United States Court of Appeals 

for the Federal Circuit ______________________

JIMMIEKAYE BUFFKIN,

Petitioner

v.

DEPARTMENT OF DEFENSE,

Respondent

______________________

2019-1531

______________________

Petition for review of an arbitrator’s decision in No. 14-

03218-3 by Joe M. Harris, Jr.

______________________

Decided: May 1, 2020

______________________

RICHARD J. HIRN, Hirn Law, Washington, DC, argued 

for petitioner. 

 ASHLEY AKERS, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by SHARI 

A. ROSE, JOSEPH H. HUNT, REGINALD THOMAS BLADES, JR.,

ROBERT EDWARD KIRSCHMAN, JR. 

 ______________________

Before DYK, MOORE, and HUGHES, Circuit Judges.

DYK, Circuit Judge.

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2 BUFFKIN v. DEFENSE

Jimmiekaye Buffkin appeals from an arbitrator’s decision dismissing her grievance against her employer, the 

Department of Defense (“agency” or “government”). The 

arbitrator concluded that Ms. Buffkin’s request for arbitration was untimely under the collective bargaining agreement (“agreement”) between Ms. Buffkin’s union and the

agency. We hold that the arbitrator erred in concluding 

that the request for arbitration was filed too late under the 

terms of the agreement. However, we also conclude that 

the request was filed prematurely. We accordingly vacate 

and remand with instructions to address whether the union’s premature request for arbitration ripened into a 

timely request. 

BACKGROUND

Ms. Buffkin is a former teacher in the Diamond Elementary School operated by the Department of Defense for 

the children of military personnel. She is also a member of 

the Federal Education Association—Stateside Region (“union” or “FEA-SR”). The union and the agency are parties 

to the collective bargaining agreement which creates a negotiated grievance procedure for agency employees to contest adverse employment actions as an alternative to 

appeal to the Merit Systems Protection Board (“MSPB”). 

Article 26 of the agreement, entitled “Grievance Procedure,” provides that “[a]ny grievance not resolved by the 

last step of the grievance procedure will be mediated . . . if 

requested by either party.” J.A. 228, Article 26, § 6(a). Article 27 of the agreement, entitled “Arbitration” specifies 

that “the party who filed the grievance may proceed to arbitration.” J.A. 230, Article 27, § 1(a).1 Under Article 26, 

1 In other parts of the agreement, it appears that either party can request arbitration. See J.A. 228, Article 26, 

at § 6(c) (“If the grievance is unresolved by mediation, [either party] may pursue the grievance to arbitration.”).

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BUFFKIN v. DEFENSE 3

“[b]oth parties agree to comply with the time limits established in the grievance procedure.” J.A. 228, Article 26, 

§ 7(a)(3). The agreement requires that “[a] written request 

for arbitration . . . be served on the opposing party within 

twenty (20) days following the conclusion of the last stage 

in the grievance procedure.” J.A. 230, Article 27, § 1(b). 

“The date of the last day of mediation will be considered 

the conclusion of the last stage in the grievance procedure . . . . [and t]he grievance may then proceed to arbitration in accordance with Article 27.” J.A. 228, Article 26, 

§ 6(c). The agreement specifies that “[f]ailure to comply 

with established time limits will serve as a basis for either 

party to advance the grievance to the next step or to reject 

a grievance.” Id., § 7(a)(3). 

Ms. Buffkin was removed from her position by the 

agency for misconduct—an adverse employment action under 5 U.S.C. § 7512. Ms. Buffkin elected to challenge her 

removal through the negotiated grievance procedure rather than at the MSPB. The agency denied Ms. Buffkin’s 

grievance but requested that the matter be referred for mediation. The union and the agency met with a mediator on 

December 12–13, 2012, in an attempt to resolve this grievance. No agreement was reached. On July 29, 2014, the 

union submitted a written request for arbitration to the 

agency. The agency signed the request and the parties received a list of arbitrators from the Federal Mediation and 

Conciliation Service on August 20, 2014. Even so, on 

March 17, 2015, the agency prepared a document entitled 

“FEA-SR Open Grievances,” listing Ms. Buffkin’s grievance 

as an open grievance. On March 25, 2015, the parties held 

another mediation session in which Ms. Buffkin’s grievance was discussed. The union and the agency selected an 

arbitrator in January of 2017. For the first time, on January 31, 2018, the agency argued that the request for arbitration was untimely. After a number of requests to delay 

by the agency, a hearing was held on April 23, 2018. 

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4 BUFFKIN v. DEFENSE

The arbitrator found that the case is not arbitrable because the union did not invoke arbitration within 20 days 

after the 2012 mediation concluded. Ms. Buffkin appeals, 

asking that the decision of the arbitrator be reversed and 

the case remanded for a decision on the merits. We have 

jurisdiction under 5 U.S.C. §§ 7121(f) and 7703(b)(1) and 

28 U.S.C. § 1295(a)(9). 

DISCUSSION

I 

Under 5 U.S.C. § 7121(e)(1), part of the Civil Service 

Reform Act of 1978, a federal employee seeking to challenge disciplinary action by her employing agency may appeal her claim to the MSPB or, alternatively, take her

claim to an arbitrator under a negotiated grievance procedure created by collective bargaining agreement. The arbitrator’s decision is reviewed by this court under 5 U.S.C.

§ 7121(f) using the same standard of review that applies to 

appeals from decisions of the MSPB. See 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); see also Appleberry v. Dep’t of Homeland Sec., 

793 F.3d 1291, 1295 (Fed. Cir. 2015). The same standard 

applies to review of arbitration decisions. 5 U.S.C.

§ 7121(f). Unlike situations prevailing in “judicial enforcement of private arbitration agreements,” the government

employee in arbitration has a “statutory right of judicial 

review for procedural as well as substantive matters under 

the statutory standard” of § 7703. Gunn v. Veterans Admin. Med. Ctr., Birmingham, Ala., 892 F.2d 1036, 1037 n.1

(Fed. Cir. 1990).

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BUFFKIN v. DEFENSE 5

II

Before addressing the arbitrator’s decision here, it is 

necessary to dispel some confusion as to the governing law. 

Both the arbitrator and the government take the position 

that the arbitrator is bound to apply in this arbitration the

decisions of the Federal Labor Relations Authority

(“FLRA”). Under the agreement in this case, the “[a]rbitrator[] [was] bound by the holdings and interpretations of 

the Merit Systems Protection Board, the FLRA, and the 

Agency’s regulations as provided by law.” J.A. 232, Article 

27, § 8. The arbitrator concluded that this language 

“means that the parties agreed that as arbitrator in this 

case, I am bound by” FLRA decisions. J.A. 8. That is not 

correct.

The FLRA and MSPB have different substantive jurisdictions. “Under the [Civil Service Reform] Act’s simplified 

scheme, employment matters involving federal employees’

rights to engage in union-related activities generally may 

be raised with the FLRA as unfair labor practice charges,2

while matters involving hiring, firing, failure to promote, 

and the like are within the jurisdiction of the MSPB.” 

Wildberger v. Fed. Labor Relations Auth., 132 F.3d 784, 

787 (D.C. Cir. 1998). Without addressing the myriad situations in which a litigant can bring a claim against her employer under a collective bargaining agreement, in general, 

for cases appealable to the MSPB or where arbitration is 

an alternative to an MSPB appeal (such as those related to 

adverse actions under 5 U.S.C. §§ 7512 and 7121(f)), the 

Supreme Court in Cornelius v. Nutt, 472 U.S. 648 (1985),

held that “Congress clearly intended that an arbitrator 

2 5 U.S.C. § 7122(a) provides that “[e]ither party to 

arbitration under this chapter may file with the [FLRA] an 

exception to any arbitrator’s award . . . (other than an 

award relating to a matter described in section 7121(f) of 

this title)”.

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6 BUFFKIN v. DEFENSE

would apply the same substantive rules as the Board does 

in reviewing an agency disciplinary decision.” Id. at 660. 

Thus, “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.’” Appleberry, 793 F.3d at 1296 (quoting 

Wissman v. Soc. Sec. Admin., 848 F.2d 176, 178 (Fed. Cir.

1988)). The arbitrator, under the facts of this case, was 

consequently bound by the MSPB’s substantive rules and 

the decisions of this court, not those of the FLRA. He was

only bound to apply FLRA law in cases that would be appealable to the FLRA.3

III

Time limits, such as the ones at issue here, are procedural matters. “The only procedures an arbitrator must 

follow are those specified in the collective bargaining agreement . . . or required by statute.” Wissman, 848 F.2d at

178. There are no relevant statutory time limits here, only 

time limits set by the agreement. We review an arbitrator’s 

interpretation of the requirements of a collective bargaining agreement de novo. Garcia v. Dep’t of Homeland Sec., 

780 F.3d 1145, 1147 (Fed. Cir. 2015) (“Interpretation of a 

collective-bargaining agreement is a question of law we 

3 Even the FLRA appreciates this distinction. In 

United States Small Business Administration (Agency) & 

American Federation of Government Employees Local 3841 

(Union), 70 F.L.R.A. 525 (May 2, 2018), the FLRA rejected 

the applicability of MSPB and Federal Circuit cases to its 

rulings: “Section 7703(c) sets forth the standard of review 

that the Federal Circuit applies to Merit Systems Protection Board decisions. As such, the [FLRA] has repeatedly 

rejected the applicability of Gunn and § 7703 to the review 

of procedural-arbitrability determinations under the Federal Service Labor-Management Relations Statute.” Id. at 

528 n.32 (citation omitted).

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BUFFKIN v. DEFENSE 7

review de novo.”); Appleberry, 793 F.3d at 1297; Muller v. 

Gov’t Printing Office, 809 F.3d 1375, 1379 (Fed. Cir. 2016); 

Gunn, 892 F.2d at 1037 n.1. We have sustained arbitrator 

decisions dismissing employee claims for failure to comply 

with applicable time limits. Appleberry, 793 F.3d at 1297;

Gonce v. Veterans Admin., 872 F.2d 995, 999–1000 (Fed.

Cir. 1989); Herrera v. Dep’t of Homeland Sec., 498 F. App’x 

35, 39 (Fed. Cir. 2012).

IV

The arbitrator considered two relevant provisions of 

the agreement: one stating that the “request for arbitration . . . must be served . . . within twenty (20) days following the conclusion of the last stage in the grievance 

procedure,” J.A. 230, Art. 27, § 1(b), and another defining

“the conclusion of the last stage in the grievance procedure”

as “[t]he date of the last day of mediation.” J.A. 228,

Art. 26, § 6(c). The arbitrator found that the case was not 

arbitrable because “the [u]nion failed to serve the [a]gency 

with a request for arbitration . . . within twenty days after 

the 2012 mediation session concluded.” J.A. 5 (emphasis 

added). The arbitrator interpreted the phrase “the date of 

the last day of mediation” to refer to the first mediation 

session because “nothing in the [agreement] provid[ed] for 

two mediation sessions.” Id. The arbitrator concluded that 

“[t]he fact that the expired grievance was brought up again 

at the 2015 mediation session . . . means nothing; bringing 

it back before the parties for a second mediation session did 

not revive it.” Id. He also concluded that Article 26 of the 

agreement allowed the agency to cancel or “reject” a grievance if the union failed to timely file arbitration. The arbitrator noted that this strict construction is supported by a 

number of FLRA decisions; decisions which, as we held earlier, are not binding in this MSPB-related proceeding. 

We conclude that, under the plain language of the 

agreement, the union did not invoke the arbitration too late

under the agreement. The union was not required to 

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8 BUFFKIN v. DEFENSE

invoke arbitration until “within twenty (20) days following 

the conclusion of the last stage of the grievance procedure.” 

J.A. 230, Art. 27, § 1(b) (emphasis added). The agreement 

explains that “[t]he date of the last day of mediation will be 

considered the conclusion of the last stage in the grievance 

procedure.” J.A. 228, Art. 26, § 6(c). The agreement is thus 

plain on its face—the union had to invoke arbitration 

within 20 days of the last day of mediation. Because the 

union and the agency did not resolve Ms. Buffkin’s grievance in the 2012 mediation and held a second mediation 

session in 2015, the last stage of the grievance procedure, 

contrary to the arbitrator, was not the 2012 mediation but 

was the last date of the 2015 mediation. Thus, the union 

invoking arbitration in 2014 was not too late under the 

terms of the agreement. 

The conduct of the parties confirms this interpretation. 

The Supreme Court has noted that “[t]he labor arbitrator’s 

source of law is not confined to the express provisions of the 

contract, as the industrial common law—the practices of 

the industry and the shop—is equally a part of the collective bargaining agreement although not expressed in it.” 

United Steelworkers of Am. v. Warrior & Gulf Navigation 

Co., 363 U.S. 574, 581–82 (1960); see also Muller, 809 F.3d 

at 1383 (“[P]ast practices can supplement a collective bargaining agreement.”); Cruz-Martinez v. Dep’t of Homeland 

Sec., 410 F.3d 1366, 1370 (Fed. Cir. 2005). In Cruz-Martinez we upheld an arbitrator’s dismissal of an employee 

grievance because his union waited longer than a year after invoking arbitration to request an arbitrator and schedule a hearing, in violation of an established practice of the 

parties. 410 F.3d at 1367, 1372. We found that the past 

practice there created a binding, consequential deadline 

even in the absence of express language in the collective 

bargaining agreement. Id. at 1370. “Clear and long-standing practices of the parties—in other words, ‘past practices’—can establish terms of the agreement that are as 

binding as any specific written provision.” Id. We held that 

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BUFFKIN v. DEFENSE 9

“[t]he arbitrator’s reliance on the sixteen years of the union’s acquiescence in the past practice [wa]s substantial evidence supporting the arbitrator’s decision” to dismiss the 

employee’s claim. Id. 

Here, it appears to have been common practice for the 

parties to hold a second mediation session. The parties had 

settled sixty-one grievances in 2015, which were discussed 

in mediations in 2012 and 2015. In at least two other arbitrations, based on grievances mediated in both 2012 and 

2015, the agency did not object to the union’s submitting a 

request for arbitration in 2014. In this case, the agency did 

not consider the grievance “resolved” after the first mediation. The agency also did not object to the union’s invoking 

arbitration when the union submitted its request or during 

the selection of arbitrators. Not until January 31, 2018, 

over three years after the union submitted its request for 

arbitration, did the agency file a request to the arbitrator 

requesting to bifurcate the hearing and adjudicate arbitrability. The agency’s conduct and past practices indicate 

that it did not think the union’s request for arbitration was 

untimely.4 The parties’ conduct supports the interpretation that the last day of the second mediation session constituted “the last stage of the grievance procedure” under 

the agreement. The union did not invoke arbitration too 

late under the agreement.

V

The government now argues in the alternative, that

the union invoked arbitration too early—by filing before

the second mediation session. At oral argument, the government contended that, “[u]nder the plain language of the 

4 We thus need not reach the issue of whether the 

government’s conduct also constitutes waiver under Gunn 

v. Veterans Admin. Med. Ctr., Birmingham, Ala., 892 F.2d 

1036 (Fed. Cir. 1990). 

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10 BUFFKIN v. DEFENSE

master labor agreement[,] . . . the [union] has 20 days following the resolution of the mediation [to file for arbitration].” Oral Arg. 12:18–28 (emphasis added).5 The issue 

appears to have been raised before the arbitrator in posthearing briefing, but the arbitrator did not address it, and 

the union does not contend that this issue is not properly 

before us. 

Federal courts have long recognized that a premature 

notice of appeal is effective. “[T]he courts of appeals quite 

generally have held premature appeals effective.” See Advisory Committee’s Note on 1979 Amendment to Fed. Rule 

App. Proc. 4(a)(2). This practice was codified in Rule 4(a)(2)

of the Federal Rules of Appellate Procedure: “[a] notice of 

appeal filed after the court announces a decision or order—

but before the entry of the judgment or order—is treated as 

filed on the date of and after the entry.” The Supreme 

Court explained “that Rule 4(a)(2) permits a notice of appeal filed from certain nonfinal decisions to serve as an effective notice from a subsequently entered final judgment.” 

FirsTier Mortg. Co. v. Inv’rs Mortg. Ins. Co., 498 U.S. 269, 

274 (1991). “[A] premature notice of appeal does not ripen 

until judgment is entered. Once judgment is entered, the 

Rule treats the premature notice of appeal ‘as filed after 

such entry.’” Id. at 275 (quoting Rule 4(a)(2)). The Supreme Court explained that this practice “was intended to 

protect the unskilled litigant.” Id. at 276. 

5 See also id. at 19:57–20:17 (“[T]he parties still 

never filed a request for arbitration within 20 days following” the second mediation. (emphasis added)); Appellee’s 

Br. 14 (arguing that even if the second mediation indeed 

constituted “the last stage in the grievance procedure,” the 

“contention that the union could request arbitration prior

to the conclusion of mediation [is] contrary to the plain language of the [agreement]” (emphasis added)). 

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BUFFKIN v. DEFENSE 11

The agency, here, does not argue that the time limit is 

jurisdictional, and it is clear that it is not. See Gunn, 892 

F.2d at 1038, 1039. As we explained in Gunn v. Veterans 

Admin. Med. Ctr., Birmingham, Ala., 892 F.2d 1036 (Fed. 

Cir. 1990), where issues of timeliness are not jurisdictional 

“but mere procedural defects”:

Such procedural defects, unless clearly harmful to 

resolution of the merits, should be resolved against 

forfeiture of the right to process a grievance. Strict 

construction of procedural requirements in arbitration, in this case making them even more rigid than 

in board proceedings, could only chill the selection 

of arbitration over the selection of administrative 

review. That result would be inconsistent with the 

statute, 5 U.S.C. § 7121(e), which is designed to 

give eligible employees the free choice between appeal to the Merit Systems Protection Board and 

what should be the more informal arbitration procedure.

Id. at 1039–40. Given the informal nature of arbitration 

and the lack of surprise to the agency, “[l]ittle would be accomplished by prohibiting the [arbitrator] from reaching 

the merits of” a grievance where a premature request for 

arbitration has been filed. See FirsTier Mortg., 498 U.S. at

276.

Further, a premature request for arbitration being effective appears to be consistent with the parties’ past practices. The agency had not objected in at least three other 

arbitrations where the union invoked arbitration prematurely, and, as noted earlier, had waited over three years 

to object to the union doing so here.

Nonetheless, since this issue has not been addressed by 

the arbitrator, we think that the arbitrator should address 

it in the first instance. On remand, the arbitrator is not, of 

course, bound to follow FLRA decisions that have held such 

premature requests for arbitration ineffective. See, e.g., 

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12 BUFFKIN v. DEFENSE

United States Dep’t of Def. Domestic Elementary & Secondary Sch. (Agency) & Fed. Educ. Ass’n Stateside Region (Union) (FEA-SR), 71 F.L.R.A. 236 (July 16, 2019).

CONCLUSION

We conclude that the union did not invoke arbitration

too late, and we reverse the decision of the arbitrator in 

this respect. The case is remanded to the arbitrator for a 

determination of whether the union’s premature request 

for arbitration ripened into a timely one.

VACATED AND REMANDED

COSTS

Costs to petitioner.

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