                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ANDREW QUEVEDO,                                 DOCKET NUMBER
                 Appellant,                          CB-7121-16-0007-V-1

                  v.

     DEPARTMENT OF AGRICULTURE,                      DATE: June 23, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Andrew Quevedo, Tucson, Arizona, pro se.

           Rachel Trafican, Esquire, Albuquerque, New Mexico, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         Pursuant to 5 U.S.C. § 7121(d), the appellant requests review of an
     arbitration decision. For the reasons that follow, we DISMISS the appellant’s
     request for arbitration review for lack of jurisdiction.
¶2         The appellant filed a request for review of an April 27, 2015 arbitration
     decision, which denied the grievance he filed challenging the agency’s removal

     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     action. Request for Review (RFR) File, Tabs 1, 5; Tab 7 at 34. The agency filed
     a motion to dismiss the request for arbitration review for lack of jurisdiction and
     untimeliness. RFR File, Tab 8. As to the jurisdictional issue, the agency argued
     that the appellant’s request should be dismissed because he did not raise a claim
     of discrimination under 5 U.S.C. § 2302(b)(1) in the grievance process. Id. at 8.
¶3         The Board has jurisdiction to review an arbitration decision under 5 U.S.C.
     § 7121(d) when: (1) the subject matter of the grievance is one over which the
     Board has jurisdiction; (2) the appellant either (i) raised a claim of discrimination
     under 5 U.S.C. § 2302(b)(1) with the arbitrator in connection with the underlying
     action, or (ii) raises a claim of discrimination in connection with the underlying
     action under 5 U.S.C. § 2302(b)(1) for the first time with the Board if such
     allegations could not be raised in the negotiated grievance procedure; and (3) a
     final decision has been issued. 2 RFR File, Tab 8 at 4; see Jones v. Department of
     Energy, 120 M.S.P.R. 480, ¶ 8 (2013), aff’d, 589 F. App’x 972 (Fed. Cir. 2014);
     5 C.F.R. § 1201.155(a)(1), (c).
¶4         Applying this jurisdictional standard, we find that the Board lacks
     jurisdiction to consider the appellant’s request for review of the arbitrator’s
     decision.     The appellant alleged before the arbitrator that the agency
     discriminated against him because of his position as a union representative, which
     is a prohibited personnel practice under 5 U.S.C. § 2302(b)(9). RFR File, Tab 7
     at 17. The appellant reiterates this claim before the Board. Id. at 4. Because the
     appellant has not raised a claim of prohibited discrimination under 5 U.S.C.
     § 2302(b)(1), either before the arbitrator or the Board, we dismiss the appellant’s
     request for lack of jurisdiction. 3

     2
      The appellant was aware of these requirements. RFR File, Tab 3 at 1-2; see
     Quevedo v. Department of Agriculture, MSPB Docket No. DE-0752-15-0460-I-1, Initial
     Appeal File, Tab 7 at 2, 8.
     3
       The arbitrator issued an Opinion and Award denying the appellant’s grievance on
     April 23, 2015. RFR File, Tab 7 at 34. To be timely, the appellant had to file his
     request for review within 35 days after the issuance date of the award or within 30 days
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                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
      You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
                               U.S. 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 U.S. 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 U.S. 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 an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at


after he received the award, if he shows that he received it more than 5 days after the
date of issuance. RFR File, Tab 8 at 8; see 5 C.F.R. § 1201.155(b). The appellant filed
his request for review on August 23, 2015, which is more than 35 days after the
issuance date of the award. RFR File, Tabs 1, 5, Tab 6 at 1. Because we are dismissing
his request for lack of jurisdiction, we find it unnecessary to address the timeliness of
his request.
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http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. 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.
