NOTE: This disposition is nonprecedential.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

______________________ 

PETER HARRIS, Music City Disability LLC, Nashville, 

TN, argued for petitioner.

 MILES KARSON, Commercial Litigation Branch, Civil 

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

M. BOYNTON, TARA K. HOGAN, PATRICIA M. MCCARTHY. 

 ______________________ 

Before LOURIE, REYNA, and CHEN, Circuit Judges.

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

Opinion for the court filed by Circuit Judge LOURIE, in 

which REYNA and CHEN, Circuit Judges, join.

Additional views filed by Circuit Judge REYNA. 

LOURIE, Circuit Judge. 

AFGE Local 3438 (“AFGE”) appeals from an arbitration decision denying its request for attorney fees. AFGE 

Local 3438 v. Soc. 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.

BACKGROUND

Sarah Kidwell is a claims specialist at the Social Security Administration (“SSA”). In November 2019, 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 disciplinary action by appealing to the 

Merit 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 proceeding by AFGE. 

The arbitrator 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: 05/25/2022
AFGE 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 justice.” Raney v. Federal Bureau of Prisons, 

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

The arbitrator 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 meritless” 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.

DISCUSSION

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 for 

employment adversely affected or aggrieved by a final order or decision of the Merit Systems 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 an 

arbitrator 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 ‘in 

the 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 to 

pursue its interest on behalf of its members. “[T]he Supreme Court has recognized that an association may have 

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

standing to assert the claims of its members, even where 

the 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 by 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 argues 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 lead 

to [an] absurd result or otherwise fly in the face of legislative intent and be in direct opposition 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), in 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 legislative 

prerogative 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: 05/25/2022
AFGE 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 applicant 

for 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. Lexis 10023 (Fed. Cir. 1997); Tierney v. Immigration 

and Naturalization Serv., 75 Fed. App’x 756 (Fed. Cir. 

2003). While our 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]he remedy for any 

dissatisfaction with the results in particular cases lies with 

Congress 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 precedent, 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 the 

petitioner, 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 either way) it would present [a] further ethical 

dilemma regarding the sharing of fees with non-attorneys 

and 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 the Arbitration Decision. Since AFGE failed to satisfy the first prong 

Case: 21-1972 Document: 47 Page: 5 Filed: 05/25/2022
6 AFGE LOCAL 3438 v. SSA

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, 

and therefore do not evaluate the merits of the Arbitration 

Decision denying AFGE’s request for attorney fees.

CONCLUSION

We have considered AFGE’s remaining arguments, but 

we find them unpersuasive. For the reasons discussed 

above, we dismiss this appeal for lack of jurisdiction. 

DISMISSED

COSTS

No costs.

Case: 21-1972 Document: 47 Page: 6 Filed: 05/25/2022
NOTE: 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.

______________________ 

REYNA, Circuit Judge, additional views.

I write separately to express my belief that the statutory scheme surrounding appeals of arbitration decisions 

in 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 employee 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: 05/25/2022
2 AFGE LOCAL 3438 v. SSA

same manner and under the same conditions as a Board 

appeal. 5 U.S.C. § 7121(f). 

Only individuals can appeal Board decisions. 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, only 

an 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, 745 (6th Cir. 1984)). This 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 invoke 

binding arbitration but prohibited from appealing the 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.” Griffin 

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, 123–24 (1980); Reiter v. Sonotone Corp., 442 U.S. 330, 

344–45 (1979). Section 7121(f) provides that arbitration 

decisions 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 this 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: 05/25/2022
AFGE LOCAL 3438 v. SSA 3

terms . . . 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, 95th

Cong., 2d Sess. 102–03). We explained that employees can 

choose between appealing grievances to the Board or using 

the negotiated 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 obligation 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 and 

an obligation to represent an employee in arbitration proceedings but does not have standing to appeal the result. 

Further, it is anomalous that an employee cannot invoke 

binding arbitration but nevertheless has standing to appeal. Obviously, we cannot 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, these 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