File 2: Opinion of Chairman Cabaniss

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Concurring Opinion of Chairman Cabaniss:

      I write separately to explain why I would find that the underlying settlement agreement is contrary to law because it violates the doctrine of sovereign immunity. Although the following analysis examines the Back Pay Act and whether the Back Pay Act authorizes the monetary claim at issue here (it does not), the fact that the Back Pay does not authorize payment of a certain claim does not necessarily equate to a finding that the claim violates the Back Pay Act.

      The United States is immune from liability for money claims under the doctrine of sovereign immunity. Lane v. Pena, 518 U.S. 187 (1996). Sovereign immunity can be waived by statute, and waiver will be found only if "unequivocally expressed in statutory test[.]" Id. at 192. Thus, a Federal agency will be subject to a monetary claim only if there is a statute which unambiguously establishes that it permits the sovereign to be sued for the remedy sought. Id.; Dep't of the Army, United States Army Commissary, Fort Benjamin Harrison, Indianapolis, et al. v. FLRA, 56 F.3d 273 (D.C. Cir. 1995), vacating in part 48 FLRA 6 (1993) (Dep't of the Army). Where there is no statutory basis permitting the type of money claim sought, the claim is contrary to law because it violates the doctrine of sovereign immunity. United States Dep't of Health and Human Serv., Food and Drug Admin., 60 FLRA 250, 252 (2004) (FDA) (award of monetary damages found contrary to doctrine of sovereign immunity as no statutory basis existed to permit payment of such claim).

      In United States Dep't of Health and Human Serv., Gallup Indian Medical Center, Navajo Area Indian Health Serv., 60 FLRA 202, 211-12 (2004) the Authority noted that the Back Pay Act's waiver of sovereign immunity applies to just "pay, allowances, or differentials" as opposed to any and all losses allegedly suffered. The Office of Personnel Management (OPM) notes that "pay, allowances, and differentials" constitutes "pay, leave, and other monetary employment benefits to which an employee is entitled by statute or regulation and which are payable by the employing agency to an employee during periods of Federal employment." 5 C.F.R. § 550.803. Thus, to the extent the monetary claim here is not some form of "pay, leave, and other monetary employment benefit[]" it does not fall within the OPM definition of "pay, [ v60 p988 ] allowances, and differentials" and is not authorized by the Back Pay Act. And, to the extent that this claim is for some form of "pay, leave, and other monetary benefit[]" to which the employee is not entitled by "statute or regulation" it also does not fall within the OPM d