David K. Schafer v. Department of the Interior

88 F.3d 981, 1996 U.S. App. LEXIS 15430, 1996 WL 363418

• Court: Court of Appeals for the Federal Circuit
• Decided: June 27, 1996
• Docket: 95-3489
• Status: Published

Opinions

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 1998-1994 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 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.

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 arbi-trable as a removal for cause.

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 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.

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.

Schafer contends that the agency’s nonre-newal of his contract was actually a “removal for cause.” In maMng this argument, he asserts that “but for” his actions on March 8, 1994, he still would be employed by the agency. He also directs our attention to the fact that the notification of personnel action he received from the agency contained the words “TERMINATION-INVOLUNTARY.”

Our analysis necessarily begins with an examination of the framework within which Schafer’s employment existed. Schafer was employed as a contract employee. His contract was for one-year, expiring at the end of the school year (June 3, 1994). The contract provided that “failure to renew this contract does not constitute termination for cause or for other reasons.” It is uneontested that Schafer remained employed by the agency until his contract expired, and that he received full pay until the contract expiration date. Significantly, nothing in the contract obligated the agency to renew Schafer’s employment. Schafer’s employment also was governed by the JNA. Schafer points to nothing in the JNA which obligated the agency to renew his contract. Neither does the JNA provide that the failure to renew a contract such as Schafer’s is a removal. Finally, as seen above, a regulation governing education personnel employed by the agency provides that nonrenewal of an educator’s contract “is not discharge and will not follow the discharge procedures.” 25 C.F.R. § 38.8(k) (1994).

Schafer asserts, though, that he had a property right in continued employment with the agency sufficient to give rise to procedural due process protection under the Due Process Clause of the Fifth Amendment. The Supreme Court has explained, however, that when an employment contract between an individual and a government entity specifically provides that employment will end on a certain date, and makes no provision for renewal, the person seeking to show a property interest sufficient to give rise to procedural due process protection must demonstrate that something beyond the contract, e.g., a statute, rule, or policy, secures the person’s interest in re-employment or creates a legitimate claim to re-employment. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). Schafer has pointed to nothing beyond his contract that secured his interest in re-employment with the agency or that created a legitimate claim to re-employment.

Thus, neither Schafer’s contract, the JNA, nor the Due Process Clause of the Fifth Amendment provided Schafer with a basis for claiming a legal entitlement to employment with the agency after June 3, 1994. Schafer worked to the end of his contract’s term, and then his contract simply was not renewed. Schafer cannot successfully argue that he was “removed” from employment that he did not hold and had no legal right to hold. Thus, as a matter of law, he was not “removed” from agency employment under § 7512. This conclusion is not altered by the fact that the events of March 8 may have-precipitated the non-renewal of Schafer’s contract. Neither is it altered by the fact that the notification of personnel action Schafer received on June 24, 1994 recited that Schafer was being separated involuntarily.

Thé consequence of the conclusion that Schafer was not removed from his position is that we lack jurisdiction over the merits of his appeal. The reason is that 5 U.S.C. § 7121(f) is our “sole jurisdictional grant for review of an arbitrator’s award.” Burke v. United States Postal Service, 888 F.2d 833, 834 (Fed.Cir.1989). In that regard,, as already discussed, section 7121(f) refers to “matters covered” under 5 U.S.C. §§ 4303 and 7512, neither of which makes any reference to contract nonrenewals. In short, because the agency’s action was not a “removal,” this ease is outside the reach of § 7121(f), the only statute through which we may exercise jurisdiction over an appeal of an arbitrator’s award.³ Accordingly, we hold that we do not have jurisdiction to adjudicate the merits of Schafer’s appeal.

The dissent argues with some cogency that a more correct explanation would be that we have subject matter jurisdiction over Schafer’s appeal, but that he fails to state a claim on which relief may be granted, that is, he fails to allege facts that show he was “removed.”

As a general proposition we agree with the dissent that in those subject areas in which we have an established jurisdiction, the failure of a particular appellant to allege facts sufficient to entitle the appellant to relief, if the facts are proven, is a failure to state a claim on which relief may be granted. Such a failure does not go to this court’s jurisdiction over the subject matter of the cause. However, in this particular instance, because we do not have an established jurisdiction over the arbitral award, and the case comes to us only under the special provisions of a unique jurisdiction-granting statute, § 7121(f), we deem Schafer’s failure to allege a removal which would be covered under § 7512 to go to the issue of subject-matter jurisdiction. As a practical matter, in this particular case the outcome would appear to be the same under either analysis.

II.

In addition to appealing to this court, Schafer sought to challenge the arbitrator’s award before the Federal Labor Relations Authority (“FLRA”).⁴ In his brief before us Schafer explains that the FLRA ordered him to show cause why his appeal “should not be dismissed because the award relates to a matter, the removal (discharge) of an employee, over which the [FLRA] lacks jurisdiction.” Schafer also explains that he moved for a stay of his FLRA appeal pending this appeal. Schafer has not informed us as to the disposition of his stay motion.

Under 28 U.S.C. § 1631 (1994), whenever an appeal is filed with “a court and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such ... appeal to any other such court in which the ... appeal could have been brought at the time it was filed or noticed.” However, assuming Schafer could have brought this appeal before the FLRA at the time that it was filed and that a transfer of the case to the FLRA would be in the interest of justice, matters which we do not decide, we still could not transfer the case to the FLRA under § 1631. Section 1631 empowers us to transfer appeals only to “courts.” Administrative bodies such as the FLRA are not included within the applicable definition of “courts.” See 28 U.S.C. § 610 (1994) (defining “courts”); see also Amos v. United States, 22 Cl.Ct. 724, 734 (1991) (holding that administrative bodies are not included within the definition of “courts” under § 610). In short, transfer of this ease to the FLRA is not an option that is available to us.

CONCLUSION

For the foregoing reasons, Schafer’s appeal is dismissed for lack of jurisdiction.

COSTS

Each party shall bear its own costs.

DISMISSED.

1 . The Bureau of Indian Affairs Manual (“BIAM”) provides that nonrenewal of the contract of a person employed by the agency as an educator "is not discharge and will not follow the discharge procedures.” 25 C.F.R. § 38.8(k) (1994).

2 . It has not been alleged that Schafer physically mistreated any of his students.

3 . It is trae, as Schafer points out, that Congress amended 5 U.S.C. § 7511(a) in 1990 to bring certain individuals in the excepted service, including teachers employed by the Bureau of Indian Affairs, within the definition of “employee" for the purposes of chapter 75 of title 5. Civil Service Due Process Amendments of 1990, P.L. 101-376, 104 Stat. 461 (1990); see H.R.Rep. No. 328, 101st Cong., 2d Sess. 3 (1990), reprinted in 1990 U.S.C.C.A.N. 695, 697 (the bill applies to, among others, "teachers ... employed by the ... Bureau of Indian Affairs”). The legislative history of the amendment explains that Congress intended that the amendment extend certain procedural rights to such teachers. H.R.Rep. No. 328, at 3-4, 1990 U.S.C.C.A.N. at 697-98. Schafer does not, however, point to anything in those amendments indicating that Congress intended that non-renewals of such teachers’ contracts be considered "removals" under § 7512. We note also that, in 1994, Congress re-enacted the provision excepting such teachers from the sections of the United States Code "relating to the appointment, promotion and removal of civil service employees.” See Improving America’s Schools Act of 1994, Pub.L. No. 103-382, § 1132(a)(1), (n), 108 Stat. 3518, 4002, 4008 (1994) (codified at 25 U.S.C. § 2012(a)(1), (n) (1994)).

4 . Section 10 of the JNA provides for the taking of exceptions from an arbitrator’s award. It states:

A. Either Party may seek judicial review of the arbitrator’s decision on matters which could have been appealed to the Merit Systems Protection Board within 30 days of the issuance of the decision. Such review will be sought in accordance with the provisions of Section 7703 of Title [5 of the United States Code].

B. Either Party may file an exception with the Federal Labor Relations Authority to the arbitrator’s award in any matter other than those described in subsection [A] above. Such exceptions must be filed within 30 days of the issuance of the decision in accordance with Authority procedures. If no exception is filed, the arbitrator's decision and remedy shall be effected.