Buffkin v. Defense

Case: 19-1531 Document: 38 Page: 1 Filed: 05/01/2020

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, Washing-
ton, 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 deci-
sion dismissing her grievance against her employer, the
Department of Defense (“agency” or “government”). The
arbitrator concluded that Ms. Buffkin’s request for arbitra-
tion was untimely under the collective bargaining agree-
ment (“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 un-
ion’s premature request for arbitration ripened into a
timely request.
BACKGROUND
Ms. Buffkin is a former teacher in the Diamond Ele-
mentary 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 (“un-
ion” or “FEA-SR”). The union and the agency are parties
to the collective bargaining agreement which creates a ne-
gotiated grievance procedure for agency employees to con-
test adverse employment actions as an alternative to
appeal to the Merit Systems Protection Board (“MSPB”).
Article 26 of the agreement, entitled “Grievance Proce-
dure,” 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). Ar-
ticle 27 of the agreement, entitled “Arbitration” specifies
that “the party who filed the grievance may proceed to ar-
bitration.” J.A. 230, Article 27, § 1(a). 1 Under Article 26,

1 In other parts of the agreement, it appears that ei-
ther party can request arbitration. See J.A. 228, Article 26,
at § 6(c) (“If the grievance is unresolved by mediation, [ei-
ther 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 estab-
lished 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 proce-
dure . . . . [and t]he grievance may then proceed to arbitra-
tion 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 un-
der 5 U.S.C. § 7512. Ms. Buffkin elected to challenge her
removal through the negotiated grievance procedure ra-
ther than at the MSPB. The agency denied Ms. Buffkin’s
grievance but requested that the matter be referred for me-
diation. The union and the agency met with a mediator on
December 12–13, 2012, in an attempt to resolve this griev-
ance. 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 re-
ceived 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 griev-
ance was discussed. The union and the agency selected an
arbitrator in January of 2017. For the first time, on Janu-
ary 31, 2018, the agency argued that the request for arbi-
tration 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 be-
cause 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 chal-
lenge disciplinary action by her employing agency may ap-
peal her claim to the MSPB or, alternatively, take her
claim to an arbitrator under a negotiated grievance proce-
dure created by collective bargaining agreement. The ar-
bitrator’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) arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law; (2) obtained without procedures re-
quired 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 enforce-
ment 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 Ad-
min. 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]rbi-
trator[] [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 juris-
dictions. “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 situ-
ations in which a litigant can bring a claim against her em-
ployer 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 harm-
ful 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 ap-
pealable to the FLRA. 3
III
Time limits, such as the ones at issue here, are proce-
dural matters. “The only procedures an arbitrator must
follow are those specified in the collective bargaining agree-
ment . . . 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 bargain-
ing 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 Protec-
tion Board decisions. As such, the [FLRA] has repeatedly
rejected the applicability of Gunn and § 7703 to the review
of procedural-arbitrability determinations under the Fed-
eral 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 arbitra-
tion . . . must be served . . . within twenty (20) days follow-
ing 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 griev-
ance if the union failed to timely file arbitration. The arbi-
trator noted that this strict construction is supported by a
number of FLRA decisions; decisions which, as we held ear-
lier, 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 griev-
ance 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 collec-
tive 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 bar-
gaining agreement.”); Cruz-Martinez v. Dep’t of Homeland
Sec., 410 F.3d 1366, 1370 (Fed. Cir. 2005). In Cruz-Mar-
tinez we upheld an arbitrator’s dismissal of an employee
grievance because his union waited longer than a year af-
ter invoking arbitration to request an arbitrator and sched-
ule 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-stand-
ing practices of the parties—in other words, ‘past prac-
tices’—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 un-
ion’s acquiescence in the past practice [wa]s substantial ev-
idence 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 arbi-
trations, 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 media-
tion. 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 arbitra-
bility. 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 interpreta-
tion that the last day of the second mediation session con-
stituted “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 gov-
ernment 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 fol-
lowing the resolution of the mediation [to file for arbitra-
tion].” Oral Arg. 12:18–28 (emphasis added). 5 The issue
appears to have been raised before the arbitrator in post-
hearing 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 Ad-
visory 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 ap-
peal filed from certain nonfinal decisions to serve as an ef-
fective 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 Su-
preme 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 follow-
ing” 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 lan-
guage 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 arbitra-
tion, 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 ap-
peal to the Merit Systems Protection Board and
what should be the more informal arbitration pro-
cedure.
Id. at 1039–40. Given the informal nature of arbitration
and the lack of surprise to the agency, “[l]ittle would be ac-
complished 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 ef-
fective appears to be consistent with the parties’ past prac-
tices. The agency had not objected in at least three other
arbitrations where the union invoked arbitration prema-
turely, 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 & Second-
ary Sch. (Agency) & Fed. Educ. Ass’n Stateside Region (Un-
ion) (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.