National Air Traffic Controllers Association, Afl-Cio v. Federal Aviation Administration

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
NATIONAL AIR TRAFFIC CONTROLLERS
ASSOCIATION, AFL-CIO,
Petitioner
v.
FEDERAL AVIATION ADMINISTRATION,
Respondent
______________________
2024-1748
______________________
Petition for review of an arbitrator’s decision in No.
230711-NATC by Homer C. La Rue.
______________________
ON MOTION
______________________
Before L OURIE, CUNNINGHAM , and STARK, Circuit Judges.
L OURIE, Circuit Judge.
O R D E R
The National Air Traffic Controllers Association, AFL-
CIO (“NATCA”) filed this petition from the arbitrator’s de-
cision upholding the dismissal of Tyler A. Mack. The Fed-
eral Aviation Administration (“FAA”) moves to dismiss the
Case: 24-1748 Document: 13 Page: 1 Filed: 08/22/2024

-- 1 of 3 --

NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION v. FAA 2
petition. The union opposes dismissal and moves for leave
to join Mr. Mack as a party.
Mr. Mack was hired as an air traffic controller special-
ist trainee on June 24, 2021. According to the Notice of
Proposed Removal, Mr. Mack was serving a one-year pro-
bationary period when the agency removed him on June 9,
2022. Mr. Mack’s union, NATCA, filed a grievance chal-
lenging the removal, which led to the union taking the case
to arbitration. On February 26, 2024, the arbitrator issued
a decision denying the grievance. On April 24, 2024,
NATCA filed a petition at this court seeking review of the
arbitrator’s final decision.
In American Federation of Government Employees, Lo-
cal 1367 v. Department of the Air Force, 61 F.4th 952 (Fed.
Cir. 2023) (“AFGE”), we considered whether a union could
appeal an arbitrator’s decision. Based on longstanding
precedent and statutory interpretation, we explained that
“only the employee may appeal the unfavorable arbitration
award,” and “unions lack standing to initiate an appeal.”
Id. at 955 (citing 5 U.S.C. §§ 7121(f) and § 7703(a)(1)). We
also ruled that the employee could not later be substituted
to avoid dismissal. We explained: “a party may not substi-
tute under Rule 43(b) [of the Federal Rules of Appellate
Procedure] when the original party being substituted
lacked standing to initiate the appeal.” Id. at 956.
AFGE compels dismissal here. NATCA cannot file a
petition challenging the arbitrator’s decision.1 And while
1 NATCA urges the court to find that NATCA can as-
sert the claims of its members because it meets the require-
ments for associational standing. But this court has
repeatedly rejected this argument. See Reid v. Dep’t of
Com., 793 F.2d 277, 279–82 (Fed. Cir. 1986); see also AFGE
Local 3438 v. SSA, No. 2021-1972, 2022 WL 1653177, at *3
(Fed. Cir. May 25, 2022).
Case: 24-1748 Document: 13 Page: 2 Filed: 08/22/2024

-- 2 of 3 --

NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION v. FAA 3
NATCA here has moved to join Mr. Mack, as opposed to
substitution, that distinction makes no difference because
NATCA was never a proper party to file a petition.2
Accordingly,
I T I S O RDERED T HAT :
(1) FAA’s motion is granted. The petition for review is
dismissed.
(2) NATCA’s motion is denied.
(3) Each side shall bear its own costs.
August 22, 2024
Date
F OR THE COURT
2 We cannot construe the union’s response and re-
quest for joinder of Mr. Mack as a petition for review filed
by Mr. Mack. See Fed. R. App. P. 15; Fed. R. App. P. 32(d)
(“Every brief, motion, or other paper filed with the court
must be signed by the party filing the paper or, if the party
is represented, by one of the party’s attorneys.”).
Case: 24-1748 Document: 13 Page: 3 Filed: 08/22/2024

-- 3 of 3 --