File 2: Opinion of Chairman Cabaniss and Member Pope

[ v62 p389 ]

Separate Opinion of Chairman Cabaniss:

      I agree with our decision that the Agency's actions here must constitute a withdrawal of its exceptions, that the Agency's attempt to reframe the issue is untimely, and that the Arbitrator's award of Sunday premium pay with interest is contrary to law. I write separately, however, to comment on several significant aspects of this case.

      The Agency's actions herein confound me and border on misuse of the Authority's processes. The Agency filed exceptions in this case, and in at least fifteen other cases, arguing that the awards are contrary to the Back Pay Act. In response to our October 16, 2007 Order, the Agency now takes a contrary position and asserts that § 7122(b) of the Statute constitutes a waiver of sovereign immunity. For the reasons that I discuss below, I am convinced that the Agency's position that § 7122(b) constitutes a waiver of sovereign immunity is incorrect. However, that change must be viewed as a withdrawal of the exception, and the issue is no longer properly before us for disposition.

      The Agency's change in position concerns me in two respects. First, the Agency has asserted similar arguments regarding the Back Pay Act in at least twelve other cases pending before the Authority. The Agency's change in position has had significant implications on the Authority's resources and processes. Therefore, it is imperative for the parties to reconsider their positions in these cases in light of what has occurred in this case and our decision herein.

      Second, I cannot agree that the enactment of Congress to amend section 347(b) of the Transportation Act to reinstate "Chapter 71, relating to labor-management relations[,]" after specifically excluding the provisions of the Back Pay Act, constitutes a clear and unmistakable waiver. It is well settled that under the doctrine of sovereign immunity, the United States is immune from liability for money damages. Immigration and Naturalization Serv., Los Angeles Dist., Los Angeles, Cal., 52 FLRA 103, 104 (1996) (citing Lane v. Pena, 518 U.S. 187, 192 (1996)) (INS); see also Dep't of the Army v. FLRA, 56 F.3d 273, 275 (D.C. Cir. 1995) (Dep't of the Army). The Federal government's sovereign immunity can be waived only where "unequivocally expressed in statutory text." Pena, 518 U.S. at 192; see also United States v. Nordic Village, 503 U.S. 30, 37 (1992) (Nordic Village); INS, 52 FLRA at 104.

      In 1996, Congress authorized the Administrator of the Federal Aviation Administration (FAA) to develop a new compensation and classification system. That system (PMS) is exempt from Title 5 of the United States Code, except for a few enumerated exceptions. See 49 U.S.C. § 40122(g)(2). One of those exceptions is the labor relations requirements of the Statute. In establishing the PMS, the Agency promulgated regulations concerning the payment of backpay and premium pay. See PMS Chapter II, Section 5 (Premium Pay) and Section 9 (Back Pay). The parties' agreement incorporates the Back Pay Act and various pay statutes also at issue here. [n1] 

      Applying the above principles, the court in Dep't of the Army held that the Statute, while providing a broad range of remedial powers, does not unequivocally waive sovereign immunity with respect to monetary damages. Dep't of the Army, 56 F.3d at 277. The court found that because the terms "any remedial action" and "such other action" were ambiguous and subject to reasonable alternative interpretations, they did not "unequivocally express" a waiver of sovereign immunity. Id.

      The FAA Act further states that the "provisions of title 5 shall not apply to the [Agency's] new personnel management" system except for limited exceptions. 49 U.S.C. § 40122(g)(2); see NATCA, AFL-CIO, Local ECE, 61 FLRA 803, 804 (2006) (NATCA). The listed exceptions do not include the Back Pay Act. The Merit Systems Protection Board (MSPB) recently held that the FAA is not subject to the Back Pay Act, pursuant to 49 U.S.C. § 40122(g)(2):

Because the Back Pay Act does not apply to the FAA, 49 U.S.C. § 40122(g)(2), it cannot provide the required explicit waiver of sovereign immunity in this case. It may have been an oversight by Congress to restore [MSPB] appeal rights to FAA employees without also restoring the right of a successful appellant to be awarded back pay under 5 U.S.C. § 5596 in the case of a removal that is adjudicated by the [MSPB] and found to have been [an] unjustified or unwarranted [personnel action], but the doctrine of sovereign immunity will not allow the [MSPB] to assume that authority in the absence of the required explicit waiver of that immunity.

Ivery v. Dep't of Transp., 102 M.S.P.R. 356, 362 (2006) (citing Hubbard v. MSPB, 205 F.3d 1315, 1317 (Fed. Cir. 2000)).

      [ v62 p390 ] In several recent decisions, the Federal Court of Claims has determined that the Back Pay Act does not apply to the FAA. See Todd v. United States, 56 Fed. Cl. 449 (2003); Alkalay v. United States, 54 Fed. Cl. 93, 97 (2002). Moreover, at least one other decision notes that certain entitlements under Title 5, as pertinent here, also do not apply to the Agency. Pratt v. Dep't of Transp., 103 M.S.P.R. 111 (2006) (5 U.S.C. § 6323 is not applicable to the Agency under the FAA Act, 49 U.S.C. § 40122(g)(2)). This is consistent with the Authority's decision in NATCA, holding that "the Agency is governed by an agency-specific personnel system that is exempt from most of the requirements of Title [5.]" 61 FLRA at 804 (citing 49 U.S.C. § 40122(g)(2)). Based upon the above cases and the language contained within the FAA Act, excluding the Back Pay Act from its coverage, there is no basis on which to conclude that the Back Pay Act applies to the Agency.

      The FAA Act provides, in relevant part, that the Agency shall develop and implement a new "personnel management system" that "shall . . . provide for greater flexibility in . . . compensation . . . of personnel." 49 U.S.C. § 40122(g)(1) (Section (g)(1)). It does not create an entitlement to a monetary remedy or the right to sue the Agency for perceived liabilities. It is, therefore, unlike other statutes that have been found to be waivers of sovereign immunity for this purpose, such as the Back Pay Act or Tucker Act. [n2]  As such, there is no basis