Office of the General Counsel

Date: July 29, 1998
Matter of: [xxx]
File Number: S001646

OPM Contact: Murray M. Meeker

The claimant, a contract specialist with the [xxx] avers that as a result of an administrative error, his promotion from grade GS-9 to grade GS-11 was delayed by approximately six weeks. The claimant requests a retroactive promotion with back pay.

The Civilian Personnel Advisory Center (CPAC) at the [xxx] District has advised the Office of Personnel Management (OPM) that during the period covered by the claim, the claimant was subject to a negotiated grievance procedure under a collective bargaining agreement, and that the claim is not excluded from the agreement's negotiated grievance procedure.

OPM cannot take jurisdiction over a claim that is or was subject to a negotiated grievance procedure under a collective bargaining agreement unless that matter is or was specifically excluded from the agreement's grievance procedure.

The courts have found that Congress intended that such a grievance procedure is to be the exclusive remedy for matters not excluded from the grievance process. Carter v. Gibbs, 909 F.2d 1425, 1453 (Fed. Cir. 1990) (en banc) (In enacting 5 U.S.C.  7121(a), Congress intended that the negotiated grievance procedure was to be the exclusive remedy for matters not excluded from the grievance process), cert. denied, 498 U.S. 811 (1990). Accord, Harris v. United States, 841 F.2d 1097 (Fed. Cir. 1988); Cecil E. Riggs et al., B-222962.3, April 23, 1992.

This settlement is final. No further administrative review is available within OPM. Nothing in this settlement limits the claimant's right to bring an action in an appropriate United States Court.