NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

JASON ANTOINE BROCK,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

DEPARTMENT OF TRANSPORTATION,

Intervenor

______________________

2021-1000

______________________

Petition for review of the Merit Systems Protection 

Board in No. AT-0752-20-0542-I-1.

______________________

Decided: December 14, 2021

______________________

JASON ANTOINE BROCK, Nashville, TN, pro se.

 JEFFREY GAUGER, Office of the General Counsel, 

United States Merit Systems Protection Board, Washington, DC, for respondent. Also represented by TRISTAN L.

LEAVITT, KATHERINE MICHELLE SMITH.

 RAFIQUE OMAR ANDERSON, Commercial Litigation 

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2 BROCK v. MSPB

Branch, Civil Division, United States Department of Justice, Washington, DC, for intervenor. Also represented by 

BRIAN M. BOYNTON, DEBORAH ANN BYNUM, ROBERT 

EDWARD KIRSCHMAN, JR.

 ______________________

Before DYK, REYNA, and STOLL, Circuit Judges.

PER CURIAM.

The Federal Aviation Administration (FAA) removed 

Jason Brock from his position as an Air Transportation 

Systems Specialist based on two specifications for insubordination. Mr. Brock appealed the removal decision under 

the FAA’s Guaranteed Fair Treatment (GFT) appeal process—an appeal process unique to FAA personnel actions—

but later withdrew his appeal due to timing issues related 

to the selection of arbitrators. On the same day he withdrew from the GFT appeal process, Mr. Brock appealed the 

removal decision to the Merit Systems Protection Board. 

The Board dismissed Mr. Brock’s appeal for lack of jurisdiction because, in the Board’s view, 49 U.S.C. § 40122(i)

prohibits Mr. Brock from appealing his removal decision in 

more than one forum. On appeal, Mr. Brock argues that 

his choice to proceed with the GFT appeal was not knowing 

and informed and, therefore, the Board should not have 

dismissed his appeal for lack of jurisdiction. For the reasons below, we agree with Mr. Brock and therefore reverse 

the Board’s dismissal for lack of jurisdiction and remand 

for the Board to consider the merits of Mr. Brock’s appeal.

BACKGROUND

I

The FAA has its own personnel management system 

and procedures for appealing adverse personnel actions. 

See 49 U.S.C. § 40122. Section 40122 provides that FAA 

employees may contest adverse personnel actions (e.g., removal decisions) through the FAA’s internal GFT appeal 

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BROCK v. MSPB 3

process or by filing an appeal with the Board (among other 

options). See § 40122(g)(3), (h), (j). The statute further provides that “an employee must elect the forum through 

which the matter will be contested. Nothing in this section 

is intended to allow an employee to contest an action 

through more than one forum unless otherwise allowed by 

law.” § 40122(i). 

II

Mr. Brock worked for the FAA as an Airway Transportation Specialist at the Nashville System Support Center. 

In April 2020, the FAA proposed Mr. Brock’s removal 

based on two specifications of insubordination. The deciding official issued a final decision on May 14, 2020 upholding his removal, which became effective May 20, 2020. 

In the removal notice, the deciding official informed 

Mr. Brock that, should he wish to dispute the removal decision, he could “file an appeal under the following procedures,” including, as relevant here, proceeding with the 

FAA’s GFT appeal procedure or appealing to the Merit Systems Protection Board (“Board” or “MSPB”). SAppx. 23.1 

According to the notice, he “may elect only one [] of these 

forums to challenge” the removal decision and “[e]lection is 

deemed to have been made based on which of the actions is 

filed first and in which forum.” Id. 

The removal notice also attached a copy of the FAA’s 

Human Resources Policy Manual (FAA Manual), which 

sets forth the procedures for the GFT appeal. According to 

the FAA Manual, GFT appeals are heard by a “Tri-Party 

Panel” comprised of three arbitrators: one selected by 

management, one selected by the appellant, and one jointly 

selected by the parties. The FAA Manual specifies that the 

1 “SAppx.” refers to the Supplemental Appendix attached to the Respondent’s brief. 

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4 BROCK v. MSPB

Tri-Party Panel is selected by the parties “[w]ithin 10 days 

of the receipt of the appeal.” SAppx. 30. 

On May 18, 2020, Mr. Brock sent an e-mail to the FAA, 

electing to proceed with the GFT appeal process. 

SAppx. 37. A little over a week later, on May 26, 2020, 

Ms. Natalie Frazier—a labor and employee relations specialist at the FAA—reached out to Mr. Brock to inform him 

that the GFT arbitrator pool needed to be replenished and 

that the FAA was waiting on resumes for potential arbitrators to hear Mr. Brock’s appeal. Mr. Brock responded to 

Ms. Frazier’s e-mail on May 28, 2020 (ten days after he 

sent the FAA an e-mail electing the GFT appeal process), 

stating: “Since the Southern Region FAA GFT forum will 

not meet the timeframe to provide a designated pool of arbitrators, I have chose[n the] MSPB venue instead.” 

SAppx. 44–45. Mr. Brock filed his appeal with the Board 

that same day. Ms. Frazier responded the next day (eleven 

days after Mr. Brock elected to proceed with the GFT appeal process, which was after the allotted time in the FAA 

Manual for selection of arbitrators), informing Mr. Brock 

that the resumes for potential arbitrators had been received and further stating: “If you intend to proceed with 

your GFT appeal, the arbitrator selection for your TriParty Panel can now commence. If however you have 

elected to file an appeal with the MSPB, as indicated in 

your email below, your GFT appeal will be closed.” 

SAppx. 44. Mr. Brock responded the same day, asking 

Ms. Frazier to “please close the GFT appeal.” Id. 

III

On July 27, 2020, the Department of Transportation 

(DOT) moved to dismiss Mr. Brock’s MSPB appeal, arguing 

that the Board lacked jurisdiction because Mr. Brock first 

filed a GFT appeal, thus precluding his appeal before the 

Board. An Administrative Judge agreed with the DOT

and, in an initial decision, dismissed Mr. Brock’s appeal for 

lack of jurisdiction. Brock v. Dep’t of Transp., No. AT-0752-

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BROCK v. MSPB 5

20-0542-I-1, 2020 WL 4439058 (M.S.P.B. July 31, 2020). 

The Administrative Judge found it was “undisputed” that 

Mr. Brock elected and filed a GFT appeal prior to filing an 

appeal with the Board, and that his election of the GFT 

procedure “was both knowing and informed.” SAppx. 5–6. 

The Administrative Judge further held that there is “no 

law, rule, or regulation providing for Board jurisdiction 

when an appellant abandons their elected forum.” 

SAppx. 6. This initial decision became the final decision of 

the Board when Mr. Brock did not petition the full Board 

for review of the initial decision. 

Mr. Brock appeals. We have jurisdiction under 

5 U.S.C. § 7703(b)(1)(A) and 28 U.S.C. § 1295(a)(9).2

DISCUSSION

Our review in an appeal from a decision of the Board is 

limited. The Board’s decision will be set aside if it is: 

“(1) arbitrary, capricious, an abuse of discretion, or 

2 Respondent suggests we lack jurisdiction to hear 

Mr. Brock’s appeal because it is a “mixed” case, “i.e., a case 

alleging an adverse action subject to MSPB jurisdiction 

taken, in whole or in part, because of unlawful discrimination or in retaliation for filing an EEO complaint.” Resp. 

Br. 7 (citing 5 U.S.C. 7702(e); Perry v. Merit Sys. Prot. Bd., 

137 S. Ct. 1975, 1984–88 (2017)). We disagree. While 

Mr. Brock’s appeal to the Board references alleged discrimination, SAppx. 51, Mr. Brock specifically informed this 

court in a Statement Concerning Discrimination under 

Federal Circuit Rule 15(c) that he did not raise a discrimination or EEO claim before the Board. See Fed. Cir. 

R. 15(c) Statement Concerning Discrimination, Brock 

v. Dep’t of Transp., No. 21-1000 (Fed. Cir. Oct. 1, 2020), 

ECF No. 3. We are satisfied with this representation and 

therefore do not consider Mr. Brock’s appeal to be a mixed 

case depriving us of jurisdiction. 

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6 BROCK v. MSPB

otherwise not in accordance with law; (2) obtained without 

procedures required by law, rule, or regulation having been 

followed; or (3) unsupported by substantial evidence.” 

5 U.S.C. § 7703(c). Whether the Board has jurisdiction is a 

question of law that we review de novo. Parrott v. Merit 

Sys. Prot. Bd., 519 F.3d 1328, 1334 (Fed. Cir. 2008).

It is undisputed that Mr. Brock chose to proceed with 

the GFT appeal process, withdrew that appeal, and then

filed an appeal with the Board. Mr. Brock argues, however, that his decision to proceed with the GFT appeal process was not knowing and informed and is therefore not 

binding. Pet. Br. 2. We agree. 

The principle underlying the Board’s dismissal is that

Mr. Brock cannot proceed with an appeal before the Board 

because he first chose to proceed with the GFT appeal process. While we have not yet addressed this issue under the 

statutory scheme at issue in this case (§ 40122(i)), in analogous situations related to the Title 5 appeal process

(5 U.S.C. § 7121), we have held that “[o]nce a timely filing 

is made to pursue a path [in one specified forum], the other 

is forever waived.” Rodriguez v. Merit Sys. Prot. Bd., 

804 F.2d 673, 675 (Fed. Cir. 1986). We have cautioned, 

however, that “[i]n order to comply with the statute, the 

agency must properly inform an employee of [their] 

choices.” Atanus v. Merit Sys. Prot. Bd., 434 F.3d 1324, 

1327 (Fed. Cir. 2006). The agency must “clearly express[]

to [the employee] that [they] had two options, and that one 

would exclude the other.” Id. (emphasis added). In the notice provided to the employee in Atanus, the agency stated

in plain language that a “choice of one of the procedures 

excludes the use of the other.” App’x to Resp. Br. at RA-24, 

Atanus v. Merit Sys. Prot. Bd., No. 05-3123 (Fed. Cir. 

Aug. 11, 2005). That notice clearly informed the employee 

that proceeding with one choice “exclude[d] the use of the 

other.” Id. Thus, we held that the employee’s choice to file 

a grievance precluded a later appeal to the Board. Atanus, 

434 F.3d at 1326–27.

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BROCK v. MSPB 7

Here, however, Mr. Brock’s decision was not knowing 

and informed because the FAA failed to let him know that 

the GFT appeal option was non-functional. Mr. Brock only 

learned after he chose the arbitration path that the FAA

lacked the necessary arbitrators for the proceeding. He 

promptly withdrew his request and filed a timely appeal 

with the Board. He had not started to arbitrate and no 

deadlines had passed. These facts distinguish Mr. Brock’s 

case from situations such as that in Rodriguez, where the 

employee had elected a grievance procedure, prosecuted it 

through multiple steps, and then attempted to appeal the 

dismissal to the Board.

Additionally, we note that the statute itself is not clear 

for the circumstances Mr. Brock was facing. After stating 

that the employee “must elect the forum through which the 

matter will be contested,” § 40122(i) concludes by stating 

that “[n]othing in this section is intended to allow an employee to contest an action through more than one forum 

unless otherwise allowed by law.” Id. (emphasis added). 

This language differs from the statute in Atanus (5 U.S.C. 

§ 7121(e)(1)), which states that an aggrieved employee may 

raise a matter by filing an appeal with the Board or the 

negotiated grievance procedure, “but not both.” Thus, unlike the statute in Atanus, which specifically states that an 

employee may not choose to proceed in both forums, 

§ 40122(i) leaves open the possibility that proceeding in 

both forums in the way that Mr. Brock did here (e.g., by 

withdrawing one before proceeding with the other) may be 

permissible. 

Considering the notice Mr. Brock received, Mr. Brock’s 

communications with FAA personnel, and the statutory 

language, we conclude that the Board’s finding that 

Mr. Brock’s decision to initiate the GFT appeal was knowing and informed is not supported by substantial evidence.

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8 BROCK v. MSPB

CONCLUSION

The Board erred in finding that Mr. Brock’s decision to 

proceed with the GFT appeal was knowing and informed. 

We therefore reverse the Board’s dismissal for lack of jurisdiction and remand for further proceedings. 

REVERSED AND REMANDED

COSTS

No costs.

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