# United States **Court of Appeals**  **for the Federal Circuit**

______________________ ALBERTO GARCIA, Petitioner

v.

DEPARTMENT OF HOMELA ND SECURITY, Respondent

______________________

2014

- 3048

______________________

Petition for review of an arbitrator ’ s decision in No. 13

- 02607

- 3 by Sidney Moreland IV.

______________________

Decided: March 13 , 2015

______________________

J ASON L EONARD A LDRICH , Gattey and Baranic APLC

, San Diego, CA , argued for petitioner.

D ANIEL S. H ERZFELD , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent . Also represented by H ILLARY S TERN , S TUART F. D ELERY , R OBERT E. K IRSCHMAN , J R

. , K IRK M ANHARDT

.

______________________

Before D YK , T ARANTO , and H UGHES , Circuit Judges.GARCIA v. DHS 2

H UGHES , Circuit Judge

. Alberto Garcia appeals from an arbitrator’s dismissal of his labor dispute for failure to timely file a request for arbitration

. The applicable coll ective

- bargaining agre ement requires that requests for arbitration of adverse actions “must be filed

. . . not later than thirty (30) cale ndar days after the effective date of [ the A gency’s] action.” The Arbitrator concluded that the term “must be filed” requires actual receipt by the A gency of the request for arbitration

. Because we conclude that the request for arbitration need only be mailed within the 30

- day time period , we reverse and remand

. I
On May 9, 2013, the Department of Homeland Secur ity iss ued a final decision removing Mr. Garcia from the U.S. Border Patrol for misconduct. Mr. Garcia received notice of his removal the same day. Under 5 U.S.C. § 7121(e)(1), Mr. Garcia had the option to appeal his removal to the Merit Systems Protection Boar d (MSPB) or to invoke arbitration , as set out in his union’s collective

bargaining agreement (CBA). Article 34 , Section A of the CBA states that in cases involving adverse actions, such as removal, requests for arbitrat ion “must be filed

. . . not later t han thirty (30) calendar days after the effective date of the action.” Supp. Auth. 8.

T wenty

- eight days after the effective date of Mr. Ga rcia’s removal, his union mailed a letter to the Agency requesting arbitration

. T he Agency did not receive this request until seven days later. After an arbitrator was appointed, the Agency moved to dismiss the dispute for failure to file within thirty days of the effective date of removal.

The A rbitrator found the plain meaning of “ filed ” in the CBA requires actual receipt of the request for arbitr ation

. T he A rbitrator re lied on the definition of “file” usedGARCIA v. DHS 3

in federal court proceedings , citing Black’s Law Dictio nary and judicial opinions interpreting federal procedural
statutes. T he A rbitr ator also found the context in which “filed” is used in the CBA supports this interpretation

. Accordingly

, the A rbitrator dismissed the dispute for failure to timely file a request for arbitration. Mr. Garcia appeals. We have jurisdiction under 5 U.S.C . § 7121(f) and 5 U.S.C. § 7703(b)(1).

II
Interpretation of a collective

- bargaining agreement is a question of law we review de novo. Giove v. Dep ’t of Trans p. , 230 F.3d 1333, 1340 (Fed. Cir. 2000) (citing Harris v. Dep ’t of Veterans Affairs , 142 F.3d 1463, 1467 (Fed. Cir. 1998) ; Muniz v. United States , 972 F.2 d 1304, 1309 (Fed. Cir. 1992)). We begin with the plain language of the agreement. Id. at 1340. “We give the words in the agreement their ordinary meaning unless the parties mutually intended a nd agreed to an alternative meaning.” Harris , 142 F.3d at 1467

. In addition

, we must interpret specific language in light of the contract as a whole

. See McAbee Constr., Inc. v. United States , 97 F.3d 1431, 1435 (Fed. Cir. 1996) (“We must interpret the contract in a manner that gives meaning to all of its provisions and makes sense.”).

The A rbitrator relied on the definition of “file” as used in federal court proceedings to determine the meaning of “filed” here. It is true that federal courts have interpreted “file” in federal procedural statutes to require actual receipt. See, e.g.

, United States v. Lombardo , 241 U.S. 73, 76 (1916) (interpreting “file” in a criminal appeal statute to require actual receipt); Uni ted States v. Doyle , 854 F.2d 771, 773 (5t h Cir. 1988) (interpreting “filed ” in federal rules of civil and appellate procedure to require actual receipt); s ee also Black’s Law Dic tionary (7th ed. 199 9) ( defin ing “file” to mean “[t]o deliver a legal documen t to the court clerk or record custodian for placement into theGARCIA v. DHS 4

official record .”). But regulations governing administr ative proceedings analogous to the arbitration at issue define “filed” di fferently

. For instance, f or the purposes of an appeal to the MSPB, a document is “filed” at the time of mailing. See 5 C.F.R. § 1201.4(l) (“T he date of filing by mail is determined by the postmark date .

. . .” ). Simila rly, a Federal Labor Rela tions Authority (FLRA) regul ation state s , “If the mailing contains a legible postmark date, then that date is the date of filing.” 5 C.F.R. § 2429.21(b)(1).

The definitions used in MSPB and FLRA regulations are more relevant to the CBA than the general definition used in federal court. The par ties negotiated the CBA’s arbitration procedures as an alternative to an administr ative appeal to the MSPB. See 5 U.S.C. § 7121(e)(1) (giving federal employees the option to raise certain disputes either in an appeal to the MSPB or under a negotiated grie vance procedure). This context informs our unde rstanding of the parties’ intent. As we have previously recognized, “[i]t is neither reasonable nor logical to a ssume that the negotiators intended to fix a different date as the filing date for an arbitrati on appeal” than the date used as the filing date for an MSPB appeal. Huey v. Dep ’t of Health & Human Servs. , 782 F.2d 1575, 1578 (Fed. Cir. 1986) ( finding the date the u nion “initiated” arbitra tion was the date its request was mailed, consistent with the date of filing used in appeals to the MSPB ). Accordingly, the ordinary meaning of “filed” in the context of the CBA only requires mailing, not actual receipt, following the definition of “file d ” that would be used in an appeal to the MSPB. See 5 C.F.R. § 1201.4(l).
The Agency points to other provisions of the CBA which, it argue s , demon strate the parties ’ intent to r equire actual receipt of the request for arbitra tion within thirty days

. In particular, the Agency cites two provisions that establish differing deadlines for request ing arbitr ation, depending on the type of agency action involved, inGARCIA v. DHS 5

Article 34, Section A of the CBA

. The provision for r equesting arbitration of suspensions of less than fifteen days and adverse actions, at issue here, re quires that requests for arbitration be filed within thirty days of “receipt” of the Agency’s Notice of Decision (the adverse

action provision)

. The provision for requesting arbitration of all other grievances requires calculat ing the deadline in a slight ly different way

— fifteen days after the Notice of Decision is personally delivered or mailed, but an add itional five days is allowed if mailed (the grievance prov ision)

. The Agency thus asks us to draw the inference that because the CBA contains an expres s reference to the Agency’s mailing in the grievance provision , t he absence of an express mailing reference in the adverse

- action provision indicates that the parties did not intend for the U nion’s mailing of an arbitration request to constitute filing and therefore meet the thirty

- day deadline

. We do not find this inference persuasive. The Age ncy ’s service of its final decision and the U nion’s request for arbitration are two different processes undertaken by two different entities. And r ead in cont ext, the likely reason for the explicit reference to service by mail in the grie vance provision and its omission in the adverse

- action provision is the difference in events that cause the U nion’s submission deadline to begin to run. In the grie vance provi sion , the triggering event is personal delivery or mailing by the Agency. G iven the relatively brief fifteen

day deadline, if service is by mail, the provision expressly add s five days to account for any delay that may occur in the Union actually receivin g the Agency’s decision. In the adverse

- action provision, the triggering event is “receipt” of the Agency’s decision

. Because the deadline does not begin to run until actual receipt, no additional time for service by mail is necessary. Thus, we do not f ind the lack of a mailing reference in the adverse

- action provision to be dispositive. Indeed, if we were strictly parsing the language of the two provisions, we would note that theGARCIA v. DHS 6

grievance provision does not require that a request for arbitration is “fil ed” before the deadline, but rather it

“ may be submitted .” Supp. Auth. 8. It is therefore difficult to draw any firm conclusions about the meaning of

“ filed ” in the adverse

- action provision by comparing it to the language of the grievance provision. At bottom, without any compelling textual evidence to the contrary in the CBA, we conclude that the definition of “filed” should be construed in the same manner as in MSPB proceedings

— where a document is filed at the time of mailing. See 5 C.F.R. § 1201 .4(l)

. III

W e conclude the requirement in Article 34, Section A that a request for arbitration “must be filed

. . . not later than thirty (30) calendar days after the effective date of [ the A gency’s] action” is satisfied when the request is mailed before t he thirty

- day deadline

. The parties do not dispute that Mr. Garcia’s union mailed a request for arbitration twenty

- eight days after the effect ive date of the A gency’s final decision. Accordingly, we reverse the Arbitrator’s dismissal for failure to timely file a request for arbitration and remand for further proceedings.

REVERSED AND REMANDE D

No costs

.