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NOTE: This disposition is nonprecedential.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
Case: 20-1224 Document: 26 Page: 3 Filed: 07/09/2020
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
Case: 20-1224 Document: 26 Page: 4 Filed: 07/09/2020
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
Case: 20-1224 Document: 26 Page: 5 Filed: 07/09/2020
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.
