Gallo v. Dep't of Transp.

Decision Date05 August 2013
Docket NumberNo. 2011–3094.,2011–3094.
PartiesJane L. GALLO, Petitioner, v. DEPARTMENT OF TRANSPORTATION, Respondent.
CourtU.S. Court of Appeals — Federal Circuit

OPINION TEXT STARTS HERE

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, TX.

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 compensable 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. See49 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 the Back Pay Act.” Gonzalez v. Dep't of Transp., 551 F.3d 1372, 1375 (Fed.Cir.2009). At that time, § 40122(g)(3) stated,

“Under the new personnel management system developed and implemented under paragraph (1), an employee of the Administration may submit an appeal to the Merit Systems Protection Board and may seek judicial review of any resulting final orders or decisions of the Board from any action that was appealable to the Board under any law, rule, or regulation as of March 31, 1996.”

Gonzalez, 551 F.3d at 1375 (quoting § 40122(g)(3)). Thus, prior to 2012, it was clear that the Back Pay Act did not apply to the FAA. See id. at 1375–77.

In 2012, § 40122(g)(3) was amended by adding the language “Notwithstanding any other provision of law, retroactive to April 1, 1996, the Board shall have the same remedial authority over such employee appeals that it had as of March 31, 1996.” FAA Modernization and Reform Act of 2012, Pub.L. No. 112–95, § 611, 126 Stat. 11, 117 (2012 Amendment) (internal quotation marks omitted). The present issue is whether this court has the authority to award attorney fees under the Back Pay Act based on the language added to § 40122 by the 2012 Amendment.

B. The Parties' Arguments

While the parties make multiple arguments, this court need only reach the arguments on the dispositive issue of its statutory authority to award attorney fees in the present circumstances.

The government argues that the 2012 Amendment did not subject the FAA to the Back Pay Act because it did not list the Back Pay Act in § 40122(g)(2) as a section of title 5 applicable to the FAA. The government argues that, instead, the 2012 Amendment provided the Board, and only the Board, with the authority to provide the relief to FAA employees that was available under the Back Pay Act on March 31, 1996. Thus, the government argues that this court lacks the statutory authority to consider Gallo's request for attorney fees.

Gallo argues that this court has the authority to award attorney fees because it reviews the Board. Gallo also notes that Gallo II cited the Back Pay Act and that this court is the appropriate forum in which to request attorney fees incurred in appeals to this court.

C. Authority to Award Attorney Fees

Under Rule 47.7, this court must itself be authorized by law to award attorney fees. Contrary to Gallo's argument, merely because this court is authorized to review a tribunal that is statutorily authorized to award attorney fees, does not mean that this court itself is authorized by that same statute to award attorney fees in the first instance. These principles are demonstrated by this court's recognition of the need to examine the independent statutory bases of the authority of the Board and this court before determining the propriety of a fee award.

For example, the Board in certain circumstances may award attorney fees for work before it when attorney fees are not available under the same statute for work done before this court. See Phillips v. Gen. Servs. Admin., 924 F.2d 1577, 1582 (Fed.Cir.1991) (“As we have previously observed, [5 U.S.C.] section 7701(g) is not a provision under which fees may be awarded for services in connection with a judicial proceeding.” (citing Olsen v. Dep't of Commerce, 735 F.2d 558, 560–61 (Fed.Cir.1984), superseded by statute not in relevant part, Act of Aug. 5, 1985, Pub.L. No. 99–80, 99 Stat. 183,as recognized in Chiu v. United States, 948 F.2d 711, 714–15 (Fed.Cir.1991))); Olsen, 735 F.2d at 560–61 (“The Board's authority under ... [5 U.S.C. § 7701](g)(1) to award attorney's fees necessarily relates to fees incurred in those administrative proceedings. Judicial review of Board decisions is governed by section 7703, which contains no provision authorizing the award of attorney's fees incurred in the judicial proceedings. The Board has no authority to award attorney's fees for services rendered in connection with judicial review of a Board decision.”). Conversely, this court has the statutory authority to award attorney fees incurred in appeals when the Board is not authorized to award attorney fees under the same statute. See Gavette v. Office of Pers. Mgmt., 808 F.2d 1456, 1461–62 (Fed.Cir.1986) (en banc) (noting that Olsen held that the Equal Access to Justice Act (“EAJA”), 5 U.S.C. § 504 and 28 U.S.C. § 2412, “does not apply to proceedings before the board in cases involving ‘tenure’ and treating the request for attorney fees for proceedings before the board as a request under the Back Pay Act,” but “reaffirm[ing] Olsen 's holding that “the EAJA applies to appeals from the board to the Federal Circuit, because such appeals are judicial proceedings or ‘civil actions' under 28 U.S.C. § 2412(d)(1)(A)). We therefore hold that this court does not derive its authority to award attorney fees from the Board's authority to do so and must have its own statutory authorization to award attorney fees.

Gallo is correct that this court is the appropriate forum in which to request attorney fees incurred in proceedings before this court. See Phillips, 924 F.2d at 1581 (We conclude that a request for attorney fees under the Back Pay Act...

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    • U.S. Court of Appeals — Federal Circuit
    • October 15, 2014
    ...held that the Board is not authorized to grant an award of fees for work done on appeal from a Board order. See Gallo v. Dep't of Transp., 725 F.3d 1306, 1309 (Fed.Cir.2013) ( “[T]his court is the appropriate forum in which to request attorney fees incurred in proceedings before this court.......
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