Washington, DC

U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code

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Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance


09/29/2015

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Date

The claimant seeks severance pay in the amount of $37,380, in connection with the termination of his employment with the Ohio Air National Guard (ANG), at Rickenbacker Air Force Base, Ohio, on May 13, 2013.[1]  We received the claim on December 2, 2014, forwarded on the claimant’s behalf by an Ohio ANG letter dated November 12, 2014, and information from his former employing agency at our request on December 3, 2014.  For the reasons discussed herein, the claim is denied.

Section 7121(a)(1) of title 5, U. S.C., directs that except as provided elsewhere in the statute, the grievance procedures in a negotiated collective bargaining agreement (CBA) shall be the exclusive administrative remedy for resolving matters that fall within the coverage of the CBA.  The Court of Appeals for the Federal Circuit has found the plain language of 5 U.S.C.§ 7121(a)(1) to be clear, and as such, limits the administrative resolution of a Federal employee’s grievance to the negotiated procedures set forth in the CBA.  Mudge v. United States, 308 F.3d 1220, 1228 (Fed. Cir. 2002).  Further, the Federal Circuit also found that all matters not specifically excluded from the grievance process by the CBA fall within the coverage of the CBA.  Id. at 1231.  As such, OPM cannot assert jurisdiction over the compensation or leave claims of Federal employees who are or were subject to a negotiated grievance procedure (NGP) under a CBA between the employee’s agency and labor union for any time during the claim period, unless the matter is or was specifically excluded from the CBA’s NGP.  See 5 CFR 178.101(b).

The CBA between The Adjutant General of Ohio and The American Federation of Government Employees, Local 3970, covering the claimant during the period of the claim, does not specifically exclude compensation issues from the NGP (Article XVI).  Therefore, this claim must be construed as covered by the NGP the claimant was subject to during the claim period.  As is clear in Muniz v. United States, 972 F.2d 1304 (Fed. Cir. 1992), the fact that the claimant is no longer employed by the Ohio ANG does not remove the Civil Service Reform Act’s jurisdictional bar for claims covered by the CBA arbitration and grievance procedures that arose during and from his employment with the Ohio ANG.  Therefore, OPM has no jurisdiction to adjudicate this claim.

Although presented as a request for severance pay, this claim is more properly construed as a dispute as to whether the claimant was terminated under circumstances which provided for his receipt of severance pay.  In this regard, the record contains a copy of a July 21, 2014, letter from the claimant’s representative to the agency asserting the ANG was “equitably estopped from taking the position that [the claimant’s] reenlistment was denied for disciplinary reasons,” which determination formed the basis of the agency’s subsequent denial of severance pay.  However, the claims jurisdiction authority of OPM under 31 U.S.C. 3702(a)(2) is limited to consideration of whether the applicable statutes and regulations have been properly interpreted and applied in determining whether monies are owed for the stated claim.  OPM is without authority to settle claims on the basis of equitable or moral consideration (See B-141281, February 5, 1960, and OPM file number 10-0010, March 12, 2010) or determine whether the agency’s termination action was accomplished using the correct termination authority.  See OPM file number 07-0052, December 22, 2008.  Therefore, OPM does not have authority to consider or assert jurisdiction on this matter. 

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.

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