Afge Local 3438 v. Ssa ( 2022 )

Case: 21-1972 Document: 47 Page: 1 Filed: 05/25/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
AFGE LOCAL 3438,
Petitioner
v.
SOCIAL SECURITY ADMINISTRATION,
Respondent
______________________
2021-1972
______________________
Petition for review of an arbitrator’s decision in No.
200417-05577 by Edward M. Davidson.
______________________
Decided: May 25, 2022
______________________
PETER HARRIS, Music City Disability LLC, Nashville,
TN, argued for petitioner.
MILES KARSON, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent. Also represented by BRIAN
M. BOYNTON, TARA K. HOGAN, PATRICIA M. MCCARTHY.
______________________
Before LOURIE, REYNA, and CHEN, Circuit Judges.
Case: 21-1972 Document: 47 Page: 2 Filed: 05/25/2022
2 AFGE LOCAL 3438 v. SSA
Opinion for the court filed by Circuit Judge LOURIE, in
which REYNA and CHEN, Circuit Judges, join.
Additional views filed by Circuit Judge REYNA.
LOURIE, Circuit Judge.
AFGE Local 3438 (“AFGE”) appeals from an arbitra-
tion decision denying its request for attorney fees. AFGE
Local 3438 v. Soc. Sec. Admin., No. 200417-05577 (Mar. 18,
2021) (Davidson, Arb.) (decision available at J.A. 30–32)
(“Arbitration Decision”). Because AFGE does not have
standing to appeal that denial, we dismiss this appeal for
lack of jurisdiction.
BACKGROUND
Sarah Kidwell is a claims specialist at the Social Secu-
rity Administration (“SSA”). In November 2019, the
agency indefinitely suspended Kidwell based on allega-
tions that she violated policies prohibiting transfer of con-
fidential information to others, in this case, to her father.
Under 5 U.S.C. § 7121(e)(1), a government employee
may challenge a disciplinary action by appealing to the
Merit Systems Protection Board (the “Board”). Alterna-
tively, if the employee is represented by a collective bar-
gaining agreement containing a provision for a grievance
process, the employee may appeal to an arbitrator using
the negotiated grievance procedure. Kidwell elected to
have her grievance heard through binding arbitration in
accordance with a collective bargaining agreement with
AFGE. She was represented in that proceeding by AFGE.
The arbitrator found in Kidwell’s favor, concluding that the
SSA imposed the penalty “without meeting the burden of
reasonable cause and in contravention of its own past prac-
tice.” J.A. 9.
After Kidwell prevailed on the merits, AFGE filed a re-
quest for attorney fees pursuant to the Back Pay Act. See
5 U.C.S. § 5596; see also 5 U.S.C. § 7701(g). The Back Pay
Case: 21-1972 Document: 47 Page: 3 Filed: 05/25/2022
AFGE LOCAL 3438 v. SSA 3
Act “authorizes ‘reasonable attorney fees’ when an agency
employee has prevailed, and the fees are warranted in the
interest of justice.” Raney v. Federal Bureau of Prisons,
222 F.3d 927, 930 (Fed. Cir. 2000).
The arbitrator denied AFGE’s motion for attorney fees.
He found that the SSA’s “disciplinary decision was prema-
ture[,]” and therefore reversed the decision; hence he con-
cluded that Kidwell was the prevailing party. Arbitration
Decision at J.A. 32. But he also determined that payment
of attorney fees was not warranted in the interest of justice
because the agency’s issuance of its indefinite suspension
was “not prohibited or meritless” and “there was sufficient
evidence to conclude [that Kidwell] likely violated the
[a]gency’s internal policies on distribution of [personally
identifiable information].” Id. AFGE appealed.
DISCUSSION
Our review in this case is governed by a combination of
5 U.S.C. § 7703(a)(1) and 5 U.S.C. § 7121(f). 5 U.S.C.
§ 7703(a)(1) states that “[a]ny employee or applicant for
employment adversely affected or aggrieved by a final or-
der or decision of the Merit Systems Protection Board may
obtain judicial review of the order or decision.” 5 U.S.C.
§ 7121(f) states that § 7703 “shall apply to the award of an
arbitrator in the same manner and under the same condi-
tions as if the matter had been decided by the Board.” See
Dunn v. Dept. of Veterans Affairs, 98 F.3d 1308, 1311 (Fed.
Cir. 1996) (“This court reviews an arbitrator’s decision ‘in
the same manner’ as decisions of the Merit Systems Pro-
tection Board.”).
As a prerequisite to our exercise of jurisdiction, we
must consider whether AFGE has standing to appeal from
the Arbitration Decision before reaching the merits.
AFGE contends that it has associational standing to
pursue its interest on behalf of its members. “[T]he Su-
preme Court has recognized that an association may have
Case: 21-1972 Document: 47 Page: 4 Filed: 05/25/2022
4 AFGE LOCAL 3438 v. SSA
standing to assert the claims of its members, even where
the association itself has not suffered injury from the chal-
lenged action.” Reid, 793 F.2d at 279. To succeed, AFGE
argues that it must only prove (1) “its members would oth-
erwise have standing to sue in their own right,” (2) “the
interests it seeks to protect are germane to [its] purpose,”
and (3) “neither the claim asserted nor the relief requested
requires the participation of individual members in the
lawsuit.” Hunt v. Wash. State Apple Advert. Comm’n, 432
U.S. 333, 343 (1977). AFGE argues that it satisfies the
three prongs of the Hunt test. AFGE argues that (1) Kid-
well could “as a client sue for the denial of attorney fees,”
(2) “the issue of obtaining attorney fees paid for by AFGE
on behalf of its members is germane to its representational
functions,” and (3) “members of a labor organization do not
need to be personally involved in litigating over an [a]ttor-
ney fee dispute that was paid for by the organization be-
cause the [a]ttorney fee matter provides no personal stake
for them . . . .” Appellant’s Reply Br. 11–12.
AFGE also argues that this court should reject “a lit-
eral statutory construction” of 5 U.S.C. § 7703(a)(1). Id. at
6. AFGE argues that “to rule that a union does not have
standing to pursue review of a denial of attorney fees,
which were paid by the union, not the employee, would lead
to [an] absurd result or otherwise fly in the face of legisla-
tive intent and be in direct opposition to clearly defined law
. . . .” Id. at 4.
We conclude that we do not have jurisdiction to hear
this appeal. We are bound both by the statute, and by our
precedent interpreting that statute.
We analyzed the governing statute, 5 U.S.C.
§ 7703(a)(1), in Reid. We concluded that “Congress, in us-
ing the term ‘employee’ in § 7703(a)(1) and in defining that
term to mean an individual, has exercised its legislative
prerogative to impose a prudential limitation on the exer-
cise of this court’s jurisdiction over adverse decisions of the
Case: 21-1972 Document: 47 Page: 5 Filed: 05/25/2022
AFGE LOCAL 3438 v. SSA 5
MSPB.” Reid, 793 F.2d at 284. “Since the right of appellate
review under § 7703(a)(1) is phrased in terms of ‘any em-
ployee or applicant for employment,’ the logical conclusion
is that Congress intended to narrowly circumscribe the
party who may initiate appellate review . . . .” Id. at 283.
AFGE is admittedly neither an employee nor an applicant
for employment, and thus cannot seek review of the Arbi-
tration Decision on its own behalf. Notably, Kidwell did
not herself appeal for attorney fees as she did not pay them.
We followed up the Reid decision with nonprecedential
decisions in Senior Executives Association and Tierney. See
Senior Execs. Ass’n v. Office of Personnel Mgmt., 1997 U.S.
App. Lexis 10023 (Fed. Cir. 1997); Tierney v. Immigration
and Naturalization Serv., 75 Fed. App’x 756 (Fed. Cir.
2003). While our decision here, and in Reid, may be unsat-
isfactory to some, our role is to follow a statute and our
precedent. As we explained in Reid, “[t]he remedy for any
dissatisfaction with the results in particular cases lies with
Congress and not this court. Congress may amend the stat-
ute, we may not.” Reid, 793 F.2d at 284 (citations omitted).
In addition to the clear statute and established prece-
dent, AFGE failed to demonstrate that it fulfills the Hunt
prerequisites for associational standing. With regard to
Hunt’s first prong, AFGE failed to explain how Kidwell
would have standing to appeal. On the contrary, AFGE
stated that if “the Union simply named the employee as the
petitioner, not only would that be unethical (as the em-
ployee is not a real party at interest as they have paid no
[a]ttorney fees whatsoever and have no personal stake in
the outcome either way) it would present [a] further ethical
dilemma regarding the sharing of fees with non-attorneys
and put the Union in [an] untenable position . . . .” Appel-
lant’s Reply Br. 8. AFGE concedes that the attorney fees
at issue here were paid by AFGE. See, e.g., id. at 2–3.
Thus, AFGE’s statements contradict its argument that
Kidwell would have standing to appeal from the Arbitra-
tion Decision. Since AFGE failed to satisfy the first prong
Case: 21-1972 Document: 47 Page: 6 Filed: 05/25/2022
6 AFGE LOCAL 3438 v. SSA
of the Hunt test for associational standing, we do not need
to address the second and third prongs. Finally, we note
that Hunt, although a decision of the Supreme Court, was
not decided in the face of a clear statute limiting the right
to an appeal for attorney fees, as this one was.
Accordingly, we lack jurisdiction over AFGE’s appeal,
and therefore do not evaluate the merits of the Arbitration
Decision denying AFGE’s request for attorney fees.
CONCLUSION
We have considered AFGE’s remaining arguments, but
we find them unpersuasive. For the reasons discussed
above, we dismiss this appeal for lack of jurisdiction.
DISMISSED
COSTS
No costs.
Case: 21-1972 Document: 47 Page: 7 Filed: 05/25/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
AFGE LOCAL 3438,
Petitioner
v.
SOCIAL SECURITY ADMINISTRATION,
Respondent
______________________
2021-1972
______________________
Petition for review of an arbitrator's decision in No.
200417-05577 by Edward M. Davidson.
______________________
REYNA, Circuit Judge, additional views.
I write separately to express my belief that the statu-
tory scheme surrounding appeals of arbitration decisions
in federal employee grievances leads to the absurd result
that while only a union may invoke binding arbitration, the
same union lacks standing to appeal the result of that ar-
bitration.
I agree that we do not have jurisdiction to hear AFGE
Local 3438’s (“AFGE”) appeal in this case. Under 5 U.S.C.
§ 7121(e)(1), a federal employee has the option to pursue
arbitration of a grievance or an appeal before the Merit
Systems Protection Board (the “Board”). If the result of the
arbitration is appealed, judicial review is provided in the
Case: 21-1972 Document: 47 Page: 8 Filed: 05/25/2022
2 AFGE LOCAL 3438 v. SSA
same manner and under the same conditions as a Board
appeal. 5 U.S.C. § 7121(f).
Only individuals can appeal Board decisions. The stat-
ute provides that “[a]n employee or applicant for employ-
ment” may appeal for judicial review of a Board decision.
5 U.S.C. § 7703(a)(1). We interpret the term “employee” to
mean an individual and not a union. Reid v. Dep’t of Com-
merce, 793 F.2d 277, 282 (Fed. Cir. 1986). As a result, only
an individual may appeal an arbitration decision, not a un-
ion.
But only a union may invoke binding arbitration to re-
solve an employee grievance. 5 U.S.C. § 7121(b)(1)(C)(iii);
Reid, 793 F.2d at 282; Am. Fed’n of Gov’t Emps., Council of
Prison Locs., Loc. 1286 v. U.S. Dep’t of Justice, 738 F.2d
742, 745 (6th Cir. 1984)). This statutory scheme concern-
ing arbitration appeals yields an absurd result. If a union
is required to invoke binding arbitration, then the union
should have standing to appeal the subsequent decision to
this court. For example, here, AFGE is required to invoke
binding arbitration but prohibited from appealing the arbi-
tration decision.
There apparently are two avenues for fixing this
Catch 22 result—through Congress or through this court.
“Congress may amend the statute; we may not.” Griffin
v. Oceanic Contractors, Inc., 458 U.S. 564, 576 (1982). See
also Am. Fed’n of Gov’t Emps., 738 F.2d at 747–48; Con-
sumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S.
102, 123–24 (1980); Reiter v. Sonotone Corp., 442 U.S. 330,
344–45 (1979). Section 7121(f) provides that arbitration
decisions are appealed in the same manner as Board deci-
sions. A key Congressional amendment to this provision
that would allow a union to appeal arbitration decisions
would rectify the problem seen in this case.
The other possible avenue for addressing this problem
is for this court to revisit its decision in Reid. This court is
limited to enforcing a statute “according to its
Case: 21-1972 Document: 47 Page: 9 Filed: 05/25/2022
AFGE LOCAL 3438 v. SSA 3
terms . . . unless a literal interpretation would lead to an
incongruous result.” Reid, 793 F.2d at 281. The current
statutory scheme produces an incongruous result.
In Reid, we reasoned that because a union has no
right to represent an employee before the Board, a union
also has no right to represent an employee before this
court. Reid, 793 F.2d at 283 (citing S.Rep. No. 969, 95th
Cong., 2d Sess. 102–03). We explained that employees can
choose between appealing grievances to the Board or using
the negotiated procedure. An employee that chooses the
negotiated procedure can be represented only by a union.
Id. An employee that chooses to appeal to the Board may
choose their representative. Id. Thus, we reasoned, a un-
ion has neither a right nor an obligation to represent an
employee before the Board. Because a union does not have
an independent right to represent an employee before the
Board, it “would be anomalous to conclude that a union
nevertheless has standing to appeal from the [Board] to
this court under § 7703(a)(1).” Reid, 793 F.2d at 283.
But the anomaly now is that a union has a right and
an obligation to represent an employee in arbitration pro-
ceedings but does not have standing to appeal the result.
Further, it is anomalous that an employee cannot invoke
binding arbitration but nevertheless has standing to ap-
peal. Obviously, we cannot amend the statute. And given
our decision in Reid, this court would be reluctant, and per-
haps correctly so, to revisit this issue. At the end of the
day, these anomalies are the necessary result of the statu-
tory scheme created by Congress and must be corrected, if
at all, by Congress.