*1 that, if vised Martinez he was convicted of
being found the United States after of an
having aggravated been convicted
felony and then removed from the United
States, subject he was to a sentence of up twenty years’ imprisonment. As in
Duncan, guidelines at the time in- judge
formed Martinez that a would en-
gage fact-finding to determine his sen- impose
tence and could up sentence
twenty years. §§ 3551 et seq.;
Duncan, Therefore, at 1307. Duncan, Martinez had sufficient
warning at the time that he committed his
offense that a potential consequence was a sentence,
twenty-year and his due process
rights were not violated. reasons,
For all of these we affirm Mar-
tinez’s 87-month sentence.
AFFIRMED. ATANUS, Petitioner,
Susanne
MERIT SYSTEMS PROTECTION
BOARD, Respondent, Administration,
General Services
Intervenor.
No. 05-3123.
United States Appeals, Court of
Federal Circuit.
Jan. 2006.
Barry A. Gomberg, Barry Gomberg A. Associates, Ltd., Illinois, Chicago, & petitioner. *2 represented of Gauger, Attorney, by A. Office assisted the union
Jeffrey Counsel, Merit States days United the General Id. Two Board, Washington, of Systems Protection later, she sent a letter confirm- second him on the brief With respondent. for ing grievance proce- her election of the Schneider, Coun- B. General were Martha dure, expressing proceed her desire to Koppel, General sel, Deputy Rosa arbitration, and a designating repre- to Counsel. 26, 2003, July On Atanus sentative. withdrawing sent a third letter her NEWMAN, LOURIE, and Before That grievance. day same she filed an SCHALL, Judges. Circuit to the Board. Id. by for the court Circuit Opinion filed The General Administration Services Judge LOURIE. (“GSA”) filed a ap- motion to dismiss the arguing right that peal, Atanus waived her Dissenting opinion by Circuit filed appeal to the elected to to Board when she Judge NEWMAN. grieve her removal her first letter. Ata- DECISION that responded nus her election an informed was not LOURIE, Judge. Circuit because she misled her election was (“Atanus”) petitions for Atanus Susanne that representative. Atanus claimed the Merit the final decision of review of removal, she elected to her grieve before (“Board”) dis Systems Protection Board representative told her that the union jurisdiction. her lack of missing her, would assist and that she made her Admin., Serv. No. CH- Atanus v. Gen. grieve assumption on the based 2004) (M.S.P.B. Jan.26, 0752-03-0703-1-1 would be the un- represented that she (“Decision”). Because Atanus elected to grievance pro- throughout ion removal, the correct grieve her Board was election, made howev- cess. After she right appeal. that she had holding no er, alleged, told representative affirm. We therefore willing to longer that the union no
her BACKGROUND information represent her. Based on this repre- that 1, 2003, believing she would be received a July On sented, position of removal from her Atanus withdrew her notice Analyst disorderly Procurement due appealed Board. charges and to follow au- conduct failure (“AJ”) Judge grant- Administrative Decision, slip op. instructions. thorized dismiss, stating motion to ed the GSA’s that Ata- at 2. The removal letter stated Atanus was barred challenge could her removal either nus 7121(e)(1) from her action to appealing by appealing to
by filing
filed a
Board because she had first
pur-
far as
The AJ
that once
grievance.
concluded
concerned,
suing
binding
elec-
knowing
Atanus made
stated: “Under the terms of the
letter
removal,
her
grieve
her
she waived
tion
you
Agreement,
National
GSA/NFFE
Board.
represented
by the
and assisted
exception
The AJ noted
there is
exercising
your griev-
any
union in
fails to
agency
waiver where the
to this
22, 2003,
July
rights.”
How-
options.
inform
official,
sent a letter
ever,
exception
that the
Smith,
the AJ determined
that she wished
stating
Richard
apply
removal
to be
this case
grieve
and asked
Atanus in its
needed to
inquire
informed
whether
either appeal
letter that she could
represent
electing
union would
her before
the Board or file a
The AJ
Furthermore,
grieve
her removal.
rejected
argument that her deci-
Atanus’s
letter stated that under
the terms
*3
due to al-
was not an informed one
sion
Agreement
National
between
and the
GSA
misrepresentations by
represen-
the
leged
Federation
Employ-
National
of Federal
nothing
because
the
tative
there
ees,
“may
represented
be
and as-
Fur-
support
to
her statements.
record
the
by
sisted
union” during
the
thermore,
noted,
the AJ
Atanus did not
procedure. Atanus
that
lan-
understood
griev-
file a
claim that the union refused to
guage mean that if
to
the union assisted
behalf,
alleged
on her
that
but rather
her, it would also represent
during
her
the
that,
point, they
union told her
at some
the
Moreover,
grievance process.
ac-
stop representing
Finally, the
would
her.
Atanus,
cording to
the union representa-
found that evén if it were assumed that
AJ
by
tive further misled her
stating that he
representative,
by
Atanus was misled
her
would “assist” her
the
proce-
case
be
the
would still have to
dismissed
dure and later
represent
not to
personally
because Atanus remained
re-
her.
sponsible
diligent prosecution
for the
responds
The Board
expressly
GSA
her
Atanus of
options
notified
her
re-
by
petitioned
the full
review
letter, which
moval
is all that is
required
Board, which
petition
denied her
Janu-
agency. According
2005,
ary
making the initial decision of the
union’s actions do not implicate
agen-
§
AJ final. See 5 C.F.R.
1201.113.Atanus
Furthermore,
cy.
argues,
Board
timely appealed
then
to
court.
We
union
mislead Atanus
because
jurisdiction pursuant
have
to 28 U.S.C.
her,
indicated
it would “assist”
1295(a)(9).
§
and “assist” does not
“represent.”
mean
if
Finally, even
the union decided it would
DISCUSSION
Atanus,
represent
it was Atanus’s re-
scope
of our
in an ap
review
sponsibility
determine
un-
whether the
from a
peal
decision of the Board is limit
represent
ion
electing
would
her before
We must affirm
ed.
the Board’s decision
grievance procedure.
“(1)
it
arbitrary, capricious,
unless was:
an
discretion,
or
not in We conclude that
abuse
otherwise
the Board
(2)
law;
with
accordance
obtained without
it
jurisdiction
decided that
did not have
rule,
law,
procedures required by
regu
over Atanus’s
an
she made
(3)
followed;
having
lation
been
unsup
removal,
grieve
informed
her
5
ported
substantial evidence.” U.S.C.
thereby waiving
her
7703(c) (2000);
Sys.
§
see
Merit
Briggs v.
7121(e)(1),
5
§
Board. Under U.S.C.
an
Bd.,
(Fed.Cir.
1307,
Prot.
331 F.3d
1311
aggrieved
raise his or
2003).
jurisdiction
Whether the Board has
timely filing
a written
adjudicate
question
an
is a
of law
negotiated grievance
ance under the
proce-
that we review
Campion
de novo. See
by filing
dure or
a notice
under
Bd.,
Sys.
Merit
Prot.
326 F.3d
applicable appellate procedures,
“but
(Fed.Cir.2003).
not both”:
Matters covered under
appeal,
sections 4303
Atanus contends that
misleading
letter
and in
and 7512
this title which
fall
also
complete because it failed to inform her
within
coverage
of the
may,
grievance procedure having
previous-
in the discre-
been
aggrieved employee,
ly
grieving
told
tion of
appellate proce-
appeal.
preclude
raised
title or
7701 of this
of section
dures
clearly
pursue
elected
proce-
negotiated grievance
under the
later
Although she
mind,
changed
irrespective
7121(e)(1). “[Ojnce
timely
reason,
long
agency clearly
as
as
ex-
is
pursue path,
the other
filing is made
op-
to Atanus
pressed
that she had two
Sys.
Rodriguez v. Merit
forever waived.”
tions,
that one
would exclude the
(Fed.Cir.1986).
Bd.,
Prot.
other,
option,
and Atanus
one
exercised
*4
statute,
comply
with the
In order
precluded
withdrawing
Atanus is
from
properly
employee
must
inform an
agency
option
pursue
other.
It was
Dep’t
See
v. U.S.
of her choices.
Johnson
upon
into
inquire
incumbent
Atanus to
(1985).
Labor,
447,
450
M.S.P.R.
of
extent of the
assistance be-
union’s
case,
in-
expressly
the agency
making
binding
In this
a
fore
election.
in its
letter that
formed Atanus
also
contends that the AJ
option
grievance
a
pursue
she had the
prejudiced
was
and biased towards her
Board,
not
or
but
procedure
during a settlement
between
conference
that her
Although
alleges
both.
by stating
set
parties
that she should
informed, that is
was not
election
of
There
tle or face dismissal
her claims.
a
decisions
correct. While
few Board
not
however,
record,
nothing
sup
is
grievance
an
of a
have held that
election
other than
statement.
port this
Atanus’s
the Board
binding,
not
such cases
true, it
accepting
Even
the statement as
was not
employee’s
that the
found
judge had a
does not establish that
had
agency
informed because the
fully
“deep-seated
antagonism
favoritism or
available
only
employee
notified the
of one
judgment
impossible.”
make fair
avail-
of recourse when others were
avenue
Dep’t
Army,
Bieber v.
287 F.3d
of
Labor,
v.
Dep’t
Johnson U.S.
able. See
of
(Fed.Cir.2002).
450;
Dep’t
Miyai
at
v.
26 M.S.P.R.
time
emphasizes
dissent
the short
The
(1986); Blanshan
Transp.,
COSTS unsuccessful, then, pellate path try if costs. No ing the other. Ms. Atanus elected procedure Tuesday, July on
AFFIRMED. 2003, designating repre the union as her NEWMAN, Judge, PAULINE Circuit She sentative. was then informed dissenting. union that it would not “in assist her grievance procedure
My colleagues hold that
acquire-
lawyer.”
should
cannot
her election of
Satur
request
withdrew
on
days,
although
after three
*5
26, 2003,
day, July
timely ap
and filed a
yet
grievance proceedings had not
be-
the
peal with the MSPB.
indeed,
been initi-
gun;
proceeding had
no
learned,
she chose
ated.
after
statute nor precedent
Neither
prohibits
grievance path, that
union would
the
the
such action.
have found no
where
case
throughout
provide representation
not
the
employee
prohibited
chang
the
from
information,
receiving
ing
during
period
the election
the initial
request
promptly
withdrew her
for a
choosing
path
set for
the
review.
timely
filed a
and
proceeding,
panel majority
the
acknowledges, several
colleagues
with the
appeal
My
MSPB.
hold Board decisions have held that the initial
prohibits
change.
the statute
such
be changed.
choice could
the issue
When
silent,
Although
my
the statute is
col-
reached the Federal Circuit in
v.
Whitaker
hold that the
final
leagues
initial election is
MSPB,
(Fed.Cir.1986),
the
irrevocable,
prompt
no matter how
the
petitioner sought to change his election
revocation, no matter
the circum-
what
pro
after he was well into
the
stances.
cess,
having implemented
thus
choice.
his
(Fed.
MSPB,
Rodriguez
In
tus. of the by her withdrawal
held bound from her substitu- path, but excluded does path. The statute
tion in- resulting require this result. GOODRICH, (doing business B. John unnecessary. unwarranted and equity is Co.), Cattle as Checkerboard Plaintiff-Appellant, “slippery slope,” that this is doubt words, permitting majority’s direction, as the MSPB justified change of STATES, Defendant-Appellee. UNITED cases, to a will lead permitted other has It changes of election. 3-day wave No. 05-5047.
would, however, result achieve a fairer Appeals, Court United States case, Ms. Atanus has suffered where Federal Circuit. of her deprivation action” an “adverse yet is surely a serious matter — livelihood— 9, 2006. Jan. judicial ruling implacable met with 6, 2006. Denied March Rehearing If she is all of review. had lost appeal because of from the MSPB barred grievance proce- initial election of the minimum, she should be then at a Surely by grievance. proceed
allowed