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Gallo v. Department of Transportation

United States Court of Appeals, Federal Circuit

August 5, 2013

JANE L. GALLO, Petitioner,
v.
DEPARTMENT OF TRANSPORTATION, Respondent.

Petition for review of the Merit Systems Protection Board in No. AT0353000909-B-1.

William L. Bransford, Shaw, Bransford & Roth, PC, of Washington, DC, filed an application for attorney fees for petitioner. With him on the application was Maria N. Coleman.

David D'Alessandris, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, filed a response to the application for attorney fees for respondent. With him on the response were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Harold D. Lester, Jr., Assistant Director. Of counsel on the response was Theresa D. Dunn, Office of the Regional Counsel, Federal Aviation Administration, of Fort Worth, Texas.

Before Clevenger, Bryson, and Linn, Circuit Judges.

Linn, Circuit Judge.

Jane L. Gallo ("Gallo") requests attorney fees under the Back Pay Act, 5 U.S.C. § 5596, and Federal Circuit Rule 47.7 ("Rule 47.7"). Because this court lacks the statutory authority to award attorney fees under the Back Pay Act to employees of the Federal Aviation Administration ("FAA"), Gallo's request is denied.

I. Background

A full description of the factual and procedural background of the present case is provided in Gallo v. Department of Transportation, 689 F.3d 1294 (Fed. Cir. 2012) ("Gallo II"). Gallo was employed by the Department of Transportation ("Department") FAA as an air traffic control specialist ("ATCS") and "experienced a compensa-ble job-related injury." Id. at 1295. Gallo initially returned to her ATCS position on light duty status, but lost her medical certification and was assigned to a non-operational automation specialist position. Around the time of her recovery, Gallo applied for and obtained a supervisory ATCS position. Gallo asserted before the Merit Systems Protection Board ("Board") that the FAA "violated 5 U.S.C. § 8151(a) by failing to adjust her salary to provide pay benefits that the [FAA] granted to operational ATCS employees while she served as an automation specialist." Gallo II, 689 F.3d at 1296. The administrative judge ("AJ") dismissed Gallo's appeal for lack of jurisdiction, and Gallo did not appeal or seek reconsideration. Gallo later filed a discrimination complaint with the Department, which was dismissed, and a complaint in the United States Court of Federal Claims ("Claims Court"), which the Claims Court dismissed. This court affirmed the Claims Court but suggested that the Board reopen Gallo's appeal. Gallo v. United States, 529 F.3d 1345, 1352 (Fed. Cir. 2008) ("Gallo I") ("[W]e assume that the Board would look favorably on a motion to reopen."). Subsequently, the Board did in fact reopen Gallo's appeal and dismissed for failure to state a claim, which Gallo then appealed to this court. Gallo II, 689 F.3d 1294. This court reversed and remanded, directing the Board to

(1) reinstate Gallo's creditable service time as an automation specialist; (2) determine Gallo's appropriate seniority level and corresponding pay under the AT compensation system based upon her creditable service time, including her time spent serving as an automation specialist . . .; and (3) award Gallo any additional compensation to which she was entitled, effective to the date of her restoration to the supervisory ATCS position. See 49 U.S.C. § 40122(g)(2) [sic[1] (Feb. 14, 2012 amendment) (The Board possesses authority to award compensation under the Back Pay Act.).

Gallo II, 689 F.3d at 1302. On remand, the AJ ordered the Department "to pay [Gallo] . . . for the appropriate amount of back pay, with interest and to adjust benefits with appropriate credits and deductions in accordance with the Back Pay Act and the . . . regulations implementing the Back Pay Act as those authorities existed as of March 31, 1996." Gallo v. Dep't of Transp., No. AT-0353-00-0909-B-2, slip op. at 5 (MSPB Jan. 10, 2013). This initial decision became final on February 14, 2013.

Gallo requests that this court award attorney fees incurred in the Claims Court and in her appeals to this court in Gallo I and Gallo II based on the Back Pay Act and Rule 47.7.

II. Discussion

A. The Legal Framework

Under Rule 47.7, this court "may award attorney fees and expenses when authorized by law." 49 U.S.C. § 40122(g)(2) exempts the FAA from the provisions of title 5, except for those specifically listed in that section. § 40122(g)(2) ("The provisions of title 5 shall not apply to the new personnel management system developed and implemented pursuant to paragraph (1), with the exception of— . . . ."). The Back Pay Act is found in title 5 and is not listed in § 40122(g)(2). Prior to 2012, this court concluded that the language of § 40122(g)(3) did not "purport to restore any remedy under ...


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