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Error: Bad annotation destination
 United States Court of Appeals for the Federal Circuit

                                       05-3123

                                 SUSANNE ATANUS,

                                                            Petitioner,

                                           v.

                      MERIT SYSTEMS PROTECTION BOARD,

                                                            Respondent,

                                          and

                      GENERAL SERVICES ADMINISTRATION,

                                                            Intervenor.



        Barry A. Gomberg, Barry A. Gomberg & Associates, Ltd., of Chicago, Illinois, for
petitioner.

      Jeffrey A. Gauger, Attorney, Office of the General Counsel, United States Merit
Systems Protection Board, of Washington, for respondent. With him on the brief were
Martha B. Schneider, General Counsel, and Rosa Koppel, Deputy General Counsel.

Appealed from: United States Merit Systems Protection Board
  United States Court of Appeals for the Federal Circuit

                                       05-3123

                                 SUSANNE ATANUS,

                                                  Petitioner,

                                           v.

                      MERIT SYSTEMS PROTECTION BOARD,

                                                  Respondent,

                                          and

                      GENERAL SERVICES ADMINISTRATION,

                                                  Intervenor.

                               ____________________

                             DECIDED: January 6, 2006
                              ____________________

Before NEWMAN, LOURIE, and SCHALL, Circuit Judges.

Opinion for the court filed by Circuit Judge LOURIE. Dissenting opinion filed by
Circuit Judge NEWMAN.

LOURIE, Circuit Judge.

                                      DECISION

          Susanne Atanus (“Atanus”) petitions for review of the final decision of the

Merit Systems Protection Board (“Board”) dismissing her appeal for lack of

jurisdiction. Atanus v. Gen. Serv. Admin., No. CH-0752-03-0703-I-1 (M.S.P.B.

Jan. 26, 2004) (“Decision”). Because Atanus elected to grieve her removal, the

Board was correct in holding that she had no right of appeal. We therefore

affirm.
                                BACKGROUND

      On July 1, 2003, Atanus received a notice of removal from her position of

Procurement Analyst due to disorderly conduct charges and failure to follow

authorized instructions. Decision, slip op. at 2. The removal letter stated that

Atanus could challenge her removal either by filing a grievance or by appealing

to the Board, but not both. As far as pursuing a grievance was concerned, the

letter stated: “Under the terms of the GSA/NFFE National Agreement, you may

be represented and assisted by the union in exercising any of your grievance

rights.” On July 22, 2003, Atanus sent a letter to the deciding official, Richard

Smith, stating that she wished to grieve her removal and asked to be assisted

and represented by the union in the grievance procedure. Id. Two days later, she

sent a second letter confirming her election of the grievance procedure,

expressing her desire to proceed to arbitration, and designating a representative.

On July 26, 2003, Atanus sent a third letter withdrawing her grievance. That

same day she filed an appeal to the Board. Id.

      The General Services Administration (“GSA”) filed a motion to dismiss the

appeal, arguing that Atanus waived her right to appeal to the Board when she

elected to grieve her removal in her first letter.   Atanus responded that her

election of the grievance procedure was not an informed election because she

was misled by her union representative. Atanus claimed that before she elected

to grieve her removal, a representative told her that the union would assist her,

and that she made her decision to grieve based on the assumption that she

would be represented by the union throughout the entire grievance process.




05-3123                                 2
After she made the election, however, Atanus alleged, the representative told her

that the union was no longer willing to represent her. Based on this information

and believing that she would not be represented, Atanus withdrew her grievance

and appealed to the Board.

      The Administrative Judge (“AJ”) granted the GSA’s motion to dismiss,

stating that Atanus was barred by 5 U.S.C. § 7121(e)(1) from appealing her

action to the Board because she had first filed a grievance. The AJ concluded

that once Atanus made a knowing and binding election to grieve her removal,

she waived her right to appeal to the Board.

      The AJ noted that there is an exception to this waiver where the agency

fails to inform the employee of her options. However, the AJ determined that the

exception did not apply in this case because the agency properly informed

Atanus in its removal letter that she could either appeal to the Board or file a

grievance. The AJ rejected Atanus’s argument that her decision was not an

informed one due to alleged misrepresentations by the representative because

there was nothing in the record to support her statements. Furthermore, the AJ

noted, Atanus did not claim that the union refused to file a grievance on her

behalf, but rather alleged that the union told her that, at some point, they would

stop representing her. Finally, the AJ found that even if it were assumed that

Atanus was misled by her representative, the case would still have to be

dismissed because Atanus remained personally responsible for the diligent

prosecution of her grievance.




05-3123                                 3
       Atanus petitioned for review by the full Board, which denied her petition in

January 2005, making the initial decision of the AJ final.       See 5 C.F.R. §

1201.113.    Atanus then timely appealed to this court.      We have jurisdiction

pursuant to 28 U.S.C. § 1295(a)(9).

                                  DISCUSSION

       The scope of our review in an appeal from a decision of the Board is

limited.   We must affirm the Board’s decision unless it was: “(1) arbitrary,

capricious, an abuse of discretion, or 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)

(2000); see Briggs v. Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003).

Whether the Board has jurisdiction to adjudicate an appeal is a question of law

that we review de novo. See Campion v. Merit Sys. Prot. Bd., 326 F.3d 1210,

1213 (Fed. Cir. 2003).

       On appeal, Atanus contends that the removal letter was misleading and

incomplete because it failed to inform her that she needed to inquire whether the

union would represent her before electing to grieve her removal. Furthermore,

the letter stated that under the terms of the National Agreement between GSA

and the National Federation of Federal Employees, Atanus “may be represented

and assisted by the union” during the grievance procedure. Atanus understood

that language to mean that if the union assisted her, it would also represent her

during the entire grievance process. Moreover, according to Atanus, the union




05-3123                                 4
representative further misled her by stating that he would “assist” her in the

grievance procedure and later deciding not to represent her.

       The Board responds that GSA expressly notified Atanus of her options in

the removal letter, which is all that is required of the agency. According to the

Board, the union’s actions do not implicate the agency. Furthermore, the Board

argues, the union did not mislead Atanus because the union indicated that it

would “assist” her, and “assist” does not mean “represent.” Finally, even if the

union decided it would not represent Atanus, it was Atanus’s responsibility to

determine whether the union would represent her before electing the grievance

procedure.

       We conclude that the Board properly decided that it did not have

jurisdiction over Atanus’s appeal because she made an informed decision to

grieve her removal, thereby waiving her right to appeal to the Board. Under 5

U.S.C. § 7121(e)(1), an aggrieved employee may raise his or her grievance by

timely filing a written grievance under the negotiated grievance procedure or by

filing a notice of appeal under the applicable appellate procedures, “but not both”:

       Matters covered under sections 4303 and 7512 of this title 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.

5 U.S.C. § 7121(e)(1). “[O]nce a timely filing is made to pursue a path, the

other is forever waived.” Rodriguez v. Merit Sys. Prot. Bd., 804 F.2d 673,

675 (Fed. Cir. 1986). In order to comply with the statute, the agency must




05-3123                                  5
properly inform an employee of her choices. See Johnson v. U.S. Dep’t of

Labor, 26 M.S.P.R. 447, 450 (1985).

      In this case, the agency expressly informed Atanus in its removal letter

that she had the option to pursue a grievance procedure or appeal to the Board,

but not both.    Although Atanus alleges that her election was not properly

informed, that is not correct. While a few Board decisions have held that an

election of a grievance was not binding, in such cases the Board found that the

employee’s decision was not fully informed because the agency had only notified

the employee of one available avenue of recourse when others were available.

See Johnson v. U.S. Dep’t of Labor, 26 M.S.P.R. at 450; Miyai v. Dep’t of

Transp., 32 M.S.P.R. 15 (1985); Blanshan v. Dep’t of the Air Force, 23 M.S.P.R.

84 (1984). That is not the case here. The agency clearly notified Atanus in her

letter of both options and that she could only pursue one option.

      Atanus also contends that her election was uninformed because the letter

did not completely notify her of the scope of her union representation and the

union representative misled her. However, these are allegations of union

misconduct, and are not the fault of the agency. Moreover, there is nothing in the

record from which to ascertain what the union representative may or may not

have told Atanus.    Thus, we can only evaluate Atanus’s undisputed actions,

which are that she opted for the grievance procedure having been previously told

by the agency that grieving would preclude an appeal.

      Atanus clearly elected to pursue the grievance procedure. Although she

later changed her mind, irrespective of the reason, as long as the agency clearly




05-3123                                 6
expressed to Atanus that she had two options, and that one would exclude the

other, and Atanus exercised one option, Atanus is precluded from withdrawing

her option to pursue the other. It was incumbent upon Atanus to inquire into the

extent of the union’s assistance before making a binding election.

       Atanus also contends that the AJ was prejudiced and biased towards her

during a settlement conference between the parties by stating that she should

settle or face dismissal of her claims. There is nothing in the record, however, to

support this other than Atanus’s statement. Even accepting the statement as

true, it does not establish that the judge had a “deep-seated favoritism or

antagonism that would make fair judgment impossible.” Beiber v. Dep’t of the

Army, 287 F.3d 1358, 1362 (Fed. Cir. 2002).

       The dissent emphasizes the short time period between Atanus’s election

of a grievance and its withdrawal, suggesting lack of prejudice to the agency.

Were we empowered to sit as a court of equity, taking into account the difficulties

of employee decision-making, and deciding where the merits lie, we might agree.

But we are not; it is our task to determine whether the Board erred in applying a

statute, not to amend the statute to take account of lack of prejudice, length of

time between election and withdrawal of election, etc. That is a slippery slope

not for courts of appeals interpreting statutes.

       Unfortunately, Atanus lost her Board appeal right by electing to pursue a

grievance, and then lost her grievance right by withdrawing her grievance. As we

are bound by the statute, which holds that an employee may either file a




05-3123                                   7
grievance or appeal to the Board, but not both, and Atanus elected a grievance,

she has no right of appeal to the Board.

                                     COSTS

No costs.

                                  AFFIRMED.




05-3123                                    8
United States Court of Appeals for the Federal Circuit


                                         05-3123



                                  SUSANNE ATANUS,

                                                       Petitioner,

                                            v.

                       MERIT SYSTEMS PROTECTION BOARD,

                                                       Respondent,

                                           and

                       GENERAL SERVICES ADMINISTRATION,

                                                       Intervenor.



NEWMAN, Circuit Judge, dissenting.




      My colleagues hold that an employee cannot change her election of the grievance

procedure after three days, although the grievance proceedings had not yet begun; indeed,

no proceeding had been initiated. Ms. Atanus learned, after she chose the grievance path,

that the union would not provide representation throughout the procedure. On receiving

this information, she promptly withdrew her request for a grievance proceeding, and filed a

timely appeal with the MSPB. My colleagues hold that the statute prohibits such a change.

Although the statute is silent, my colleagues hold that the initial election is final and

irrevocable, no matter how prompt the revocation, no matter what the circumstances.
       There is no allegation of prejudice to the agency, to the union, to the MSPB, or to

anyone else. No deadline had passed; her appeal to the MSPB was timely. The statute

does not prohibit a modicum of accommodation for mistakes, misinformation, or change of

heart, in administration of "the discretion of the aggrieved employee." The statute, 5 U.S.C.

§7121(e)(1), authorizes the employee to choose either the grievance procedure or an

appeal to the MSPB "but not both":

       (1) Matters covered under sections 4303 and 7512 of this title 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.

5 U.S.C. §7121(e)(1). The purpose is to prevent an employee from taking one appellate

path and then, if unsuccessful, trying the other.      Ms. Atanus elected the grievance

procedure on Tuesday, July 22, 2003, designating the union as her representative. She

was then informed by the union that it would not assist her "in the entire grievance

procedure and that I should acquire a lawyer." Ms. Atanus withdrew the grievance request

on Saturday, July 26, 2003, and filed a timely appeal with the MSPB.

       Neither statute nor precedent prohibits such action. I have found no case where the

employee was prohibited from changing the election during the initial period set for

choosing the path of review. As the panel majority acknowledges, several Board decisions

have held that the initial choice could be changed. When the issue reached the Federal

Circuit in Whitaker v. MSPB, 784 F.2d 1109 (Fed. Cir. 1986), the petitioner sought to

change his election after he was well into the grievance process, thus having implemented

his choice. In Rodriguez v. MSPB, 804 F.2d 673 (Fed. Cir. 1986), cited by the panel

majority, Mr. Rodriguez elected the grievance procedure and prosecuted the grievance


05-3123                                      2
through the first two steps; he then was untimely for the third phase, whereupon the

arbitrator dismissed the grievance. Rodriguez then attempted to appeal to the MSPB, and

asked the MSPB to waive its filing deadline. The court held that he could not start afresh

with an appeal to the MSPB, upon having chosen the grievance path; and that since there

was no discrimination claim the Board could not review the arbitrator's decision. These

facts are quite different from those at bar, for Ms. Atanus did not prosecute the grievance

even to the first step during the three days before she withdrew the grievance, and the

deadline for filing an appeal to the Board had not passed. The agency has not alleged any

prejudice. The statute requires the employee to elect either grievance or appeal; but

contrary to the majority's view of the statute, it does not prohibit a prompt change, at least

upon new information, during the period of election.

       Even applying to this administrative action the rigorous standards of judicial

proceedings, a plaintiff may withdraw a complaint before response, without prejudice to

refiling elsewhere. Ms. Atanus should have the right to change her election when, within

three days, she was told that the expected representation would not be available

throughout the proceeding. Nothing had begun, and the time for filing the MSPB appeal

had not expired. The statute does not require prohibiting such a change of election. In law,

as in life, there must be a bit of tolerance in the machinery, lest too tight a fit freeze the

apparatus. As things stand, Ms. Atanus is now held bound by her withdrawal of the

grievance path, but excluded from her substitution of the appeal path. The statute does not

require this result. The resulting inequity is unwarranted and unnecessary.

       I doubt that this is a "slippery slope," in the majority's words, or that permitting a

justified change of direction, as the MSPB has permitted in other cases, will lead to a wave


05-3123                                       3
of 3-day changes of election. It would, however, achieve a fairer result in this case, where

Ms. Atanus has suffered an "adverse action" in deprivation of her livelihood -- surely a

serious matter -- yet is met with the implacable judicial ruling that she had lost all right of

review. If she is barred from the MSPB appeal because of her initial election of the

grievance procedure, then at a minimum, she should be allowed to proceed by grievance.

Surely the statute does not require that an attempted change in election will bar both

statutory paths. This is the "absurd result" described by the Court in Holy Trinity Church v.

United States, 143 U.S. 457, 459 (1892):

       It is a familiar rule that a thing may be within the letter of the statute and yet
       not within the statute, because not within its spirit nor within the intention of
       its makers. . . . This is not the substitution of the will of the judge for that of
       the legislator; for frequently words of general meaning are used in a statute,
       words broad enough to include an act in question, and yet a consideration of
       the whole legislation, or of the circumstances surrounding its enactment, or of
       the absurd results which follow from giving such broad meaning to the words,
       makes it unreasonable to believe that the legislator intended to include the
       particular act.

Thus I must, respectfully, dissent.




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