Jane Gallo v. Department of Transportation

United States Court of Appeals
for the Federal Circuit
______________________

JANE L. GALLO,
Petitioner,

v.

DEPARTMENT OF TRANSPORTATION,
Respondent.
______________________

2011-3094
______________________

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

Decided: August 5, 2013
______________________

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 Depart-
ment 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 re-
sponse was THERESA D. DUNN, Office of the Regional
2 JANE GALLO v. DEPARTMENT OF TRANSPORTATION

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 Administra-
tion (“FAA”), Gallo’s request is denied.

I. BACKGROUND

A full description of the factual and procedural back-
ground of the present case is provided in Gallo v. Depart-
ment 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 re-
turned 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 opera-
tional ATCS employees while she served as an automa-
tion 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 com-
plaint with the Department, which was dismissed, and a
complaint in the United States Court of Federal Claims
JANE GALLO v. DEPARTMENT OF TRANSPORTATION 3

(“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 reo-
pen.”). 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 ap-
propriate 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 implement-
ing 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.

1 While the opinion cites § 40122(g)(2), it is clear
from the context that the court intended to reference
§ 40122(g)(3).
4 JANE GALLO v. DEPARTMENT OF TRANSPORTATION

Gallo requests that this court award attorney fees in-
curred 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 excep-
tion 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 or-
ders 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
JANE GALLO v. DEPARTMENT OF TRANSPORTATION 5

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 argu-
ment, merely because this court is authorized to review a
tribunal that is statutorily authorized to award attorney
6 JANE GALLO v. DEPARTMENT OF TRANSPORTATION

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 independ-
ent 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 connec-
tion with a judicial proceeding.” (citing Olsen v. Dep’t of
Commerce, 735 F.2d 558, 560-61 (Fed. Cir. 1984), super-
seded 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 un-
der . . . [5 U.S.C. § 7701](g)(1) to award attorney’s fees
necessarily relates to fees incurred in those administra-
tive 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
JANE GALLO v. DEPARTMENT OF TRANSPORTATION 7

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 statuto-
ry authorization to award attorney fees.

Gallo is correct that this court is the appropriate fo-
rum in which to request attorney fees incurred in proceed-
ings before this court. See Phillips, 924 F.2d at 1581 (“We
conclude that a request for attorney fees under the Back
Pay Act for services rendered in judicial proceedings
must, as in the case of an EAJA request, be directed to
this court.”); see also Gavette, 808 F.2d at 1468 (“[W]hen
attorney fees and expenses are authorized in connection
with an appeal, the amount of the award for such fees and
expenses shall be determined by this court.”). But that
does not obviate the need for statutory authorization
before this court can make such an award.

When the Back Pay Act applies, it provides this court
with the statutory authority to award attorney fees. See
Ramos v. Dep’t of Justice, 552 F.3d 1356, 1358, 1362 (Fed.
Cir. 2009) (providing “a mechanism by which [a party] can
now apply to this court for attorney fees that are author-
ized by the Back Pay Act” because “Congress wanted a
party . . . to have an opportunity to apply for fees not only
before the agency but also on judicial appeal,” and grant-
ing the party “20 days within which to submit an attorney
fee request under the Back Pay Act”); see also Olsen, 735
F.2d at 563 (“[T]he language of the Back Pay Act ‘is
sufficiently broad to include attorney’s fees for services
rendered in administrative or judicial appeals . . . .’”
(ellipsis in original) (quoting Hoska v. U.S. Dep’t of the
Army, 694 F.2d 270, 273 (D.C. Cir. 1982))). We turn now
to the question of whether the 2012 Amendment allows
this court to provide attorney fees under the Back Pay Act
to an FAA employee.
8 JANE GALLO v. DEPARTMENT OF TRANSPORTATION

D. Section 40122(g)(3)

In interpreting § 40122,

[t]his court affords those statutory terms their or-
dinary, contemporary, common meaning, absent
an indication Congress intended them to bear
some different import. In the absence of ambigui-
ty, the meaning of the statutory language governs.

Because [the present] 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 provi-
sions of § 40122 in favor of the government. . . .
Thus, this court may only sustain [the] claim if
the unambiguous text of § 40122 shows that the
United States has waived sovereign immuni-
ty . . . .

Gonzalez, 551 F.3d at 1374-75 (citations omitted) (inter-
nal quotation marks omitted).

Gallo II recognized that the 2012 Amendment pro-
vides the Board remedial authority under the Back Pay
Act. See Gallo II, 689 F.3d at 1302 (“[T]his court remands
to the Board for the Board to . . . award Gallo any addi-
tional compensation to which she was entitled . . . . See
49 U.S.C. § 40122(g)([3]) (Feb. 14, 2012 amendment) (The
Board possesses authority to award compensation under
the Back Pay Act.).”). Gallo II did not resolve whether
this court has the statutory authority to award attorney
fees based on the 2012 Amendment to § 40122(g)(3).

The 2012 Amendment to § 40122(g)(3) on its face pro-
vides the Board, not this court, the same remedial author-
ity that it had on March 31, 1996. 2012 Amendment
§ 611, 126 Stat. at 117 (“[T]he Board shall have the same
remedial authority over such employee appeals that it
JANE GALLO v. DEPARTMENT OF TRANSPORTATION 9

had as of March 31, 1996.” (emphasis added) (internal
quotation marks omitted)). This interpretation is further
supported by the contrast between the language of the
2012 Amendment that refers only to the Board and the
preceding language in § 40122(g)(3) that specifically
references judicial review. See § 40122(g)(3) (“[A]n em-
ployee of the [FAA] 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 . . . as of
March 31, 1996.” (emphasis added)). “Where Congress
includes particular language in one section of a statute
but omits it in another section of the same Act, it is gen-
erally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.” Rus-
sello v. United States, 464 U.S. 16, 23 (1983) (internal
quotation marks and alteration marks omitted). But see
City of Columbus v. Ours Garage & Wrecker Serv., Inc.,
536 U.S. 424, 435-36 (2002) (“The Russello presumption—
that the presence of a phrase in one provision and its
absence in another reveals Congress’ design—grows
weaker with each difference in the formulation of the
provisions under inspection.”).

The ordinary meaning of the language added to
§ 40122(g)(3) by the 2012 Amendment, which lacks any
reference to this court, indicates that the Board alone is
provided with the described remedial authority. While
the portions of § 40122 related to the Back Pay Act must
be construed in favor of the government, no language in
§ 40122(g)(3) supports the conclusion that this court itself
is authorized to apply the Back Pay Act. Thus, while the
language of § 40122(g)(3), including the 2012 Amend-
ment, provides this court with the authority to review the
Board and provides the Board with the authority to apply
the Back Pay Act, it does not provide this court itself with
the authority to award attorney fees under the Back Pay
Act.
10 JANE GALLO v. DEPARTMENT OF TRANSPORTATION

Additionally, the Board could not award attorney fees
for services in this court on March 31, 1996, and so such
an award is not “the same remedial authority” that the
Board had on March 31, 1996. See Phillips, 924 F.2d at
1581 (vacating the Board’s decision to the extent that it
awarded attorney fees for services before this court and
concluding that “a request for attorney fees under the
Back Pay Act for services rendered in judicial proceedings
must . . . be directed to this court”). Therefore, the lan-
guage of the statute neither grants this court the authori-
ty to award attorney fees under the Back Pay Act nor
includes such an award as part of the authority granted to
the Board.

The legislative history of the 2012 Amendment is con-
sistent with this interpretation of § 40122(g)(3). The
Senate version of the relevant bill included the language
ultimately added to § 40122(g)(3). See H.R. 658, 112th
Cong. § 707 (as amended and passed by Senate, Apr. 7,
2011) (“Senate Bill”); H.R. Rep. No. 112-381, at 237 (2012)
(Conf. Rep.) (describing section 707 of the Senate Bill and
stating that the House Bill has “[n]o similar provision”).
The Conference Report described the relevant section of
the Senate Bill as providing “technical corrections to
guarantee that the Merit Systems Protection Board has
jurisdiction to investigate claims made against FAA, and
has the enforcement ability at the agency that it does for
all other federal employees.” H.R. Rep. No. 112-381, at
237. This indicates, consistent with the language of the
statute, that the relevant portion of the 2012 Amendment
was focused on the Board’s authority. This language
indicates no intention to allow this court to award attor-
ney fees under the Back Pay Act against the FAA.

E. Section 40122(g)(2)

The government is correct that the 2012 Amendment
did not amend § 40122(g)(2) to apply the Back Pay Act
generally to the FAA, and this position is fully consistent
JANE GALLO v. DEPARTMENT OF TRANSPORTATION 11

with the legislative history of the 2012 Amendment. The
Senate Bill that included the language ultimately added
to § 40122(g)(3) also sought to add an exception to
§ 40122(g)(2) for “(J) section 5596, relating to back pay,”
Senate Bill § 707 (internal quotation marks omitted), such
that the Back Pay Act would apply directly to the FAA,
see H.R. Rep. No. 112-381, at 237 (“Section 707(4) (J)
restores application of the Back Pay Act to FAA employ-
ees prospectively (i.e., does not have retroactive applica-
tion to previously decided [Board] cases).”). The
Conference Report did not adopt this portion of the Senate
Bill, id., and the enacted statute lacks the Senate Bill’s
language that would have applied the Back Pay Act
generally to the FAA. Thus, Congress expressly consid-
ered and rejected generally applying the Back Pay Act to
the FAA, which further counsels against this court broad-
ly construing § 40122(g)(3) to allow this court to award
attorney fees.

Prior to the 2012 Amendment, this court concluded
that the Back Pay Act did not apply to the FAA:

The Back Pay Act falls in Title 5 and may only op-
erate in favor of FAA employees if § 40122 grants
an exception. While § 40122(g)(2) lists eight ex-
ceptions 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 Con-
gress explicitly enumerates certain exceptions to a
general prohibition, additional exceptions are not
to be implied in the absence of evidence of a con-
trary legislative intent. With the additional obli-
gation 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.
12 JANE GALLO v. DEPARTMENT OF TRANSPORTATION

Gonzalez, 551 F.3d at 1375 (citation omitted) (internal
quotation marks omitted). The 2012 Amendment to
§ 40122(g)(3) indicates the legislative intent to allow the
Board to provide relief under the Back Pay Act, in much
the same way as other language in § 40122(g) incorpo-
rates by reference the statutes governing appeals to the
Board. See Roche v. Merit Sys. Prot. Bd., 596 F.3d 1375,
1380 (Fed. Cir. 2010) (“When Congress restored to FAA
employees the appeal rights that they had before the DOT
Act went into effect on April 1, 1996, therefore, we find
that Congress incorporated by reference ‘law[s], rule[s],
and regulation[s]’ like the one allowing the appeal of
removals set forth in § 7512 and § 7513.” (alterations in
original)). But the 2012 Amendment to § 40122(g)(3)
provides no indication of a legislative intent to more
generally apply the Back Pay Act against the FAA or to
allow this court to award attorney fees under the Back
Pay Act against the FAA, particularly in light of the
legislative history related to § 40122(g)(2). Thus, while
the above reasoning from Gonzalez is no longer applicable
to the Board’s remedial authority under the Back Pay Act
in light of the 2012 Amendment, it remains applicable to
this court’s inability to award attorney fees under the
Back Pay Act.

III. CONCLUSION

For the foregoing reasons, this court lacks the statu-
tory authority to award Gallo attorney fees, and so denies
Gallo’s application.

DENIED

COSTS

Each party shall bear its own costs.