File 2: Opinion of Chairman Cabaniss

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Dissenting Opinion of Chairman Cabaniss:

      I respectfully dissent from my colleagues as to whether the Privacy Act constitutes a "law, rule, or regulation affecting conditions of employment" under § 7103(a)(9) of the Statute, and of our ability to review sua sponte jurisdictional questions such as this.

      Subject matter jurisdiction is an issue that may be raised at any stage of the Authority proceedings. United States Dep't of the Army, The Adjutant General, Missouri Nat'l Guard, Bridgeton, Mo., 56 FLRA 1104, 1106 (2001), citing to AFGE, Council of Prison Locals, Local 171, 52 FLRA 1484, 1489 n.7 (1997). Additionally, "the Authority may question, sua sponte, whether it has subject matter jurisdiction to consider the merits of a dispute." United States Small Business Administration, Washington, D.C., 51 FLRA 413, 423 n.9 (1995), citing to United States Dep't of the Army, Army Reserve Personnel Center, 34 FLRA 319 (1990). Accordingly, based upon the decision in United States Customs Serv. v. FLRA, 43 F.3d 682 (D.C. Cir. 1994) (Customs Service), a subject matter jurisdiction issue regarding the status of the Privacy Act under § 7103(a)(9) is presented by this case.

      The court in Customs Service, in resolving the issue of whether statutes properly fell within the purview of § 7103(a)(9), noted that "[a]bsolutely any law could under some circumstances have some adverse consequences on the working conditions of one or more employees," but being "somehow aggrieved by its application" is not enough. Id. at 689. Rather, the court found that § 7103(a)(9) was meant to "confine grievances to alleged violations of a statute or regulation that can be said to have been issued for the very purpose of affecting working conditions of employees not one that merely incidentally does so." Id. Having so concluded, the court noted that "it becomes apparent that a `grievance' predicated on a claim of violation of a law that is not directed toward employee working conditions is outside both the arbitrator's and the FLRA's jurisdiction." Id.

      Unlike statutes such as the Fair Labor Standards Act, which expressly regulates the payment of wages between employers and employees, and which is clearly directed towards employee working conditions, [n1] the Privacy Act (5 U.S.C. § 552a) regulates the conduct between agencies and "individuals," i.e., "citizen of the United States or an alien lawfully admitted for permanent residence." 5 U.S.C. § 552a(a)(2). Unlike matters such as wages, the Privacy Act regulates "records," which it defines as

any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his education, financial transactions, medical history, and criminal or employment history and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph.

5 U.S.C. § 552a(a)(4). Federal employees have no separate, identifiable status under the statute, but are instead lumped into the definition of "Federal personnel," which is defined as "officers and employees of the Government of the United States, members of the uniformed services (including members of the Reserve Components), individuals entitled to receive immediate or deferred retirement benefits under any retirement program of the Government of the United States (including survivor benefits)." 5 U.S.C. § 552a(a)(13). "Federal personnel" are discussed in the context of having their records subjected to a computer "matching program" whereby their records can be disclosed to another Federal or non-Federal agency, although many records pertaining to "Federal personnel" are specifically not covered by this matching program. 5 U.S.C. § 552a(a)(8) & (o).

      Based upon