N OTE : This disposition is nonprecedential. 

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

______________________

AFGE LOCAL 3438, Petitioner

v.

SOCIAL SECURITY ADMINISTRATION, Respondent

______________________

2021

- 1972

______________________

Petition for review of an arbitrator ’ s decision in No. 200417

- 05577 by Edward M. Davidson.

______________________

Decided: May 25, 2022

______________________

P ETER H ARRIS , Music City Disability LLC, Nashville, TN, argued for petitioner.

M ILES K ARSON , C ommercial Litigation Branch, C ivil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by B RIAN M. B OYNTON , T ARA K. H OGAN , P ATRICIA M. M C C ARTHY

.

______________________

Before L OURIE , R EYNA , and C HEN , Circuit Judges

. Case: 21-1972 Document: 47 Page: 1 Filed: 05/25/2022AFGE LOCAL 3438 v. SSA 2

Opinion for the court filed by Circuit Judge L OURIE , in which R EYNA and C HEN , Circuit Judges , join.
Additional views filed by Circu it Judge R EYNA

. L OURIE , Circuit Judge

. AFGE Local 3438 (“AFGE”) appeals from an arbitration decision denying its request for attorney fees. AFGE Local 3438 v. S oc. Sec. Admin. , No. 200417

- 05577 ( Mar . 18

, 2021 ) ( Davidson , Arb.) (decision available at J.A. 30

– 32) (“Arbitration Decision”)

. Because AFGE does not have standing to appeal that denial , we dismiss this appeal for lack of jurisdiction.

B ACKGROUNDSarah Kidwell is a claims specialist at the Social Security Administration (“SSA”). In November 2 019, the agency indefinitely suspended Kidwell based on allegations that she violated policies prohibiting transfer of confidential information to others, in this case

, to her father

. Under 5 U.S.C. § 7121(e)(1), a government employee may challenge a dis ciplinary action by appealing to theMerit Systems Protection Board (the “Board”). Alternatively, if the employee is represented by a collective bargaining agreement containing a provision for a grievance

process , the employee may appeal to an arbitrator using the negotiated grievance procedure. Kidwell elected to have her grievance heard through binding arbitration in accordance with a collective bargaining agreement with AFGE

. She was represented in that proce eding by AFGE. The a rbitrator found in Kidwell’s favor, concluding that the SSA imposed the penalty “ without meeting the burden of reasonable cause and in contravention of its own past practice

. ” J.A. 9.

After Kidwell prevailed on the merits, AFGE filed a request for attorney fees pursuant to the Back Pay Act

. See 5 U.C.S. § 5596 ; see also 5 U.S.C. § 7701(g)

. The Back Pay Case: 21-1972 Document: 47 Page: 2 Filed: 05/25/2022AFGE LOCAL 3438 v. SSA 3

Act “authorizes ‘reasonable attorney fees’ when an agency employee has prevailed, and the fees are warranted in the interest of justi ce.” Raney v. Federal Bureau of Prisons

, 222 F.3d 927, 930 (Fed. Cir. 2000).

The a rbitrator denied AFGE’s motion for attorney fees. He found that the SSA’s “ disciplinary decision was premature [,] ” and therefore reversed the decision; hence he concluded that Kidwell was the prevailing party. Arbitration Decision at J.A. 32. But he also determined that payment of attorney fees was not warranted in the interest of justice because the agency’s issuance of its indefinite suspension was “ not prohibited or meri tless ” and “there was sufficient evidence to conclude [that Kidwell] likely violated the [a]gency’s internal policies on distribution of [personally identifiable information]. ” Id. AFGE appealed.

D ISCUSSION Our review in this case is governed by a combination of 5 U.S.C. § 7703(a)(1) and 5 U.S.C. § 7121(f). 5 U.S.C. § 7703(a)(1) states that “[a] ny employee or applicant foremployment adversely affected or aggrieved by a final order or decision of the Merit S ystems Protection Board may obtain judicial review of the order or decision. ” 5 U.S.C. § 7121(f) states that § 7703 “shall apply to the award of anarbitrator in the same manner and under the same conditions as if the matter had been decided by the Board. ” See Dunn v. Dept. of Veterans Affairs , 98 F.3d 1308, 1311 (Fed. Cir. 1996) (“This court reviews an arbitrator’s decision ‘inthe same manner’ as decisions of the Merit Systems Protection Board.”).
As a prerequisite to our exercise of jurisdiction, we must consider whether AFGE has standing to appeal from the Arbitration Decision before reaching the merits.
AFGE contends that it has associational standing topursue its interest on behalf of its members. “[T]he Supreme Court has recogni zed that an association may have Case: 21-1972 Document: 47 Page: 3 Filed: 05/25/2022AFGE LOCAL 3438 v. SSA 4

standing to assert the claims of its members, even wherethe association itself has not suffered injury from the challenged action.” Reid , 793 F.2d at 279. To succeed, AFGE argues that it must only prove (1) “ its members would otherwise have standing to sue in their own right, ” (2) “ the interests it seeks to protect are germane to [its] purpose, ” and (3) “ neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. ” Hunt v. Wash. State Apple Advert. Comm’n , 432 U.S. 333, 343 (1977). AFGE argues that it satisfies the three prongs of the Hunt test . AFGE argues that (1) Kidwell could “as a client sue for the denial of attorney fees,” (2) “ the issue of obtaining attorney fees paid for by AFGE on behalf of its members is germane to its representational functions, ” and (3) “members of a labor organization do not need to be personally involved in litigating over an [a]ttorney fee dispute that was paid for b y the organization because the [a]ttorney fee matter provides no personal stake for them . . . .” Appellant’s Reply Br. 11

– 12.
AFGE also argues that this court should reject “a literal statutory construction” of 5 U.S.C. § 7703(a)(1). Id. at 6. AFGE arg ues that “to rule that a union does not have standing to pursue review of a denial of attorney fees, which were paid by the union, not the employee, would leadto [an] absurd result or otherwise fly in the face of legislative intent and be in direct opposi tion to clearly defined law

. . . .” Id. at 4.
We conclude that we do not have jurisdiction to hear this appeal. We are bound both by the statute, and by our precedent interpreting that statute.
We analyzed the governing statute, 5 U.S.C. § 7703(a)(1), i n Reid . We concluded that “Congress, in using the term ‘employee’ in § 7703(a)(1) and in defining that term to mean an individual, has exercised its legislativeprerogative to impose a prudential limitation on the exercise of this court’s jurisdiction over adverse decisions of the Case: 21-1972 Document: 47 Page: 4 Filed: 05/25/2022AFGE LOCAL 3438 v. SSA 5

MSPB.” Reid , 793 F.2d at 284. “ Since the right of appellate review under § 7703(a)(1) is phrased in terms of ‘ any employee or applicant for employment, ’ the logical conclusion is that Congress intended to narrowly circumscribe the party who may initiate appellate review . . . .” Id. at 283. AFGE is admittedly neither an employee nor an applicantfor employment, and thus cannot seek review of the Arbitration Decision on its own behalf. Notably, Kidwell did not herself appeal for attorney fees as she did not pay them.
We followed up the Reid decision with nonprecedential decisions in Senior Executives Association and Tierney

. See Senior Execs. Ass’n v. Office of Personnel Mgmt.

, 1997 U.S. App. L exis 10023 (Fed. Cir. 1997); Tierney v. Immigration and Naturalization Serv

. , 75 Fed. App ’ x 756 (Fed. Cir. 2003). While ou r decision here, and in Reid , may be unsatisfactory to some, our role is to follow a statute and our precedent. As we explained in Reid , “[t]h e remedy for any dissatisfaction with the results in particular cases lies withCongress and not this court. Congress may amend the statute, we may not.” Reid , 793 F.2d at 284 (citations omitted).
In addition to the clear statute and established preceden t, AFGE failed to demonstrate that it fulfills the Hunt prerequisites for associational standing. With regard to Hunt ’s first prong, AFGE failed to explain how Kidwell would have standing to appeal. On the contrary, AFGE stated that if “the Union simply named the employee as thepetitioner, not only would that be unethical (as the employee is not a real party at interest as they have paid no [a] ttorney fees whatsoever and have no personal stake in the outcome e ither way) it would present [a] further ethic al dilemma regarding the sharing of fees with non -attorneysand put the Union in [an] untenable position . . . .” Appellant’s Reply Br. 8. AFGE concedes that the attorney fees at issue here were paid by AFGE. See, e.g.

, id. at 2

– 3. Thus, AFGE’s statements contradict its argument that Kidwell would have standing to appeal from th e Arbitration Decision. Since AFGE failed to satisfy the first prong Case: 21-1972 Document: 47 Page: 5 Filed: 05/25/2022AFGE LOCAL 3438 v. SSA 6

of the Hunt test for associational standing, we do not need to address the second and third prongs. Finally, we note that Hunt , although a decision of the Supreme Court, was not decided in the face of a clear statute limiting the right
to an appeal for attorney fees, as this one was.
Accordingly, we lack jurisdiction over AFGE’s appeal

, an d therefore do not evaluate the merits of the Arbitration Decision denying AFGE’s request for attorney fees.

C ONCLUSION We have considered AFGE’s remaining arguments, but we find them unpersuasive. For the reasons discussed above

, we dismiss this appeal f or lack of jurisdiction

. DISMISSED

C OSTS

No costs. Case: 21-1972 Document: 47 Page: 6 Filed: 05/25/2022N OTE : This disposition is nonprecedential. 

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

______________________

AFGE LOCAL 3438, Petitioner

v.

SOCIAL SECURITY ADMINISTRATION, Respondent

______________________

2021

- 1972

______________________

Petition for review of an arbitrator's decision in No. 200417

- 05577 by Edward M. Davidson.

______________________

R EYNA , Circuit Judge

, additional views.
I write separately to express my belief that the statutory scheme surrounding appeals of arbitration decisions i n federal employee grievances leads to the absurd result that while only a union may invoke binding arbitration, the same union lacks standing to appeal the result of that arbitration.
I agree that we do not have jurisdiction to hear AFGE Local 3438’s (“ AFGE ”) appeal in this case. Under 5 U.S.C. § 7121(e)(1), a federal e mployee has the option to pursue arbitration of a grievance or an appeal before the Merit Systems Protection Board ( the “Board”) . If the result of the arbitration is appealed, judicial review is provided in the Case: 21-1972 Document: 47 Page: 7 Filed: 05/25/2022AFGE LOCAL 3438 v. SSA 2

same manner and under the same conditions as a Board appeal. 5 U.S.C. § 7121(f).
Only individual s can appeal Board decision s

. The statute provides that “[a]n employee or applicant for employment” may appeal for judicial review of a Board decision. 5 U.S.C. § 7703(a)(1). We interpret the term “employee” to mean an individual and not a union. Reid v. Dep’t of Commerce , 793 F.2d 277, 282 (Fed. Cir. 1986). As a result , onlyan individual may appeal an arbitration decision, not a union.

But only a union may invoke binding arbitration to resolve an employee grievance . 5 U.S.C. § 7121(b)(1)(C)(iii); Reid , 793 F.2d at 282 ; Am

. Fed ’ n of Gov ’ t Emps

. , Council of Prison Locs

. , Loc

. 1286 v. U.S. Dep’t of Justice , 738 F.2d 742, 74 5 (6th Cir. 1984)). Th is statutory scheme concerning arbitration appeals yields an absurd result. If a union is required to invoke binding arbitration, then the union should have standing to appeal the subsequent decision to this court. For example, here, AFGE is required to in voke binding arbitration but prohibited from appealing th e arbitration decision.

There apparently are two avenues for fixing this Catch 22 result

— through Congress or through this court.

“ Congress may amend the statute ; we may not.” Griffi n

v. Oceanic Contractors, Inc. , 458 U.S. 564, 576 (1982). See also Am

. Fed ’ n of Gov ’ t Emps

. , 738 F.2d at 747

– 48; Consumer Prod

. Safety Comm’n v. GTE Sylvania, Inc.

, 447 U.S. 102, 1 23

– 24 (1980) ; Reiter v. Sonotone Corp. , 442 U.S. 330, 344

– 45 (1979)

. Section 7121(f) provides that arbitrationdecisions are appealed in the same manner as Board decisions. A key Congressional amendment to this provision that would allow a union to appeal arbitration decisions would rectify the problem seen in this case.

The other possible avenue for addressing th is problem is for this court to revisit its decision in Reid

. This court is limited to enforcing a statute “according to its Case: 21-1972 Document: 47 Page: 8 Filed: 05/25/2022AFGE LOCAL 3438 v. SSA 3

t erms

. . . unless a literal interpretation would lead to an incongruous result.” Reid , 793 F.2d at 281. The current statutory scheme produces an incongruous result.

In Reid , we reasoned that because a union has no right to represent an employee before the Board, a union also has no right to represent an employee before this
court. Reid , 793 F.2d at 283 (citing S.Rep. No. 969, 95 th Cong., 2d Sess. 102

– 03). We explained that employees can choose between appealing grievances to the Board or using the n egotiated procedure. An employee that chooses the negotiated procedure can be represented only by a union. Id . An employee that chooses to appeal to the Board may choose their representative. Id . Thus, we reasoned, a union has neither a right nor an o bligation to represent an employee before the Board. Because a union does not have an independent right to represent an employee before the Board, it “would be anomalous to conclude that a union nevertheless has standing to appeal from the [Board] to this court under § 7703(a)(1).” Reid , 793 F.2d at 283.
But the anomaly now is that a union has a right andan obligation to represent an employee in arbitration proceedings but does not have standing to appeal the result. Further, it is anomalous that an e mployee cannot invokebinding arbitration but nevertheless has standing to appeal. Obviously, we canno t amend the statute. And given our decision in Reid , this court would be reluctant, and perhaps correctly so, to revisit this issue. At the end of the day, t hese anomalies are the necessary result of the statutory scheme created by Congress and must be corrected , if
at all, by Congress. Case: 21-1972 Document: 47 Page: 9 Filed: 05/25/2022