AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1367, Non-Party Petitioner… v. Department of the Air Force

United States Court of Appeals
for the Federal Circuit
______________________
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1367,
Non-Party Petitioner
MICHAEL JOHNSON,
Movant
v.
DEPARTMENT OF THE AIR FORCE,
Respondent
______________________
2021-1488
______________________
Petition for review of an arbitrator's decision in Nos.
FMCS 201022-00677, FMCS 201104-00992 by Leroy R.
Bartman.
______________________
Decided: February 27, 2023
______________________
G LEN D. MANGUM , Law Offices of Glen D. Mangum,
San Antonio, TX, argued for movant-movant.
STEVEN C. HOUGH , Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent. Also represented by
BRIAN M. B OYNTON , T ARA K. HOGAN, P ATRICIA M.
MCCARTHY .
Case: 21-1488 Document: 71 Page: 1 Filed: 02/27/2023

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AMERICAN FEDERATION v. AIR FORCE 2
______________________
Before P ROST , REYNA, and STARK, Circuit Judges.
REYNA, Circuit Judge.
The U.S. Air Force removed Michael Johnson from his
position as an Air Traffic Watch Controller Supervisor for
careless performance of assigned duties. The American
Federation of Government Workers Local 1367 (the “local
Union”) challenged the removal on behalf of Mr. Johnson
through an arbitration proceeding. The Arbitrator upheld
Mr. Johnson’s removal, and the local Union appealed that
decision to this court. The local Union later withdrew, and
we dismissed the appeal. Subsequently, Mr. Johnson filed
a motion to substitute himself for the local Union, invoking
Rule 43(b) of Federal Appellate Procedure. We granted Mr.
Johnson’s motion to the limited extent of vacating our prior
order that dismissed the appeal and reinstating the appeal.
We further ordered briefing on the issue of substitution and
the merits of the appeal. The motion remains pending be-
fore us in all other respects.
Having considered Mr. Johnson’s arguments, we deny
Mr. Johnson’s motion to substitute, do not reach the mer-
its, and dismiss the appeal.
BACKGROUND
Mr. Johnson served as an Air Traffic Controller Watch
Supervisor for the Department of Defense. J.A. 2.1 On
September 12, 2018, Mr. Johnson was working in the Kelly
Tower, an airline control tower in San Antonio, Texas. J.A.
8. During his watch, a traffic controller trainee gave an F-
16 aircraft clearance for takeoff while a T-38 aircraft was
in the process of clearing the runway. J.A. 9. According to
Federal Aviation Administration (“FAA”) policy, the
1 J.A. refers to Mr. Johnson’s Appendix, ECF No. 54.
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AMERICAN FEDERATION v. AIR FORCE 3
situation called for four miles of separation between the
aircrafts. J.A. 6. On this occasion, only 2.33 miles sepa-
rated the aircrafts, in violation of FAA policy. J.A. 10.
The Air Force then alleged that Mr. Johnson was at
fault for the September 12 violation and that this was
grounds for removal in light of his prior offenses. J.A. 27.
On April 17, 2019, Director of Operations Joseph Meaux
issued a notice of decision to remove Mr. Johnson, effective
May 11, 2019. J.A. 2.
On May 7, 2019, the local Union initiated grievance
procedures, in accordance with a collective bargaining
agreement. J.A. 3. When the dispute was not resolved
through the grievance procedure, the local Union invoked
arbitration through the Federal Mediation and Concilia-
tion Service. Id. On November 16, 2020, the Arbitrator
upheld the Air Force’s removal decision (“Arbitration Deci-
sion”). J.A. 17.
The local Union appealed the Arbitration Decision to
this court on December 31, 2020. On April 12, 2021, the
Air Force filed a motion to dismiss, arguing that the local
Union lacked standing to bring this appeal on Mr. John-
son’s behalf. The local Union informed the court that it was
withdrawing from the appeal because its national union,
American Federation of Government Workers (AFGE), had
placed the local Union in receivership and stripped its
counsel of all authority to proceed.2 The court denied the
motion to dismiss as moot and dismissed the appeal.
2 Generally, a receivership occurs when an entity is
attempting to avoid bankruptcy and thus is placed under
the control of a receiver. See 65 Am. Jur. 2d Receivers §§ 75
& 84 (2023). An appointed receiver may then manage the
entity’s assets as well as its financial and operating deci-
sions. See id.
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AMERICAN FEDERATION v. AIR FORCE 4
On May 25, 2021, Mr. Johnson moved to reinstate the
local Union’s appeal. The Air Force opposed, arguing, inter
alia, that reinstating the case was improper because Mr.
Johnson was not a party to the appeal brought by the local
Union.
On June 8, 2021, Mr. Johnson moved to be substituted
for the local Union. The Air Force responded, contending
that the court could not substitute a party in a terminated
appeal where the original party lacked standing. Mr. John-
son did not dispute that the local Union lacked standing
but argued that substitution in this case is appropriate.
On August 17, 2021, the court granted Mr. Johnson’s
motion “to the limited extent” of vacating our prior order
that dismissed the appeal and reinstating the appeal. Or-
der (Aug. 17, 2021), ECF No. 30. We further ordered brief-
ing on the “appropriateness of substitution and the merits
of the petition for review.” Id. The remainder of the mo-
tion that was referred to the merits panel is pending before
us.
D ISCUSSION
Mr. Johnson argues that he should be permitted, pur-
suant to Federal Rule 43(b) of Appellate Procedure, to sub-
stitute the local Union in this appeal. In support, he
advances several arguments, including, for example, that
he is the true party-in-interest because his termination
(i.e., removal) is the subject of the appeal, that the local
Union mistakenly filed the appeal in its name, and that the
local Union was later compelled to withdraw from the ap-
peal. ECF No. 26; Appellant’s Br. 14–16. The Air Force
contends that substitution in this matter would be im-
proper because the local Union lacked standing to file the
appeal before this court. Appellee’s Br. 13-16.
Generally, a federal employee may seek to reverse an
adverse employment decision, such as termination, by ap-
pealing the decision directly to the Merit Systems
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AMERICAN FEDERATION v. AIR FORCE 5
Protection Board (“MSPB”). 5 U.S.C. §§ 7121(e)(1),
7512(1), 7513(d). In cases such as here, where the employ-
ment position is covered by a collective bargaining agree-
ment, the employee has a choice to proceed before
arbitration or to proceed before the MSPB. Id. If the em-
ployee chooses to proceed before the MSPB, the employee
may appeal an unfavorable ruling by the MSPB to this
court. 5 U.S.C. § 7703(b)(1). If the choice is made to pro-
ceed via arbitration, only the union may appear as a party
at the arbitration, on its behalf or on the behalf of the em-
ployee. 5 U.S.C. §§ 7121(b)(1)(C)(i) & (iii). Significant here,
if the arbitration results in an unfavorable decision, only
the employee may appeal the unfavorable arbitration
award before this court. See Reid v. Dep’t of Com., 793 F.2d
277, 282 (Fed. Cir. 1986); see also AFGE Loc. 3438 v. Soc.
Sec. Admin., No. 2021-1972, 2022 WL 1653177, at *3 (Fed.
Cir. May 25, 2022) (Reyna, J., additional views); see also 5
U.S.C. § 7121(f) (explaining 5 U.S.C. § 7703 applies to the
review of an arbitrator’s award in this court “in the same
manner and under the same conditions as if the matter had
been decided by the Board”).
As noted above, Mr. Johnson elected arbitration, where
he was represented by the local Union. See J.A. 29. The
arbitration proceeding resulted in an unfavorable decision
to Mr. Johnson. The unfavorable decision was then ap-
pealed to this court by the local Union. Mr. Johnson was
not a party to the appeal.
Our precedent and prior statutory interpretation are
clear that unions lack standing to initiate an appeal of an
arbitration decision under 5 U.S.C. § 7703(a). See Reid,
793 F.2d at 282; see also Senior Execs. Ass’n v. Off. of Pers.
Mgmt., 113 F.3d 1254 (Fed. Cir. 1997) (nonprecedential).
The parties in this appeal do not dispute that the local Un-
ion in this case lacked standing to appeal the Arbitration
Decision. The question before us is whether a party may
substitute under Rule 43(b) where the original party to the
appeal lacked standing. We hold that it may not.
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AMERICAN FEDERATION v. AIR FORCE 6
Generally, Rule 43(b) governs substitution for “any rea-
son other than death.” Fed. R. App. P. 43(b). For example,
substitution may “be necessary when a party is incapable
of continuing the suit,” such as when the property-at-issue
or focus of the litigation shifts, rendering another entity the
real party in interest. Mojave Desert Holdings, LLC v.
Crocs, Inc., 995 F.3d 969, 975 (Fed. Cir. 2021) (quoting 21
James W. Moore et al., Moore’s Federal Practice – Civil §
343.12 (2020)); see AngioDynamics, Inc. v. Biolitec, Inc.,
775 F.3d 550, 554 (2d Cir. 2015) (holding substitution is
“permissible only when a [proper] party to the suit is una-
ble to continue to litigate” (internal quotation marks omit-
ted)). This court has allowed substitution for a successor-
in-interest to a party that had standing at the outset of the
appeal. See Olaplex, Inc. v. L’Oreal USA, Inc., 845 F. App’x
943, 948–49 (Fed. Cir. 2021) (nonprecedential).
Other circuits evaluating Rule 43(b) have held that
substitution is impermissible where the original party was
not a proper party. See, e.g., Silberman v. Miami Dade
Transit, 927 F.3d 1123, 1128 n.3, 1131–32 (11th Cir. 2019);
Sable Commc’ns of Cal. Inc v. Pac. Tel. & Tel. Co., 890 F.2d
184, 191 n.13 (9th Cir. 1989) (noting an implicit “precondi-
tion that the original party was a proper party to the suit”).
Mr. Johnson argues various grounds for why substitu-
tion is permissible in this case. While he is correct that
Rule 43(b) permits substitution in certain circumstances,
the cases he relies on involve intervention or substitution
in matters where the original party being substituted had
standing. Here, in contrast, the local Union does not have
standing by operation of the statute, 5 U.S.C. § 7703(a).
We reject the invitation to ignore § 7703(a).
Based on the foregoing, we hold that a party may not
substitute under Rule 43(b) when the original party being
substituted lacked standing to initiate the appeal. We have
considered the remainder of Mr. Johnson’s arguments and
find them without merit. We deny Mr. Johnson’s motion
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AMERICAN FEDERATION v. AIR FORCE 7
for leave to substitute for the local Union and do not reach
the merits of this appeal, which is hereby dismissed.
DISMISSED
COSTS
No costs.
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