The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARTIN CARRINGTON, DOCKET NUMBER
Appellant, CB-7121-16-0015-V-1
v.
DEPARTMENT OF HOMELAND DATE: June 29, 2016
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Gerald L. Gilliard, Esquire, Washington, D.C., for the appellant.
Suzanne N. Almetica, Esquire, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a request for review of an arbitration decision
concerning his removal from law enforcement officer status. For the reasons set
forth below, we DISMISS the request for review for lack of jurisdiction.
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
BACKGROUND
¶2 Effective April 26, 2012, the agency removed the appellant from his
position as a Customs and Border Protection Officer (CBPO). Request for
Review (RFR) File, Tab 1, Exhibit (Ex.) B. The union requested arbitration on
his behalf. Id. On September 10, 2013, the arbitrator issued a decision finding
that the appellant’s removal from his CBPO position promoted the efficiency of
the service but that the agency was required to consider him for any vacant,
non law enforcement positions for which he was qualified. Id.
¶3 On February 3, 2016, the appellant filed a request for review of the
arbitrator’s decision. RFR File, Tab 1. In his request, he argued that the agency
failed to provide reasonable accommodation for his disability. Id. The agency
has filed a response, in which it argues that the appellant’s request should be
dismissed for lack of jurisdiction and as untimely filed. RFR File, Tab 4.
ANALYSIS
¶4 The Board has authority to review arbitration decisions under limited
circumstances. See 5 U.S.C. § 7121(d); Sadiq v. Department of Veterans Affairs,
119 M.S.P.R. 450, ¶ 4 (2013). Under the Board’s current regulations, the Board
has jurisdiction over a request for review of an arbitration decision when and only
when the following conditions are met:
(1) the subject matter of the grievance is one over which the Board
has jurisdiction;
(2) the appellant either
(a) raised a claim of discrimination under 5 U.S.C. § 2302(b)(1)
with the arbitrator in connection with the underlying action, or
(b) raises a claim of discrimination in connection with the
underlying action under 5 U.S.C. § 2302(b)(1) for the first time
with the Board if such allegations could not be raised in the
negotiated grievance procedure; and
(3) a final decision has been issued.
3
Jones v. Department of Energy, 120 M.S.P.R. 480, ¶ 8 (2013), aff’d, 589 F. App’x
972 (Fed. Cir. 2014); 5 C.F.R. § 1201.155(a)(1), (c). These regulations went into
effect on November 13, 2012, and therefore apply to the appellant’s request for
review, which was filed after that date. Jones, 120 M.S.P.R. 480, ¶ 10 n.5;
77 Fed. Reg. 62350, 62360 (Oct. 12, 2012).
¶5 Here, conditions (1) and (3) are satisfied. As to condition (2), the record
reflects that the appellant did not raise a claim of discrimination before the
arbitrator. RFR File, Tab 1, Ex. A. Hence, whether condition (2) is satisfied
turns on whether the appellant could have raised his discrimination claim in the
negotiated grievance procedure. We take official notice that employees in the
appellant’s bargaining unit may grieve allegations of discrimination pursuant to
Article 47 of the National Collective Bargaining Agreement (CBA) between U.S.
Customs and Border Protection and the National Treasury Employees Union. See
5 C.F.R. § 1201.64 (providing that the Board may take official notice of matters
that can be verified). 2 Because the appellant could have raised his discrimination
claim before the arbitrator, but did not, condition (2) is not satisfied, and the
Board therefore lacks jurisdiction over his request for review. 3
2
The original CBA, which went into effect on May 11, 2011, is available at
http://www.nteu164.org/Site%20Documents/Contract%20Information/20110511_CBP-
NTEU%20Contract.pdf. The current version, as revised in October 2013, is available
at
http://www.nteu164.org/Site%20Documents/Contract%20Information/20131001_Revise
d.pdf (last visited June 29, 2016). The revised CBA incorporates changes to Article 47
made pursuant to an April 1, 2013 Memorandum of Understanding, which is available
at
http://www.nteu164.org/Site%20Documents/Contract%20Information/20130401_Articl
e%2047%20EEO%20MOU.pdf (last visited June 29, 2016). These changes do not
affect the outcome of this case.
3
Having determined that the Board lacks jurisdiction, we do not address the apparent
untimeliness of the appellant’s request for review.
4
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm. Additional information is
available at the court’s website, www.cafc.uscourts.gov. Of particular relevance
is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained
within the court’s Rules of Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
5
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.