UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

DAVID S. TURRENTINE,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

DA-0752-17-0224-I-1

DATE: September 7, 2023

THIS ORDER IS NONPRECEDENTIAL1

Raymond Gillen, Kerrville, Texas, for the appellant.

Sean A. Safdi, Esquire, and Daniel Morvant, San Antonio, Texas, for the 

agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

REMAND ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

dismissed the appeal for lack of jurisdiction. For the reasons discussed below, we 

GRANT the appellant’s petition for review, VACATE the initial decision, and

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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).
2

REMAND the case to the Dallas Regional Office for further adjudication in 

accordance with this Remand Order. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The agency removed the appellant, effective February 5, 2017, based on the 

charge of failure to meet the suitability requirements to obtain a personal 

identification verification card. Initial Appeal File (IAF), Tab 8 at 9-15. The 

decision notice advised the appellant of his rights to challenge the action, 

including his right to file a Board appeal or a grievance under the negotiated 

grievance procedure. Id. at 11. The appellant designated his union as his 

representative, and the local union president timely filed a grievance challenging 

the removal on the appellant’s behalf. IAF, Tab 13 at 13-14, 18, 20. After the 

agency denied the grievance, the appellant appealed his removal to the Board. Id.

at 15; IAF, Tab 2.

¶3 Without holding the appellant’s requested hearing, the administrative judge 

found that the appellant grieved his removal before filing his Board appeal and 

dismissed the appeal for lack of jurisdiction under 5 U.S.C. § 7121(e)(1). IAF, 

Tab 19, Initial Decision. The appellant filed a petition for review, to which the 

agency responded. Petition for Review File, Tabs 1, 3.

¶4 An employee subjected to an adverse action which also falls within the 

coverage of a negotiated grievance procedure may challenge the action through a 

Board appeal or the negotiated grievance procedure, but not both. 5 U.S.C. 

§ 7121(e)(1). An employee is deemed to have exercised an option when he 

timely files a notice of appeal or timely files a written grievance, whichever 

occurs first. Id. However, for an election of an option to be binding, it must be 

knowing and informed. Kaszowski v. Department of the Air Force, 2023 MSPB 

15, ¶ 5. Thus, the Board’s regulations require that, when an agency issues a 

decision notice for any action appealable to the Board, it must notify the 

employee of the available avenues to challenge the agency action and the 
3

preclusive effect any election will have on the employee’s Board appeal rights.

Id.; 5 C.F.R. § 1201.21(d)(1). The Board has held that, when an agency takes 

an action without informing the appellant of his procedural options under 

5 U.S.C. § 7121 and the preclusive effect of electing one of those options, any 

subsequent election by the appellant is not binding. Kaszowski, 2023 MSPB 15, 

¶ 5.

¶5 In Kaszowksi, which was decided after the issuance of the initial decision in 

this case, the Board held that an employee who grieved her removal before 

appealing it to the Board did not waive her right to file a Board appeal when the 

decision notice did not fully explain the consequences of choosing the appeal or 

grievance procedure, i.e., did not explicitly inform her that she could raise her 

removal with the Board or under the negotiated grievance procedure, bu t not both, 

or that grieving her removal would result in waiver of her Board appeal right. 

2023 MSPB 15, ¶¶ 2, 7. The notice of appeal rights here, which is virtually 

identical to that in Kaszowski, suffers from the very same defect. 2 Id., ¶¶ 6-7; 

IAF, Tab 8 at 11-12. The appellant thus cannot be deemed to have made a 

knowing and informed election or to have waived his Board appeal right by 

having first filed a grievance. Kaszowski, 2023 MSPB 15, ¶ 7. We thus vacate 

 

2

The notice of appeal rights provided by the agency informed the appellant that he was 

entitled to: “a) appeal this action to the Merit Systems Protection Board (MSPB) or;

b) seek corrective action before the U.S. Office of Special Counsel (OSC) or; c) file a 

grievance under the negotiated grievance procedure or: [sic] d) a discrimination 

complaint with the Office of Resolutions Management (ORM).” IAF, Tab 8 at 11. The 

notice continued as follows: 

You shall be deemed to have exercised your option to appeal the adverse 

action at such time as you timely initiate action to appeal to MSPB or 

OSC, or timely file a grievance in writing under the negotiated grievance 

procedure, or a discrimination complaint. If your appeal includes an 

allegation that the facility engaged in a prohibited personnel action in 

retaliation for protected whistleblowing, you may elect to file an appeal to 

MSPB, OSC, or a negotiated grievance and your election is based on 

which election you file first.

Id.
4

the initial decision and remand the appeal for adjudication of the appellant’s 

removal on the merits. Id., ¶¶ 1, 7. On remand, the administrative judge shall 

fully identify the issues and afford the parties the opportunity to fully develop the 

record on those issues through discovery and submission of additional evidence 

and argument. The administrative judge shall then hold a hearing and issue a new 

initial decision addressing, consistent with the most recent precedent, the merits 

of the appellant’s removal and any affirmative defenses.

3

See Spithaler v. Office 

of Personnel Management, 1 M.S.P.R. 587, 589 (1980) (stating that an initial 

decision must identify all material issues of fact and law, summarize the 

evidence, resolve issues of credibility, and include the administrative judge’s 

conclusions of law and legal reasoning, as well as the authorities on which that 

reasoning rests).

 

3

In a February 21, 2017 letter, the Board rejected the appellant’s timely filed 

February 14, 2017 appeal because it did not include a copy of the agency decision being 

appealed and instructed him to refile a corrected appeal within 10 calendar days. IAF, 

Tab 1. The appellant did not file a corrected appeal until March 10, 2017. IAF, Tab 2. 

Thus, as the administrative judge correctly observed, there is a question as to whether 

the appeal was timely filed or whether good cause existed for the appellant’s filing 

delay. IAF, Tab 4. Because it appears that she did not rule on these issues and the 

record is insufficient to decide them on review, on remand, the administrative judge 

shall provide the parties with notice of the issues and requirements and afford them an 

opportunity to submit additional evidence and argument. We observe that, allowing for 

5 additional days for the delivery of the February 21, 2017 rejection notice, which was 

served by mail, the appellant’s deadline to file a corrected appeal would have been 

March 8, 2017, rendering his corrected March 10, 2017 appeal 2 days late, rather than

3 days late as determined by the administrative judge. 5 C.F.R. § 1201.23; IAF, Tab 1, 

Tab 4 at 2.
5

ORDER

¶6 For the reasons discussed above, we remand this case to the Dallas Regional 

Office for further adjudication in accordance with this Remand Order. 

 

 

FOR THE BOARD:

Washington, D.C.

/s/ for

Jennifer Everling

Acting Clerk of the Board