dissenting:

I respectfully dissent from part III of the majority’s opinion because I believe that neither of the formal EEO complaints Vini-eratos filed in January 1988 was a “mixed case complaint.” Once properly characterized as simply a “complaint,” the chain of events which followed leads me to conclude that he exhausted administrative remedies. Therefore I would reverse.

The regulations define “mixed case complaint” as “[a] complaint of employment discrimination filed with a federal agency ... related to, or stemming from an action taken by an agency against the complainant, which action may be appealed to the MSPB.” 29 C.F.R. § 1613.402 (a). When Vinieratos filed his formal EEO complaint, there had not been such an agency action because the Air Force had only proposed a removal, and it was not until later that it actually removed him. Instead, Viniera-tos’s January complaint was simply a “complaint,” which is “a formal complaint of discrimination,” 29 C.F.R. § 1613.402 (c), regardless of how he labeled it. 1

Because Vinieratos filed a “complaint” on the proposed removal, 29 C.F.R. § 1613.406 (a)(2) controlled his case. That regulation provides:

His case was not controlled by 29 C.F.R. § 1613.405 (b). That regulation provides that “[i]f the mixed case complaint was filed first, the agency shall ... request that the MSPB dismiss the appeal without prejudice and, thereafter, the agency shall process the complaint.” Because Viniera-tos did not file a “mixed case complaint” before going to the MSPB, subsection 1613.405(b) was not applicable. Therefore, the Air Force’s decision to cancel his complaints was justified because it was based, *776 as it should have been, on subsection 1613.-406(a)(2). 2

The real problem, then, is that under the regulations the MSPB should not have dismissed his appeal. The MSPB should have retained jurisdiction over the case, and the allegations in Yinieratos's EEO complaints should have been incorporated into his MSPB appeal.

There does not appear to be anything untoward about Vinieratos’s appeal to the MSPB. Subsection 1613.406(a)(2) suggests that it is entirely proper for an employee to file an MSPB appeal from an action even if the employee had previously filed an EEO complaint. Otherwise, if the EEO complaint constitutes an irrevocable election (over the MSPB route), the regulations would presumably require that the MSPB appeal be dismissed in favor of the EEO proceeding rather than the other way around. See 29 C.F.R. § 1613.406 (a)(2). Section 1613.403 is also not to the contrary. It only provides that an employee may not file both a mixed case complaint and an MSPB appeal. But Vinieratos filed a “complaint,” not a “mixed case complaint,” before going to the MSPB.

In addition, that the Air Force told Vini-eratos he could appeal his removal through an MSPB appeal or the grievance procedure (omitting the EEO route) is not insignificant. It indicates that Vinieratos did not “abandon” the EEO process or fail to cooperate. Indeed, the MSPB rested its decision to dismiss his appeal on the conclusion that Vinieratos had not knowingly elected to pursue an MSPB appeal rather than an EEO complaint. Vinieratos filed his May 5, 1988 EEO complaint because he was aware that the MSPB planned to dismiss his appeal on that basis. The Air Force then rested its decision to cancel the EEO complaints on the inconsistent conclusion that Vinieratos had in fact irrevocably elected the MSPB procedure. Because the Air Force and the MSPB reached different conclusions about which procedure Viniera-tos had elected, they squeezed him out of the administrative process altogether.

It is unclear what more Vinieratos could have done. He had final decisions on both his MSPB appeal and his EEO complaints, so he logically came to federal court. He did not short-cut the process and therefore did not “abandon” his administrative remedies. Theoretically, perhaps, Vinieratos could have gone back to the MSPB after having his EEO complaints cancelled. But that does not seem to be a viable option because the MSPB had already entered its final determination that Vinieratos had irrevocably elected the EEO process. The MSPB might have been open to reconsideration, but simply because the Air Force viewed the situation differently does not necessarily mean that the MSPB would have changed its mind (it presumably would have just figured that the Air Force got it wrong and would have stuck with its decision).

Thus, Vinieratos’s only remaining solution was to come to federal court. He had decisions from both administrative bodies saying that they couldn’t help him. One of them had to be wrong, and the only body that is left to straighten out the mess is the federal judiciary. For these reasons, I believe that Vinieratos exhausted his administrative remedies, and accordingly would hold that the district court should not have dismissed for lack of jurisdiction.

. That Vinieratos labeled his EEO complaints "mixed case complaints” is immaterial. It is not an assertion of fact which binds him because the proper labeling of the complaints is a legal, not a factual, conclusion. Vinieratos’s characterization does not bind the court any more than a party’s assertion that something is a "mixed question of fact and law” obligates the court to agree.

. The May 5 complaint was a mixed case complaint, which was filed after the MSPB appeal. That complaint was justifiably cancelled under 29 C.F.R. § 1613.405 (b).