Case: 21-1972 Document: 47 Page: 1 Filed: 05/25/2022 NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ AFGE LOCAL 3438, Petitioner v. SOCIAL SECURITY ADMINISTRATION, Respondent ______________________ 2021-1972 ______________________ Petition for review of an arbitrator’s decision in No. 200417-05577 by Edward M. Davidson. ______________________ Decided: May 25, 2022 ______________________ PETER HARRIS, Music City Disability LLC, Nashville, TN, argued for petitioner. MILES KARSON, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washing- ton, DC, argued for respondent. Also represented by BRIAN M. BOYNTON, TARA K. HOGAN, PATRICIA M. MCCARTHY. ______________________ Before LOURIE, REYNA, and CHEN, Circuit Judges. Case: 21-1972 Document: 47 Page: 2 Filed: 05/25/2022 2 AFGE LOCAL 3438 v. SSA Opinion for the court filed by Circuit Judge LOURIE, in which REYNA and CHEN, Circuit Judges, join. Additional views filed by Circuit Judge REYNA. LOURIE, Circuit Judge. AFGE Local 3438 (“AFGE”) appeals from an arbitra- tion decision denying its request for attorney fees. AFGE Local 3438 v. Soc. Sec. Admin., No. 200417-05577 (Mar. 18, 2021) (Davidson, Arb.) (decision available at J.A. 30–32) (“Arbitration Decision”). Because AFGE does not have standing to appeal that denial, we dismiss this appeal for lack of jurisdiction. BACKGROUND Sarah Kidwell is a claims specialist at the Social Secu- rity Administration (“SSA”). In November 2019, the agency indefinitely suspended Kidwell based on allega- tions that she violated policies prohibiting transfer of con- fidential information to others, in this case, to her father. Under 5 U.S.C. § 7121(e)(1), a government employee may challenge a disciplinary action by appealing to the Merit Systems Protection Board (the “Board”). Alterna- tively, if the employee is represented by a collective bar- gaining agreement containing a provision for a grievance process, the employee may appeal to an arbitrator using the negotiated grievance procedure. Kidwell elected to have her grievance heard through binding arbitration in accordance with a collective bargaining agreement with AFGE. She was represented in that proceeding by AFGE. The arbitrator found in Kidwell’s favor, concluding that the SSA imposed the penalty “without meeting the burden of reasonable cause and in contravention of its own past prac- tice.” J.A. 9. After Kidwell prevailed on the merits, AFGE filed a re- quest for attorney fees pursuant to the Back Pay Act. See 5 U.C.S. § 5596; see also 5 U.S.C. § 7701(g). The Back Pay Case: 21-1972 Document: 47 Page: 3 Filed: 05/25/2022 AFGE LOCAL 3438 v. SSA 3 Act “authorizes ‘reasonable attorney fees’ when an agency employee has prevailed, and the fees are warranted in the interest of justice.” Raney v. Federal Bureau of Prisons, 222 F.3d 927, 930 (Fed. Cir. 2000). The arbitrator denied AFGE’s motion for attorney fees. He found that the SSA’s “disciplinary decision was prema- ture[,]” and therefore reversed the decision; hence he con- cluded that Kidwell was the prevailing party. Arbitration Decision at J.A. 32. But he also determined that payment of attorney fees was not warranted in the interest of justice because the agency’s issuance of its …
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