Quincy James v. Department of Veterans Affairs

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
QUINCY JAMES,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.
DOCKET NUMBER
DA-1221-25-0103-W-1
DATE: October 15, 2026
THIS FINAL ORDER IS NONPRECEDENTIAL1
Elizabeth Matta, Esquire, Pikesville, Maryland, for the appellant.
Michael Anfang, Esquire, Temple, Texas, for the agency.
Tyrus William Morgan, Esquire, New Orleans, Louisiana, for the agency.
BEFORE
James J. Woodruff II, Chairman
Henry J. Kerner, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction. On petition for review, he argues
that he did not request for his union to file a grievance on his behalf and should
not be bound by its actions, the Board has jurisdiction because he filed a
1 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

whistleblowing complaint, the election of remedies provision at 5 U.S.C.
§ 7121(g) applies only to adverse actions, and the agency was required to
expressly notify him of the binding effect of his election under section 7121(g).
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review. Except as expressly MODIFIED to address his argument that
the election of remedies provision at 5 U.S.C. § 7121(g) applies only to adverse
actions, we AFFIRM the initial decision.
The appellant is a Diagnostic Radiologic Technician, GS-0647-09. Initial
Appeal File (IAF), Tab 9 at 526. On September 19, 2023, the agency issued him
a proposed 3-day suspension for conduct unbecoming a Federal employee. Id.
at 433-37. After he and his union representative submitted a response to the
proposal, the agency mitigated the penalty to a 1-day suspension. Id. at 415-16,
419-21. On November 29, 2023, the appellant’s union filed a 3rd step grievance
regarding the 1-day suspension on his behalf. Id. at 413. Although the agency
planned to mitigate the 1-day suspension to a reprimand based on the grievance,
the appellant did not accept the agency’s decision and the 1-day suspension
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stood.2 Id. at 47-48; IAF, Tab 13 at 10, Tab 20 at 12-13. On November 20, 2024,
he filed an appeal with the Board alleging that the suspension was taken because
of safety concerns he had raised. IAF, Tab 1 at 1-2.
On March 5, 2025, the administrative judge issued an initial decision
dismissing his appeal for lack of jurisdiction because the appellant elected a
different remedy under 5 U.S.C. § 7121(g) when he filed the grievance.3 IAF,
Tab 22, Initial Decision at 6-9. The appellant filed a petition for review on
April 8, 2025. Petition for Review (PFR) File, Tab 1 at 1. On review, he repeats
the arguments he made below, asserting that he did not request for the union to
file a grievance on his behalf and should not be bound by its actions, the Board
has jurisdiction because he filed a whistleblowing complaint, the election of
remedies provision at 5 U.S.C. § 7121(g) applies only to adverse actions, and the
agency was required to expressly notify him of the binding effect of his election
under section 7121(g). Id. at 6-9. The agency filed a response, and the appellant
filed a reply brief. PFR File, Tabs 3, 4.
The appellant alleged below that the election of remedies provision in
5 U.S.C. § 7121(g) is limited to appeals of otherwise-appealable adverse actions
but not lesser personnel actions, such as his 1-day suspension. IAF, Tab 19 at 6.
The administrative judge did not address this issue in her initial decision, and the
appellant raises it again on review. PFR File, Tab 1 at 8. The language in
5 U.S.C. § 7121(g) references neither directly appealable adverse actions nor the
2 While the appellant’s initial appeal was pending, the agency removed the 1-day
suspension from his official personnel file. IAF, Tab 16 at 3.
3 Under 5 U.S.C. § 7121(g), an appellant who alleges that he has been affected by a
prohibited personnel practice other than a claim of discrimination under
5 U.S.C. § 2302(b)(1) and was subjected to a covered personnel action may elect one,
and only one, of the following remedies: (1) an appeal to the Board under 5 U.S.C.
§ 7701; (2) a grievance filed under the provisions of a negotiated grievance procedures;
or (3) a complaint following the procedures for seeking corrective action from the U. S.
Office of Special Counsel under 5 U.S.C. chapter 12, subchapters II and III.
Andreski v. Department of Justice, 2024 MSPB 10, ¶ 6 (citing Agoranos v. Department
of Justice, 119 M.S.P.R. 498, ¶ 14 (2013); see 5 C.F.R. § 1209.2(d)(1)).
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wider category of personnel actions. Rather, it expressly applies to prohibited
personnel practices other than 5 U.S.C. § 2302(b)(1). 5 U.S.C. § 7121(d), (g)(1).
In turn, the statute addressing prohibited personnel practices, 5 U.S.C. § 2302(b),
references only personnel actions, which are defined in 5 U.S.C. § 2302(a)(2)(A).
A 1-day suspension constitutes a personnel action because it is a
disciplinary action. 5 U.S.C. § 2302(a)(2)(A)(iii). To qualify as an adverse
action, a suspension must exceed 14 calendar days. 5 U.S.C. § 7512(2). The
Board has applied the 5 U.S.C. § 7121(g) election provision to situations
involving personnel actions that do not rise to the level of an adverse action.
E.g., Brodsky v. Department of Energy, 90 M.S.P.R. 257, ¶¶ 4-8 (2001) (finding
that an appellant who first grieved his 10-day suspension using the negotiated
grievance procedure was precluded from pursuing an individual right of action
appeal with the Board on it under section 7121(g)). Therefore, we find that this
argument does not present a basis on which to grant the appellant’s petition for
review.
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
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If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.5 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
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