United States Court of Appeals 

for the Federal Circuit ______________________ 

CATHY APPLEBERRY,

Petitioner

v.

DEPARTMENT OF HOMELAND SECURITY,

Respondent

______________________ 

2014-3123

______________________ 

Petition for review of an arbitrator’s decision by Dennis Nolan.

______________________ 

Decided: July 8, 2015 

______________________ 

DAVID R. SCHLEICHER, Schleicher Law Firm, PLLC, 

Waco, TX, argued for petitioner. 

K. ELIZABETH WITWER, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, 

Washington, DC, argued for respondent. Also represented 

by JOYCE R. BRANDA, ROBERT E. KIRSCHMAN, JR., SCOTT D.

AUSTIN. 

_____________________ 

Before MOORE, WALLACH, and TARANTO, Circuit Judges.
2 APPLEBERRY v. DHS

TARANTO, Circuit Judge. 

Cathy Appleberry worked for the U.S. Citizenship and 

Immigration Services, an agency within the Department 

of Homeland Security, and was covered by a collective 

bargaining agreement. Deeming her performance unsatisfactory, the agency placed her on a “performance improvement plan” and then found that she failed to 

improve. Eventually, relying on that failure, the Department fired her. 

When Ms. Appleberry brought her removal to arbitration, as authorized (but not required) by the collective 

bargaining agreement, the arbitrator concluded that she 

could not challenge the key bases for the removal, i.e., the 

agency determinations that she should be placed on the 

performance-improvement plan and that she failed under 

the plan. He concluded that the collective bargaining 

agreement, pursuant to 5 U.S.C. § 7121, prescribed the 

exclusive process, including time limits, for challenging 

those determinations, but that Ms. Appleberry had abandoned that process after initiating it through filing grievances, allowing the time for completing the challenges to

run. The arbitrator thus barred reconsideration of “issues 

that were raised in [her] earlier grievances, or that could 

have been raised but were not.” J.A. 9. In this court, Ms. 

Appleberry accepts that, if that rationale was correct, the 

removal was properly upheld.

Ms. Appleberry appeals on the ground that the arbitrator should not have barred consideration of the performance-improvement-plan issues raised in her earlier, 

uncompleted grievances. We conclude that the arbitrator 

properly enforced the grievance process designated as 

“exclusive” in the collective bargaining agreement. Accordingly, we affirm.
APPLEBERRY v. DHS 3

BACKGROUND

Ms. Appleberry worked as an Immigration Services 

Officer. The Department had a collective bargaining 

agreement (Agreement) with the American Federation of 

Government Employees pursuant to 5 U.S.C. ch. 71. The 

Agreement refers to an “Employee Performance Plan and 

Appraisal Form” (PPA) for evaluating employee performance, established by the Department under 5 U.S.C. 

§ 4302 (“Establishment of performance appraisal systems”). See 5 C.F.R. §§ 430.201–430.210 (appraisal and 

rating regulations); J.A. 54–65 (PPA); J.A. 135–41 

(Agreement Article 22, “Performance Management”).

The PPA delineates areas of “core competency,” such 

as “communication” and “customer service,” as well as the 

standards that must be met to “[a]chieve[] [e]xpectations” 

or “[a]chieve[] [e]xcellence” in these areas. J.A. 55–56. It 

also sets out “critical [p]erformance [g]oals,” such as 

“National Security/Fraud Detection,” and lays out detailed standards. J.A. 57–59. The PPA directs the Department to rate an employee based on various 

competencies and goals, weight the ratings, and combine 

them to determine the employee’s overall performance 

rating for any given period. J.A. 55, 57. Unacceptable

performance under the PPA may lead to a reduction in 

grade or removal, pursuant to 5 U.S.C. § 4303. 

Ms. Appleberry’s performance rating for 2012 was 

lackluster. Consequently, on December 6, 2012, the 

Department issued a written “Performance Improvement 

Plan” (PIP). JA 39–45; see also J.A. 142 (Agreement 

Article 30(B), “Performance Improvement Plan”); 5 C.F.R. 

§ 432.104 (“Addressing unacceptable performance”). It

identified critical elements of the PPA for which Ms. 

Appleberry was “performing unacceptably,” explained 

what she had to do to make her performance acceptable, 

and gave her 90 days to improve. J.A. 39–45; see also 5 

U.S.C. § 4301 (“Definitions”); 5 C.F.R. § 430.203 (same). 
4 APPLEBERRY v. DHS

It also warned her that, if she did not “maintain acceptable performance in [her] core competencies and performance goals for one (1) year from the beginning of the PIP 

period,” she might be subjected to “reduction in grade or 

removal without any further opportunity to demonstrate 

acceptable performance.” J.A. 45.

On May 23, 2013, the Department issued a PIP 

“closeout letter” informing Ms. Appleberry that she had

performed unacceptably and therefore had failed the PIP

standards. J.A. 46–54. The next month, on June 27, 

2013, the Department proposed her removal, essentially 

(as Ms. Appleberry here accepts) for failing the PIP

standards. J.A. 305–07. The Department removed Ms. 

Appleberry four months later, on October 31, 2013. J.A. 

33–38.

Before the removal decision, Ms. Appleberry had filed

several grievances under the collective bargaining agreement’s negotiated procedure. The Agreement’s definition 

of a “grievance” includes “a complaint . . . by a unit employee concerning his or her conditions of employment.” 

J.A. 20 (Article 38(B), “Definition”). The procedure it sets 

out for resolving grievances includes several stages, with 

time limits applicable at each stage. The Agreement 

states that, with exceptions neither invoked nor relevant 

here (including where the employee has made an appeal 

of an adverse action to the Merit Systems Protection 

Board), “[t]his negotiated procedure shall be the exclusive

procedure available to the Union and employees in the 

unit for resolving grievances which come within its coverage . . . .” J.A. 20 (Article 38(A), “Purpose”). 

The negotiated procedure begins with the Department’s consideration of the merits of a grievance, moves 

through increasingly formal steps, and culminates in 

arbitration—if the employee meets prescribed filing 

deadlines. Specifically, the employee must first file either 

a “Step I” or “Step II” grievance within 35 days of the 
APPLEBERRY v. DHS 5

complained-of incident. If the employee chooses to file at 

Step I instead of immediately starting at Step II, and the 

Step I grievance is denied, the employee must file a StepII grievance within 14 days of receiving the Step I decision. No matter how the employee gets to Step II, if the 

Step II grievance is denied, the employee has 15 days 

from receiving the denial to file a Step III grievance. 

Arbitration may be invoked only after a Step III decision, 

and only by meeting a 30-day deadline. 

Ms. Appleberry had filed three sets of grievances under that procedure. The first challenged her 2012 PPA 

rating, arguing that it was based on performance standards that violated 5 U.S.C. § 4302(b)(1). The second 

claimed workplace bullying, including allegations that the 

Department had improperly reviewed her work under the 

PIP. E.g., J.A. 325. The third challenged the PIP closeout 

letter, claiming, among other things, that the PIP was 

neither established nor conducted in accordance with the 

negotiated PPA standards and that Ms. Appleberry’s 

performance “met expectations.” E.g., J.A. 364. All three 

sets of grievances were filed at the Step I, II, and III 

levels, and all three were denied at each level. As is 

undisputed, Ms. Appleberry failed to invoke arbitration 

for any of the grievances within the permitted 30-day

period. The deadline to invoke arbitration of her PPArating grievance fell before the Department proposed her 

removal; the deadlines for her bullying and PIP-closeoutletter grievances fell after her removal was proposed but 

before the removal decision was actually made. Ms. 

Appleberry timely opposed the proposed removal on July 

8, 2013.

After her removal, Ms. Appleberry filed for an expedited arbitration of the removal decision, as provided for 

by the Agreement’s Article 39(K). Before considering Ms. 

Appleberry’s challenge, the arbitrator granted the Department’s motion to bar consideration of the issues that 

she raised or could have raised in her earlier grievances 
6 APPLEBERRY v. DHS

but failed to request be arbitrated. Shortly thereafter, the 

arbitrator denied her removal grievance. 

Ms. Appleberry appeals. She rests her appeal entirely 

on the contention that the arbitrator erroneously excluded 

issues relating to her failure of the PIP that she raised in 

her earlier grievances but did not take to arbitration. We 

have jurisdiction pursuant to 5 U.S.C. §§ 7121(f) and 

7703(b)(1).

DISCUSSION

“We review an arbitrator’s decision under the same 

standard of review that is applied to decisions from the 

Merit Systems Protection Board.” Johnson v. Dep’t of 

Veterans Affairs, 625 F.3d 1373, 1376 (Fed. Cir. 2010) 

(citing 5 U.S.C. § 7121(f)). Thus, “we must affirm the 

decision of the arbitrator unless it is: ‘(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.’” Id. (quoting 5 

U.S.C. § 7703(c)). This standard of review “contemplates 

de novo review of questions of law.” Id. (quotation marks 

and citations omitted). “Interpretation of a collectivebargaining agreement is a question of law we review de 

novo.” Garcia v. Dep’t of Homeland Sec., 780 F.3d 1145, 

1147 (Fed. Cir. 2015); see Giove v. Dep’t of Transp., 230 

F.3d 1333, 1340–41 (Fed. Cir. 2000); Huey v. Dep’t of 

Health & Human Servs., 782 F.2d 1575, 1577–78 (Fed. 

Cir. 1986).

The basis for Ms. Appleberry’s removal was her failure to improve adequately under the PIP. It is undisputed that Ms. Appleberry initiated but did not complete the 

Agreement-prescribed process for challenging the determination of her PIP failure: she did not take the matter to 

arbitration, much less do so within the time allowed. The 

question presented is whether, as the arbitrator concluded, the terms of the specific collective bargaining agree-
APPLEBERRY v. DHS 7

ment here precluded him, in evaluating the removal 

decision, from considering the PIP-failure issues raised in 

Ms. Appleberry’s earlier grievances but not timely submitted to arbitration. 

We conclude that the arbitrator correctly determined 

that he was precluded. The government indicated at oral

argument that, had Ms. Appleberry opted (as she was 

entitled to do) to appeal the removal decision to the Merit 

Systems Protection Board instead of challenging the 

removal before an arbitrator, the Board, unlike the arbitrator, would not have been precluded from considering 

the PIP-related issues raised in Ms. Appleberry’s prior 

grievances. Oral Argument at 15:00–15:38; see also 5 

U.S.C. § 7121(e)(1). Under that position, that particular 

difference between forums, among others, would be one 

that employees in Ms. Appleberry’s position might well 

consider in making a choice of forum for a removal decision. But Ms. Appleberry chose the arbitral forum, and 

the contract providing for arbitration circumscribed the 

arbitrator’s authority. Specifically, the Agreement prohibited his review of the PIP-related actions in the removal arbitration—those actions had to be challenged 

according to the process that the Agreement said was 

exclusive, and Ms. Appleberry did not bring that process 

to completion.

Article 38(A) of the Agreement states that, aside from 

certain exceptions neither argued nor applicable here, the 

“negotiated procedure shall be the exclusive procedure 

available . . . for resolving grievances which come within 

its coverage.” J.A. 20 (emphasis added). There is no 

dispute that the PIP actions were the proper subject of a 

“grievance,” under Article 38(B); indeed, Ms. Appleberry 

did bring those actions into the grievance process—

though she did not complete that process. Article 38(F), 

which lays out the grievance framework, includes a provision permitting arbitration in accordance with Article 39 

should “the employee [be] dissatisfied with the Step III 
8 APPLEBERRY v. DHS

decision.” J.A. 25. Article 39(B) provides that, “[i]f the 

Agency and the Union fail to settle any grievance processed under the grievance procedures, such grievance, 

upon written request by the Union or the Agency, may be 

submitted to arbitration within (30) calendar days from 

the date the Agency or the Union’s final decision is received.” J.A. 27. This is a timing requirement, generally 

implying that the invocation of arbitration may not occur 

outside the 30-day period, and Ms. Appleberry has not 

presented to us any argument for relaxing the requirement in this case. And Article 38(I) declares that a grievance, once brought, if not timely moved forward to the 

next stage, “shall be deemed to have been withdrawn.” 

J.A. 26. Finally, and critically, we have been pointed to 

no basis on which, short of the government’s consent, the

arbitrator could deviate from this prescribed procedure: 

Article 39(O) states that “[t]he arbitrator shall be bound 

by the terms of this Agreement and shall have no authority to add to, subtract from, alter, amend or modify any 

provision of this Agreement.” J.A. 31. Together, those 

provisions establish the exclusivity of the Agreement’s 

prescribed process for an arbitrator’s review of the merits 

of a covered employer action. 

The Civil Service Reform Act is not to the contrary. 

Indeed, the Act’s definition of a “grievance” includes “any 

complaint . . . by any employee concerning any matter 

relating to the employment of the employee . . . [or] any 

claimed violation, misinterpretation, or misapplication of 

any law, rule, or regulation affecting conditions of employment.” 5 U.S.C. § 7103(a)(9)(A), (a)(9)(C)(ii). And the 

Act declares that, subject to exceptions inapplicable here,

“any collective bargaining agreement shall provide procedures for the settlement of grievances . . . [and] the procedures shall be the exclusive administrative procedures for 

resolving grievances which fall within [the collective 

bargaining agreement’s] coverage.” § 7121(a)(1) (emphasis added). 
APPLEBERRY v. DHS 9

Ms. Appleberry contends that the limitation on arbitral consideration here is contrary to Cornelius v. Nutt, in 

which the Supreme Court ruled that “[i]f the employee 

elects . . . to proceed [with a negotiated grievance procedure instead of an appeal to the Board], and the union or 

the agency invokes binding arbitration, . . . the arbitrator 

is to apply the same substantive standards that the Board 

would apply if the matter had been appealed.” 472 U.S. 

648, 652 (1985) (citation omitted). We do not find Cornelius to be applicable—even though performance-related 

evaluations are relevant to the Board’s review of whether 

a removal for unacceptable performance is proper, see, 

e.g., 5 U.S.C. § 4302(b); Lovshin v. Dep’t of Navy, 767 F.2d 

826, 834 (Fed. Cir. 1985) (en banc), and even though the 

government has acknowledged that Ms. Appleberry could 

have had the PIP actions reviewed by the Board had she 

challenged her removal in that forum. The arbitrator 

here did not alter applicable “substantive standards,” 

Cornelius, 472 U.S. at 652, but rather adhered to procedural requirements clearly stated in the collective bargaining agreement. As we have had occasion to explain, 

Cornelius requires that arbitrators “adhere to the board’s 

interpretation of . . . substantive rules,” such as “the 

standard of review for substantial evidence and the 

harmful error rule.” Wissman v. Soc. Sec. Admin., 848 

F.2d 176, 178 (Fed. Cir. 1988). But “[t]he only procedures 

[the] arbitrator must follow are those specified in the 

collective bargaining agreement, in the submission of the 

parties to the arbitrator, or required by statute.” Id. 

Indeed, the statutory provision relied on in Cornelius, 

5 U.S.C. § 7121(e)(2)—which directs arbitrators to apply 

the standards in 5 U.S.C. § 7701(c)(1) governing Board 

review—contains limiting language that forecloses using 

it to circumvent the Agreement’s “exclusive” procedure

here. Section 7121(e)(2) applies only to “matters covered 

under sections 4303 and 7512 . . . which have been raised 

under the negotiated grievance procedure.” 5 U.S.C. 
10 APPLEBERRY v. DHS

§ 7121(e)(2) (emphasis added). In Cornelius, the grievant 

was raising a matter through the prescribed grievance 

procedure, and there was no question about failure to 

meet procedural requirements for presenting that matter; 

the question was what standard governed the assessment 

of that matter. In this case, however, the arbitrator’s 

decision rests on the determination that the basis for 

removal, PIP failure, was not properly “raised under the 

negotiated grievance procedure” in the first place. Procedures differ between arbitration and Board review, and

§ 7121(e) gives an employee a choice between them for a 

matter under both the Board’s jurisdiction and the arbitrator’s contractual authority. See Cornelius, 472 U.S. at 

650, 652; Atanus v. Merit Sys. Prot. Bd., 434 F.3d 1324, 

1326–27 (Fed. Cir. 2006). It does not expand the arbitrator’s authority to decide issues beyond the authority 

provided in the contract. 

In following the procedural requirements of the 

Agreement, the arbitrator, consistent with Cornelius, 

applied the same substantive standards as applied by the 

Board. The arbitrator’s reason for limiting consideration 

of certain issues had everything to do with the process

required by the agreement. As Ms. Appleberry has pointed to no statutory provision, in Chapter 43 or otherwise, 

preventing the adoption of this contracted-for process, we 

conclude that the arbitrator did not err. See Wissman, 

848 F.2d at 178; cf. 14 Penn Plaza LLC v. Pyett, 556 U.S. 

247, 257–60 (2009). 

CONCLUSION

For the foregoing reasons, the judgment of the arbitrator is affirmed.

No costs.

AFFIRMED