National Air Traffic Controllers Association v. Faa

Case: 24-1748 Document: 13 Page: 1 Filed: 08/22/2024

NOTE: This order is nonprecedential.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 LOURIE, CUNNINGHAM, and STARK, Circuit Judges. LOURIE, Circuit Judge.

ORDER

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: 2 Filed: 08/22/2024 2 NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION v. FAA 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 Case: 24-1748 Document: 13 Page: 3 Filed: 08/22/2024 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, IT IS ORDERED THAT: (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.

FOR THE COURT August 22, 2024

Date 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.”).