News from the Federal Circuit: On August 5, 2013, the U.S. Court of Appeals for the Federal Circuit issued its decision in Gallo v. Department of Transportation, Case No. 2011-3094. The Court created a major new hurdle to Federal Aviation Administration (FAA) employees seeking the award of back pay, specifically holding that the Federal Circuit lacks the authority to award attorneys’ fees and costs in FAA back pay cases.
As previously analyzed in this blog, Congress in 2012 retroactively reinstated FAA employees’ rights to back pay remedies in personnel matters. The Federal Circuit had awarded Ms. Gallo, an FAA employee, back pay in 2012 after extended litigation before the Federal Circuit, the Merit Systems Protection Board (MSPB) and the Court of Federal Claims. Ms. Gallo then sought reimbursement of her attorneys’ fees and costs from the litigation, which would ordinarily be available under the Back Pay Act.
The Federal Circuit, however, refused to award attorneys’ fees and costs in Ms. Gallo’s case. The court found that the 2012 legislation which reinstated FAA employees’ rights to back pay only expressly authorized the MSPB to reimburse attorneys’ fees and costs. The court found that the fact that the Federal Circuit was not named expressly in the 2012 statute to indicate Congress’ intent that only the MSPB be re-authorized to award back pay in FAA cases–and not the Federal Circuit. As a result, despite the 2012 legislation, FAA employees’ ability to seek back pay remedies remains more limited than other federal civil service employees, because fees cannot be reimbursed for a successful appeal from an MSPB decision to the Federal Circuit.
If you are a current or former FAA employee and would like to discuss your rights, please contact the law firm of Passman & Kaplan, P.C. to request a consultation.