Luis J. Soto v. United States Postal Service

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LUIS J. SOTO,
Petitioner
v.
UNITED STATES POSTAL SERVICE,
Respondent
______________________
2025-1275
______________________
Petition for review of the Merit Systems Protection
Board in No. NY-0752-23-0059-I-1.
______________________
Decided: December 2, 2025
______________________
L UIS J. SOTO, Rio Grande, PR, pro se.
ELINOR J OUNG K IM , Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by MICHAEL
G RANSTON, T ARA K. HOGAN, P ATRICIA M. MCCARTHY ,
YAAKOV R OTH .
______________________
Case: 25-1275 Document: 24 Page: 1 Filed: 12/02/2025

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SOTO v. USPS 2
Before T ARANTO, BRYSON, and CUNNINGHAM , Circuit
Judges.
P ER CURIAM .
In 2023, the United States Postal Service (agency) ter-
minated the employment of Louis J. Soto-Soto (petitioner).
Petitioner then filed a grievance through his union, as per-
mitted under the relevant collective bargaining agreement
(CBA). While his union grievance was pending, petitioner
also filed an appeal to the Merit Systems Protection Board
(Board). The assigned Board administrative judge (AJ) is-
sued an initial decision affirming petitioner’s removal, and
the Board affirmed. See Soto v. United States Postal Ser-
vice, No. NY-0752-23-0059-I-1, 2023 WL 4051636
(M.S.P.B. June 13, 2023) (2023 Decision); Soto v. United
States Postal Service, No. NY-0752-23-0059-I-1, 2024 WL
4457970 (M.S.P.B. Oct. 9, 2024) (2024 Decision).
Petitioner’s primary argument to us is that the Board
lacked jurisdiction to hear his case because he had filed the
union grievance. He also argues that the agency violated
his due process rights because the agency allegedly failed
to provide him with notice of his union grievance rights and
the agency employee who removed him had an alleged con-
flict of interest. We affirm the Board’s determination.
I
Before the removal at issue, Petitioner worked as a
lead sales-and-services associate in the Canovanas Post Of-
fice in Puerto Rico and as a shop steward for the American
Postal Workers Union (Union), AFL-CIO Local 1070. 2023
Decision, at 2.1 On July 29, 2022, a supervisor from a dif-
ferent post office came to the Canovanas Post Office to
1 For the 2023 Decision, we use the AJ’s own pagina-
tion (1–44), shown on the version in the Supplemental Ap-
pendix (S. Appx.) at 11–54.
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SOTO v. USPS 3
discuss union grievances with petitioner. S. Appx. 64. Pe-
titioner physically attacked this supervisor, striking him
with his shoulder and a binder. Id. The agency then placed
petitioner on paid administrative leave and forbade him to
enter the agency’s facilities except as a customer—an order
he defied repeatedly in 2022. 2023 Decision, at 4–5.
Petitioner’s supervisor issued a Notice of Proposed Re-
moval on January 3, 2023, charging him with “improper
conduct and failure to follow instructions.” S. Appx. 64. On
February 9, 2023, the designated deciding official for the
proposed removal, upon considering petitioner’s written re-
ply to the Notice, the seriousness of the conduct and rele-
vant mitigating factors, concluded that petitioner had pre-
conduct notice that his conduct violated agency policy.
2023 Decision, at 7, 26–28. The deciding official also deter-
mined that removal was a reasonable penalty. Id. at 7. Pe-
titioner’s removal took effect eight days later. Id. at 1.
Because petitioner was a preference-eligible employee,
see 2024 Decision, at *2; 5 U.S.C. §§ 2108, 3330a (establish-
ing certain employment rights for veterans), he was enti-
tled to invoke two procedural mechanisms to challenge his
removal: (1) arbitration, by filing a grievance through his
Union pursuant to the CBA, and (2) an appeal to the Board.
See Mays v. United States Postal Services, 995 F.2d 1056,
1060 (Fed. Cir. 1993). Petitioner invoked both mecha-
nisms. 2024 Decision, at *2. He filed a grievance on Janu-
ary 7, 2023, and he appealed to the Board on February 14,
2023. 2023 Decision, at 1; ECF No. 2 at 262 (Petitioner’s
uncorrected opening brief).
On June 13, 2023, the Board AJ affirmed the removal.
2023 Decision, at 1–44. The AJ determined that the agency
had established by a preponderance of the evidence that
petitioner engaged in misconduct. Id. at 7–18. Specifically,
the AJ found that the testimony of the agency’s witnesses
showed that the 2022 physical altercation occurred, id. at
13–15, and that petitioner admitted his defiance of the
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SOTO v. USPS 4
agency order not to enter its property except as a customer,
id. at 20. The AJ also determined that the agency estab-
lished a nexus between the sustained charges and the effi-
ciency of the service and that removal was reasonable
because petitioner knew of the agency’s strict policy
against conduct of this type yet violated it without remorse.
Id. at 24–29.
The AJ rejected petitioner’s contentions that he had
not been advised of his right to file a grievance under the
CBA, finding that such advice was given to him in the Jan-
uary 2023 Notice of Proposed Removal and the Union had
in fact filed a grievance on his behalf. Id. at 29, 34–36.
The AJ also discussed the CBA, both giving an on-line
source for the CBA itself and quoting the Union’s manual
interpreting the CBA. Id. at 36. According to the manual,
CBA Article 16.9, addressing the situation when a prefer-
ence-eligible employee files both a union grievance and an
appeal to the Board, states that the Board appeal proceed-
ings take precedence over the union grievance process:
“‘Grievances of preference eligible employees who also have
a live [Board] appeal on the same action will not be sched-
uled for arbitration until a final determination is reached
on the [Board] appeal.’” Id. at 36 (quoting Union’s manual).
(We note that the on-line source bears this out.) Finally,
the AJ rejected petitioner’s contention that the deciding of-
ficial for his removal lacked impartiality, finding that the
evidence in the record did not support that contention. Id.
at 36–37.
On July 12, 2023, petitioner sought full Board review,
arguing for the first time that the Board lacked jurisdiction
over his appeal. 2024 Decision, at *1; S. Appx. 60. The
Board denied his petition for review and affirmed its initial
decision on October 9, 2024. 2024 Decision, at *1. In par-
ticular, regarding the lack-of-jurisdiction argument, which
rested on the assertions that (1) the agency forced him to
appeal to the Board and (2) he was not provided notice of
his union arbitration rights, the Board rejected the
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SOTO v. USPS 5
premises, because petitioner conceded that he had been no-
tified of his union grievance rights and actually had filed a
union grievance. Id. at *1–2.
Petitioner seeks this court’s review. We have jurisdic-
tion pursuant to 28 U.S.C. § 1295(a)(9).
II
We may set aside the Board’s decision if it is “(1) arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law; (2) obtained without procedures re-
quired by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence.” 5 U.S.C.
§ 7703(c). Whether the Board possessed jurisdiction to
hear an appeal is a question of law that we review de novo.
Palmer v. Merit Systems Protection Board, 550 F.3d 1380,
1382 (Fed. Cir. 2008). Factual findings, including those on
which a jurisdictional determination is based, are reviewed
for substantial-evidence support. Bolton v. Merit Systems
Protection Board, 154 F.3d 1313, 1316 (Fed. Cir. 1998).
Substantial evidence is “such relevant evidence as a rea-
sonable mind might accept as adequate to support a con-
clusion.” Consolidated Edison Co. v. National Labor
Relations Board, 305 U.S. 197, 229 (1938).
A
Petitioner argues that (1) his due process rights were
violated because he received inadequate notice of his union
arbitration rights and (2) the Board lacked jurisdiction
over his appeal because he initiated a union grievance and
the CBA prevents the Board from adjudicating his appeal.
Petitioner Opening Br. at 2–3; Petitioner Reply Br. at 1–2.
Neither argument has merit.
Petitioner provides no support for the proposition that
he received inadequate notice of his right to file and pursue
a grievance under the CBA. See Petitioner Reply Br. at 2.
We discern no error in the Board’s findings that adequate
notice was provided, as the record reflects that petitioner
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SOTO v. USPS 6
was aware of his rights under the CBA and actually did file
a union grievance. 2024 Decision, at *1–2.
Petitioner also provides no support for the assertion
that his exercise of his arbitration rights under the CBA
precluded the Board from adjudicating his appeal. As a
preference-eligible employee of the agency, petitioner was
permitted by statute to seek review of the removal decision
through an appeal to the Board and through arbitration
under the CBA, and he chose to pursue relief under both
mechanisms. Bacashihua v. Merit Systems Protection
Board, 811 F.2d 1498, 1502 (Fed. Cir. 1987) (discussing the
inapplicability of 5 U.S.C. § 7121 to the agency); see Mays,
995 F.2d at 1060. Nothing in the statute ousts the Board
of jurisdiction to proceed in that circumstance. Nor does
petitioner identify anything in the CBA that does so. Peti-
tioner Opening Br. at 1–5; Petitioner Reply Br. at 1–5. To
the contrary, according to the Union’s manual interpreting
the CBA, both proceedings remain live and it is the griev-
ance proceeding that stalls for the Board to proceed, not the
reverse: “‘Grievances of preference eligible employees who
also have a live [Board] appeal on the same action will not
be scheduled for arbitration until a final determination is
reached on the [Board] appeal.’” 2023 Decision, at 36. The
Board, therefore, did not err in adjudicating the Board ap-
peal.
B
We understand petitioner to argue that his due process
rights were also violated because the deciding official had
an alleged conflict of interest because he served as a wit-
ness against petitioner in a separate Union-related matter.
Petitioner Opening Br. at 3; ECF No. 2 at 12–14 (Peti-
tioner’s uncorrected opening brief). The Board did not err
in rejecting this argument. The record is devoid of factual
support for this assertion that could overcome the recogni-
tion that, in the employment setting, a deciding official is
not generally disqualified by knowledge of the employee or
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SOTO v. USPS 7
the employee’s prior conduct. See Norris v. Securities and
Exchange Commission, 675 F.3d 1349, 1354 (Fed. Cir.
2012); 5 C.F.R. § 752.404.
III
For the foregoing reasons, we affirm the Board’s deci-
sion that it possessed jurisdiction over petitioner’s appeal
and its decision on the merits of petitioner’s appeal.
The parties shall bear their own costs.
AFFIRMED
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