Case: 19-2218    Document: 32    Page: 1   Filed: 03/05/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                DELVIN LAMAR BALDWIN,
                        Petitioner

                            v.

      MERIT SYSTEMS PROTECTION BOARD,
                    Respondent
              ______________________

                        2019-2218
                  ______________________

    Petition for review of the Merit Systems Protection
 Board in No. DC-0752-19-0400-I-1.
                 ______________________

                  Decided: March 5, 2020
                  ______________________

    DELVIN LAMAR BALDWIN, Yorktown, VA, pro se.

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

   Before LOURIE, MOORE, and HUGHES, Circuit Judges.
 PER CURIAM.
Case: 19-2218    Document: 32     Page: 2    Filed: 03/05/2020




 2                                          BALDWIN   v. MSPB



     Pro se petitioner Delvin Baldwin petitions for review of
 a decision of the Merit Systems Protection Board dismiss-
 ing his appeal for lack of jurisdiction. Mr. Baldwin was re-
 moved from federal employment. Under the negotiated
 grievance procedure that covers Mr. Baldwin’s position, he
 could appeal his removal by filing a grievance under the
 Master Labor Agreement or by appealing to the Board, but
 not both. Mr. Baldwin knew that his union filed a griev-
 ance related to his removal, but he did not affirmatively
 disavow the union’s initiation of the grievance process on
 his behalf. These actions constitute a binding election of
 the negotiated grievance procedure, which precludes the
 Board’s jurisdiction over Mr. Baldwin’s appeal. We there-
 fore affirm the Board’s dismissal.
                              I
     The Defense Logistics Agency, a support agency within
 the Department of Defense, issued its decision to remove
 Mr. Baldwin from his position as a Materials Handler
 Leader pursuant to 5 U.S.C. § 7512. The letter was dated
 January 14, 2019 and was signed by Mr. Baldwin the next
 day. Mr. Baldwin’s position was covered under a negoti-
 ated grievance procedure governed by a Master Labor
 Agreement (MLA). The removal decision letter informed
 Mr. Baldwin of his appeal rights, including filing a griev-
 ance under the MLA or appealing to the Board, but not
 both. Resp. App. 22–23. 1 See also 5 U.S.C. § 7121(e)(1)
 (stating that actions under § 7512 “which also fall within
 the coverage of the negotiated grievance procedure may, in
 the discretion of the aggrieved employee, be raised either
 under the appellate procedures of section 7701 of this title
 or under the negotiated grievance procedure, but not
 both”).



     1   Resp. App. refers to the Supplemental Appendix in-
 cluded with the Respondent’s brief.
Case: 19-2218        Document: 32   Page: 3   Filed: 03/05/2020




 BALDWIN   v. MSPB                                          3



      On February 1, 2019, Quinton Montague, the vice pres-
 ident of the union that represented Mr. Baldwin, sent an
 email entitled “Request for Formal Grievance” (grievance
 email) to John Pearson, Mr. Baldwin’s third-line supervi-
 sor. Resp. App. 26. Mr. Baldwin was copied on this email.
 It requested “a mutually agreed meeting to discuss the sub-
 ject grievance for Delvin Baldwin,” citing the portion of the
 governing MLA that sets out the procedure for a formal
 grievance. Id. The grievance email also stated a “[f]ormal
 signed letter [would be] coming soon.” Id. No such letter
 appears in the record.
     On February 14, 2019, Mr. Pearson, Mr. Baldwin, and
 two union representatives met. See Resp. App. 32–33 (For-
 mal Grievance Response). Mr. Baldwin presented at least
 three arguments against his removal. Id. Mr. Pearson, on
 behalf of the agency, sustained Mr. Baldwin’s removal. Id.
 On March 27, 2019, the union notified Mr. Pearson of its
 intent to advance Mr. Baldwin’s case to arbitration. Again,
 Mr. Baldwin was copied on this email.
     Three days later, Mr. Baldwin appealed his removal to
 the Board. He contended that he had not elected to file a
 grievance, as evidenced by the lack of a signed document
 as promised in the grievance email. In effect, he argued
 that the union acted on its own by sending the grievance
 email. The agency moved to dismiss for lack of jurisdiction.
 The agency argued that Mr. Baldwin chose to grieve his
 removal under the negotiated grievance procedure of the
 MLA rather than appeal to the Board; the Board therefore
 had no jurisdiction over his appeal.
     The Administrative Judge issued an Order to Show
 Cause, giving Mr. Baldwin a chance to allege facts to es-
 tablish a prima facie case for Board jurisdiction. Mr. Bald-
 win again argued that the union initiated the grievance
 process without his consent and that, therefore, he made
 no binding election of the grievance process. Mr. Baldwin
 also argued that the email only suggested an intent to file
Case: 19-2218    Document: 32      Page: 4    Filed: 03/05/2020




 4                                           BALDWIN   v. MSPB



 a formal grievance; it was not a formal grievance because
 no signed letter ever followed. And even if it were consid-
 ered a formal grievance, he argued that it was untimely
 because it was not filed within ten working days after the
 agency issued the removal decision.
     The agency reasserted its position that the union’s Feb-
 ruary 1 email was a formal grievance that effected a bind-
 ing election of the grievance process under the MLA. The
 agency also submitted a declaration from Mr. Pearson that
 Mr. Baldwin attended and actively participated in the Feb-
 ruary 14 grievance meeting. According to the Administra-
 tive Judge, Mr. Baldwin sought to strike Mr. Pearson’s
 declaration because “Pearson could not know the level of
 [Mr. Baldwin’s] engagement and thus could not state that
 he was ‘fully engaged’ in the grievance meeting.” Resp.
 App. 3–4.
      The Administrative Judge dismissed Mr. Baldwin’s ap-
 peal for lack of jurisdiction. She found that he made a bind-
 ing election of the grievance process by participating in and
 failing to disavow the grievance process before his appeal
 to the Board.
     In the absence of a petition for administrative review,
 the Administrative Judge’s initial decision became the fi-
 nal decision of the Board on July 5, 2019.
                              II
     We have jurisdiction over a petition to review a final
 decision of the Board. 5 U.S.C. § 7703(b)(1)(A); 28 U.S.C.
 § 1295(a)(9). “Whether the [B]oard had jurisdiction to ad-
 judicate a case is a question of law, which we review de
 novo.” Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed.
 Cir. 1995). We review the Board’s factual findings affecting
 the jurisdictional inquiry for substantial evidence. Lentz v.
 Merit Sys. Prot. Bd., 876 F.3d 1380, 1384 (Fed. Cir. 2017).
    On appeal, Mr. Baldwin again argues the grievance
 email sent by the union was not a binding election of the
Case: 19-2218        Document: 32   Page: 5   Filed: 03/05/2020




 BALDWIN   v. MSPB                                          5



 grievance process because it was not (1) timely and (2) “in
 writing, in accordance with the parties[’] grievance proce-
 dure.”     Pet. Br. 12 (emphasis omitted); 5 U.S.C.
 § 7121(e)(1). We disagree. Section 7121(e)(1) makes clear
 that Mr. Baldwin had two relevant options to pursue after
 his removal: a grievance under the MLA’s negotiated griev-
 ance procedure, or an appeal to the Board. Though the rec-
 ord reflects no signed grievance letter, Mr. Baldwin elected
 the grievance process by participating in and failing to dis-
 avow the grievance process initiated by the February 1
 grievance email.
                               A
     Under the MLA, Article 36 § 8(A), an employee griev-
 ance must be filed within ten work days from the date of
 the decision notice. Resp. App. 29. 2 Here, the grievance
 email was sent thirteen working days after Mr. Baldwin’s
 removal decision. But Article 36 § 10 of the MLA also pro-
 vides that “[t]ime limits at any step of the grievance proce-
 dure may be extended by the mutual consent of the
 parties.” Resp. App. 31. And as the Administrative Judge
 cited in her decision, the Board has held that untimely filed
 grievances can effect valid elections under § 7121. Sher-
 man v. Dep’t of Homeland Sec., 122 M.S.P.R. 644 ¶ 17
 (M.S.P.B. Sept. 11, 2015) (finding a valid election of the
 grievance process under § 7121(g), despite untimely filing,
 because the agency “reached the merits of the grievance
 and denied it on substantive grounds”). In granting the
 grievance meeting and then issuing a formal grievance


     2    The agency contends that because the union filed
 this grievance it was timely because union grievances must
 be filed within twenty working days. See Resp. App. 30
 (MLA, Article 36 § 8(E)). Mr. Baldwin disputes whether
 this period applies. We need not reach this argument be-
 cause the Administrative Judge did not err in her analysis
 under the ten-day period.
Case: 19-2218     Document: 32     Page: 6    Filed: 03/05/2020




 6                                            BALDWIN   v. MSPB



 response, the agency reached the merits of the grievance
 and denied it accordingly. The Administrative Judge did
 not err in finding that the grievance email was a binding
 election despite being submitted three days late.
                               B
      Mr. Baldwin next contends that the grievance email
 should not be given effect because it does not meet all the
 requirements of the MLA’s Formal Grievance procedures.
 See Resp. App. 29 (Article 36 § 8(D)’s requirements for a
 formal grievance, including that it “must be signed by the
 grievant(s)”). But the union and the employee have inde-
 pendent rights to file a grievance over a matter within the
 scope of the grievance procedure.                  5 U.S.C.
 § 7121(b)(1)(C)(i)–(ii). While the union may file a griev-
 ance, the Board requires that employees have knowledge
 of grievances filed on their behalf. Kendrick v. Dep’t of Vet-
 erans Affairs, 74 M.S.P.R. 178, 181 (M.S.P.B. 1997). See
 also Morales v. Merit Sys. Prot. Bd., 823 F.2d 536, 538–39
 (Fed. Cir. 1987) (finding an employee’s grievance “void”
 where she did not request or ratify a grievance filed on her
 behalf, entitling her to appeal to the Board). In Kendrick,
 the Board identified a “signed writing” or “oral acknowl-
 edgement” as “explicit evidence” of an employee’s binding
 election of the grievance process. 74 M.S.P.R. at 182. But
 it also said that an employee’s “knowledge that the union
 had filed a grievance regarding the action coupled with a
 failure on the appellant’s part to affirmatively disavow that
 the grievance was being pursued [o]n his behalf would con-
 stitute implicit evidence that the appellant had authorized
 the union to present a grievance [o]n his behalf.” Id.
      Such is the case here. We see no error in the Adminis-
 trative Judge’s reliance on Kendrick. And substantial evi-
 dence supports her finding that Mr. Baldwin failed to
 affirmatively disavow that the union was pursuing a griev-
 ance on his behalf. Resp. App. 7 (finding Mr. Baldwin
 “failed to make a nonfrivolous allegation that the union
Case: 19-2218        Document: 32    Page: 7   Filed: 03/05/2020




 BALDWIN   v. MSPB                                           7



 filed a grievance without his consent, thus making his
 grievance nonbinding”). Mr. Baldwin presented no evi-
 dence that he disavowed the grievance at any time during
 the months-long grievance process. He received notice that
 he could not elect both the grievance process and appeal to
 the Board; he was copied on the email grievance, attended
 the resulting grievance meeting, and presented arguments
 against his removal; and he received the agency’s Formal
 Grievance Response, all without objecting to the union’s ac-
 tions.
                               III
     We have considered Mr. Baldwin’s remaining argu-
 ments and find them unpersuasive. 3 Because the Board
 properly dismissed Mr. Baldwin’s appeal for lack of juris-
 diction, we affirm.
                          AFFIRMED
    No costs.




    3    In particular, Mr. Baldwin contends that the Ad-
 ministrative Judge erred in considering Mr. Pearson’s dec-
 laration, which details Mr. Baldwin’s participation in the
 grievance meeting. Mr. Baldwin characterizes the declara-
 tion as “manufactured evidence.” Pet. Br. 12. No record
 evidence leads us to doubt the veracity of Mr. Pearson’s
 declaration. In fact, it largely confirms the substance of
 Mr. Pearson’s contemporaneous, post-meeting Formal
 Grievance Response. See Resp. App. 32 (reviewing the
 three main arguments raised during the grievance meet-
 ing). And the Administrative Judge allowed both Mr. Bald-
 win and the agency to submit new evidence in response to
 its Order to Show Cause. We see no error in the Adminis-
 trative Judge’s acceptance or consideration of Mr. Pear-
 son’s declaration.
