Gonzalez v. Department of Transp.

Decision Date08 January 2009
Docket NumberNo. 2007-3309.,2007-3309.
Citation551 F.3d 1372
PartiesMario A. GONZALEZ, Petitioner, v. DEPARTMENT OF TRANSPORTATION, Respondent.
CourtU.S. Court of Appeals — Federal Circuit

Carrie A. Dunsmore, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent. With her on the brief were Gregory G. Katsas, Assistant Attorney General, Jeanne E. Davidson, Director, and Todd M. Hughes, Deputy Director. Of counsel was A. Bondurant Eley, Trial Attorney.

Before RADER and DYK, Circuit Judges, and WALKER,* Chief District Judge.

Opinion for the court filed by Circuit Judge, RADER.

Mario Gonzalez petitioned the Merit Systems Protection Board to enforce a prior final judgment in his favor against the Department of Transportation ("DOT"). In that prior judgment, the Board awarded Mr. Gonzalez back pay for an improper separation from his job as an air traffic controller. The Board, however, denied Gonzalez's petition for enforcement. Because the Board correctly concluded that 49 U.S.C. § 40122 does not grant jurisdiction for back pay awards to Federal Aviation Administration ("FAA") employees, this court affirms. Further, because Gonzalez's claim to back pay raises jurisdictional issues of sovereign immunity, this court finds that the Board did not err in entertaining a collateral attack on its previous award of back pay to this petitioner.


The FAA appointed Gonzalez as an air traffic controller in 1971. In February, 2005, the agency terminated Mr. Gonzalez's employment based on the belief that he was subject to mandatory separation under 5 U.S.C. § 8335(a) upon reaching the age of 56. Mr. Gonzalez challenged this removal to the Board. The Board's administrative judge reversed the removal in an initial decision. Gonzalez v. Dep't of Transp., PH-0752-05-0262-C-1 (M.S.P.B. June 30, 2005). From this date, the FAA placed Mr. Gonzalez on interim relief, returning him to duty and pay status pending adjudication of the agency's petition for review. Upon review, however, the Board reversed the initial decision and remanded the appeal to the administrative judge for a hearing. Gonzalez v. Dep't of Transp., 101 M.S.P.R. 416 (2006).

On August 3, 2006, the administrative judge issued an initial decision again reversing the FAA's involuntary separation of Gonzalez. The administrative judge found that Gonzalez had commenced employment as an air traffic controller before enactment of the mandatory separation provision. Gonzalez v. Dep't of Transp., PH-0752-05-0262-C-1 (M.S.P.B. Aug. 3, 2006). The judge ordered the agency to "pay appellant by check or through electronic funds transfer for the appropriate amount of back pay" and to "inform appellant in writing of all actions taken to comply with the Board's Order and the date on which it believes it has fully complied." Id. at 8. Under this ruling, the Agency owed Mr. Gonzalez roughly five months of back pay. The FAA did not petition for review. Thus, this decision became final on September 7, 2006.

On November 6, 2006, the FAA informed Gonzalez that it did not intend to comply with the back pay award. Instead the Agency relied on the Board's decision in Ivery v. Department of Transportation, 102 M.S.P.R. 356 (2006). In Ivery, the Board held it did not have jurisdiction to order the FAA to pay back pay to employees because the FAA is not subject to the Back Pay Act, 5 U.S.C. § 5596. Id. at 361. The Board had decided Ivery on June 22, 2006—before the September 7, 2006 deadline for the agency to appeal the Board's August 3, 2006 decision in favor of Gonzalez.

On November 27, 2006, Gonzalez filed a petition to enforce the Board's August 3 decision. The Board's administrative judge found that the Board's previous remedy in favor of Mr. Gonzalez was incorrect based on Ivery. Gonzalez v. Dep't of Transp., PH-0752-05-0262-C-1 (M.S.P.B. Mar. 29, 2007). Upon Gonzalez's petition for review of this decision, the full Board summarily affirmed. Gonzalez v. Dep't of Transp., PH-0752-05-0262-C-1, 106 M.S.P.R. 248, 2007 WL 2075342 (M.S.P.B. June 25, 2007).

In his appeal to this court, Gonzalez challenges the underlying holding in Ivery. Gonzalez also contends that the MSPB, in deciding it lacked jurisdiction to award back pay, erred by entertaining a collateral attack on the merits of its earlier final decision. This court has jurisdiction over Gonzalez's timely appeal under 5 U.S.C. § 7703.


This court may set aside a decision of the Board only when it is "(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence." 5 U.S.C. § 7703(c). The Board's jurisdiction to adjudicate a particular appeal presents a question of law, which this court reviews without deference. See King v. Briggs, 83 F.3d 1384, 1387 (Fed. Cir.1996).

The Department of Transportation Appropriations Act of 1996 charged the FAA with creating a new personnel management system that "addresses the unique demands on the agency's workforce." Pub.L. No. 104-50, § 347, 109 Stat. 436, 460 (1995), as amended by Pub.L. No. 104-122, § 1, 110 Stat. 876, 876 (1996) ("DOT Act"). To determine the Board's jurisdiction to award back pay to FAA employees, this court must construe the statutory language of 49 U.S.C. § 40122, which codifies § 347 of the DOT Act. See Bazalo v. West, 150 F.3d 1380, 1382 (Fed.Cir.1998). This court affords those statutory terms their "ordinary, contemporary, common meaning, absent an indication Congress intended them to bear some different import." Williams v. Taylor, 529 U.S. 420, 431, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000) (internal quotation marks omitted). In the absence of ambiguity, the meaning of the statutory language governs. See Cox v. West, 149 F.3d 1360, 1363 (Fed.Cir.1998) (quoting Freytag v. Comm'r, 501 U.S. 868, 873, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991) ("When we find the terms of a statute unambiguous, judicial inquiry should be complete except in rare and exceptional circumstances.")).

Because Gonzalez's claim invokes the Back Pay Act, 5 U.S.C. § 5596, which involves a waiver of the government's sovereign immunity, this court must strictly construe the relevant provisions of § 40122 in favor of the government. Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996). In Lane, the Supreme Court stated:

A waiver of the Federal Government's sovereign immunity must be unequivocally expressed in statutory text, and will not be implied. Moreover, a waiver of the Government's sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign. To sustain a claim that the Government is liable for awards of monetary damages, the waiver of sovereign immunity must extend unambiguously to such monetary claims. A statute's legislative history cannot supply a waiver that does not appear clearly in any statutory text; the unequivocal expression of elimination of sovereign immunity that we insist upon is an expression in statutory text.

Id. (quotation marks and citations omitted). Thus, this court may only sustain Gonzalez's claim if the unambiguous text of § 40122 shows that the United States has waived sovereign immunity to award back pay to FAA employees like the petitioner.


The language of § 40122 states: "[t]he provisions of Title 5 shall not apply to the new personnel management system developed and implemented" by the FAA. 49 U.S.C. § 40122(g)(2). The Back Pay Act falls in Title 5 and may only operate in favor of FAA employees if § 40122 grants an exception. While § 40122(g)(2) lists eight exceptions to the FAA's exemption from Title 5, none of these exemptions includes the Back Pay Act, under which Gonzalez seeks relief. This omission is of no small consequence. "`Where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied in the absence of evidence of a contrary legislative intent.'" Espenschied v. Merit Sys. Prot. Bd., 804 F.2d 1233, 1237 (Fed.Cir.1986) (quoting Andrus v. Glover Constr. Co., 446 U.S. 608, 616-17, 100 S.Ct. 1905, 64 L.Ed.2d 548 (1980)). With the additional obligation to construe this proposed waiver of sovereign immunity strictly, this court cannot create an exception that makes the Back Pay Act available to FAA employees where the language of § 40122 denies that remedy.

Gonzalez endeavors to navigate around the Title 5 exclusion by referring to some ambiguous legislative history of § 40122. The Wendell H. Ford Aviation Investment and Reform Act of the 21st Century, Pub.L. No. 106-181, 114 Stat. 61 (2000) (codified at 49 U.S.C. § 40122(g)(3)) ("Ford Act") retroactively reinstated FAA employees' rights to appeal adverse agency personnel actions to the Board. The DOT Act had divested those rights to appeal to the Board. See Coradeschi v. Dep't of Homeland Sec., 439 F.3d 1329, 1332 (Fed.Cir.2006). The Ford Act amended the statute to add, inter alia, subsection g(3), which provides:

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.

49 U.S.C. § 40122(g)(3); see also S.REP. No. 106-9, at 36 § 425 (1999) (noting the purpose of restoring "the right of FAA employees to submit appeals to the MSPB"). This language does not purport to restore any remedy under the Back Pay Act. Gonzalez, however, argues that the Ford Act's restoration of rights to appeal to the Board without the corresponding authority to award back pay would render those appeals...

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