NOTE: This disposition is nonprecedential.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, Baltimore, MD, argued for petitioner. Also represented by 

JACOB Y. STATMAN. 

 STEVEN MICHAEL MAGER, Commercial Litigation 

Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR.,

TARA K. HOGAN; BENJAMIN AHLSTROM, HEIDI BOURGEOIS, 

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2 ROBINSON v. PTO

Office of General Law, United States Patent and Trademark Office, Alexandria, VA.

 ______________________ 

Before NEWMAN, SCHALL, and PROST, Circuit Judges.

PROST, Circuit Judge. 

Binta M. Robinson petitions for review of an arbitration decision dismissing her grievance regarding her removal 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. Robinson’s grievance for lack of jurisdiction and failure to prosecute due to unreasonable delay. We vacate the 

Arbitrator’s decision and remand. 

BACKGROUND

In April 2012, Ms. Robinson began work as a patent attorney in the PTO’s Office of Policy and International Affairs. 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 removing Ms. Robinson from her position. J.A. 2958. Shortly 

thereafter, the Patent Office Professional Association (“Union”), 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 removed 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 December 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 Arbitrator’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 sections 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 under 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 otherwise 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 removal. 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 jurisdiction 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 resolved under the EEO Statute” rather than through the 

grievance procedure outlined in the CBA. J.A. 71. Determining that he was bound by a Federal Labor Relations 

Authority (“FLRA”) decision, Social Security Administration, Office of Hearings Operations v. International Federation 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 Protection 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 without 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 argument that, because the CBA imposes no deadline for 

holding the hearing, the Arbitrator acted arbitrarily, capriciously, 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 “importance 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 Arbitrator’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 action 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 Arbitrator’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-paragraph analysis and conclusion regarding those events, reproduced 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 approximately four years from the date of the Agency’s issuance 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 arguably, 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 resolve 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 Parties have agreed to such a definite period, an almost 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 unspecified number of unidentified delays occurred for “valid reasons,” it was nonetheless his view that the “cumulative 

effect” of the delays constituted unreasonable delay. Indeed, the paragraph repeatedly refers to (1) the “cumulative 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 fulsome analysis of the same events. For example, the Arbitrator 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 Requests 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, without 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 delay because both parties were involved in the separate 

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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 arbitration timeline failed to deal in any way with Ms. Robinson’s 

comprehensive analysis and explanation of the events leading to delay. Even if the Arbitrator had determined that 

the explanations provided by Ms. Robinson were insufficient, he was required to provide a reasoned basis for such 

a determination before dismissing Ms. Robinson’s grievance for unreasonable delay. The Arbitrator’s opinion provides no such rationale. 

B 

Separately, we conclude that the Arbitrator improperly 

failed to address prejudice. The decision contains no analysis 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 concerning consequences of the delay is found in a single paragraph (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 (previously 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 representatives 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 impact or prejudice to the agency caused by the purported delay, falls short on several levels. 

First, the discussion consists entirely of the Arbitrator’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 predictions 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 Arbitrator’s single pertinent paragraph reveals even more problems. 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 contested the relevance of these two witnesses, J.A. 75, their 

potential absence cannot reasonably be construed as prejudicial 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 employee 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 available1). 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 prejudice 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 Arbitrator failed to indicate why the departure of any of the 

aforementioned agency employees would have uniquely 

disadvantaged the agency’s case. The Arbitrator’s statement 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 prejudice issue remained relevant at all after the seven-day 

merits hearing had concluded. For example, if the purported delay had materially impacted the agency’s case,

one would expect the Arbitrator to have made some reference 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 determinations 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 purported 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 further proceedings occur as expeditiously as possible. 

VACATED AND REMANDED

COSTS

No costs. 

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