the appellant that he

would be removed from his position of Housekeeping Aid, WG-02, effective

January 10, 2014. Initial Appeal File (IAF), Tab 1 at 7-9. The decision letter

gave the appellant several options to appeal the agency’s decision and stated that

he would “be deemed to have exercised his choice of appeal procedure” when he

exercised one of the options. Id. at 9. On February 3, 2014, the appellant filed a

timely appeal to the Board to contest his removal. Id. at 1. He indicated in his

appeal that a grievance was filed on his behalf on January 31, 2014, regarding the

personnel action or decision that he was appealing. Id. at 3. He also attached a

copy of his grievance form, which contained the signature of his union

representative. Id. at 11.

¶3 The administrative judge notified the appellant that the Board might not

have jurisdiction because the record appeared to demonstrate that he had elected

to pursue his claims through the negotiated grievance procedure. IAF, Tab 2 at 2.

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The administrative judge ordered the appellant to produce evidence and argument

to prove that the Board had jurisdiction over his appeal. Id.

¶4 In response to the administrative judge’s order, the appellant argued that

his union’s representation was inadequate. IAF, Tab 4 at 1. Additionally, he

attached a letter dated February 12, 2013, addressed to his union representative,

in which he informed her that he had “enough reasonable doubt and lack of trust”

in the union’s services and representation and that he wanted his “removal

decision grievance” withdrawn due to the union’s “past gross negligence, willful,

and unwillful [sic] misrepresentation.” Id. at 3. The agency filed a motion to

dismiss for lack of jurisdiction, in which it argued that the appellant elected to

file a grievance in response to the agency’s removal decision. IAF, Tab 6 at 2, 5.

On March 31, 2014, the administrative judge dismissed the appeal for lack of

jurisdiction. IAF, Tab 11, Initial Decision (ID).

¶5 The appellant has filed a timely petition for review. Petition for Review

(PFR) File, Tab 1. In his petition, he argues that he was denied his right to a

hearing and to call witnesses and that he did not receive responses to his

discovery request. 2 Id. at 3. In addition, he states that, although he filed a

grievance of his removal, he withdrew the grievance in a timely manner and

therefore “MSPB and the Administrative Judge [are] the only ones fit in respect

to the statute to hold a hearing on this case.” Id. at 7. The agency has responded

to the petition for review. PFR File, Tab 4 at 5.

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Because we are affirming the administrative judge’s decision to dismiss this appeal for

lack of jurisdiction and there is no factual dispute as to the appellant’s previous election

of the negotiated grievance procedure, we need not address his arguments concerning

discovery. See McKnight v. Department of Defense, 103 M.S.P.R. 255, ¶ 13, n.*(2006),

aff’d, 227 F. App’x 913 (Fed. Cir. 2007) (declining to address an appellant’s arguments

regarding discovery and production of the agency file in light of a dismissal for lack of

jurisdiction).

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DISCUSSION OF ARGUMENTS ON REVIEW

¶6 The Board’s jurisdiction is not plenary; it 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). The appellant bears

the burden of proving Board jurisdiction over his appeal by preponderant

evidence. 5 C.F.R. § 1201.56(a)(2)(i). If the appellant makes a nonfrivolous

allegation of fact that, if proven, would establish the Board’s jurisdiction, then he

is entitled to a hearing at which he must prove jurisdiction. Kim v. Department of

the Army, 119 M.S.P.R. 429, ¶ 6 (2013).

¶7 Pursuant to 5 U.S.C. § 7121(e)(1), matters covered under sections 4303 and

7512 of Title 5, which also fall within the coverage of the negotiated grievance

procedure may, be raised, at the discretion of the aggrieved employee, either

under the appellate procedures of section 7701 of Title 5 or under the negotiated

grievance procedure but not both. Kendrick v. Department of Veterans

Affairs, 74 M.S.P.R. 178, 181 (1997). When an employee has the option of either

filing an appeal under the procedures of section 7701 or under the negotiated

grievance procedure, the Board considers the choice between these procedures to

have been made when the employee timely files an appeal with the Board or

timely files a written grievance, whichever event occurs first. Id.; Jones v.

Department of Justice, 53 M.S.P.R. 117, 120 (1992), aff’d, 983 F.2d 1088 (Fed.

Cir. 1993) (Table); 5 C.F.R. § 1201.3(c)(2). Once a timely filing is made to

pursue a path, the other is forever waived. Rodriguez v. Merit Systems Protection

Board, 804 F.2d 673, 675 (Fed. Cir. 1986). An agency must notify the employee

of his options under 5 U.S.C. § 7121(e)(1) for his choice to be deemed a valid,

informed election. Miyai v. Department of Transportation, 32 M.S.P.R. 15, 20

(1986); see Atanus v. Merit Systems Protection Board, 434 F.3d 1324, 1327 (Fed.

Cir. 2006) (“In order to comply with [5 U.S.C. § 7121(e)(1)], the agency must

properly inform an employee of [his] choices.”).

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¶8 Here, the appellant does not dispute that he was properly informed of his

appeal rights and the consequences of exercising one of those options. The

appellant received a decision letter, which provided him with several options to

appeal the agency’s decision to remove him, including his rights to appeal to the

Board or under the negotiated grievance procedures. 3 IAF, Tab 1 at 7-9.

Additionally, the letter stated that the appellant would be deemed to have

exercised his choice of appeal procedure if and when he filed a timely appeal as

described in the letter. Id. at 9. We therefore find that the appellant’s election to

file a grievance was informed.

¶9 Likewise, we find that the election was valid. Pursuant to 5 U.S.C.

§ 7121(b)(1)(C)(i)-(ii), the exclusive representative and the bargaining unit

employee have independent rights to file grievances over matters within the scope

of the grievance procedure. Kendrick, 74 M.S.P.R. at 181. Therefore, the mere

fact that a grievance has been filed regarding an action otherwise appealable to

the Board does not remove that action from the Board’s jurisdiction due to the

employee’s “election” of the grievance procedure over the Board’s appellate

procedures. Id. Rather, to be outside of the Board’s jurisdiction, it must be

shown that the employee either filed the grievance on his own behalf or

authorized the union to file on his behalf. Id. If it is shown that the union filed

without the explicit or implicit authorization of the employee, then the employee

has not made an election of the grievance procedure, and the matter remains

within the Board’s jurisdiction. Id.

¶10 Here, when the appellant filed his appeal with the Board, he indicated that a

grievance had been filed on his behalf; however, the record was not explicitly

clear as to who authorized the filing of the grievance because the grievance form

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The decision letter stated that the appellant could elect his appeal procedure “not more

than once,” rather than properly stating he could only elect “one” procedure. IAF, Tab

1 at 9. However, neither party has claimed that this language caused the appellant any

confusion.

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was signed by the union representative but not by the appellant. IAF, Tab 1 at 3,

11. In order to show the appeal was within the Board’s jurisdiction despite the

filing of the grievance, the appellant would need to show he did not explicitly

authorize the union to file on his behalf and that he had no knowledge of the

union’s filing or that he affirmatively disavowed the grievance filed by the union

as not being his election of forum. Kendrick, 74 M.S.P.R. at 182-83.

¶11 On petition for review, the appellant acknowledges that he authorized the

filing of the grievance. PFR File, Tab 1 at 7. Although he requested that his

union representative withdraw the grievance, the request did not come until 12

days after the grievance and was in response to the appellant’s assertion of the

union’s poor representation and his dislike of police escorts to and from the union

office and not because he did not initially authorize the filing of the grievance.

IAF, Tab 4 at 3. Therefore, we find that the appellant failed to prove by

preponderant evidence that he did not explicitly or implicitly authorize the union

to file a grievance prior to filing his Board appeal.

¶12 The appellant also argues that, although a grievance was filed to appeal the

removal decision, he withdrew the grievance in a timely manner before an

adjudicator was assigned. PFR File, Tab 1 at 7. However, regardless of his

timing, the appellant’s subsequent efforts to withdraw his grievance do not affect

the validity of the election under 5 U.S.C. § 7121(e)(1). Jones, 53 M.S.P.R. at

120; see Atanus, 434 F.3d at 1326-28 (explaining that the election of filing a

grievance before appealing to the Board constitutes a permanent waiver to appeal

to the Board, regardless of the timing of the change in the grievance election).

There is no dispute that his grievance was filed on January 31, 2014, which was

before the filing of the appeal to the Board on February 3, 2014. IAF, Tab 1 at 3,

11. Therefore, because the appellant filed his grievance prior to filing his Board

appeal, we affirm the administrative judge’s dismissal of the appeal for lack of

jurisdiction. Further, we find that the administrative judge did not err in finding

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that the appellant failed to make the requisite nonfrivolous allegations to merit a

jurisdictional hearing.

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

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 your court

appeal, you may visit our website at http://www.mspb.gov/probono for a list of

attorneys who have expressed interest in providing pro bono representation for

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Merit Systems Protection Board appellants before the court. 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.