                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MARTIN CARRINGTON,                              DOCKET NUMBER
                  Appellant,                         CB-7121-16-0015-V-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: June 29, 2016
       SECURITY,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Gerald L. Gilliard, Esquire, Washington, D.C., for the appellant.

           Suzanne N. Almetica, Esquire, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a request for review of an arbitration decision
     concerning his removal from law enforcement officer status. For the reasons set
     forth below, we DISMISS the request for review for lack of jurisdiction.



     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                      2

                                      BACKGROUND
¶2        Effective April 26, 2012, the agency removed the appellant from his
     position as a Customs and Border Protection Officer (CBPO).           Request for
     Review (RFR) File, Tab 1, Exhibit (Ex.) B. The union requested arbitration on
     his behalf. Id. On September 10, 2013, the arbitrator issued a decision finding
     that the appellant’s removal from his CBPO position promoted the efficiency of
     the service but that the agency was required to consider him for any vacant,
     non law enforcement positions for which he was qualified. Id.
¶3        On February 3, 2016, the appellant filed a request for review of the
     arbitrator’s decision. RFR File, Tab 1. In his request, he argued that the agency
     failed to provide reasonable accommodation for his disability. Id. The agency
     has filed a response, in which it argues that the appellant’s request should be
     dismissed for lack of jurisdiction and as untimely filed. RFR File, Tab 4.

                                        ANALYSIS
¶4        The Board has authority to review arbitration decisions under limited
     circumstances. See 5 U.S.C. § 7121(d); Sadiq v. Department of Veterans Affairs,
     119 M.S.P.R. 450, ¶ 4 (2013). Under the Board’s current regulations, the Board
     has jurisdiction over a request for review of an arbitration decision when and only
     when the following conditions are met:
           (1) the subject matter of the grievance is one over which the Board
           has jurisdiction;
           (2) the appellant either
              (a) raised a claim of discrimination under 5 U.S.C. § 2302(b)(1)
              with the arbitrator in connection with the underlying action, or
              (b) raises a claim of discrimination in connection with the
              underlying action under 5 U.S.C. § 2302(b)(1) for the first time
              with the Board if such allegations could not be raised in the
              negotiated grievance procedure; and
           (3) a final decision has been issued.
                                                                                         3

     Jones v. Department of Energy, 120 M.S.P.R. 480, ¶ 8 (2013), aff’d, 589 F. App’x
     972 (Fed. Cir. 2014); 5 C.F.R. § 1201.155(a)(1), (c). These regulations went into
     effect on November 13, 2012, and therefore apply to the appellant’s request for
     review, which was filed after that date.      Jones, 120 M.S.P.R. 480, ¶ 10 n.5;
     77 Fed. Reg. 62350, 62360 (Oct. 12, 2012).
¶5         Here, conditions (1) and (3) are satisfied. As to condition (2), the record
     reflects that the appellant did not raise a claim of discrimination before the
     arbitrator. RFR File, Tab 1, Ex. A. Hence, whether condition (2) is satisfied
     turns on whether the appellant could have raised his discrimination claim in the
     negotiated grievance procedure. We take official notice that employees in the
     appellant’s bargaining unit may grieve allegations of discrimination pursuant to
     Article 47 of the National Collective Bargaining Agreement (CBA) between U.S.
     Customs and Border Protection and the National Treasury Employees Union. See
     5 C.F.R. § 1201.64 (providing that the Board may take official notice of matters
     that can be verified). 2 Because the appellant could have raised his discrimination
     claim before the arbitrator, but did not, condition (2) is not satisfied, and the
     Board therefore lacks jurisdiction over his request for review. 3




     2
        The original CBA, which went into effect on May 11, 2011, is available at
     http://www.nteu164.org/Site%20Documents/Contract%20Information/20110511_CBP-
     NTEU%20Contract.pdf. The current version, as revised in October 2013, is available
     at
     http://www.nteu164.org/Site%20Documents/Contract%20Information/20131001_Revise
     d.pdf (last visited June 29, 2016). The revised CBA incorporates changes to Article 47
     made pursuant to an April 1, 2013 Memorandum of Understanding, which is available
     at
     http://www.nteu164.org/Site%20Documents/Contract%20Information/20130401_Articl
     e%2047%20EEO%20MOU.pdf (last visited June 29, 2016). These changes do not
     affect the outcome of this case.
     3
      Having determined that the Board lacks jurisdiction, we do not address the apparent
     untimeliness of the appellant’s request for review.
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                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS
      You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
                             U.S. Court of Appeals
                             for the Federal Circuit
                            717 Madison Place, N.W.
                             Washington, DC 20439

The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
      If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm.        Additional information is
available at the court’s website, www.cafc.uscourts.gov. Of particular relevance
is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained
within the court’s Rules of Practice, and Forms 5, 6, and 11.
      If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
                                                                                  5

Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
