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Weslowski v. Department of the Army

October 7, 1999


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 ...

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