United States Court of Appeals for the Federal Circuit
October 7, 1999
STANLEY J. WESLOWSKI, PETITIONER,
DEPARTMENT OF THE ARMY, RESPONDENT.
Before Mayer, Chief Judge, Michel, and Clevenger, Circuit Judges.
The opinion of the court was delivered by: Michel, Circuit Judge.
NOTE: Pursuant to Fed. Cir. R. 47.6, this Disposition is not citable as precedent. It is a public record. The Disposition will appear in tables published periodically.
Stanley Weslowski appeals the Merit Systems Protection Board's ("the Board") January 28, 1999 final order regarding two initial decisions. The first initial decision, Docket No. PH-1221-97-0977-W-1, which issued October 31, 1997 and which dismissed Mr. Weslowski's whistleblower claim as precluded by a settlement agreement, became final when the full Board dismissed Weslowski's petition for review. The second initial decision, Docket No. PH-0351-98-0070-I-1, which issued February 27, 1998 and which dismissed Weslowski's challenge to his removal under the Reduction in Force ("RIF") procedures as untimely filed, was affirmed as modified by the full Board. In particular, the full Board affirmed the dismissal of Weslowski's challenge to the RIF action, but did so on the alternative ground that the Board lacked jurisdiction to hear the claim. We affirm the Board in all respects.
Mr. Weslowski was employed by the Tobyhanna Army Depot as an Equipment Cleaner Leader, WL-05. In July 1996, the Army sent Mr. Weslowski a letter stating that it was reorganizing its work force utilizing RIF procedures and that his position would be affected by the reorganization. In particular, the letter informed Mr. Weslowski that he was "identified for release" and offered him the position of sandblaster WG-5423-07. The letter stated that Mr. Weslowski must "indicate [his] acceptance or declination of this offer of a change to lower grade" no later than August 2, 1996 and that "declination of the above offer or failure to respond to this offer will result in your separation by RIF procedures effective September 29, 1996." (emphasis added). The letter further stated that if Mr. Weslowski was a member of the bargaining unit covered by the negotiated grievance procedure he could file a grievance within 15 days of the effective date of the RIF action.
When Mr. Weslowski did not respond to the letter by the due date, the Army notified him that he was to be separated via RIF procedures effective September 29, 1996.
On September 25, 1996, Mr. Weslowski filed a whistleblower claim with the Office of Special Counsel ("OSC"), alleging that the Army separated him under the RIF procedures in retaliation for his asserted disclosure of alleged nepotism. The OSC investigated the underlying factual allegations but did not seek corrective action and closed the case. The OSC notified Mr. Weslowski of his right to file a "whistleblower appeal" with the MSPB.
On July 11, 1997, Weslowski appealed his whistleblower claim to the MSPB. On October 15, 1997, while the whistleblower claim was pending at the MSPB, the parties entered into a settlement agreement which provided that Mr. Weslowski "hereby withdraws his Individual Right of Action appeal before the Board, with prejudice" and "understands that he may not refile or relitigate the issues raised in his appeal pertaining to whistleblowing . . . . " (emphasis added). On October 31, 1997, the MSPB entered the settlement agreement into the record and dismissed the action stating that the dismissal would become final if not appealed to the Board by December 5, 1997. See MSPB Docket No. PH-1221-97-0977-W-1.
On November 7, 1997, however, Mr. Weslowski filed a second claim with the MSPB. This claim was docketed as an appeal challenging the merits of the RIF action. See MSPB Docket No. PH-0351-98-0070-I-1. On February 27, 1998, the AJ dismissed this claim as untimely, reasoning that the appeal was filed more than 13 months after the effective date of the RIF action, which was well beyond the regulatory appeal period of 30 days.
On April 3, 1998, Mr. Weslowski petitioned for full Board review of both the October 1997 and the February 1998 decisions. On January 28, 1999, the full Board issued its opinion. The Board held that the AJ correctly dismissed Mr. Weslowski's whistleblower claim, Docket No. PH-1221-97-0977-W-1, as precluded by the terms of the settlement agreement. The full Board thus denied Mr. Weslowski's whistleblower claim.
With respect to the petition for review of the second decision, Docket No. PH-0351-98-0070-I-1, the Board dismissed the petition for lack of jurisdiction. The Board noted that Mr. Weslowski was covered by a Collective Bargaining Agreement ("CBA") that provides that the negotiated grievance procedure outlined in the CBA is the "exclusive procedure" available to the parties for disputes over "any matter relating to the employment of the employee." The Board held that the merits of a RIF separation must be resolved through the negotiated grievance procedure and that the Board therefore lacked jurisdiction to hear the matter. See 5 U.S.C. § 7121 (1994) (stating that, with certain exceptions, grievance procedures provided for in a collective bargaining agreement shall be the exclusive administrative procedure for resolving disputes that fall within its coverage). The Board then went on to analyze whether the MSPB may have jurisdiction, even though the employee is covered by a CBA, under the limited circumstances described in 5 U.S.C. § 7121 and concluded that the Board did not have jurisdiction.
The Board expressly stated that because it did not have jurisdiction over the appeal, it did not reach the issue of whether Mr. Weslowski timely filed his appeal of the merits of his RIF separation, which was the basis for the AJ's dismissal of Mr. Weslowski's claim.
This appeal follows. We have jurisdiction under 28 U.S.C. § 1295(a) (1994).
We must affirm the Board's decision unless it is (1) arbitrary, capricious, an abuse of discretion, or 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. See 5 U.S.C. § 7703(c) (1994).
The Board's jurisdiction is not plenary, but is limited to those subject matters specifically granted by some law, rule, or regulation. See 5 U.S.C. § 7701(a) (1994). The burden of showing jurisdiction is on the petitioner. See 5 C.F.R. § 1201.56(a)(2)(i) (1999).
The issue of whether this court or the Board has jurisdiction to hear a case may be raised sua sponte at any time during the proceedings. We begin by determining whether the collective bargaining agreement divests the Board of jurisdiction to hear Mr. Weslowski's whistleblower complaint.
Chapter 71 of Title 5 provides that, with certain exceptions, collective bargaining agreements shall provide procedures for the settlement of disputes and that the grievance procedures are the exclusive administrative procedure for resolving disputes that fall within its coverage. See 5 U.S.C. § 7121(a)(1) (1994). *fn1
One exception to the rule that the negotiated grievance procedure is the exclusive procedure for resolving disputes is found at 5 U.S.C. § 7121(g) (1994). *fn2 Section 7121(g) provides that an individual who believes that he has suffered reprisal for making whistleblowing disclosures, even if he is covered by a collective bargaining agreement, may elect to pursue his claim through one of three procedures. He may (1) appeal to the Board under 5 U.S.C. § 7701, (2) file a grievance pursuant to the negotiated grievance procedure, or (3) follow the procedures for seeking corrective action under subchapters II and III of chapter 12. *fn3
Here, Mr. Weslowski elected to appeal his whistleblowing claim under procedures set forth in section 7121(g)(3) and properly followed the procedures set forth in subchapters II and III of chapter 12. He filed his whistleblower claim with the OSC, and once notified that the OSC was terminating its investigation, he timely appealed to the MSPB. *fn4 Thus, we hold that the existence of the CBA did not divest the Board of jurisdiction over Mr. Weslowski's whistleblower claim.
We now consider whether the MSPB was nevertheless correct to dismiss Mr. Weslowski's whistleblower claim. A settlement agreement is a contract and its interpretation is a matter of law. Greco v. Department of Army, 852 F.2d 558, 590 (Fed. Cir. 1988). On October 15, 1997, during Mr. Weslowski's appeal to the Board, Mr. Weslowski entered into a settlement agreement with the Department of the Army. The settlement agreement states that Mr. Weslowski "hereby withdraws his Individual Right of Action appeal before the Board." Thus, according to the settlement agreement signed by Mr. Weslowski, he withdrew his July 7, 1997 whistleblower appeal. Because Mr. Weslowski signed a settlement agreement withdrawing his whistleblower claim, the Board was correct in upholding the AJ's dismissal of the claim. *fn5
With respect to the second claim filed by Mr. Weslowski on November 7, 1997, the full Board was correct to dismiss this RIF claim because of lack of jurisdiction. The MSPB does not have jurisdiction to hear challenges to a RIF action when the employee was covered under a CBA that requires disputes to be resolved solely under a negotiated grievance procedure. See Bonner v. Merit Sys. Protection Bd., 781 F.2d 202, 204-05 (Fed. Cir. 1986) (holding that separation by RIF is a "matter" within the meaning of 5 U.S.C. § 7121(a)(2) and thus, absent an express provision in the CBA excluding RIF actions, the negotiated grievance procedure is the exclusive administrative procedure for resolving unlawful RIF claims).
Here, Mr. Weslowski was covered by a collective bargaining agreement that provides that all grievances concerning "any matter relating to" the employment of the employee are to be resolved through the negotiated grievance procedure and that the negotiated grievance procedure is the exclusive procedure available. The CBA does not expressly exclude RIF actions from the types of matters that must be resolved through the negotiated grievance procedures. Similarly, a dispute over a RIF action is not one of the exceptions provided for in the statute. See 5 U.S.C. § 7121(d) (providing that allegations of certain forms of discrimination may be appealed to the Board) and section 7121(g) (providing that whistleblower actions may be appealed to the Board). Thus, the grievance procedures provided in the CBA are the exclusive procedures available and the MSPB lacks jurisdiction to hear the merits of the RIF action. We therefore hold that the Board was correct to dismiss the RIF appeal for lack of jurisdiction.
Mr. Weslowski argues, however, that he is not appealing a RIF action, but rather the "wrongful discharge based on an assumption," which he believes falls "under the jurisdiction of the MSPB." Basically, Mr. Weslowski contends that he did not sign the form accepting the sandblaster position only because it contained errors but that he would have accepted the job if the errors were corrected. Thus, he contends that he did not refuse the sandblaster position; he simply failed to accept the position and "because [he] did not refuse the job offer, [he] never should have been separated from the Tobyhanna Army Depot."
This allegation cannot confer jurisdiction on the Board. The July 1996 letter to Mr. Weslowski from the Army specifically stated that either declining the offer of the sandblaster position or "failure to respond to this offer will result in . . . separation by RIF procedures effective September 29, 1996," which is in fact what happened. Thus, Mr. Weslowski is indeed contesting his removal from his position under RIF procedures, which, as we describe above, is a matter that must be pursued through the negotiated grievance procedures and may not be appealed to the Board.
Similarly, Mr. Weslowski's contentions that the July 1996 letter did not state that his position was abolished, in violation of RIF regulation 5 C.F.R. § 351.605, and that the Army told him, improperly, if he did not accept the sandblaster position he would be separated, cannot confer jurisdiction on the Board. Neither of these allegations provide an independent source of Board jurisdiction.