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s002333
Office of the General Counsel
Date: December 8, 1998
Matter of: [xxx]
File Number: S002333
OPM Contact: Murray M. Meeker
The claimant, an employee with the [xxx] Command, claims entitlement to restored annual leave. For the reasons discussed herein, the claim is dismissed for lack of jurisdiction.
The agency has informed the Office of Personnel Management (OPM) that the claimant is covered by a collective bargaining agreement. OPM cannot take jurisdiction over a claim that is or was subject to a negotiated grievance procedure under a collective bargaining agreement unless that matter is or was specifically excluded from the agreement's grievance procedure. The courts have found that Congress intended that such a grievance procedure is to be the exclusive remedy for matters not excluded from the grievance process. Carter v. Gibbs, 909 F.2d 1425, 1453 (Fed. Cir. 1990) (en banc) (In enacting 5 U.S.C. 7121(a), Congress intended that the negotiated grievance procedure was to be the exclusive remedy for matters not excluded from the grievance process), cert. denied, 498 U.S. 811 (1990). Accord, Harris v. United States, 841 F.2d 1097 (Fed. Cir. 1988) and Cecil E. Riggs et al., B-222962.3, April 23, 1992.
Thus, the employee's claim is dismissed for lack of jurisdiction. This settlement is final. No further administrative review is available within OPM. Nothing in this settlement limits the employee's right to bring an action in an appropriate United States Court.