2024 MSPB 10
MSPB2024Background
- Appellant, Christopher J. Andreski, was removed from his position as GS-13 Criminal Investigator, Deputy U.S. Marshal by the Department of Justice for medical inability to perform.
- Prior to his removal, Andreski filed a complaint with the Office of Special Counsel (OSC) alleging agency reprisal for protected whistleblower activity and later amended that complaint to include his removal.
- After being notified of his rights, Andreski filed both a Merit Systems Protection Board (MSPB) removal appeal under Chapter 75 and a separate Individual Right of Action (IRA) appeal based on whistleblower reprisal.
- The administrative judge discovered Andreski first sought corrective action from OSC before filing his direct chapter 75 appeal, raising the election of remedies issue under 5 U.S.C. § 7121(g).
- Andreski acknowledged the election of remedies issue and chose to proceed with his IRA appeal, which was later dismissed for lack of jurisdiction; his chapter 75 appeal was then dismissed on the basis of election of remedies.
- He petitioned for review of the dismissal of his removal appeal, challenging the application of election of remedies.
Issues
| Issue | Andreski's Argument | DOJ's Argument | Held |
|---|---|---|---|
| Does election to seek OSC corrective action preclude a later MSPB Chapter 75 appeal (even if IRA is later dismissed)? | The election should not be binding if the IRA appeal was dismissed for lack of jurisdiction. | Election is binding upon initial complaint to OSC, regardless of IRA outcome. | Election of remedies is binding upon filing an OSC complaint, even if IRA lacks jurisdiction. |
Key Cases Cited
- Agoranos v. Department of Justice, 119 M.S.P.R. 498 (2013) (first-chosen remedy under § 7121(g) is binding if knowingly made)
- Sherman v. Department of Homeland Security, 122 M.S.P.R. 644 (2015) (procedures and preclusion rules for statutory forum elections)
- Kerr v. Merit Systems Protection Board, 908 F.3d 1307 (Fed. Cir. 2018) (forum election is not binding if forum lacks jurisdiction)
- Shannon v. Department of Homeland Security, 100 M.S.P.R. 629 (2005) (no binding election if jurisdiction never attached)