American Federation v. Air Force
61f4th952
Fed. Cir.2023Background
- Michael Johnson, an Air Traffic Watch Controller Supervisor, was removed by the U.S. Air Force for careless performance after a runway-separation incident on Sept. 12, 2018 (required 4 miles, actual ~2.33 miles).
- The local chapter of the American Federation of Government Workers (AFGE Local 1367) grieved and arbitrated the removal; the arbitrator upheld the removal on Nov. 16, 2020.
- The local Union appealed the arbitration decision to this court on Dec. 31, 2020, but later withdrew because the local was placed in receivership and its counsel lost authority.
- The court dismissed the appeal after the Union’s withdrawal. Johnson moved to substitute himself for the Union under Fed. R. App. P. 43(b) and to reinstate the appeal.
- The court vacated its dismissal to allow briefing on substitution and the merits, then held that substitution was impermissible because the original appellant (the Union) lacked statutory standing to file the appeal and dismissed the appeal without reaching the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 43(b) permits substitution when the original appellant lacked standing | Johnson: he is the true party in interest; Union mistakenly filed and was compelled to withdraw, so substitution is proper | Air Force: substitution is improper because the Union never had statutory standing to initiate the appeal | Court: Substitution under Rule 43(b) is not allowed where the original party lacked standing; substitution denied; appeal dismissed |
| Whether the Union had standing to appeal an arbitration decision under 5 U.S.C. § 7703(a) | Johnson: argued substitution should cure the defect; contended Union initiated appeal in his interest | Air Force: Union lacked standing to appeal arbitration awards; only the employee may appeal | Court: Union lacked standing (consistent with precedent); statutory bar controls |
| Whether the court should reach the merits of the arbitration decision | Johnson: sought merits briefing and reinstatement | Air Force: argued the appeal was improper to reinstate given standing defect | Court: Did not reach merits; dismissed appeal due to standing/substitution defect |
Key Cases Cited
- Reid v. Dep’t of Commerce, 793 F.2d 277 (Fed. Cir. 1986) (only the employee, not the union, may appeal an arbitrator’s adverse award under the statutory scheme)
- Mojave Desert Holdings, LLC v. Crocs, Inc., 995 F.3d 969 (Fed. Cir. 2021) (Rule 43 substitution may be appropriate when a proper party cannot continue and a successor-in-interest exists)
- AngioDynamics, Inc. v. Biolitec, Inc., 775 F.3d 550 (2d Cir. 2015) (substitution is permissible only when the proper party is unable to continue litigating)
- Silberman v. Miami Dade Transit, 927 F.3d 1123 (11th Cir. 2019) (substitution impermissible where original party was not a proper party to the suit)
- Sable Commc’ns of Cal. Inc. v. Pac. Tel. & Tel. Co., 890 F.2d 184 (9th Cir. 1989) (Rule 43 substitution presupposes the original party was a proper party)