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 definition of "pay, allowances, or differentials" and is not authorized by the Back Pay Act.

      I agree with the footnote by Member Pope that the Back Pay Act is the only basis asserted by the General Counsel for finding the payment here to be legal, although the Back Pay Act is only one of several statutes permitting monetary claims against Federal agencies. [*] I also agree with the majority's statement that the employee here suffered no "loss" under these circumstances. I note, however, that the reason the employee suffered no "loss" is because the payment of the money claimed here is not authorized by regulation - or at least by the regulations noted by the majority. Consequently, the money claimed here does not fall within OPM's definition of "pay, allowances, and differentials" and therefore is not authorized under the Back Pay Act. And, as earlier noted, absent some statutory basis authorizing the monetary claim in question, the award violates the doctrine of sovereign immunity. FDA.

      Clearly, there are times when a money claim is properly set aside as being in violation of the Back Pay Act. For example, the claim could conflict with the Back Pay Act because there is no underlying unjustified or unwarranted personnel action, or because no causal relationship exists between the unjustified or unwarranted personnel action and the sums alleged to be lost. Not all conflicts with the Back Pay Act touch upon whether the money claim pertains to "pay, allowances, and differentials" and thus does or does not fall within the Back Pay Act's limited waiver of sovereign immunity. In the present case, however, that is exactly the issue, and that is why I resolve this case based upon sovereign immunity.

      The lack of a waiver of sovereign immunity to permit the adjudication and resolution of a claim constitutes a jurisdictional issue. See, e.g., Dep't of the Army. This lack of jurisdiction can be raised at any time, and also can be raised sua sponte by the Authority. Id.; United States Small Bus. Admin., Washington, D.C., 51 FLRA 413, 423 n.9 (1995) (citing to United States Dep't of the Army, Army Reserve Pers. Ctr., 34 FLRA 319 (1990). As a result, and notwithstanding the fact that the Agency asserted a contrary to law claim based only on the Back Pay Act, I would set aside the decision because the underlying settlement agreement violates the doctrine of sovereign immunity.