# Oral argument — Brodowy v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/argument%3A7552 ## Record - **Collection:** Oral argument - **Document type:** Oral argument - **Published:** March 9, 2007 ## Text This is No. 06-5113, Brodowy v. United States. Yes, thank you for your action. To reserve five minutes for rebuttal. May it please the Court, my name is Scott Young and I'm here on behalf of the plaintiffs in this case. And actually, one of the plaintiffs is sitting with me. His name is Ron Gandy. Basically, I represent ten air traffic controllers. Mr. Gandy's from Foresight's New York. They're from basically all over the country. And what this issue basically boils down to is obviously we are appealing from the trial court's decision to dismiss our complaint for lack of jurisdiction. We disagree with that. We think we did cite to a money-mandating statute, that is 5 U.S.C. 5334B. We think pursuant to the Fisher case, that frankly should have ended the inquiry and the court should have allowed the case to proceed in its normal fashion. But I think with respect to understanding where the court below made the mistakes that it did, it's important to have a general understanding, although it's been briefed, as to the factual underpinning behind this case. Basically, my clients are ten air traffic controllers, probably a group of them. I think we're at a level one people that got caught. Level one with the injunction out in Ohio, and then when the injunction was lifted and when they finally decided to put them into either a level two or higher towers, that basically the new pay system had come into effect, the ATC pay system. And you argued that your clients should have been promoted within GS as step one, and then that would have been entitled them to 5334B and Rule 35. And you're arguing that they were legally entitled, right, to have their clients processed under 5334B and Rule 35. Why? What is the legal reason why you're entitled to that treatment? Because they were still under the GS pay system at that time. Well, at that time is the place where things get fuzzy for me. Okay. I think we're right at the critical legal question in this case, which is on the day that they went from level one to level two, your view of the matter seems to be that they went to level two as GS employees and therefore were entitled, whether in fact they were promoted or not, they were entitled to a promotion from a GS 10, which I think was the GS level one to an 11 or higher, and therefore were entitled, once they had the 11, to carry the two-step bump up into the ATC system, correct? That is exactly correct. What's the legal basis for that when the government's position is what happened is that they went from the GS system into the AT system at the time that they moved to level two, and therefore they never went through this intermediate step of going up to GS 11, but instead they went from GS 10 to ATC, hence no 5334. What's the legal basis for your argument that unlike the people in Clark, these people had that intermediate step? Because these individuals, unlike in Clark or Libretto or these other cases that talk about the GSWS systems and the transfer from one pay system to another pay system, the essential distinction in this case is that these individuals were being converted from one pay system into another pay system. Are you arguing those cases are inapplicable? They are in inapplicable. Okay. They are not applicable to that. Assume for purposes of argument you lose that argument. Assume for purposes of the discussion that Judge Bryson and I are having with you that the old cases apply. And the only way you get access to 5334 is if you're solely within the GS system. Oh, no, no. And I agree. We are arguing that. We are arguing that. I am definitely arguing that. And that I think is where when I read the trial court's decision, and he on the one hand said at the outset, I'm dismissing the case because you didn't allege a violation of a money mandating statute. Well, the place where you heard from Judge Baxter is where he said on page 9 in the final paragraph, the GS pay system no longer existed at the time of the transfer. Right, right. Well, it existed for purposes of paying them because the last paycheck they got was under the GS system, right? Right. And here's the other thing, and this would be, as it applied, and this is where I think he made another mistake. This finding is a fact. And, again, we're on a motion to dismiss. We're still trying to get the legal reason. Why was it illegal? Because we still were within the GS pay system. That is the entire crux of our case. We are arguing that at the time, and the personnel records, I know we're not on a motion for summary judgment. We're on a motion to dismiss. But the personnel records would indicate that these individuals throughout 1999, throughout 1998, and throughout 1999, continued to be paid under the GS pay. When you say throughout 1999, you mean after they went to the level 2 facilities? When they landed, our position with respect to, and I understand your question, I think it's the heart of this entire case. And, frankly, aside from the motion to dismiss, it's the heart of whether or not these individuals win or lose, ultimately down the road. The reality in terms of what happened, and I think it was lost upon the trial court judge, is these individuals did not go up to the ATC pay system and automatically convert to the bottom of the pay band, as suggested in the findings of fact. That's not true. They still looked at where they stood at their GS level for purposes of determining where they fit in into the ATC. For example, my client here, Mr. Gandy, who happens to be one of them, that transferred. He was a GS 10, step 10 at the time of the transfer. When he went up to a level 2 facility under the old rules, that would have meant that he would have been a GS 10, or a GS 11, step 7. And that's where it's important. What happened to Mr. Gandy when he went to the higher level facility is he transferred in to the ATC pay band as a GS 11, step 7. He didn't go down as a step 1. In other words, if he was a GS 10, step 10, or a GS 10, step 5, he's basically at the middle of the pay band. What should have happened when they landed at the next higher level, they went to a higher level facility, 53.34 being the arm that triggers the right to a guaranteed 2-step increase. Now, because they are not transferring from one pay system to another one, but really what's happening is they're converting from one to another, he was entitled to go into the higher level facility, not as a GS 11, step 7, but to get the 2-step increase and be a GS 11, step 9. Not everybody was a GS 10, step 10, and so you're going to have some variations of that. And frankly, if somebody went from a level 1 to a level 4 facility, which would have been way above the 6.72 step, it's not going to matter. Which is why these individuals, the 10 here, and there might be 30 in total, but the 10 that are behind this particular case, went to the level 2 facilities, went to the next higher level facilities, they all got pay raises. And that's where the problem is. The grievance procedure doesn't apply because they didn't get a complete pay cut, they got a pay raise. But that's what the government says, isn't it? That this is a matter of grievance? You see, but the grievance only kicks... That step has not been taken? No, no, no. These individuals have attempted to exhaust everything. MSPB, the grievance procedure, basically the word from them is, well, we don't handle pay conversion, you technically got a pay raise, you didn't get a pay cut, so you're out of luck. And so everybody said, you're out of luck, the venue, the door is someplace else. But the grievance procedure, which the government says is in fact what would be most directly involved here, you say that has been pursued unsuccessfully? Not by me, but my understanding, not by me as a representative of them. My understanding is, and if one looks at the collective bargaining agreement per se, it's not going to govern this situation. I would also point to... So the answer is yes or no, or you don't know? I believe it has in some circumstances. I'm sorry, that's the best answer I can give. Well, if the collective bargaining agreement didn't anticipate this problem and didn't provide... I mean, all the pay, as I understand it, for the air traffic controllers now, except if there are any left in Buffalo, is governed by the collective bargaining ATC system, correct? That's correct. All right, so if the collective bargaining agreement didn't put in something to protect these people from what happened to them, then assuming that you're wrong, that there is a legal remedy here under the statute, they're just out of luck, right? If we can't get relief from you, we are out of luck. And so it seems to me the problem is really that the collective bargaining agreement didn't recognize that there would be a delay and that people would be treated differently depending on when they moved. If they moved before the October of 1998, I guess it was, when the ATC went in, then they'd get the bump up because they'd still be in the GS system. If they moved afterwards, then you have the legal problem we have here, which is that they never actually have an SF-50, I assume, that says you are now a GS-11. I assume that there is no... I mean, you can tell me if I'm wrong about this, but I'm assuming there is no SF-50 that says you are a GS-11, correct? They never actually promoted to GS-11 or anything else other than the 10s. They went directly from GS-10 into the ATC system, right? Well, they were transferred. There was personnel paperwork that said you were being transferred under the GS roles. Right. You were being transferred to the higher level facility. You know what I'm talking about, the SF-50s, right? Yes. In the government, the one thing that always happens is you get a piece of paper when you get a promotion, and it says, as of July 1st, 2008, 2007, you are a GS-11. And that's how you know that's the day you became an 11. Now, I take it that that didn't happen in this case. No one has a piece of paper that says, I am now a GS-11. Well, we didn't get past the motion to dismiss the state, so... Well, they prepared the paper. I mean, it's not something you have to discover. They give this to the... They transferred in, and then they were converted. That part is correct. But I think... Didn't you just tell us that at the time of the transfer, they did get a great increase? Well, they got an increase in pay, but the thing to remember with respect to all of this is the ATC pay band, or pay, was created out of a $200 million surplus. And so what gets my clients upset is not that they're sitting here thinking necessarily that they're underpaid as air traffic controllers. It is knowing that if they had transferred one year earlier than what they did, and so perhaps sitting next to somebody else who's at a level one that transferred in 1997 instead of 1999, that they're making $13,000 more than they are. That we're both GS-10 step-tens. That's the sort of situation that, at least according to the government, is something that should be worked out through the grievance system. The grievance procedure, we don't believe, would be able to cover this. Other than your right to a 5% pay increase in the first year, then level one people don't have any presence in the network of understanding, right? Actually, the level one, there is a one provision in Rule 35, which is a conversion rule, that speaks to the fact that they're going to continue to be paid under the GS pay regulations, or the old pay regulations of GS, until they transfer and are converted. And so that is the underpinning that the GS continue to apply to them. That's the footnote to Rule 35, and we think that just because... But again, I come back to what's the... Assuming for purposes of argument that the government could have done what you want them to do, which was to promote you within GS, and cut an SF-50 that says you're now on 11, and then say, okay, you're on 11, now we're going to convert you to ATC. I mean, assuming that that could have happened, why are you entitled to that as a matter of law? Because 5334B entitles us to a two-step increase. If you're in the GS pay system, that particular statute entitles you to a two-step increase. If you're being moved in the GS pay system. Some of those cases entail that you don't get to 5334B unless you are moving laterally, up or down, in the GS system. Right, and we're contending... And I'm going to cut you off fast here, and the government's saying, you weren't moving in the GS system, you were being exited from the GS system. Goodbye, you're going to the new ATC system. It's our contention that we... And that's where I disagree with Judge Baxter. It wasn't illegal for the government to say, we're going to treat the GS system as being alive with regard to your clients for purposes of your paychecks, because the last minute or the last hour, your client worked and the level of monetarity got paid under GS. But we're going to say, the GS system is no longer applicable. Okay, once you have the collective bargaining agreement hits, the GS system is no longer applicable for purposes of promotions. But they continue to be paid in the GS system until they hit the door of the new facility. Let me ask you this question, which might be important. In the GS system, you're in a GS, say, you're in a tent, and you're GS 10-10. You could go up to an 11, right? Step increase? Right. Were any of the people who were at the level one towers moved up in step, as opposed to being moved over to 11? Between the time that the collective bargaining agreement took effect, right, and the time they were actually converted, did they actually enjoy step increases in the GS system? They were there long, and step increases come like every year, not every couple of years. They were there for an extra year. I don't know. I honestly don't know. I mean, if some of your clients received step increases during that time period, that would certainly suggest that the FAA was using the GS system for more than simply cutting paychecks. Yes, Your Honor, that's exactly right. And I can say that I've seen their personnel records and their personnel files in 1999, to the extent that they have. This case was sent back. Yes. On the grounds that there had been a mistake here in dismissing the case from one jurisdiction. What are you going to do by way of discovery to try to shore up your legal entitlement to 5334B under Rule 35? Is there anything else that you would pursue by way of discovery that would shore up or help make your argument? I think doing exactly as you suggest, doing discovery, obtaining the complete sets of the personnel files, find out exactly how they treated not just my clients. I mean, I represent ten of them, but they decided that they were upset enough to pursue this, but there were a whole group of them that were delayed in the fourth year of the privatization of the program, and I think we'd be entitled to see exactly, as you inquired, as to how they were treating them with respect to stuff increases, etc., during that period of time of delay. I'd like to get to you from the government. Okay. May it please the Court. The appellant here cannot establish the right to have 5334B applied to them, because at the time that the privatization, when they were still working at the level one facilities, and they were being paid under the collective bargaining agreement, which refers to the GI system, and what it actually said was that they would be paid in accordance with current pay policies, except that their base pay would be increased by 5% in the first year. Arguably, at that point, they were no longer really governed just by 5334B, or governed by 5334B at all. They were under the collective bargaining agreement at a memorandum of understanding. We're specifically in a collective bargaining agreement to say they're not going to be paid under GS That's my argument, Your Honor. I believe it's in the appendix at page 41. The memorandum of understanding... At 41, you're talking about the note. Those facilities would be treated in accordance with current pay policies with the exception that their base pay would be increased by 5% in the first year. Correct. And that means they were out of GS? It means that their pay was governed by the collective bargaining agreement, not simply by 5334B. What part of the pay, the 5% increase? Yes, I mean, that's in place of... That's me. I mean, that suggests that it's in place of whatever... What are current pay policies? Those three words, what does that refer to? That's the GS system. Correct. Basically, all that note is saying is that we're not changing the GS system that currently applies to level 1 people except to the extent that they get this 5% increase. Right? So whatever statutory provisions the GS system has that apply to it, apply to all the level 1 people under the agreement. As long as they're at level 1 facilities. Right. Sure. Bob? Right, so given that fact, let me ask you this question. Why didn't FAA promote these plans from the 10 to the 11 within GS before they converted them to ATC? Because they couldn't. Couldn't? No, because after... Why not? Because after October 1998, the GS system no longer applied to the higher level, to level 2 and above air traffic controllers. It simply didn't apply to them. Pursuant to... But these aren't level 2, these are level 1. We're talking about promoting a level 1. We're not talking about level 2 at all. Why didn't they? Because as long as they're level 1 employees, they're not entitled to any promotion. That's not... They haven't moved from... Wait, wait. Did FAA move anybody who was in GS 10, say a level 9 or 10, did they give them a step increase after the collecting bargaining took effect and before they were actually converted? It depends when they were converted. I mean, if they were before... But is it possible, as a matter of fact, is it possible, is it not, that some of these individuals who were being paid in GS received a step increase within GS after the collecting bargaining took place and before they were converted? Only if it was before October 1998, when the new ATC pays... It couldn't have been a step increase. I think what you're... Correct me if I'm wrong, but I think what your position is, if I understand it, is they could have gotten a step increase but not a grade increase because the grade was locked at 10 for the level 1s. Correct? You couldn't get an 11. You can get a grade 10, GS 10, for everything from step 1 to step 10 for level 1, but you couldn't get a GS 11. Correct? I'm not sure that's clear from there. I'm not sure that's stated in... Were there any people in level 1 that were 11s? I don't know. Well, was there any law in effect that would have made it illegal for FAA to promote someone from a grade 10 to a grade 11 after the collecting bargaining agreement took place but before 1999? Well, after the collecting bargaining agreement took effect and before October of 1998... Can you answer my question? I'm just trying to talk about whether it would have been illegal for FAA to say, well, I've got these people working in the tower over there, and they're GS 10s, and I'm contemplating converting them, moving them to a level 2. I'm going to promote them now. If you go back and look at what happened to the 756 level 1 controllers who were, quote, converted over to level 2 and above before the lawsuit was filed, all of them were promoted within GS, right? Because the GS system was still in effect for all the air traffic controllers. That's how they were paid. Does your whole case turn on the fact that the GS system, after the collecting bargaining agreement took place, it was still in effect for level 1 controllers with regard to getting paid and for step increases, but it was no longer applicable for grade increases? Is that what you're telling me? I don't believe so, Your Honor. What's quite important, because I was asking you why FAA converted 756 people who were in the level 1 towers, and they bumped them up in GS from 10s to 11s, right? And then put them over, and they were working in level 2 towers as GS 11s, and then they got converted from 11 into ATC, right? Then the lawsuit came along, and then you got this small collection of people coming along afterwards, and my question is, if FAA had wanted to, would they have been able to treat these plaintiffs the same way they treated the 756? No. Why not? Because the GS system, Judge Breshear was correct about this, the GS system no longer was in effect. All right, let's stop right there. Was it in effect for any purpose whatsoever? Only insofar as the people, the individuals, stayed, and only by virtue of the collective bargaining agreement, only insofar as they stayed at level 1 facilities. That's the only people we're talking about, ma'am. That's correct, Your Honor. So the GS system did stay in effect from then? They were paid in accordance with current pay policies, which refers to the GS system. It's an altered, I mean, my position is that it was altered, the GS system was altered by the CBA, with this 5% increase, which took the place of whatever step increases they might have had. So your argument is, is the reason why you didn't treat these 10 plans the same way you treated 756 others is because you were legally precluded from doing so? Because they transferred after October 1998. Yes. Well, let's, let me ask the same question that Judge Clevens was asking. Let me try to ask it a different way, because I have the same question, and I'm not satisfied that I understand the answer. Suppose that the administrator of the FAA had decided, you know, it's really a bad idea to have people working side-by-side with significantly disparate pay, even though they have the same obligations. It's just a morale problem. So we're going to try to find a way. It came to you, as the FAA lawyer said, find a way to make sure that even after, for people that transfer after this memorandum of understanding goes into effect, try to see if you can find a way for us to pay them equivalently to the people that transferred before. And you came up with a proposal, and your proposal is how we can do it. As long as they're in Level 1, the day before they transfer to their proposed Level 2, what we can do is we can make them 11s. As soon as we do that, then when they move into the ATC, they'll move in in the same way that their colleagues did, because somebody who's in the position of being a GS-10, 10, Step 10, will become an 11, Step 7, and then they'll go into a higher pay band. That's your idea. Now, you go to the FAA administrator, and you say, here's my proposal. Does the FAA's general counsel say, we'd love to do that, but we can't, and here's why. That's, I think, Judge Cleverger's question. Is the answer to that that you could not do that as a matter of administrative maneuvering to try to achieve an equitable result? Yes, I think that you could not, that the FAA could not have done that. Okay, that was part A. Part B is, what legal prohibition prevents you from doing that? Well, the step increase that they claim to be entitled to under 5334B applies to being promoted. I understand. I am saying that you would propose to promote them to an 11, even while they're in Level 1, so that they would get the step increase, they'd get the benefit of 5334, which they clearly would at that point, and then they'd go into a higher pay band when they went over to Level 2. The question is, what legal prohibition is there that prevented the FAA from doing that? I think that's what both Judge Pleasant and I are trying to get at. Now, you say they couldn't do it, and my question is, well, if you're confident they couldn't do it, you must know why. Tell me why. Because the provisions... Because they haven't been promoted at that point. That's the problem. I'm suggesting that the FAA decides to promote them. The administrator signs a piece of paper and says, as long as this is okay with the General Counsel, these people will be promoted, and then sends that memo down to the General Counsel. What does the General Counsel do? Say, no, sorry, Administrator, we can't do this? If the GS system, the GS pay system, would allow an agency to increase pay without there being a concurrent increase in responsibilities, then that would be okay. But I don't think that it does. Let me ask you this. Was there a highest grade that a Level 1 controller could enjoy? I don't believe that's stated in the record, Your Honor. I don't know. You don't know that as a matter of fact? I don't. No, I don't. Because if Level 10 was the highest that you could be as a matter of law in the position, then they couldn't promote you to an 11 while you were still on Level 1. Whereas they could promote you if they put you over Level 2, as happened with the earlier people and then bumped them up then. Doesn't this suggest that there are some factual issues here that could perhaps be fleshed out a little better before we decide that there's no cause of action? I don't think so, Your Honor. You don't know the answer to the question? No, I don't think it makes any difference, Your Honor. I don't think it matters. But you can't tell us for certain that it would have been against the law for FAA to provide the relief that the plaintiffs asked for. There's an allegation here that the reason why FAA didn't give them the same treatment was in retaliation for having participated in the Ohio Solstice. We haven't had any discovery on that issue. No. Is your understanding when these controllers finally transferred to Level 2 that they were then paid the same as those who were already in Level 2? They were converted under Rule 35 of the Memorandum of Understanding in the Collective Bargaining Agreement. And I think that that's the more important question here. I'm not sure whether it was illegal or would have been illegal for the FAA to do anything differently, but whether these appellants have any right to that. Their union, it seems to me, they're bound by what their union agreed to in the Collective Bargaining Agreement. That didn't answer the question. I'm sorry. My question is when they transferred finally to Level 2, were they then paid the same as those who were already in Level 2? Yes or no? They were paid... They were converted under the same... That's what you said. Yes. That wasn't my question. Why would they be here if they were being paid less? I gather that they were paid the same, but that they are seeking some retroactive filling of the gap. Rule 35 based the new pay under the ATC system on the then existing GS system. And so when they weren't promoted, when they didn't get the benefit of this two-step increase that they're requesting, they went into the new system based on lower GS levels. So they are... Let me just make sure that I understand what you're saying. After the transfer, when they started working in the Level 2 facilities, are you saying that they were then paid less than those who were already working in the Level 2 facilities? Probably they were paid less than some people and more than others. It would depend on how the other people... where the other people were at the time that they converted. Well, they took two people who were exactly similarly situated. Somebody who was a GS 10-9 and went in before the... I don't understand. Went in back in the old days under the GSA. Yes. Certainly. And take an exactly comparable person who's going to come in now after October. Are those two people getting... Is there a baseline? No. I mean, the... No, it's not. The person that went in earlier made more. Correct. And that's the reason why these people are here bearing the loss. Yes, sir. That's right. I don't see a general answer to your judgment of the question. Do you... What do you think? I'm sorry. I'm sorry. I thought that's what I was trying to explain. I guess I'm... Let me ask you about the dismissal for water jurisdiction. I mean, we... In the Fisher case, we said, I think, correct me if this is not a fair summary of it, that if you have a money-mandating statute, even if you have a losing claim, even if you're a legal theory of why you should win under the money-mandating statute is wrong, you will end up with a judgment against you in court of federal claims. Nonetheless, the court of federal claims has jurisdiction to tell you that you lose. Why isn't that this case? They have, with respect to 5334, they have what Judge Basquiat said was a money-mandating statute. Now, you say that they have a losing case under 5334, and you may be right, but why isn't that a decision on the merits of failure to state a claim as opposed to a jurisdictional problem? Another way to ask the question is, are you saying, if you say that this is jurisdictional, that the only cases in which the court of federal claims has jurisdiction are cases in which the plaintiff is entitled to a judgment in its favor? No, no, I'm not saying that. Well, then why is this a case, why is this not a case under Fisher in which the court had jurisdiction to decide the merits of the 5334B issue? Because they've cited, because of my, his opposition, that 5334B doesn't apply to them. It's not that they failed to state a claim, it's just it doesn't have any application. But isn't that the merits? I mean, in other words, if I come in and I say, I am entitled to be paid under the Magistrates' Special Benefits Act, because in a loose sense, I'm a magistrate, even though I'm a court of appeals judge, but the magistrates get some special benefit under some statute, and I say, I'm entitled to that. I go into the court of federal claims with my statute in hand. Wouldn't the proper response of the court of federal claims be to say, I'm sorry, Judge Bryson, you're not a magistrate, therefore you lose on the merits. Not, I'm sorry, I don't have jurisdiction to address your claim. Wouldn't that be right? Yes. But then why isn't that this case? Because citing 5334B, I mean, they argue that it applies to them, obviously. But it's the same as if it identified some other, if Fisher doesn't stand for the proposition that identifying anyone with a statute, I mean, there has to be some connection. Let me ask you this question. Let's assume on discovery the plaintiffs were able to identify one or two or three level one controllers who, after October of 1998, right, were put into the level two towers in 1999 somehow, but nonetheless they were promoted within the GS system before they were converted over. Let's assume that discovery proved that their FAA actually did for a small handful of people exactly what these plaintiffs want, right? Then we'd have an instance of disparate treatment, wouldn't we? Well, that's not a list in the complaint paradigm. Yes, it is. Yes, it is. You better read the complaint. They allege that they're being treated differently than other people. They're alleging that they're being treated... You look at the complaint broadly. Let's assume that for purposes of our discussion right now, this claim of disparate treatment is sufficiently clear. If the facts show disparate treatment, wouldn't there possibly be some further litigation and maybe a glimmer of hope for the plaintiffs? If all those assumptions were correct, I suppose so, but I think the disparate treatment that they're complaining about is not people who were promoted after October... But you have to read the complaint broadly, right? But my point is that there seems to me that there are some possible circumstances in which the government might face a little bit of exposure given the fact that there could be further discovery. Let me ask you this question. It struck me that the case below was pitched entirely as a jurisdictional case. We argued... You said dismissed for one jurisdiction, correct? That was the... So, were the plaintiffs fairly on notice that they were being put up for grabs on failure to state a claim? Yes, sir. We argued both. You argued... Yes, we argued it as both 12b-1 and 12b-6. Okay. We will move to close the argument. Thank you. Okay, Mr. Young, you have a few minutes. Yeah, I think clearly, based upon some of the questioning, I think under the Fisher case, we clearly have identified a money-mandating statute. I think there clearly are issues that... Well, the question is whether you've made a non-frivolous allegation that you're entitled to the benefits of the money-mandating statute. Right. I mean, I took... Well, I mean, that's what I want to pursue a little bit. I mean, your equal protection argument, that may fall because the current federal claimant doesn't have jurisdiction to award money on the Fifth Amendment. So you would have to try to argue that you're not asking for money under the Fifth Amendment. You're asking for money under 5334b, access to which was denied to you because of disparate treatment, right? Right. So you feel as if your argument of unequal treatment passes the sniff test for having had a non-frivolous allegation. I believe so. I believe that combined with all the other allegations that we made, and frankly, the complaint, and knowing from doing the research that I had, I knew, and I advised my clients, that frankly, the government in this particular case will probably try to get this case thrown out. And I said, as a result, I need to be as careful as I can to make sure that I plead your case as factually correct as I understand it from you. And so there are a lot of facts that are being alleged in a particular claim, in the complaint. Yes, there are allegations of violations of the collective bargaining agreement, but the key thing for purposes of deferring jurisdiction below is 5334b. And I think, while I understand that, and I'm not suggesting that Clark or the other cases are inapplicable or somehow decided wrongly and that we're asking you to sort of deviate or create some exception, those cases dealt with the transfer from the WS to the GS or vice versa. There was no conversion going on. Here, there was a fixed amount of money of 200 million bucks that was supposed to be distributed pro rata based upon where my clients were situated. And the ones that are parties to this suit, because they had a loss, they typically were air traffic controllers for 15, 20, 25 years. You had to have that much experience to be high enough on the step level to have a loss in that regard. The other big difference between the WS and the GS and the Clark cases and why I think not only is our case non-frivolous, I think we are absolutely entitled to judgment. I believe that fervently, and that's because this is not a situation contrary to the factual finding of Judge Basker. This is not a situation where they went from level one to level two, bottom of the pavement, and brand new bottoms. That isn't what happened. What happened is, what happened in Mr. Gandhi's case, for example, he was a GS-10, step 10. He went up as a GS-11, step 7, for purposes of conversion. Whoa, whoa. That's the key question. When was he a GS-11, step 10, except in a sort of constructed sense, as you're arguing? Because if you can point to some point in time in which he was a GS-11, step 7, you win. This is where I'm going with this. Listen. GS-10, step 10, is equivalent in pay to a GS-11, step 7. At that time. They're about the same pay. So you have a GS-10, step 10, being paid right around the same as a GS-11, step 7. What you're saying is he went into the pay band. Well, he went into the ATC pay band. At a level slightly above where he was when he was a GS-10, step 10. But you're not saying, if I understand you, that he actually was converted to a GS-11. Well, no. He was put in into the ATC pay system as if he was converting. Because, again, it was a conversion. So if you had somebody that was going in, and that's why when you ask the question, were my clients making less or more than everybody else at the level 2s, it depended. Mr. Gandy, at the time that he transferred in, when, as somebody with 15 years of experience, and he found out when he landed there, based upon the fact that he lost some pay steps during the conversion, or didn't get the benefit, I should say, of 53.34B, that he was being paid the same amount as somebody with 5 or 6 years of experience. He lost that. So instead of being converted at, say, 90% of the pay band, he was converted at approximately 50% of the pay band based upon the fact that he didn't have 53.34B applied. There was a conversion. In other words, this is not a situation, as in Clark, or Librato, or the other cases, where where you stood in the other pay system had nothing to do with where you would stand in this one. There's no dispute. They were converted. They were converted based upon where they stood at the TS level. So the only issue is, is the triggering event we contend for 53.34B is when you go to a higher level job or high level facility, you're entitled to a 2-step increase in pay. Because they were being converted, they were entitled to get the 2-step increase and then convert. They got converted at the higher level facilities as if they were still working at the level 1s. That's what this whole case is about. If they were a GS-10 Step 1, meaning a new hire at the level 1 or Step 2, we wouldn't be here. Because the level 2 facility would be sufficiently higher that there would be no loss. Or likewise, if they were a level 1 and had transferred to a level 3 or a level 4 or a level 5 facility, then the bottom of the pay band would be sufficiently higher that, again, they wouldn't have had any loss. I think the difficulty to see is that even if the FAA could have done what you want them to do, the question is whether they were legally obligated to do so. We, and I know we're running out of time, we think we respectfully submit that they were. We think that 5334B was entitled to the 2-step process. The trial court actually, page 9 of this decision, made the finding that if we had alleged that in our complaint, the 2-step process, then we would be right. If factually we had alleged that the conversion was a transfer within the GS system and then a conversion. I mean, if you proved it. Well, if we allege it, we have a motion to dismiss. We also win the case if we're right. But he said that if we alleged that in our complaint, if we alleged that in our complaint, then we would have conferred jurisdiction upon the court. Thank you, Mr. Chairman. Thank you. This is taken into submission. All rise. The Honorable Court is adjourned from day to day. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/argument%3A7552. Public record. Not legal advice.