Case: 20-1224   Document: 26     Page: 1   Filed: 07/09/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                  BRYAN TAGGART,
                      Petitioner

                            v.

      MERIT SYSTEMS PROTECTION BOARD,
                    Respondent
              ______________________

                       2020-1224
                 ______________________

    Petition for review of the Merit Systems Protection
 Board in No. DC-1221-19-0496-W-1.
                 ______________________

                  Decided: July 9, 2020
                 ______________________

    BRYAN TAGGART, Woodbridge, VA, pro se.

     JEFFREY GAUGER, Office of General Counsel, United
 States Merit Systems Protection Board, Washington, DC,
 for respondent. Also represented by KATHERINE MICHELLE
 SMITH, TRISTAN LEAVITT.
                  ______________________

      Before MOORE, LINN, and CHEN, Circuit Judges.
 PER CURIAM.
Case: 20-1224     Document: 26     Page: 2    Filed: 07/09/2020




 2                                            TAGGART   v. MSPB



     Bryan Taggart appeals a final decision of the Merit
 Systems Protection Board (“Board”) dismissing his individ-
 ual right of action (“IRA”) appeal for lack of jurisdiction.
 Because the Board did not err in determining that it lacked
 jurisdiction to hear Taggart’s appeal, we affirm.
     Taggart is a police officer at the Pentagon, employed by
 the Pentagon Force Protection Agency (“Agency”). On
 April 22, 2015, the Agency proposed to suspend Taggart for
 five days for failure to follow written procedures, based on
 three instances in 2014. On September 17, 2015, the
 Agency Deciding Official, Major William Lagasse, sus-
 tained the suspension, but mitigated the penalty to three
 days. On September 30, 2015, Taggart timely elected to
 grieve the suspension decision under the collective bar-
 gaining agreement (“CBA”) between the Agency and the
 Fraternal Order of Police (“Union”). In the grievance, Tag-
 gart challenged the reasons for each specification and al-
 leged that the suspension was in “retaliation for a previous
 harassment complaint,” specifically identifying an infor-
 mal complaint filed on October 30, 2013 and a formal har-
 assment complaint filed on April 4, 2014, both against his
 third-line supervisor, Captain Nesbit. The Agency denied
 the grievance on January 14, 2016. Thereafter, on May 7,
 2019, Taggart filed the instant IRA appeal with the Board,
 again alleging that the suspension was a form of retalia-
 tion.
     On September 3, 2019, the Board dismissed Taggart’s
 IRA appeal for lack of jurisdiction under 5 U.S.C. § 7121
 and, alternatively, for failing to nonfrivolously allege facts
 and/or introduce evidence to support a jurisdictional find-
 ing in this case. Taggart timely appeals, pro se.
     We review the Board’s dismissal for lack of jurisdiction
 without deference. Forest v. M.S.P.B., 47 F.3d 409, 410
 (Fed. Cir. 1995).
    5 U.S.C. § 7121(g) provides that an aggrieved employee
 may select only one of three remedies to challenge a
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 TAGGART   v. MSPB                                          3



 personnel action in Taggart’s circumstance: (1) a Board ap-
 peal under 5 U.S.C. § 7701; (2) a grievance under a CBA;
 or (3) a complaint with the Office of Special Counsel
 (“OSC”). 5 U.S.C. § 7121(g)(3). Whichever procedure the
 employee brings first is deemed an election of that proce-
 dure and forecloses access to the other procedures. 5 U.S.C.
 § 7121(g)(2) (“An aggrieved employee affected by a prohib-
 ited personnel practice described in paragraph (1) may
 elect not more than one of the remedies described in para-
 graph (3)”); 5 U.S.C. § 7121(g)(4); Agaranos v. Dep’t of Jus-
 tice, 119 M.S.P.R. 498, ¶ 13 (2013) (“[W]hichever remedy is
 sought first by an aggrieved employee is deemed an elec-
 tion of that procedure and precludes pursuing the matter
 in either of the other two forums.”).
     The CBA includes a similar provision:
     In matters relating to . . . Prohibited Personnel
     Practices [and] Whistleblowing . . . an aggrieved
     employee will have the option of utilizing this
     grievance procedure or any other procedure availa-
     ble in law or regulation, but not both. An employee
     exercises that option when a grievance or appeal
     within a statutory procedure has been filed within
     the applicable time limits.
 CBA § 47.03(c) (emphasis added).
     Prior to filing the instant IRA appeal with the Board
 on May 7, 2019, Taggart had already elected the CBA
 grievance procedure on September 30, 2015 to challenge
 his suspension on both substantive and retaliation
 grounds. That election precluded his utilization of any of
 the other avenues to challenge the suspension, and thus
 stripped the Board of jurisdiction it otherwise could have
 had to adjudicate his suspension.
     Before us, Taggart asserts error on four grounds. First,
 he argues that the deciding official responded to the griev-
 ance outside the timeframe required by the CBA. Even if
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 4                                            TAGGART   v. MSPB



 true, 5 U.S.C. § 7121(g)(4) fixes the employee’s election at
 the date of filing of the relevant procedure, without regard
 to the timeframe in which the deciding body makes a deci-
 sion. The timeliness of the deciding official’s decision,
 therefore, does not serve to vacate Taggart’s election or
 grant jurisdiction to the Board.
      Second, Taggart argues that his suspension was issued
 “over a year after the incident[s], well pass[ed] the timeline
 for investigation and decision.” Informal Br. of Petitioner
 at 1. Taggart has failed to show how this fact impacts the
 Board’s jurisdiction. We also note that the Agency pro-
 posed Taggart’s removal in May 2015, about seven months
 after the alleged specifications. Taggart has not pointed us
 to anything indicating that this amount of time is unrea-
 sonable or carries any jurisdictional weight.
      Third, Taggart alleges that “[t]he agency combined two
 separate incidents to justify my suspension. The second
 incident was never properly investigated or announced, nor
 did it receive a case number.” Informal Petitioner’s Br. at
 1. The Agency decision was based on three specifications
 for failure to follow written procedures on July 4, 2014, Oc-
 tober 6, 2014, and October 7, 2014. Taggart does not ex-
 plain what incidents he is referring to, or why the failure
 to investigate incidents beyond the cited specifications
 should change the outcome here.
     Finally, in a supplemental submission, Taggart states
 that “[a]ccording to AI-37 and the CBA, the only way to re-
 spond to a suspension for 14 days or less is to utilize the
 grievance process.” We understand Taggart’s reference to
 AI-37 as Administrative Instruction 37 (October 27, 2006),
 available at: https://www.esd.whs.mil/Portals/54/Docu-
 ments/DD/issuances/ai/a037p.pdf. The administrative in-
 struction indicates that it does not apply to “[a] grievance
 covered by procedures established under a collective bar-
 gaining agreement pursuant to section 7121 of [Title 5 of
 the U.S. Code].” As noted above, Taggart’s challenge is
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 TAGGART   v. MSPB                                           5



 covered under 5 U.S.C. § 7121 and by the CBA. Moreover,
 AI-37 nowhere indicates that the grievance procedure is
 the sole available recourse for an employee aggrieved by a
 suspension of less than 14-days. The CBA indicates that
 in matters relating to “Whistleblowing,” the aggrieved em-
 ployee may make use of the grievance procedure “or any
 other procedure available in law or regulation, but not
 both.” CBA § 47.03(c) (emphasis added). Taggart is there-
 fore incorrect that the grievance procedure was the only
 available recourse. Even if the grievance procedure was
 the only available recourse, this would not give the Board
 jurisdiction to consider Taggart’s IRA complaint in light of
 the exclusive election procedure set out in § 7121(g).
     Because the Board did not err in concluding that it
 lacked jurisdiction based on Taggart’s election to grieve his
 suspension, we need not and do not reach the alternative
 basis for the Board’s dismissal.
                          AFFIRMED
                             COSTS
     Each party shall bear its own costs.
