Brock v. MSPB

Case: 21-1000 Document: 52 Page: 1 Filed: 12/14/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JASON ANTOINE BROCK,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
DEPARTMENT OF TRANSPORTATION,
Intervenor
______________________
2021-1000
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0752-20-0542-I-1.
______________________
Decided: December 14, 2021
______________________
JASON ANTOINE BROCK, Nashville, TN, pro se.
JEFFREY GAUGER, Office of the General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, for respondent. Also represented by TRISTAN L.
LEAVITT, KATHERINE MICHELLE SMITH.
RAFIQUE OMAR ANDERSON, Commercial Litigation
Case: 21-1000 Document: 52 Page: 2 Filed: 12/14/2021
2 BROCK v. MSPB
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for intervenor. Also represented by
BRIAN M. BOYNTON, DEBORAH ANN BYNUM, ROBERT
EDWARD KIRSCHMAN, JR.
______________________
Before DYK, REYNA, and STOLL, Circuit Judges.
PER CURIAM.
The Federal Aviation Administration (FAA) removed
Jason Brock from his position as an Air Transportation
Systems Specialist based on two specifications for insubor-
dination. Mr. Brock appealed the removal decision under
the FAA’s Guaranteed Fair Treatment (GFT) appeal pro-
cess—an appeal process unique to FAA personnel actions—
but later withdrew his appeal due to timing issues related
to the selection of arbitrators. On the same day he with-
drew from the GFT appeal process, Mr. Brock appealed the
removal decision to the Merit Systems Protection Board.
The Board dismissed Mr. Brock’s appeal for lack of juris-
diction because, in the Board’s view, 49 U.S.C. § 40122(i)
prohibits Mr. Brock from appealing his removal decision in
more than one forum. On appeal, Mr. Brock argues that
his choice to proceed with the GFT appeal was not knowing
and informed and, therefore, the Board should not have
dismissed his appeal for lack of jurisdiction. For the rea-
sons below, we agree with Mr. Brock and therefore reverse
the Board’s dismissal for lack of jurisdiction and remand
for the Board to consider the merits of Mr. Brock’s appeal.
BACKGROUND
I
The FAA has its own personnel management system
and procedures for appealing adverse personnel actions.
See 49 U.S.C. § 40122. Section 40122 provides that FAA
employees may contest adverse personnel actions (e.g., re-
moval decisions) through the FAA’s internal GFT appeal
Case: 21-1000 Document: 52 Page: 3 Filed: 12/14/2021
BROCK v. MSPB 3
process or by filing an appeal with the Board (among other
options). See § 40122(g)(3), (h), (j). The statute further pro-
vides that “an employee must elect the forum through
which the matter will be contested. Nothing in this section
is intended to allow an employee to contest an action
through more than one forum unless otherwise allowed by
law.” § 40122(i).
II
Mr. Brock worked for the FAA as an Airway Transpor-
tation Specialist at the Nashville System Support Center.
In April 2020, the FAA proposed Mr. Brock’s removal
based on two specifications of insubordination. The decid-
ing official issued a final decision on May 14, 2020 uphold-
ing his removal, which became effective May 20, 2020.
In the removal notice, the deciding official informed
Mr. Brock that, should he wish to dispute the removal de-
cision, he could “file an appeal under the following proce-
dures,” including, as relevant here, proceeding with the
FAA’s GFT appeal procedure or appealing to the Merit Sys-
tems Protection Board (“Board” or “MSPB”). SAppx. 23. 1
According to the notice, he “may elect only one [] of these
forums to challenge” the removal decision and “[e]lection is
deemed to have been made based on which of the actions is
filed first and in which forum.” Id.
The removal notice also attached a copy of the FAA’s
Human Resources Policy Manual (FAA Manual), which
sets forth the procedures for the GFT appeal. According to
the FAA Manual, GFT appeals are heard by a “Tri-Party
Panel” comprised of three arbitrators: one selected by
management, one selected by the appellant, and one jointly
selected by the parties. The FAA Manual specifies that the
1 “SAppx.” refers to the Supplemental Appendix at-
tached to the Respondent’s brief.
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4 BROCK v. MSPB
Tri-Party Panel is selected by the parties “[w]ithin 10 days
of the receipt of the appeal.” SAppx. 30.
On May 18, 2020, Mr. Brock sent an e-mail to the FAA,
electing to proceed with the GFT appeal process.
SAppx. 37. A little over a week later, on May 26, 2020,
Ms. Natalie Frazier—a labor and employee relations spe-
cialist at the FAA—reached out to Mr. Brock to inform him
that the GFT arbitrator pool needed to be replenished and
that the FAA was waiting on resumes for potential arbitra-
tors to hear Mr. Brock’s appeal. Mr. Brock responded to
Ms. Frazier’s e-mail on May 28, 2020 (ten days after he
sent the FAA an e-mail electing the GFT appeal process),
stating: “Since the Southern Region FAA GFT forum will
not meet the timeframe to provide a designated pool of ar-
bitrators, I have chose[n the] MSPB venue instead.”
SAppx. 44–45. Mr. Brock filed his appeal with the Board
that same day. Ms. Frazier responded the next day (eleven
days after Mr. Brock elected to proceed with the GFT ap-
peal process, which was after the allotted time in the FAA
Manual for selection of arbitrators), informing Mr. Brock
that the resumes for potential arbitrators had been re-
ceived and further stating: “If you intend to proceed with
your GFT appeal, the arbitrator selection for your Tri-
Party Panel can now commence. If however you have
elected to file an appeal with the MSPB, as indicated in
your email below, your GFT appeal will be closed.”
SAppx. 44. Mr. Brock responded the same day, asking
Ms. Frazier to “please close the GFT appeal.” Id.
III
On July 27, 2020, the Department of Transportation
(DOT) moved to dismiss Mr. Brock’s MSPB appeal, arguing
that the Board lacked jurisdiction because Mr. Brock first
filed a GFT appeal, thus precluding his appeal before the
Board. An Administrative Judge agreed with the DOT
and, in an initial decision, dismissed Mr. Brock’s appeal for
lack of jurisdiction. Brock v. Dep’t of Transp., No. AT-0752-
Case: 21-1000 Document: 52 Page: 5 Filed: 12/14/2021
BROCK v. MSPB 5
20-0542-I-1, 2020 WL 4439058 (M.S.P.B. July 31, 2020).
The Administrative Judge found it was “undisputed” that
Mr. Brock elected and filed a GFT appeal prior to filing an
appeal with the Board, and that his election of the GFT
procedure “was both knowing and informed.” SAppx. 5–6.
The Administrative Judge further held that there is “no
law, rule, or regulation providing for Board jurisdiction
when an appellant abandons their elected forum.”
SAppx. 6. This initial decision became the final decision of
the Board when Mr. Brock did not petition the full Board
for review of the initial decision.
Mr. Brock appeals. We have jurisdiction under
5 U.S.C. § 7703(b)(1)(A) and 28 U.S.C. § 1295(a)(9). 2
DISCUSSION
Our review in an appeal from a decision of the Board is
limited. The Board’s decision will be set aside if it is:
“(1) arbitrary, capricious, an abuse of discretion, or
2 Respondent suggests we lack jurisdiction to hear
Mr. Brock’s appeal because it is a “mixed” case, “i.e., a case
alleging an adverse action subject to MSPB jurisdiction
taken, in whole or in part, because of unlawful discrimina-
tion or in retaliation for filing an EEO complaint.” Resp.
Br. 7 (citing 5 U.S.C. 7702(e); Perry v. Merit Sys. Prot. Bd.,
137 S. Ct. 1975, 1984–88 (2017)). We disagree. While
Mr. Brock’s appeal to the Board references alleged discrim-
ination, SAppx. 51, Mr. Brock specifically informed this
court in a Statement Concerning Discrimination under
Federal Circuit Rule 15(c) that he did not raise a discrimi-
nation or EEO claim before the Board. See Fed. Cir.
R. 15(c) Statement Concerning Discrimination, Brock
v. Dep’t of Transp., No. 21-1000 (Fed. Cir. Oct. 1, 2020),
ECF No. 3. We are satisfied with this representation and
therefore do not consider Mr. Brock’s appeal to be a mixed
case depriving us of jurisdiction.
Case: 21-1000 Document: 52 Page: 6 Filed: 12/14/2021
6 BROCK v. MSPB
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). Whether the Board has jurisdiction is a
question of law that we review de novo. Parrott v. Merit
Sys. Prot. Bd., 519 F.3d 1328, 1334 (Fed. Cir. 2008).
It is undisputed that Mr. Brock chose to proceed with
the GFT appeal process, withdrew that appeal, and then
filed an appeal with the Board. Mr. Brock argues, how-
ever, that his decision to proceed with the GFT appeal pro-
cess was not knowing and informed and is therefore not
binding. Pet. Br. 2. We agree.
The principle underlying the Board’s dismissal is that
Mr. Brock cannot proceed with an appeal before the Board
because he first chose to proceed with the GFT appeal pro-
cess. While we have not yet addressed this issue under the
statutory scheme at issue in this case (§ 40122(i)), in anal-
ogous situations related to the Title 5 appeal process
(5 U.S.C. § 7121), we have held that “[o]nce a timely filing
is made to pursue a path [in one specified forum], the other
is forever waived.” Rodriguez v. Merit Sys. Prot. Bd.,
804 F.2d 673, 675 (Fed. Cir. 1986). We have cautioned,
however, that “[i]n order to comply with the statute, the
agency must properly inform an employee of [their]
choices.” Atanus v. Merit Sys. Prot. Bd., 434 F.3d 1324,
1327 (Fed. Cir. 2006). The agency must “clearly express[]
to [the employee] that [they] had two options, and that one
would exclude the other.” Id. (emphasis added). In the no-
tice provided to the employee in Atanus, the agency stated
in plain language that a “choice of one of the procedures
excludes the use of the other.” App’x to Resp. Br. at RA-24,
Atanus v. Merit Sys. Prot. Bd., No. 05-3123 (Fed. Cir.
Aug. 11, 2005). That notice clearly informed the employee
that proceeding with one choice “exclude[d] the use of the
other.” Id. Thus, we held that the employee’s choice to file
a grievance precluded a later appeal to the Board. Atanus,
434 F.3d at 1326–27.
Case: 21-1000 Document: 52 Page: 7 Filed: 12/14/2021
BROCK v. MSPB 7
Here, however, Mr. Brock’s decision was not knowing
and informed because the FAA failed to let him know that
the GFT appeal option was non-functional. Mr. Brock only
learned after he chose the arbitration path that the FAA
lacked the necessary arbitrators for the proceeding. He
promptly withdrew his request and filed a timely appeal
with the Board. He had not started to arbitrate and no
deadlines had passed. These facts distinguish Mr. Brock’s
case from situations such as that in Rodriguez, where the
employee had elected a grievance procedure, prosecuted it
through multiple steps, and then attempted to appeal the
dismissal to the Board.
Additionally, we note that the statute itself is not clear
for the circumstances Mr. Brock was facing. After stating
that the employee “must elect the forum through which the
matter will be contested,” § 40122(i) concludes by stating
that “[n]othing in this section is intended to allow an em-
ployee to contest an action through more than one forum
unless otherwise allowed by law.” Id. (emphasis added).
This language differs from the statute in Atanus (5 U.S.C.
§ 7121(e)(1)), which states that an aggrieved employee may
raise a matter by filing an appeal with the Board or the
negotiated grievance procedure, “but not both.” Thus, un-
like the statute in Atanus, which specifically states that an
employee may not choose to proceed in both forums,
§ 40122(i) leaves open the possibility that proceeding in
both forums in the way that Mr. Brock did here (e.g., by
withdrawing one before proceeding with the other) may be
permissible.
Considering the notice Mr. Brock received, Mr. Brock’s
communications with FAA personnel, and the statutory
language, we conclude that the Board’s finding that
Mr. Brock’s decision to initiate the GFT appeal was know-
ing and informed is not supported by substantial evidence.
Case: 21-1000 Document: 52 Page: 8 Filed: 12/14/2021
8 BROCK v. MSPB
CONCLUSION
The Board erred in finding that Mr. Brock’s decision to
proceed with the GFT appeal was knowing and informed.
We therefore reverse the Board’s dismissal for lack of juris-
diction and remand for further proceedings.
REVERSED AND REMANDED
COSTS
No costs.