Tierney v. Immigration & Naturalization Service

ORDER

PROST, Circuit Judge.

The Immigration and Naturalization Service moves to dismiss. Thomas E. Tierney, Jr. responds.

Tierney, an attorney, represented the American Federation of Government Employees, Local 1917 (AFGE), in an arbitration proceeding with INS concerning the demotion of Florine Drummond. AFGE prevailed on the merits, but the arbitrator denied its request for attorney fees. Tierney filed a petition for review in his own name seeking review of the arbitrator’s decision denying AFGE’s request for attorney fees.

Our review of an arbitrator’s decision is governed by 5 U.S.C. § 7703(a)(1), which states that “[a]ny employee or applicant for employment adversely affected or aggrieved” may seek judicial review of an arbitrator’s decision. See 5 U.S.C. §§ 7121, 7703(a)(1). Tierney is not an employee or applicant for employment and, as such, cannot seek review of the arbitrator’s decision on his own behalf. See Reid v. Department of Commerce, 793 F.2d 277 (Fed.Cir.1986) (only an individual employee or applicant for employment may seek review under 5 U.S.C. § 7703).

Accordingly,

IT IS ORDERED THAT:

(1) INS’ motion to dismiss is granted.

(2) Each side shall bear its own costs.