Gallo v. Department of Transportation
2012 U.S. App. LEXIS 15891
| Fed. Cir. | 2012Background
- Gallo began as an ATCS at FAA in 1982; injured in 1995 and received FECA benefits; returned to light duty then to automation specialist (GS-14, with reduced retirement credit) from 1996–2000; program converted ATCS pay plan but not automation specialist; recovered in 2000 and sought restoration under 5 U.S.C. § 8151(a) after reinstatement to an ATCS supervisory position; Board denied restoration citing no “resume employment” and not based on length of service; Gallo appeals, arguing § 8151(a) covers time while employed in any federal job and includes credit for automation service; court previously remanded in Gallo I (Fed. Cir. 2008) to reconsider jurisdiction and interpretation; court sua sponte determined physical separation not required and ordered remand for creditable service time and pay determinations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does §8151(a) require physical separation to count as resuming employment? | Gallo: no physical separation needed; language ambiguous; requires credit for time while in any federal job. | Department: requires physical separation; otherwise phrase is superfluous. | No; physical separation not required; creditable service time can count. |
| Are the benefits sought “based on length of service” under §8151(a) including time as automation specialist? | Gallo: credit for entire government service including automation time; pay increases tied to length of service. | Benefits here are not based on length of service; §8151(b) limited; time already continuous service. | Gallo entitled to rights and benefits based on length of service, including creditable service time from automation period; remand to determine seniority and pay. |
Key Cases Cited
- Gallo v. United States, 529 F.3d 1345 (Fed. Cir. 2008) (rejected narrow reading of §8151(a); Board erred on scope of “resumes employment”)
- True v. Office of Personnel Management, 926 F.2d 1151 (Fed. Cir. 1991) (limits retirement credit under §8151(a))
- Jones v. Dep’t of Transp., 295 F.3d 1298 (Fed. Cir. 2002) (de novo review of statutory interpretation)
- Burtch v. U.S. Postal Serv., 47 MSPR 518 (MSPR 1991) (limits on restoration rights not encompassed by §8151(a))
- Gallo I, 529 F.3d 1345 (Fed. Cir. 2008) (earlier decision directing Board to reconsider §8151(a) interpretation)
- 76 Fed. Cl. 593, 76 Fed. Cl. 593 (Fed. Cl. 2007) (prior district court ruling on restoration and creditable service)