Jane Gallo v. Department of Transportation
2013 U.S. App. LEXIS 16085
| Fed. Cir. | 2013Background
- Gallo, an FAA air traffic control specialist, lost medical certification after a work injury, was reassigned to a non‑operational automation specialist position, later obtained a supervisory ATCS position, and claimed she was entitled to higher pay credit for time spent as an automation specialist.
- The MSPB initially dismissed her appeal for lack of jurisdiction, the Claims Court dismissed her later suit, and this court in earlier appeals (Gallo I and Gallo II) directed the Board to reconsider and on remand ordered back pay and related relief under the Back Pay Act as of her restoration date.
- Gallo sought attorney fees for work in the Claims Court and for her appeals to this court, invoking the Back Pay Act, 5 U.S.C. § 5596, and Federal Circuit Rule 47.7.
- The key statutory question centered on whether the 2012 amendment to 49 U.S.C. § 40122(g)(3) (the FAA Modernization and Reform Act of 2012) authorized this court to award attorney fees under the Back Pay Act to FAA employees.
- The government contended the amendment only restored the Board’s remedial authority under the Back Pay Act as of March 31, 1996, and did not make the Back Pay Act generally applicable to the FAA or authorize this court to award such fees.
- The Federal Circuit concluded it lacked independent statutory authority to award attorney fees under the Back Pay Act against the FAA and denied Gallo’s fee request; each party bears its own costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether this court may award attorney fees under the Back Pay Act to FAA employees based on the 2012 amendment to § 40122(g)(3) | Gallo: the court reviews the Board and can therefore award fees for appellate work; Gallo II cited the Back Pay Act and this court is proper forum to seek fees for work before it | Gov: 2012 amendment restored only the Board’s remedial authority as of 3/31/1996; Back Pay Act was not added to § 40122(g)(2), so this court lacks statutory authority to award fees | Court: Denied — statute grants remedial power to the Board, not to this court; no waiver of sovereign immunity supports fee awards by the court |
Key Cases Cited
- Gallo v. Dep’t of Transp., 689 F.3d 1294 (Fed. Cir. 2012) (earlier Federal Circuit decision remanding to Board and recognizing Board authority to award back pay under amended § 40122)
- Gonzalez v. Dep’t of Transp., 551 F.3d 1372 (Fed. Cir. 2009) (pre‑2012 holding that the Back Pay Act did not apply to FAA employees)
- Phillips v. Gen. Servs. Admin., 924 F.2d 1577 (Fed. Cir. 1991) (Board may award fees for administrative work but not for judicial proceedings)
- Olsen v. Dep’t of Commerce, 735 F.2d 558 (Fed. Cir. 1984) (Board’s fee authority limited to administrative proceedings; judicial review governed by separate provisions lacking fee authorization)
- Gavette v. Office of Pers. Mgmt., 808 F.2d 1456 (Fed. Cir. 1986) (EAJA applies to judicial appeals from the Board even if Board proceedings are treated under the Back Pay Act)
- Ramos v. Dep’t of Justice, 552 F.3d 1356 (Fed. Cir. 2009) (Back Pay Act can provide a mechanism to apply for attorney fees in this court)
- Roche v. Merit Sys. Prot. Bd., 596 F.3d 1375 (Fed. Cir. 2010) (Congress restored to FAA employees certain appeal rights by incorporating pre‑1996 law)
- Russello v. United States, 464 U.S. 16 (1983) (express‑omit canon: differing statutory language indicates different congressional intent)
- City of Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S. 424 (2002) (limits on applying Russello presumption when provisions differ in formulation)