*2 griеvance SMITH, outcome of the with the PLAGER, Judge, satisfied Circuit Before may in- employer the union or the process, SCHALL, Circuit Judge, and Circuit Senior arbitration, agreement and the sets voke Judge. process. governing the arbitration forth rules *3 8, 1994, SCHALL, Judge. that on March record reveals Circuit ..., agitated and “was and irritable Schafer of for review petitions K. David Schafer on his [verbally] took his frustrations out in 29,1995 of the arbitrator award March the apologized to Although Schafer students.”2 award, the In his 94-24457. File No. FMCS parents day, the next several the students De- of the that the failure ruled Niebes, arbitrator the cоmplained about him to Rosalie Interior, Thereafter, Bureau Indian of of the Ms. partment Day principal. Zia School’s (the spoke renew Schafer’s interviewed “agency”), to Niebes Schafer and Affairs hap- had students about what several of his elementary teacher was school as an contract pened on March 8. for the dismiss arbitrable. We not jurisdiction. lack of 14, Board Zia Pueblo School the On March meeting, Ms. meeting. At the special
held par- her discussions with Niebes described BACKGROUND Schafer, and with of students ents Schafer’s of the students. as her interviews as well was disputе. Schafer are not The facts hearing Ms. Niebes and discuss- After from agency as an educator employed with the matter, board instructed ing the the school During 1998-1994 school- years. the nine tell not to return Ms. Schafer Niebes elementary as a contract year, he served later, days governor of Two the the school. Day on the Zia School at the school teacher stating agency, that Pueblo wrote the the Zia Mexi- in New Reservation Zia Pueblo Indian “to ever did not want the Zia Pueblo Schafer (the school-year contract His 1993-1994 co. again.” Zia Pueblo soil set foot on contract”), in June executed “1993-1994 August employment assigned from to an administrative provided for was Schafer Pueblo, Zia where he of the position outside 17, 1993, The contract 1994. to June 1993- pay full until his received worked and this contract to renew “[f]ailure stated that on 1994. On expired June 1994 contract for cause or termination not constitute does formally by notified he was March further The contract for other reasons.”1 not be his contract would Ms. Niebes contract be terminat- “[t]his stated year. The 1994—1995 school renewed expiration date prior its by ed the school right to re- Schafer his notice informed regulations the rules in accordance with Day Zia hearing before the informal quest an Programs Education of Indian of the Office hearing, the Following such a Board. School in BIAM.” as set forth prior to its voted adhere school board contract. to renew Schafer’s not decision governed employment also was Schafer’s May on informed decision Schafer was Agree- Negotiated the Joint by the terms of also was During period, Schafer 11. “JNA”) (the agency’s Al- the between ment appealing nonrenewal the unsuccessful Na- Navajo and the Areas buquerque and agency. within the his contract Affairs of Indian of Bureau tional Council “union”). (the provides The JNA repre- Educators union Schafer’s On June three-step process for the resolution Niebes to Ms. a memorandum sent sentative con- union, educator, management grievances. nonrenewal grieving the memorandum, representa- not tract. party if a provides The JNA also physically alleged (“BIAM”) not been Schafer It has Affairs Manual Bureau of Indian 1. The any of a of the contract of his students. provides that nonrenewal mistreated agency educаtor employed as an person dis- discharge and will not follow "is (1994). 38.8(k) charge procedures.” 25 C.F.R. breach, tive asserted that the school board’s action interpretation, effect of or a claim of “purely” was due to Schafer’s union activi- of bargaining agreement, the collective or ties, violation, and that Schafer had not been any afforded misinterpretation, claimed or process. responded, due Ms. Niebes law, howev- misapplication any regulation rule or er, process that the administrative review affecting employment.” conditions of Schaf- completed. the matter had been On June appeals er to this court the arbitrator’s deci- agency issued Schafer an official “Notifi- sion that his is not arbitrable. cation of Personnel Action.” The notification being
stated that the nature of the action DISCUSSION agency taken was “TERMINATION- *4 I. INVOLUNTARY,” effective June and that agency Schafer and the both take the “reason for termination” was that the position the that we have to re “school board [had] recommended non-con- Jurisdiction, view the arbitrator’s award. July tract renewal.” On agency’s the however, “cannot be conferred on education, this court acting superintendent for in a let- acquiescence.” waiver or Alappat, In re representative, ter to union Schafer’s con- (Fed.Cir.1994) (in banc). process firmed that the administrative review determine, case, We must in each whether completed, the case had been and stated We, we have appeal. over an non-grievable. the matter was course, “have inherent to deter Invoking provisions the arbitration scope jurisdiction.” mine the of our Haines JNA, requested Schafer and received hear- Sys. Bd., v. Merit Protection F.3d ing before an arbitrator. Before the arbitra- (Fed.Cir.1995). tor, agency argued the that Schafer’s com- statutory provision The governing judicial plaint was a claim of contract nonrenewal review of an arbitrator’s award is 5 U.S.C. and that “grievance” such a claim was not a 7121(f) (1994). § It states as follows: that was arbitrable under the JNA. The In that, matters covered under agency sections 4303 through asserted the ef- and 7512 of just described, [title 5 of the forts United States already pur- Schafer had Code] which have been raised sued the under the all remedies him available to to negotiated grievance procedures challenge the nonrenewal accor- of his In contract. section, dance with response, this section 7703 of Schafer contended that contract pertaining judicial [title 5] to nonrenewal is review shall within the JNA’s definition of apply to “grievance” the award of an arbitrator in the complaint and that his thus was same manner grievable and under the under same condi- Alternatively, the JNA. he tions as if the matter had argued agency’s been the decided action was not a Systems [Merit the contract, Protection] “nonrenewal” of Board. In his but was arbi- matters similar to trable those covered as removal for under cause. sections 4303 and 7512 of [title which 5] that, JNA, The arbitrator noted under the personnel systems arise under other authority he had any “the ques- resolve aggrieved which an employee has raised arbitrability.” tions of setting After forth negotiated grievance under the procedure, contract, the terms of Schafer’s 1993-1994 judicial review of an arbitrator’s award BIAM, JNA, facts, the pertinent the and the may be obtained in the same manner and the arbitrator determined that Schafer was on the same basis as сould be obtained of a attempting to arbitrate a contract nonrenew- final decision such matters raised under al. Consequently, the arbitrator held that applicable appellate procedures. complaint Schafer’s was not arbitrable be- 7121(f). § 5 U.S.C. it cause was not within the JNA’s definition “grievance.” The JNA “griev- defines that, We note at the outset under the (i) “any ance” as by any statute, [ ] Edu- terms of scope juris the of our cator concerning any relating diction to review an arbitrator’s his/ award is (ii) employment, her by any Educator, [or ] scope narrower than the of our Union, Management, or concerning the to review a decision Systems of the Merit employee. employed as contract His 7703 of title 5 con- Board. Section Protection adversely one-year, expiring at the “[a]ny employee ... tract was for end provides (June 1994). year or The by a final order de- the school contract aggrieved or affected Board Systems provided Protection that “failure renew contract Merit cision of the the order or or judicial review of termination cause may does constitute obtain 7703(a)(1) (1994). § It for other is uneontеsted that 5 U.S.C. reasons.” decision.” that, except in the employed by agency provides further remained statute Schafer claims, “a petition expired, re- of discrimination until his contract he case final final decision of the expiration order or review a full until the contract pay ceived in the United States shall be filed Significantly, nothing Board in the contract date. for the Federal Circuit.” Appeals obligated agency Court to renew em- Schafer’s 7703(b)(1). short, we have employment ployment. U.S.C. also was Schafer’s over Board decisions. points broad governed by the Schafer JNA. hand, 7121(f), grants on the other obligated U.S.C. nothing in the JNA arbi- jurisdiction in the case us a narrower agency to his contract. Neither does renew arbitra- We review an trators’ awards. provide that the failure to the JNA renew one appealed if matter tor’s award Fi- as is a removal. contract such *5 § or 5 4303 under” 5 U.S.C. “covered above, governing nally, regulation a as seen (1994). short, not In do § we 7512 U.S.C. by agency personnel employed the education an all cases in which jurisdiction over have of an educator’s provides that nonrenewal by adversely affected arbitra- an employee is discharge will not follow contract “is not manner that we in the same tor’s award discharge procedures.” 25 C.F.R. the or case of a final order do in the generally 38.8(k) (1994). § Systems Protection Merit of the decision asserts, though, a that he had Schafer Board. right employment in continued property whether for to determine order us In procedur agency give to rise to the sufficient appeal, jurisdiction over Schafer’s we have Due process protection under the Pro al due whether, in the words of we decide must of the Fifth Amendment. cess Clause 7121(f), “matter[ ] involves a § case Schafer’s however, Supreme explained, has that Court § 4303 or 5 U.S.C. under 5 U.S.C. covered” an employment an contract between when § 4303 covers reductions 7512. Section entity government specifical and a individual unacceptable perfor for grade removals employment end on a ly provides will that enumerated ad 7512 covers mance. Section date, for provision no and makes certain actions, including Schafer removals. verse renewal, prop a person seeking to show the for he was suggest that removed doеs not proce to give to rise erty interest sufficient Thus, in deter unacceptable performance. process protection must demon due dural only need decide mining jurisdiction, we our contract, beyond something the that strate “removed” under was whether Schafer rule, statute, policy, or secures e.g., a § 7512. re-employment or creates person’s interest re-employment. Board legitimate to a claim agency’s nonre- contends that the Schafer Roth, 564, 92 S.Ct. Regents v. 408 U.S. actually was “removal of his contract newal (1972); Perry v. 2701, 33 Sin L.Ed.2d argument, he maMng for cause.” dermаnn, 92 S.Ct. U.S. actions March that “but for” his on asserts (1972). to pointed has Schafer L.Ed.2d 570 by employed still would be he his beyond contract that secured nothing his to the directs our attention agency. He also or re-employment agency with the interest personnel action notification of fact that re-employ legitimate claim to that created a agency from the contained he received ment. “TERMINATION-INVOLUN- words TARY.” JNA, contract, Thus, Schafer’s neither Fifth Due Process Clause an nor the necessarily begins with analysis
Our a basis Schafer with provided Amendment the framework within examination employ- to claiming legal entitlement was employment existed. Schafer agency argues cogency after June 1994. The dissent with some ment with the to the end of his contract’s explanation worked a more correct be that Schafer would we term, simply contract not and then his was subject have over Schaf- successfully argue cannot renewed. Schafer appeal, er’s but that he fails to state a claim employment that he was “removed” from is, may granted, on which relief be he legal right no that he did not hold and had allege facts that he fails show was “re- Thus, law, hold. as mattеr of he was not moved.” agency employment “removed” from under
§ This conclusion is not altered general proposition agree As a we may of March have- fact that the events subject with the dissent that in those areas in precipitated the non-renewal of Schafer’s jurisdiction, which we have established contract. Neither is it altered the fact particular appellant allege the failure of a personnel action the notification appellant facts sufficient to entitle the Schafer received on June 1994 recited relief, proven, if the facts are failure being separated involuntari- that Schafer was granted. state a claim on which relief be ly. go Such a failure does not to this court’s over the matter of the consequence of Thé the conclusion However, instance, particular cause. in this posi from that Schafer was removed his juris because we do not have an established lack tion is over the award, diction over the arbitral and the case appeal. merits of his The reason is that 5 special provisions comes to us under the 7121(f) jurisdictional is our “sole U.S.C. statute, unique jurisdiction-grаnting of a grant for review of an arbitrator’s award.” 7121(f), allege we deem Schafer’s failure to Service, Burke v. United States Postal *6 a removal which would be covered under (Fed.Cir.1989). 833, regard,, F.2d 834 In that § go subject-matter 7512 to to the issue of 7121(f) discussed, already as section refers to matter, jurisdiction. practical As a in this §§ covered” 5 “matters under U.S.C. 4303 particular appear case the outcome would to 7512, any neither of which refer makes analysis. be the same under either short, ence to contract In nonrenewals. be agency’s cause the action was not a “remov аl,” 7121(f), § this ease is outside the reach of II. only through statute which we exer court, appeal appealing
cise over an of an addition to to this arbitra Accordingly, sought challenge tor’s award.3 Schafer to we hold the arbitrator’s adjudicate do not have to award before the Federal Labor Relations (“FLRA”).4 appeal. Authority merits of Schafer’s In his brief before us trae, out, points Congress "relating appoint- 3. It is as Schafer the United States Code ment, to the 7511(a) bring § amended 5 U.S.C. in 1990 promotion to and removal of civil service service, excepted certain individuals in the in- employees.” Improving See America’s Schools cluding employed by teachers the Bureau of Indi- 1994, 103-382, 1132(a)(1), § Act of Pub.L. No. Affairs, “employee" within definition of (n), (1994) (codified 108 Stat. 4008 purposes chapter for the of of title 75 5. Civil 2012(a)(1), (n) (1994)). § at 25 U.S.C. 1990, Service Due Process Amendments of P.L. 101-376, (1990); H.R.Rep. 104 Stat. 461 see No. provides taking 4. Section 10 of the JNA of 328, (1990), Cong., reprinted 2d 101st Sess. 3 exceptions from an arbitrator’s award. It states: 695, (the to, applies 1990 U.S.C.C.A.N. 697 bill Party may judicial A. Either seek review others, among employed by "teachers ... the ... the arbitrator’s decision on matters which Affairs”). legislative Bureau of Indian histо- appealed Systems could have been to the Merit ry Congress explains of the amendment in- days Protection Board within 30 of the issu- proce- tended that the amendment extend certain ance of the rights H.R.Rep. decision. Such review will be dural to such teachers. No. 3-4, sought provisions in accordance with the at 1990 U.S.C.C.A.N. at 697-98. Schafer not, however, point anything [5 Section 7703 of Title does to United States in those indicating Congress Code]. amendments intended Party may exception B. that non-renewals of such Either file an teachers’ contracts be Authority § considered "removals" under 7512. We note the Federal Labor Relations to the that, 1994, Congress provi- any also re-enacted the arbitrator’s award in matter other than excepting sion such teachers from the [A] sections those described in subsection above. Such However, respectfully § 7512. I dis- him U.S.C. FLRA ordered explains that the Schafer majority’s disposition of this sent from the appeal “should not be why his cause to show jurisdiction. for lack of I case as a dismissal to a award relates because the dismissed appellate have conclude we an em- matter, (discharge) of removal to thе extent review the arbitrator’s award jurisdic- lacks ployee, [FLRA] over which claim Mr. Schafer asserts non-frivolous he explains that he moved also tion.” Schafer Upon invoking § “removed” under was pending this appeal FLRA stay of his for a 7121(f), § jurisdiction under 5 U.S.C. our informed us as has not appeal. Schafer concluding Mr. was not “removed” is Schafer stay disposition of his motion. merits. a decision on the (1994), § when 28 U.S.C. Under court and that appeal is filed with “a ever an Regarding Subject Confusion jurisdic want of that there is a court finds Matter Jurisdiction shall, tion, if it is in the interest the court distinguish decisions seek to Our reсent any other appeal ... justice, transfer such lack of between appeal could in which the such court claim, a decision on the and failure state it was filed or brought at the time have been merits, noting among pri our inconsistencies However, assuming could Schafer noticed.” See, Argentinas v. or decisions. Aerolineas FLRA at brought before the have (Fed.Cir. States, 77 F.3d United a transfer it was filed and that the time that States, 1996); v. 67 F.3d Gould Inc. United be in the to the FLRA would of the case (Fed.Cir.1995); Spruill v. Merit 929-30 justice, we do not matters which interest Bd., Sys. Protection 978 F.2d 686-89 decide, case to could not transfer the we still (Fed.Cir.1992); Shop, Do-Well Machine Inc. 1631 em the FLRA under 1631. Section (Fed. States, 639-40 v. United appeals powers us to transfer Cir.1989). commented, We such as the Administrative bodies “courts.” The distinction between lack applicable not included within the FLRA are upon a claim and failure to state 28 U.S.C. of “courts.” See definition granted, important is an one: relief can be (1994) “courts”); v. (defining see also Amos jurisdiction to court must assume “[T]he (hold States, Cl.Ct. United *7 allegations a the state decide whether includ bodies are not ing that administrative court can of action on which the cause under the definition of “courts” ed within as to determine issues grant relief well as 610). short, In transfer of this ease the arising controversy. fact in the Juris- available to us. option FLRA not an that is is diction, therefore, is not defeated might possibility the averments the CONCLUSION action on which a cause of fail state actually recover.” petitioners could reasons, ap- foregoing Schafer’s For the jurisdiction. lack of peal is dismissed for Do-Well, (citing Bell v. F.2d at 639-40 773, 776,
Hood,
678, 682,
66 S.Ct.
327 U.S.
(1946)).
explained,
Spruill,
we
L.Ed. 939
COSTS
practical result of a dismissal
the
“[w]hile
costs.
party
Each
shall bear its own
may in
be the
jurisdiction
some casеs
want of
DISMISSED.
a
for failure
state
same as a dismissal
claim,
consequences
substan-
legal
can be
the
SMITH, Senior Circuit
EDWARD S.
application of res
tially
such as the
different”
dissenting.
concurring
Judge,
and
at 687 n. 10.
judicata. Spruill, 978 F.2d
strangers to the
courts are not
majority’s conclusion
Federal
with the
I concur
juris-
surrounding subject matter
Mr.
agency’s decision not to renew
confusion
that the
merits, espe-
on the
versus a decision
under 5 diction
contract is not a “removal”
remedy shall be
days
decision and
the arbitrator's
exceptions
filed within 30
must be
in accordance with
issuance of the decision
Authority procedures.
effected.
filed,
exception
is
If no
jurisdiction
jurisdiction
daily
question
where
In order to invoke federal
“for
federal
through
raging
purposes
determining
a
sea of con-
the
navigate
[the
courts
whether
plaintiff]
recently
stated a cause of action on which
Circuit
com-
fusion. The Second
granted,”
complaint
mented,
relief could be
(1)
must fulfill
two criteria:
it must
jurists
struggled
have
Generations of
right
“claim a
to recover under the Consti-
difficulty
distinguishing between
States,”
tution and the laws of the United
12(b)(1)
jurisdiction]
Rules
[lack
(2)
“wholly
claim
must
be
12(b)(6)
to state a
in federal
[failure
claim]
insubstаntial and frivolous.”
cases,
by Judge
question
Friend-
described
ly
taught
as a
has been
as
[that]
“lesson
(9th
Roberts,
1295, 1298
Keniston v.
717 F.2d
ignored
as it has been
in
often
decision
Cir.1983) (quoting Jackson Transit Authori
argument and dicta.”
1285,
15, 21,
ty v. Local Division
457 U.S.
2202, 2206,
Fund,
102 S.Ct.
989 (Sum- (Fed.Cir.1994) claims, States, stantiality of constitutional those 17 F.3d import “it is appropriate where words that claims are constitution- mary disposition identify any only complaint ally prior did if thе [the] clear insubstantial decisions right, upon frivolous; founded either inescapably render the claims substantive Constitution, money mandating statute or the previous merely decisions that render claim.”); for might [the] form the basis questionable or claims doubtful merit do (“[S]ubjeet-matter at 688 Spruill, 978 F.2d not render them insubstantial. long peti- as the
jurisdiction
... as
existed
Lavine,
528, 536-38,
Hagans v.
U.S.
claims.”);
nonfrivolous
tioner
asserted
1372, 1378-80,
Mr. Schafer
FLRA, subsequently filed a motion but
stay FLRA him to after ordered why it should not dismiss the
show cause significant that FLRA issued
appeal. It is appeared it to be “re
the order because the Federal Circuit’s exclusive
moval” within jurisdiction.1 appellate Mr. Schafer claims DATA GRUMMAN SYSTEMS was, fact, contract non-renewal “re his CORPORATION, contract would moval for cause” because his Appellant, “but for” his misconduct have been renewed v. on March and communication agency itself characterized the from the DALTON, Secretary John H. non-renewal as “TERMINATION-INVOL Navy, Appellee, appear These assertions do not UNTARY.” “so attenuated and unsubstantial as be merit,” “prior absolutely nor do devoid inescapably claim[ ]
decisions
render
Intergraph Corpоration,
Intervenor.
opposed merely
a claim “of
frivolous” as
No. 95-1214.
questionable
Hagans v.
doubtful or
merit.”
Lavine,
536-38,
415 U.S.
94 S.Ct.
Appeals,
Court of
United States
(internal
1378-80,
moved” under 7512. jurisdic
Firmly moored in the harbor of
tion, agree I of Mr. the non-renewal Schaf is not a “removal” under
er’s contract which,
This is a decision on the merits unlike jurisdiction, for want of has a res
dismissal See,
judicata Argentinas, effect. Aerolineas (“[I]n
findings or conclusions on the
dismissal for lack of is without
prejudice.”); Spruill, at
(“Where Congress an Act of or an executive
regulation arguably rights to re- confers party relating
1. Under 5 U.S.C. “Either to arbi- to a matter described in section exception 7121(f) tration ... file [FLRA] any arbitrator's award ... other than an award