Principi

Plaintiffs-Appellants/Cross-Appellees American Federation of Government Employees, AFL-CIO (“AFGE”), and Dr. Edwin Savlov (collectively “Appellants”) brought this action to challenge Defendants-Appellees/Cross-Appellants’ (“Ap-pellees” or “VA”) exemption from arbitration of a grievance that had been filed under the negotiated grievance procedure of a collective bargaining agreement. Ruling on cross-motions for summary judgment, the district court accepted one reason given by the VA, but found that an alternate reason would not have justified the exemption from arbitration. Appellants appealed and the VA cross-appealed the district court’s rejection of the alternate ground asserted as a basis for an exemption from arbitration. The VA also appeals the district court’s earlier denial of a motion to dismiss for lack of subject matter jurisdiction.

BACKGROUND

Dr. Savlov was a VA physician who filed a grievance alleging unlawful discrimination based upon his age and gender. Dr. Savlov spent approximately seventy percent of his time providing primary care services, in the form of compensation and pension examinations (“C & P examinations”), and approximately thirty percent of his time…