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NOTE: This disposition is nonprecedential.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.