s001855.2

Office of the General Counsel

Date: June 16, 1999
Matter of: [xxx]
File Number: S001855.2

OPM Contact: Murray M. Meeker

Prior to the termination of his temporary appointment on January 20, 1998, the claimant was employed as a Police Officer at the [agency]. After his temporary appointment expired, the former employee filed a claim with the Office of Personnel Management (OPM). On December 16, 1998, OPM dismissed the claim for lack of jurisdiction because the claimant had been covered by a negotiated grievance procedure in a collective bargaining agreement. See 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).

Subsequent to OPM's dismissal of the former employee's claim, the claimant's representative asserted that her client's claim had been erroneously dismissed. In support of this assertion, the claimant's representative provided OPM with a memorandum from the Fraternal Order of Police which stated that as a temporary employee, the claimant had not been covered by the negotiated agreement. However, the provision of the agreement that the Fraternal Order of Police relied on in its memorandum is inapposite. Rather than excluding temporary employees from coverage, the provision cited in the memorandum expressly excludes certain issues from the negotiated grievance procedure, including the termination of temporary employees.

It is, therefore, necessary to explain that while the claimant was precluded from contesting his termination under the negotiated grievance procedure, OPM still lacks jurisdiction to review his claim. OPM's authority to settle compensation and leave claims is limited to claims that are not assigned by statute to some other authority. 31 U.S.C. 3702(a). A challenge to the lawfulness of a separation based on the expiration of a temporary appointment is a matter which the Merit Systems Protection Board (MSPB) is authorized by statute to review. 5 U.S.C. 7513(d). See Horner v. Lucas, 832 F.2d 596 (Fed. Cir. 1987); Irene Sengstack, B-212085, December 6, 1983 (review of an employee's separation from a temporary position was a matter for review by the MSPB's predecessor, the Civil Service Commission's Federal Employee Appeals Authority); and Marjorie E. Olsen, B-209954, June 7, 1983. See also Forest v. MSPB, 47 F.3d 409 (Fed. Cir. 1995). Accordingly, the claim is denied for lack of jurisdiction.

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.