# United States **Court of Appeals** 
**for the Federal Circuit**

______________________

JESUS H. DELEON AND CHERYL WILLIAMS, Petitioners,

v.

DEPARTMENT OF THE AR MY, Respondent.

______________________

2013

- 3129

______________________

Petit ion for review of an arbitrator’ s decision in FMCS

No. 12

- 57178

- 7 by James L. Reynolds.

______________________

ON MOTION

______________________

P ETER C HARLES R OMBOLD , Hoover Law Firm, of Jun ction City, Kansas, for petitioners.

J ANE W ALLACE V ANNEMAN , Senior Counsel, Comme rcial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respon dent. With her was M ELISSA M. D EVINE , Attorney.

______________________DELEON v. ARMY 2

Before R ADER

, Chief Judge, D YK and W ALLACH

, Circuit Judges

.
W ALLACH

, Circuit Judge

.
O R D E R

The Department of the Army moves to dismiss this petition for lack of jurisdiction. Jesus H. DeL eon 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 instrumentalit y (NAFI), and

DeL eon and Williams were paid through non

appropriated funds. Subsequently, DeL eon 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 r emoval penalties. DeL eon and Williams filed this petition seeking review of the arbitrator’s decision.

Our jurisdiction over arbitrators’ decisions is n arrowly circumscribed by statute:

In matters covered under [5 U .S.C. §§ 4303 and 7512] which have been raised under the negotia ted grievance procedure in accordance with this section, [5 U .S.C. § 7703] pertaining to judicial r eview 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 emp loyee has raised under the negotiated grievance procedure, j udicial r eview of an arbitrator’s award may be obtained inDELEON 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 procedur es.

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 action s to the Merit Systems Protection Bo ard (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). DeL eon 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 neg otiated 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 proc edures.”

Even assuming petitioners are covered by that se ntence, however, it does not avail them. Section 7121 “is

not an affirmative grant of the remedies specified els e-

* 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 e mployees,” McAuliffe v. Rice , 966 F.2d 979, 980 (5th Cir. 1992).DELEON v. ARMY 4

where

. . . . Rather, it merely allows an employee to choose the statutory route in lieu of the negotiated grie vance route when the former is otherwise available.”

Perez

, 680 F.2d at 789. As NAFI employe es, DeLeon an d

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 “appl icable appellate p rocedure” from which DeL eon and Wi lliams could have sought judicial review under § 7121(f)

. Cf. Bonner v. Dep’t of Vet eran s 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); Nie uwdorp 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 proc edures, 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,

I T I S O RDERED T HAT :

(1) The petition is dismissed.

(2 ) Each side shall bear its own costs.

F OR THE C OURT

February 24 , 2014 /s/ Daniel E. O’Toole

Date Daniel E. O’Toole
Clerk of Court