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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     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.
