Office of the General Counsel

Date: January 9, 1998
Matter of: [xxx]
File Number: s9701093.1

OPM Contact: Murray M. Meeker

By letter dated November 4, 1997, a former employee of the [agency], requested that the Office of Personnel Management (OPM) reconsider its decision dated October 29, 1997, in which OPM determined that the former employee had been subject to a negotiated grievance procedure under a collective bargaining agreement, and that as a consequence, OPM lacked jurisdiction to review his claims.

In correspondence dated September 24, 1997, the former employee described two claims. In his first claim, the former employee alleged that in 1991, he was "supposed to have" received a career conditional appointment rather than a term appointment with the [agency's] Area Office, and that as a result of this error, he was entitled to missing back pay and benefits, including Thrift Savings Plan and other retirement benefits.

By letter dated January 5, 1998, [agency's] Area Office reported that when the former employee received his term appointment on June 2, 1991, he was subject to a negotiated grievance procedure under a collective bargaining agreement. In accordance with this information, OPM confirms its prior determination that it lacks authority to review the former employee's first claim.

In his second claim, the former employee complained that during the period when he had been employed by the Indian Agency in 1994 and 1995, he had been erroneously denied step increases, and that while the [agency] had subsequently granted the increases to him, he had never been fully compensated.

OPM was initially advised by [agency's] Area Office that the former employee had been subject to a negotiated grievance procedure during the period of his employment at the [agency]. However, on December 23, 1997, the [agency's] Area Office provided OPM with an Administrative Report in which it expressed regret that it had misadvised OPM concerning the former employee's membership in a collective bargaining unit during this period.

Although the [agency's] Area Office acknowledged that the former employee had not been subject to a collective bargaining agreement at that time, the [agency's] Area Office denied the former employee's claim that he was entitled to additional benefits and back pay. As explained in the Administrative Report, on January 27, 1994, the former employee was notified by the Acting District Officer that he was postponing the former employee's within-grade increase (WGI) from GS-9, step 1, to GS-9, step 2, but that if the former employee's performance improved by April 3, 1994, the WGI would be granted.

On April 5, 1994, the former employee's immediate supervisor certified that the former employee's performance was not at an acceptable level of competence. However, during the former employee's scheduled review in July 1994, his immediate supervisor determined that the claimant's performance was fully successful. The Administrative Report continues that in accordance with the supervisor's determination, on July 11, 1995, and August 14, 1997, [agency] took all of the necessary corrective actions.

Accordingly, former employee's second claim has been mooted. A claim is rendered moot where relief has been granted that completely and irrevocably eradicates the effects of the alleged violation. See County of Los Angeles v. Davis, 440 U.S. 625, 631-632 (1979); DeFunis v. Odegaard, 416 U.S. 312, 316 (1974); and Indiana Employment Security Division v. Burney, 409 U.S. 540 (1973).