Holly v. Department of Health & Human Services

69 F. App'x 467

• Court: Court of Appeals for the Federal Circuit
• Decided: July 11, 2003
• Docket: No. 03-3056
• Status: Published

Opinion

PER CURIAM.

Norman Holly seeks review of the September 30, 2002, decision of the Merit Systems Protection Board, No. CB7121020005-V-1, sustaining an arbitral decision denying the grievance of his demotion under a reduction-in-force by the Department of Health and Human Services. Because we lack jurisdiction over his appeal, we dismiss.

An arbitral decision may be appealed to the Merit Systems Protection Board if the grievance alleged a prohibited personnel practice under 5 U.S.C. § 2302(b)(1). 5 U.S.C. § 7121(d) (2000). The district courts or the Equal Employment Opportunity Commission are the fora for board review. 5 C.F.R. § 1201.157 (2003). Only if an appellant waives the discrimination issue may he file for review of the board’s decision in this court. Id.

The board properly premised its review upon Holly’s allegation of disability discrimination before the arbitrator. But because Holly seeks review of the same discrimination issue here, our jurisdictional grant prohibits consideration of the merits of his case. See Schafer v. Dep’t of the Interior, 88 F.3d 981, 985 (Fed.Cir.1996) (“We may review an arbitrator’s award only if the matter appealed is one covered under 5 U.S.C. § 4303 (1994) [actions based on unacceptable performance] or 5 U.S.C. § 7512 (1994) [actions including reductions in grade, but excluding reduction-in-force].”) (internal quotations omitted).