Deleon v. Army

United States Court of Appeals
for the Federal Circuit
______________________
JESUS H. DELEON AND CHERYL WILLIAMS,
Petitioners,
v.
DEPARTMENT OF THE ARMY,
Respondent.
______________________
2013-3129
______________________
Petition for review of an arbitrator’s decision in FMCS
No. 12-57178-7 by James L. Reynolds.
______________________
ON MOTION
______________________
PETER CHARLES ROMBOLD, Hoover Law Firm, of Junc-
tion City, Kansas, for petitioners.
JANE WALLACE VANNEMAN, Senior Counsel, Commer-
cial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, for respond-
ent. With her was MELISSA M. DEVINE, Attorney.
______________________
2 DELEON v. ARMY
Before RADER, Chief Judge, DYK and WALLACH, Circuit
Judges.
WALLACH, Circuit Judge.
ORDER
The Department of the Army moves to dismiss this
petition for lack of jurisdiction. Jesus H. DeLeon and
Cheryl Williams oppose.
Mr. DeLeon and Ms. Williams were separated from
their jobs as cooks at a facility at the Army’s Fort Riley
installation, for allegedly removing government-owned
food from the facility without authorization. The facility
was a non-appropriated fund instrumentality (NAFI), and
DeLeon and Williams were paid through non-
appropriated funds. Subsequently, DeLeon and Williams
filed grievances, pursuant to procedures established in
the collective bargaining agreement with their union.
After the denial of the grievances, the union invoked
arbitration. The arbitrator upheld the charges and re-
moval penalties. DeLeon and Williams filed this petition
seeking review of the arbitrator’s decision.
Our jurisdiction over arbitrators’ decisions is narrowly
circumscribed by statute:
In matters covered under [5 U.S.C. §§ 4303 and
7512] which have been raised under the negotiat-
ed grievance procedure in accordance with this
section, [5 U.S.C. § 7703] pertaining to judicial re-
view shall apply to the award of an arbitrator in
the same manner and under the same conditions
as if the matter had been decided by the [Merit
Systems Protection] Board. In matters similar to
those covered under [5 U.S.C. §§ 4303 and 7512]
which arise under other personnel systems and
which an aggrieved employee has raised under
the negotiated grievance procedure, judicial re-
view of an arbitrator’s award may be obtained in
DELEON v. ARMY 3
the same manner and on the same basis as could
be obtained of a final decision in such matters
raised under applicable appellate procedures.
5 U.S.C. § 7121(f). Section 7121(f) is this court’s “sole
jurisdictional grant for review of an arbitrator’s award.”
Schafer v. Dep’t of the Interior, 88 F.3d 981, 986 (Fed. Cir.
1996) (quoting Burke v. U.S. Postal Serv., 888 F.2d 833,
834 (Fed. Cir. 1989)).
The parties agree that any attempt to appeal from the
arbitrator’s ruling under the first sentence of § 7121(f)
runs headlong into 5 U.S.C. § 2105(c), which excludes
NAFI employees* from appealing adverse actions to the
Merit Systems Protection Board (Board). Clark v. Merit
Sys. Prot. Bd., 361 F.3d 647, 650–51 (Fed. Cir. 2004);
Perez v. Army & Air Force Exch. Serv., 680 F.2d 779, 780
(D.C. Cir. 1982). DeLeon and Williams instead argue that
they may seek judicial review under the second sentence
of § 7121(f). That sentence provides that for certain
matters arising under “other personnel systems,” an
employee who has appealed such a matter under a nego-
tiated grievance procedure may obtain judicial review
from an arbitrator’s award “in the same manner and on
the same basis as could be obtained of a final decision in
such matters raised under applicable appellate proce-
dures.”
Even assuming petitioners are covered by that sen-
tence, however, it does not avail them. Section 7121 “is
not an affirmative grant of the remedies specified else-
* NAFI employees, whose jobs are “conducted for
the comfort, pleasure, contentment, and mental and
physical improvement of personnel of the armed forces,”
§ 2105(c), are not granted by Congress “the same levels of
employment protection as are other federal employees,”
McAuliffe v. Rice, 966 F.2d 979, 980 (5th Cir. 1992).
4 DELEON v. ARMY
where . . . . Rather, it merely allows an employee to
choose the statutory route in lieu of the negotiated griev-
ance route when the former is otherwise available.”
Perez, 680 F.2d at 789. As NAFI employees, DeLeon and
Williams had no route available to them other than the
grievance process. See id. (“In general, such a ‘negotiated
grievance procedure’ is to serve as the exclusive means for
resolving grievances falling within its coverage.” (citing 5
U.S.C. § 7121(a))). Thus there was no alternative “appli-
cable appellate procedure” from which DeLeon and Wil-
liams could have sought judicial review under § 7121(f).
Cf. Bonner v. Dep’t of Veterans Affairs Pittsburgh
Healthcare Sys., 477 F.3d 1343, 1345–47 (Fed. Cir. 2007)
(no jurisdiction under § 7121(f), second sentence, where
title 38 personnel system did not provide for judicial
review of Veterans Department’s final decision); Nieu-
wdorp v. Library of Cong., 872 F.2d 1000, 1002 (Fed. Cir.
1989) (“[O]ur interpretation of § 7121(f) may generally
preclude judicial review of grievance decisions because
‘other personnel systems’ do not authorize judicial review
of decisions rendered under the agency’s ‘appellate proce-
dures, if any,’ see section 7121(e)(1) . . . .”).
Because § 7121(f) does not give this court jurisdiction
to review an arbitrator’s decision regarding the removal of
a NAFI employee, we must dismiss the petition.
Accordingly,
IT IS ORDERED THAT:
(1) The petition is dismissed.
(2) Each side shall bear its own costs.
FOR THE COURT
February 24, 2014 /s/ Daniel E. O’Toole
Date Daniel E. O’Toole
Clerk of Court