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 Junction City, Kansas, for petitioners. 

JANE WALLACE VANNEMAN, Senior Counsel, Commercial Litigation Branch, Civil Division, United States 

Department of Justice, of Washington, DC, for respondent. With her was MELISSA M. DEVINE, Attorney. 

______________________ 
2 DELEON v. ARMY

Before RADER, Chief Judge, DYK and WALLACH, Circuit 

Judges. 

WALLACH, Circuit Judge. 

O R D E R

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 nonappropriated 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 removal 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 negotiated grievance procedure in accordance with this 

section, [5 U.S.C. § 7703] pertaining to judicial review 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 review 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 negotiated 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 procedures.” 

Even assuming petitioners are covered by that sentence, 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 grievance 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 “applicable appellate procedure” from which DeLeon and Williams 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); Nieuwdorp 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 procedures, 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