182 F. App'x 976

Tammy L. NOWAK, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent.

No. 06-3063.

United States Court of Appeals, Federal Circuit.

May 2, 2006.

Before NEWMAN, Circuit Judge, ARCHER, Senior Circuit Judge, and GAJARSA, Circuit Judge.

ARCHER, Senior Circuit Judge.

Tammy L. Nowak (“Nowak”) appeals the Merit Systems Protection Board’s (“Board”) decision dismissing for lack of jurisdiction her appeal of her separation from the Department of the Army (“agency”) through reduction-in-force (“RIF”) procedures. Nowak v. Dep’t of the Army, No. SF-0351-04-0829-I-1 (M.S.P.B. Mar.9, 2005). Because Nowak is covered by a collective bargaining agreement that does not specifically exclude RIF actions, we affirm.1

I

Nowak was employed by the agency as a Boiler Plant Operator, WB-5402-09, at Fort Richardson, Alaska when, effective August 21, 2004, she was separated by RIF. Nowak appealed this separation to the Board. In an initial decision, the AJ concluded that the Board lacked jurisdiction to hear Nowak’s claim because she was covered by a collective bargaining agreement that did not specifically exclude RIF actions from its exclusive grievance procedures. Id. at *2. The full Board denied Nowak’s petition for review, and the AJ’s initial decision became final. This *977appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

II

Whether the Board erred in dismissing an appeal for lack of jurisdiction presents a question of law that we review de novo. See Hayes v. United States Postal Serv., 390 F.3d 1373, 1376 (Fed.Cir.2004).

Nowak argues that the Board has jurisdiction based on 5 C.F.R. § 351.901, which states “[a]n employee who has been furloughed for more than 30 days, separated, or demoted by a reduction in force action may appeal to the Merit Systems Protection Board.” 5 C.F.R. § 351.901 (2004). The right to appeal to the Board set forth in § 351.901, however, is affected if the employee is covered by a collective bargaining agreement.

Section 7121 of Title 5 of the United States Code explains that a “collective bargaining agreement shall provide procedures for the settlement of grievances” and that with exceptions not relevant to this case, these “procedures shall be the exclusive administrative procedures for resolving grievances falling within [the agreement’s] coverage.” 5 U.S.C. § 7121(a)(1) (2000). Section 7121 also states that a collective bargaining agreement “may exclude any matter from the application of the grievance procedures which are provided for in the agreement.” Id. § 7121(a)(2).

The CBA involved here excludes certain types of disputes. RIF actions, however, are not listed among those specifically excluded. Accordingly, RIF actions brought by employees subject to this collective bargaining agreement must proceed under the alternative dispute resolution process set forth in the agreement; they may not be appealed to the Board. Therefore, the AJ did not err in dismissing Nowak’s appeal for lack of jurisdiction.2 See Bonner v. Merit Sys. Prot. Bd., 781 F.2d 202, 206 (Fed.Cir.1986) (holding that a RIF action was included in the negotiated grievance procedure under the collective bargaining agreement and consequently there was no jurisdiction before the Board).

Nowak v. Merit Systems Protection Board
182 F. App'x 976

Case Details

Name
Nowak v. Merit Systems Protection Board
Decision Date
May 2, 2006
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182 F. App'x 976

Jurisdiction
United States

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