Case: 20-2117 Document: 39 Page: 1 Filed: 12/21/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BINTA M. ROBINSON,
Petitioner
v.
UNITED STATES PATENT AND TRADEMARK
OFFICE,
Respondent
______________________
2020-2117
______________________
Petition for review of an arbitrator’s decision in No.
FMCS 140514-02191-3 by Joseph M. Sharnoff.
______________________
Decided: December 21, 2021
______________________
JASON IAN WEISBROT, Snider & Associates, LLC, Balti-
more, MD, argued for petitioner. Also represented by
JACOB Y. STATMAN.
STEVEN MICHAEL MAGER, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for respondent. Also repre-
sented by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR.,
TARA K. HOGAN; BENJAMIN AHLSTROM, HEIDI BOURGEOIS,
Case: 20-2117 Document: 39 Page: 2 Filed: 12/21/2021
2 ROBINSON v. PTO
Office of General Law, United States Patent and Trade-
mark Office, Alexandria, VA.
______________________
Before NEWMAN, SCHALL, and PROST, Circuit Judges.
PROST, Circuit Judge.
Binta M. Robinson petitions for review of an arbitra-
tion decision dismissing her grievance regarding her re-
moval by the United States Patent and Trademark Office
(“PTO” or “agency”) for unacceptable performance. See Pat.
Off. Pro. Ass’n v. U.S. Pat. & Trademark Off., No. FMCS
140514-02191-3 (May 29, 2020) (Sharnoff, Arb.) (decision
available at J.A. 1–77). The Arbitrator dismissed Ms. Rob-
inson’s grievance for lack of jurisdiction and failure to pros-
ecute due to unreasonable delay. We vacate the
Arbitrator’s decision and remand.
BACKGROUND
In April 2012, Ms. Robinson began work as a patent at-
torney in the PTO’s Office of Policy and International Af-
fairs. J.A. 2398. After a written warning on August 27,
2013, for unacceptable performance, Ms. Robinson received
notice of proposed removal on January 2, 2014. J.A. 2934.
On April 10, 2014, the agency issued a final decision re-
moving Ms. Robinson from her position. J.A. 2958. Shortly
thereafter, the Patent Office Professional Association (“Un-
ion”), on behalf of Ms. Robinson, invoked arbitration as to
her removal action per the parties’ collective bargaining
agreement (“CBA”). J.A. 2981.
Alongside this arbitration proceeding, on May 12,
2014, Ms. Robinson separately filed an Equal Employment
Opportunity (“EEO”) complaint asserting that she was re-
moved for discriminatory reasons. J.A. 35. When the
agency dismissed her complaint on June 2, 2014, she then
appealed the agency’s decision to the Equal Employment
Opportunity Commission (“EEOC”). Ms. Robinson’s
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ROBINSON v. PTO 3
complaint was ultimately considered by the EEOC, and on
March 9, 2017, the EEOC issued a final decision granting
summary judgment in favor of the agency. J.A. 38–42; see
J.A. 34–38. The arbitration hearing was then finally held
on April 23–26, 2018, and May 21–23, 2018. J.A. 2. The
parties finished filing post-hearing briefs by Decem-
ber 2018, and the Arbitrator issued an opinion on May 29,
2020, dismissing the grievance as inarbitrable for lack of
jurisdiction and failure to prosecute due to unreasonable
delay. J.A. 2, 77.
Ms. Robinson now petitions for review of the Arbitra-
tor’s decision. We have jurisdiction under
5 U.S.C.
§§ 7121(f) and 7703.
DISCUSSION
Ms. Robinson’s grievance arises under
5 U.S.C. § 7512,
as it concerns a removal, so § 7703 applies here.
5 U.S.C.
§ 7121(f) (providing that “[i]n matters covered under sec-
tions 4303 and 7512 of this title which have been raised
under the negotiated grievance procedure in accordance
with this section, section 7703 of this title . . . shall apply
to the award of an arbitrator in the same manner and un-
der the same conditions as if the matter had been decided
by the Board”); see also Cornelius v. Nutt,
472 U.S. 648, 661
n.16 (1985); Newman v. Corrado,
897 F.2d 1579, 1582
(Fed. Cir. 1990). Section 7703(c) requires this court to set
aside “any agency action, findings, or conclusions found to
be (1) arbitrary, capricious, an abuse of discretion, or oth-
erwise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c).
The Arbitrator dismissed Ms. Robinson’s grievance
“without addressing or resolving the merits” of her re-
moval. J.A. 77. He did so on two separate grounds: first,
because Ms. Robinson’s EEO complaint constituted an
election of remedies that precluded her from seeking
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4 ROBINSON v. PTO
arbitration as a jurisdictional matter, and second, because
Ms. Robinson’s “unreasonable delay” in processing this
case warranted dismissal for failure to prosecute. J.A. 72.
We conclude that the Arbitrator erred in dismissing
Ms. Robinson’s grievance for lack of jurisdiction and
abused his discretion in dismissing for unreasonable delay.
I
For starters, the Arbitrator held that he lacked juris-
diction to address the merits of Ms. Robinson’s grievance.
J.A. 65. Ms. Robinson’s decision to challenge her removal
through EEO procedures, the Arbitrator concluded, meant
that “the Grievant effectively made her election to have all
of her claims regarding her removal . . . addressed and re-
solved under the EEO Statute” rather than through the
grievance procedure outlined in the CBA. J.A. 71. Deter-
mining that he was bound by a Federal Labor Relations
Authority (“FLRA”) decision, Social Security Administra-
tion, Office of Hearings Operations v. International Feder-
ation of Professional and Technical Engineers, Association
of Administrative Law Judges, 71 F.L.R.A 123 (May 16,
2019), the Arbitrator further concluded that he did not
have jurisdiction under
5 U.S.C. § 7121 to arbitrate
Ms. Robinson’s grievance. J.A. 69.
Both parties in this appeal agree that the Arbitrator
erred in determining that FLRA law bound him to hold
that Ms. Robinson’s EEO challenge precluded her redress
of grievance through the CBA. Pet’r’s Br. 19–23; Resp’t’s
Br. 15–16. As this is a case of removal, the Arbitrator is
bound by the substantive rules of the Merit Systems Pro-
tection Board rather than those of the FLRA. Buffkin v.
Dep’t of Def.,
957 F.3d 1327, 1330 (Fed. Cir. 2020). In other
words, both sides submit, and we agree, that the Arbitrator
erred in holding that he lacked jurisdiction to decide this
case. We accordingly reverse the Arbitrator’s dismissal for
lack of jurisdiction. Rhodes v. Merit Sys. Prot. Bd.,
487 F.3d 1377, 1380–82 (Fed. Cir. 2007).
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ROBINSON v. PTO 5
II
With jurisdiction out of the way, we turn now to what
remains. As noted, after a seven-day merits hearing that
spanned a month, the Arbitrator dismissed the case with-
out addressing or resolving the merits because he agreed
with the agency that Ms. Robinson’s delay in processing
the grievance was unreasonable.
As a threshold matter, we address Ms. Robinson’s ar-
gument that, because the CBA imposes no deadline for
holding the hearing, the Arbitrator acted arbitrarily, capri-
ciously, and in violation of law by basing his dismissal on
delay. Pet’r’s Br. 48. We disagree. While it is correct that
the CBA does not require that an arbitration hearing be
held within a specific time frame, it does recognize the “im-
portance of considering and resolving complaints and
grievances promptly . . . .” J.A. 2057. It seems well within
the authority of the Arbitrator to adjudicate this matter
while policing a reasonable and prompt progression of the
proceedings. See, e.g., Gonce v. Veterans Admin.,
872 F.2d
995, 999–1000 (Fed. Cir. 1989).
But that hardly ends the matter. Rather, under the
circumstances of this case, we are not satisfied that the Ar-
bitrator’s analysis regarding unreasonable delay (and the
related question of whether delay prejudiced the agency’s
case) is adequate for purposes of our review. A remand is
therefore required. We address unreasonable delay and
prejudice in turn.
A
First, as the Arbitrator noted, the agency’s motion to
dismiss the arbitration for unreasonable delay (ultimately
granted by the Arbitrator) was filed on April 10, 2018, less
than two weeks before the hearing began, five months after
the hearing was set, and four years after the removal ac-
tion itself. See J.A. 72, 75. The motion to dismiss prompted
a detailed opposition from Ms. Robinson explaining, one by
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6 ROBINSON v. PTO
one, the events of the intervening four years and providing
reasons for each delay period within the relevant four-year
time frame. See J.A. 2184–88. And, in fact, the Arbitra-
tor’s opinion included a two-and-a-half-page recitation of
many events that transpired during that four-year period.
J.A. 73–75.
The problem, however, is the Arbitrator’s one-para-
graph analysis and conclusion regarding those events, re-
produced here in its entirety (and found at J.A. 75–76):
The Arbitrator concludes that, even if the Union
[i.e., Ms. Robinson] had valid reasons for some of
the delays it requested and/or delays it caused
without such requests, the cumulative effect of the
Union’s repeated delays – which resulted in the
hearings in this case not being held for approxi-
mately four years from the date of the Agency’s is-
suance to the Grievant of the Decision to Remove –
constituted unreasonable delay. In the Arbitrator’s
judgment, the cumulative effect of a delay which
totals about four years is excessive by any standard
of reasonableness and warrants the dismissal of
the grievance without addressing or resolving the
merits. During the delay, as listed above[,] the
Agency and/or the Arbitrator repeatedly requested
the Union to propose and/or confirm dates for the
Arbitration hearings[,] which requests resulted in
no response on several occasions and requests for
delay on many additional occasions. While argua-
bly, there may have been valid compelling reasons
for some of these delays, the Arbitrator finds that
cumulatively, the total of about four years of delay
is excessive and unreasonable. Certainly, the delay
is inconsistent with the Parties’ joint need to re-
solve disputes in a reasonably expeditious manner.
While it is correct that the Parties’ CBA does not
contain a definite period within which the hearing
must be scheduled or held, and the Arbitrator does
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ROBINSON v. PTO 7
not intend to hold or to imply herein that the Par-
ties have agreed to such a definite period, an al-
most four-year delay is found far beyond a period
considered reasonable.
The sum and substance of the entire analysis appears
to be that while the Arbitrator concluded that some unspec-
ified number of unidentified delays occurred for “valid rea-
sons,” it was nonetheless his view that the “cumulative
effect” of the delays constituted unreasonable delay. In-
deed, the paragraph repeatedly refers to (1) the “cumula-
tive effect” of the delays (without identifying an effect other
than the passage of four years) and (2) the unidentified
“compelling reasons” for some unspecified delays (without
parsing which or how many of the delays were valid).
We conclude that this cursory treatment is insufficient
under the circumstances of this case. The timeline set forth
in the Arbitrator’s decision contains numerous conclusory
descriptions that fail to grapple with Ms. Robinson’s ful-
some analysis of the same events. For example, the Arbi-
trator noted that “[t]he Union [on behalf of Ms. Robinson],
on March 3, 2015, requested a delay in the Arbitration
from May 2015 to July 2015.” J.A. 73. But regarding the
same events, Ms. Robinson had stated that “[i]n
March 2015, the Union noted to the Arbitrator that the
Agency had never responded to the Union Information Re-
quests and that Agency counsel had left the Agency.”
J.A. 2184. Similarly, as to a communication of June 5,
2015, the Arbitrator stated that Ms. Robinson “did not
commit to a date for an Arbitration hearing,” J.A 73, with-
out addressing Ms. Robinson’s explanation that “the
Agency had not yet produced all documents responsive to
[her] document requests and that all documents would
have to be received and reviewed before setting a hearing
date,” J.A. 2185. Nor did the Arbitrator grapple with
Ms. Robinson’s statements that there was some mutual de-
lay because both parties were involved in the separate
Case: 20-2117 Document: 39 Page: 8 Filed: 12/21/2021
8 ROBINSON v. PTO
litigation regarding Ms. Robinson’s EEO complaint from
September 2015 through August 2017. J.A. 2186–87.
In sum, the Arbitrator’s recapitulation of the arbitra-
tion timeline failed to deal in any way with Ms. Robinson’s
comprehensive analysis and explanation of the events lead-
ing to delay. Even if the Arbitrator had determined that
the explanations provided by Ms. Robinson were insuffi-
cient, he was required to provide a reasoned basis for such
a determination before dismissing Ms. Robinson’s griev-
ance for unreasonable delay. The Arbitrator’s opinion pro-
vides no such rationale.
B
Separately, we conclude that the Arbitrator improperly
failed to address prejudice. The decision contains no anal-
ysis by the Arbitrator of what, if any, effect was suffered by
the agency because of the purported delay other than the
passage of time. In fact, the only specific reference concern-
ing consequences of the delay is found in a single para-
graph (found at J.A. 75), reproduced here in its entirety:
The Arbitrator notes that the Agency asserts that,
due to the above-detailed delay by the Union [i.e.,
Ms. Robinson], three of the individuals who the
Agency intended to call as witnesses no longer
worked for the Agency. These individuals were:
William House, an Employee Relations Specialist
who had assisted the Proposing Official on the
Written Warning and Notice of Proposed Removal;
Nina Birch, the former Administrative Officer in
the Office of Policy and International Affairs (pre-
viously the Office of Policy and External Affairs),
whom the Union claimed had relevant testimony
(which the Agency questions); [and] Karen
Karlinchak, former Director of Human Capital
Management (essentially the Director of Human
Resources), whom the Union claimed had relevant
testimony (which the Agency questions). The
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ROBINSON v. PTO 9
Agency noted that both the Proposing and Deciding
Officials no longer are employed by the Agency but
are expected to cooperate. Two of the Agency rep-
resentatives who had been assigned to conduct the
litigation of this case have left the Agency. The
Agency noted that its Motion to Dismiss was filed
exactly four years after the date the Agency issued
the Decision to remove the Grievant.
The Arbitrator’s treatment of this matter, i.e., the im-
pact or prejudice to the agency caused by the purported de-
lay, falls short on several levels.
First, the discussion consists entirely of the Arbitra-
tor’s summary of the agency’s argument rather than his
own recitation of the basis for his decision. So, we are left
not knowing what, if any, portion of the agency’s reasoning
he adopted. But even if the Arbitrator had included the
words “I agree” at the conclusion of the cited paragraph,
that still would have been insufficient. Why? Principally,
because these assertions were made by the agency prior to
the hearing, a hearing that occurred after this submission
and before the Arbitrator issued his award. Therefore, the
Arbitrator’s reliance, if any, on outdated predictions of
what harm may occur seems misplaced, as those predic-
tions could and should have been modified by any actual
and germane effects of the delay felt at the hearing.
Next, a deeper dive into matters covered in the Arbi-
trator’s single pertinent paragraph reveals even more prob-
lems. The Arbitrator identified the fact that three
individuals “who the Agency intended to call” “no longer
worked for the Agency,” specifically, Mr. House, Ms. Birch,
and Ms. Karlinchak. But Ms. Robinson—not the agency—
had requested testimony from Ms. Birch and
Ms. Karlinchak. And considering that the agency had con-
tested the relevance of these two witnesses, J.A. 75, their
potential absence cannot reasonably be construed as prej-
udicial to the agency’s case. As to Mr. House, the
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10 ROBINSON v. PTO
Arbitrator failed to explain why unavailability of an em-
ployee ancillary to the removal process would be prejudicial
enough to warrant dismissing Ms. Robinson’s grievance,
particularly when the Proposing and Deciding Officials for
the removal action were expected to be available (and, to
the extent requested, were available 1). J.A. 1691–92.
Indeed, the Arbitrator noted only that Mr. House “no
longer worked for the Agency.” J.A. 75. But a potential
witness’s departure from an agency does not necessarily
constitute witness unavailability. Hoover v. Dep’t of Navy,
957 F.2d 861, 864 (Fed. Cir. 1992). And a finding of preju-
dice based on witness unavailability presupposes that the
witness’s delay-induced difficulty in testifying materially
impacted the party’s case. See
id. at 863–64 (noting that a
finding of “defense prejudice” requires that the “defendant
encounters increased and prejudicial difficulty in mounting
its defense due to the claimant’s delay”). Here, the Arbi-
trator failed to indicate why the departure of any of the
aforementioned agency employees would have uniquely
disadvantaged the agency’s case. The Arbitrator’s state-
ment that Mr. House, Ms. Birch, and Ms. Karlinchak had
left the agency, therefore, does not constitute a conclusion
that there was prejudice to the agency.
What we are left with, then, is the remainder of the
paragraph’s reference to two agency “representatives who
had been assigned to conduct the litigation” who had since
left the agency. J.A. 75. What’s missing, however, is any
information on when these two individuals left (e.g.,
whether it was shortly after this action commenced) or
what impact their departure had on the agency’s case.
1 The Deciding Official, George Elliott, testified at
the arbitration hearing at the agency’s request. See, e.g.,
J.A. 236–37. Rachel Wallace, the Proposing Official, was
not called by the agency to testify at the hearing.
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ROBINSON v. PTO 11
Finally, we are faced with the question of why the prej-
udice issue remained relevant at all after the seven-day
merits hearing had concluded. For example, if the pur-
ported delay had materially impacted the agency’s case,
one would expect the Arbitrator to have made some refer-
ence to the effect of the delay on the hearing witnesses’
availability, testimony, and/or recollections. But despite
the Arbitrator having had the benefit of a lengthy hearing
on the merits before issuing his dismissal, he made no de-
terminations whatsoever as to any of these matters.
In sum, the Arbitrator’s brief and cursory references to
prejudice lack the specificity required to support any pur-
ported conclusion by the Arbitrator regarding prejudice or
to allow us to properly review the same.
CONCLUSION
For the foregoing reasons, we vacate the Arbitrator’s
decision and remand for further proceedings consistent
with this opinion.
In remanding, we are acutely aware of further delaying
the close of this longstanding matter. Therefore, while we
conclude that a remand is necessary, we trust and expect
that all involved will, going forward, ensure that any fur-
ther proceedings occur as expeditiously as possible.
VACATED AND REMANDED
COSTS
No costs.
