Schafer v. Department of Interior

• Decision Date: 27 June 1996
• Docket Number: No. 95-3489,95-3489
• Citation: 88 F.3d 981
• Parties: 110 Ed. Law Rep. 999 David K. SCHAFER, Petitioner, v. DEPARTMENT OF The INTERIOR, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

Page 981

88 F.3d 981

110 Ed. Law Rep. 999

David K. SCHAFER, Petitioner, v. DEPARTMENT OF The INTERIOR, Respondent.

No. 95-3489.

United States Court of Appeals Federal Circuit.

June 27, 1996.

Edward H. Passman, Passman & Kaplan, P.C., Washington, D.C., argued for petitioner. With him on the brief was Kristin D. Alden.

Laurel A. Loomis, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, Washington, D.C., argued for respondent. With her on the brief were Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director, and Joseph A. Kijewski, Assistant Director.

Before PLAGER, Circuit Judge, SMITH, Senior Circuit Judge, and SCHALL, Circuit Judge.

SCHALL, Circuit Judge.

David K. Schafer petitions for review of the March 29, 1995 award of the arbitrator in FMCS File No. 94-24457. In his award, the arbitrator ruled that the failure of the Department of the Interior, Bureau of Indian Affairs (the "agency"), to renew Schafer's contract as an elementary school teacher was not arbitrable. We dismiss the appeal for lack of jurisdiction.

BACKGROUND

The facts are not in dispute. Schafer was employed with the agency as an educator for nine years. During the 1993-1994 school-year, he served as a contract elementary school teacher at the Zia Day School on the Zia Pueblo Indian Reservation in New Mexico. His 1993-1994 school-year contract (the "1993-1994 contract"), executed in June of 1993, provided for employment from August 17, 1993, to June 3, 1994. The contract stated that "[f]ailure to renew this contract does not constitute termination for cause or for other reasons." ¹ The contract further stated that "[t]his contract may be terminated by the school prior to its expiration date in accordance with the rules and regulations of the Office of Indian Education Programs as set forth in 62 BIAM."

Schafer's employment also was governed by the terms of the Joint Negotiated Agreement (the "JNA") between the agency's Albuquerque and Navajo Areas and the National Council of Bureau of Indian Affairs Educators (the "union"). The JNA provides a three-step process for the resolution of educator, union, and management grievances. The JNA also provides that if a party is not satisfied with the outcome of the grievance process, the union or the employer may invoke arbitration, and the agreement sets forth rules governing the arbitration process.

The record reveals that on March 8, 1994, Schafer "was agitated and irritable ..., and [verbally] took his frustrations out on his students." ² Although Schafer apologized to the students the next day, several parents complained about him to Rosalie Niebes, the Zia Day School's principal. Thereafter, Ms. Niebes spoke with Schafer and interviewed several of his students about what had happened on March 8.

On March 14, the Zia Pueblo School Board held a special meeting. At the meeting, Ms. Niebes described her discussions with parents of Schafer's students and with Schafer, as well as her interviews of the students. After hearing from Ms. Niebes and discussing the matter, the school board instructed Ms. Niebes to tell Schafer not to return to the school. Two days later, the governor of the Zia Pueblo wrote the agency, stating that the Zia Pueblo did not want Schafer "to ever set foot on Zia Pueblo soil again."

Schafer was assigned to an administrative position outside of the Zia Pueblo, where he worked and received full pay until his 1993-1994 contract expired on June 3, 1994. On March 30, 1994, he was formally notified by Ms. Niebes that his contract would not be renewed for the 1994-1995 school year. The notice informed Schafer of his right to request an informal hearing before the Zia Day School Board. Following such a hearing, the school board voted to adhere to its prior decision not to renew Schafer's contract. Schafer was informed of the decision on May 11. During this period, Schafer was also unsuccessful in appealing the nonrenewal of his contract within the agency.

On June 13, 1994, Schafer's union representative sent a memorandum to Ms. Niebes grieving the nonrenewal of Schafer's contract. In the memorandum, the representative Invoking the arbitration provisions of the JNA, Schafer requested and received a hearing before an arbitrator. Before the arbitrator, the agency argued that Schafer's complaint was a claim of contract nonrenewal and that such a claim was not a "grievance" that was arbitrable under the JNA. The agency asserted that, through the appeal efforts just described, Schafer already had pursued all the remedies available to him to challenge the nonrenewal of his contract. In response, Schafer contended that contract nonrenewal is within the JNA's definition of "grievance" and that his complaint thus was grievable under the JNA. Alternatively, he argued that the agency's action was not a "nonrenewal" of his contract, but was arbitrable as a removal for cause.

                asserted that the school board's action was "purely" due to Schafer's union activities, and that Schafer had not been afforded due process.  Ms. Niebes responded, however, that the administrative review process in the matter had been completed.  On June 24, the agency issued Schafer an official "Notification of Personnel Action."   The notification stated that the nature of the action being taken by the agency was "TERMINATION-INVOLUNTARY," effective June 3, and that the "reason for termination" was that the "school board [had] recommended non-contract renewal."   On July 15, the agency's acting superintendent for education, in a letter to Schafer's union representative, confirmed that the administrative review process in the case had been completed, and stated that the matter was non-grievable
                

The arbitrator noted that, under the JNA, he had "the authority to resolve any questions of arbitrability." After setting forth the terms of Schafer's 1993-1994 contract, the BIAM, the JNA, and the pertinent facts, the arbitrator determined that Schafer was attempting to arbitrate a contract nonrenewal. Consequently, the arbitrator held that Schafer's complaint was not arbitrable because it was not within the JNA's definition of "grievance." The JNA defines "grievance" as "any complaint [ (i) ] by any Educator concerning any matter relating to his/her employment, [or (ii) ] by any Educator, the Union, or Management, concerning the effect of interpretation, or a claim of breach, of the collective bargaining agreement, or any claimed violation, misinterpretation, or misapplication of any law, rule or regulation affecting conditions of employment." Schafer appeals to this court the arbitrator's decision that his complaint is not arbitrable.

DISCUSSION

I.

Schafer and the agency both take the position that we have jurisdiction to review the arbitrator's award. Jurisdiction, however, "cannot be conferred on this court by waiver or acquiescence." In re Alappat, 33 F.3d 1526, 1530 (Fed.Cir.1994) (in banc). We must determine, in each case, whether we have jurisdiction over an appeal. We, of course, "have inherent jurisdiction to determine the scope of our jurisdiction." Haines v. Merit Sys. Protection Bd., 44 F.3d 998, 999 (Fed.Cir.1995).

The statutory provision governing judicial review of an arbitrator's award is 5 U.S.C. § 7121(f) (1994). It states as follows:

In matters covered under sections 4303 and 7512 of [title 5 of the United States Code] which have been raised under the negotiated grievance procedures in accordance with this section, section 7703 of [title 5] 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 sections 4303 and 7512 of [title 5] 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 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).

We note at the outset that, under the terms of the statute, the scope of our jurisdiction to review an arbitrator's award is narrower than the scope of our jurisdiction to review a decision of the Merit Systems In order for us to determine whether we have jurisdiction over Schafer's appeal, we must decide whether, in the words of § 7121(f), Schafer's case involves a "matter[ ] covered" under 5 U.S.C. § 4303 or 5 U.S.C. § 7512. Section 4303 covers reductions in grade and removals for unacceptable performance. Section 7512 covers enumerated adverse actions, including removals. Schafer does not suggest that he was removed for unacceptable performance. Thus, in determining our jurisdiction, we need only decide whether Schafer was "removed" under § 7512.

Protection Board. Section 7703 of title 5 provides that "[a]ny employee ... adversely affected or aggrieved by a final order or decision of the Merit Systems Protection Board may obtain judicial review of the order or decision." 5 U.S.C. § 7703(a)(1) (1994). The statute further provides that, except in the case of discrimination claims, "a petition to review a final order or final decision of the Board shall be filed in the United States Court of Appeals for the Federal Circuit." 5 U.S.C. § 7703(b)(1). In short, we have broad jurisdiction over Board decisions. 5 U.S.C. § 7121(f), on the other hand, grants us a narrower jurisdiction in the case of arbitrators' awards. We may review an arbitrator's award only if the matter appealed is one "covered under" 5 U.S.C. § 4303 (1994) or 5 U.S.C. § 7512 (1994). In short, we do not have jurisdiction over all cases in which an employee is adversely affected by an arbitrator's award in the same manner that we generally do in the case of a final order or decision of the Merit Systems Protection Board.

Schafer contends...