Addison-Taylor v. United States , 73 F. App'x 418 ( 2003 )

ORDER

RADER, Circuit Judge.

The parties move to “dismiss this case and remand” for further proceedings, in view of this court’s recent decisions in Mudge v. United States, 308 F.3d 1220 (Fed.Cir.2002) and O’Connor v. United States, 308 F.3d 1233 (Fed.Cir.2002).

This court cannot both dismiss and remand an appeal because those are mutually exclusive dispositions of a case. Instead, we determine what the proper disposition of this case is in view of our holdings in Mudge and O’Connor. We previously stayed proceedings in this case, recognizing that our disposition of Mudge and O’Connor would likely control the disposition of this appeal. In Mudge and O’Connor, we held that Congress had established a judicial remedy for certain federal employment grievances subject to negotiated grievance procedures contained in a collective bargaining agreement. In the present case, the Court of Federal Claims determined that there was no such cause of action and dismissed the complaint for lack of jurisdiction. Because the parties agree that this court’s decisions in Mudge and O’Connor control this court’s disposition of this appeal, it appears that the proper course is to vacate the court’s judgment in this case and remand for further proceedings.

Accordingly,

IT IS ORDERED THAT:

(1) The motion to remand is granted. The judgment of the Court of Federal Claims is vacated and the case is remanded for further proceedings.

(2) The motion to dismiss is denied.