Appendix — Brodowowy v. United States (No. 07-393)

iA

APPENDIX

TABLE OF CONTENTS

Appendix Page

Opinion of the

United States Court of Appeals for the

Federal Circuit

entered April 12, 2007 .....cccccccsecsessssessesseesseeseeeees

Judgment of the

United States Court of Federal Claims

I as sc stauibadennnanmaiehs

Opinion of the

United States Court of Federal Claims

I a is ig vag eked avihés neon

Order of the

United States Court of Appeals for the

Federal Circuit Denying Petition for Rehearing

I INS Tie EE exesevsccscevisxcsevenevnensersssenscess

Petitioners' Complaint Filed with the

United States Court of Federal Claims

ee ee

1A

United States Court of Appeals for

the Federal Circuit

2006-5113

TED A. BRODOWY, DIRK G. BROWN,

CAROLYN M. GANDY, RON D. GANDY, TRACY

JENSON, KENNETH B. KARNATH, JONATHAN

A. MENDELSON, CLYDE A. SMITH,

SHARON WILKINS, and MARILYN YAMAMOTO,

Plaintiffs-Appellants,

V.

UNITED STATES,

Defendant-Appellee.

Malcolm S. Young, Thompson Hine LLP, of

Cincinnati, Ohio, argued for plaintiffs-appellants.

Joan M. Stentiford, Trial Attorney, Commercial

Litigation Branch, Civil Division, United States

Department of Justice, of Washington, DC, argued

for defendant-appellee. With her on the brief were

Peter D. Keisler, Assistant Attorney General, David

M. Cohen, Director, and Kathryn A. Bleecker,

Assistant Director.

Appealed from: United States Court of Federal

Claims

Judge Lawrence M. Baskir

2A

United States Court of Appeals for

the Federal Circuit

2006-5113

TED A. BRODOWY, DIRK G. BROWN,

CAROLYN M. GANDY, RON D. GANDY, TRACY

JENSON, KENNETH B. KARNATH, JONATHAN

A. MENDELSON, CLYDE A. SMITH, SHARON

WILKINS, and MARILYN YAMAMOTO,

Plaintiffs-Appellants,

v.

UNITED STATES,

Defendant-Appellee.

DECIDED: April 12, 2007

Before NEWMAN, Circuit Judge, CLEVENGER,

Senior Circuit Judge, and BRYSON, Circuit Judge.

BRYSON, Circuit Judge.

This is a pay conversion case. The appellants

are ten current or former Federal Aviation

Administration air traffic controllers who are

seeking to recover pay lost due to the government's

failure to provide them with a two-step pay increase

when they transferred to higher level airport

facilities. The United States Court of Federal

Claims dismissed their complaint for lack of

jurisdiction. Although we hold that the trial court

had jurisdiction over the claim, we affirm the

dismissal because the appellants failed to state a

claim for which relief can be granted.

3A

J

This case arises out of the decision of the

Federal Aviation Administration ("FAA") in the early

1990s to privatize many of its control tower

operations and a subsequent agreement between the

FAA and the air traffic controllers’ union, the

National Air Traffic Controllers Association

("NATCA"), to alter the compensation scheme for

controllers at the remaining facilities. The present

dispute stems from the fact that the new

compensation scheme was implemented before the

privatization plan had been completed.

The appellants were employed by the FAA as

air traffic controllers at facilities designated as

"Level 1" towers. The FAA classified control towers

by the complexity and volume of their air traffic,

ranging from Level 1 (least traffic) to Level 5 (most

traffic). All controllers were compensated under the

General Schedule ("GS") system,’ with their pay

grade being a function of the level of the facility

where they worked. The pay grades ranged from

GS-10 for Level 1 controllers to GS-15 for Level 5

’ The GS system is the compensation scheme commonly

used for employees of the federal government in

administrative, professional, and technical positions. In 1995

and 1996, Congress enacted legislation authorizing the FAA

Administrator to implement a new personnel management

system for FAA employees, including fixing the compensation

and benefits of employees and officers. See Pub. L. No. 104-

50, § 347, 109 Stat. 460 (1995); 49 U.S.C. §§ 106(1), 40122(a).

Pursuant to that authorization, the Administrator promulgated

the FAA Personnel Management System, which kept the GS

compensation system in effect for an interim period beginning

on April 1, 1996, until the new pay system could be developed

and fully implemented.

4A

controllers. Beginning in 1994, the FAA began to

implement a plan to privatize all Level 1 facilities.

It offered controllers in those towers the option to

transfer to a higher level facility or to retire or resign

from federal service. The appellants elected to

transfer, and they were scheduled to move to higher

level facilities in August 1998.

In March 1998, however, the United States

District Court for the Northern District of Ohio ruled

that the FAA had failed to conduct the required

procedural analysis before’ initiating the

privatization program. See Nat'l Air Traffic

Controllers Ass'n v. Sec'y of the Dep't of Transp., 997

F. Supp. 874, 885 (N.D. Ohio 1998). The effect of

the court's ruling was to temporarily halt the

implementation of the privatization plan.

During the period that the privatization plan

was halted, the FAA and the NATCA entered into a

collective bargaining agreement that established a

new compensation scheme for air traffic controllers.

The new scheme was referred to as the Air Traffic

Controller ("ATC") system. i

The ATC system created a set of "Pay and

Reclassification Rules" to replace the grades and

steps of the GS system. Under the new scheme,

controllers were assigned an ATC level and pay band

(akin to GS grade and step levels). The collective

bargaining agreement also contained a conversion

rule ("Rule 35") for transferring air traffic controllers

at Level 2 through Level 5 facilities from the GS

system to the ATC system. It provided a formula for

determining a controller's ATC level and pay band,

which was based solely on the controller's prior GS

5A

grade and step. However, Rule 35 did not call for

controllers at Level 1 facilities to be transferred into

the ATC system, as those towers were still slated for

privatization. Instead, the Note to Rule 35 stated

that Level 1 facilities would be "treated in

accordance with current pay policies with the

exception that their base pay will be increased by 5%

in the first year."

The ATC pay scheme took effect in October

1998. Controllers at Level 2 through Level 5

facilities converted to the ATC system, while

controllers at Level 1 facilities continued to be paid

under the GS system. When the appellants

eventually transferred from Level 1 facilities to

higher level facilities in late 1999, the FAA

determined their ATC level and pay band by

applying the conversion formula to the GS level and

step they held while working at the Level 1 towers.

The source of the appellants’ complaint is that

air traffic controllers who transferred to higher level

towers prior to October 1998 were promoted to

higher pay grades to correspond to the higher level

of their new jobs within the GS system. Those air

traffic controllers transferred within the GS system;

because their transfer to a higher level facility was

accompanied by a grade increase under the GS

system, they were entitled under 5 U.S.C. § 5334(b)

to be paid at a step level within the higher grade

that was two steps above the level at which they

were being paid in the lower rated facility. Because

the appellants transferred from the Level 1 facilities

after October 1998, they transferred from the GS

system directly into the ATC pay system. They

6A

therefore did not receive the benefit of the statutory

two-step increase that they would have received if

they had been transferred at a time when the GS

system was still in effect for the facilities to which

they transferred. As a result, the appellants were

assigned a lower ATC level and pay band than

similarly situated controllers who transferred from

Level 1 facilities before the ATC system took effect.

The appellants allege that the FAA's failure to

promote them within the GS system before

converting them to the ATC system caused them to

lose the two-step increase guaranteed by Section

5334(b).

II

The appellants contend that, upon their

transfer to the higher level towers, they were

entitled to a pay increase under section 5334(b).

That statute provides in relevant part as follows:

An employee who is promoted or

transferred to a position in a higher

grade is entitled to basic pay at the

lowest rate of the higher grade which

exceeds his existing rate of basic pay by

not less than two step-increases of the

grade from which he is promoted or

transferred.

5 U.S.C. § 5334(b). The effect of section 5334(b) is to

ensure that all employees who are promoted to a

higher GS grade receive an increase in pay, not a

reduction. Because the pay associated with high

steps in one grade is often greater than the pay

associated with low steps in the next higher grade, a

7A

promotion from, for example, GS-10, step 10, to GS-

11, step 1, would entail a loss of pay ifit were not for

the operation of section 5334(b).

While section 5334(b) ensures that grade

promotions within the GS system do not result in a

loss of pay, the case law makes clear that section

5334(b) applies only to employees who transfer from

one position in the GS system to another position

that is also within the GS system. See United States

v. Clark, 454 U.S. 555, 561 (1982) (holding that

section 5334(b) does not apply to a transfer from a

non-GS system position into a GS system position);

Libretto v. United States, 230 Ct. CI. 790, 791

(1982) (holding that section 5334(b) does not apply to

a transfer from a GS system position into a non-GS

system position). The question presented by this

case is whether the appellants’ transfers from Level

1 towers to higher level facilities were transfers

within the GS system or transfers from the GS

system into a non-GS system.

The appellants rest their claim on the theory

that each of their transfers consisted of two steps:

first, a promotion from a Level 1 facility to a higher

level facility within the GS system (thus triggering

section 5334(b)); and second, a conversion from the

GS system into the ATC system by operation of Rule

35 of the collective bargaining agreement. Although

the appellants characterize the two-step conversion

process as a question of fact, they point to no factual

evidence in dispute. Indeed, the existence of a first

GS-to-GS step is contradicted by the allegations in

the appellants' own complaint. As they assert

repeatedly, by the time they transferred to higher

8A

level facilities, those facilities had already

transitioned to the ATC system. Thus, at the time

they actually received their promotions, their new

positions fell outside the GS system. All of the

appellants' arguments to the contrary are

conclusory; they offer no proof beyond the fact that

air traffic controller positions at those facilities had

previously been classified within the GS system. As

the complaint acknowledges, air traffic controller

positions at Level 2 through Level 5 facilities were

within the GS system prior to October 1998 and

within the ATC system thereafter. At the time the

appellants moved to higher level facilities in 1999,

they were moving from GS positions to non-GS

positions. Under those circumstances, section

5334(b) is inapplicable.

While it may be that the parties to the

collective bargaining agreement should have

anticipated that some controllers would lose the

benefit of section 5334(b) if they did not transfer into

a higher level facility until after the conversion to

the ATC pay system, the agreement did not provide

a remedy for those employees, and federal law does

not provide a remedy, either. It may be that the.

collective bargaining process can rectify the problem,

at least for the future. But what is clear from the

collective bargaining agreement and section 5334(b)

is that when the appellants transferred to their new

facilities, they transferred out of the GS pay system

and into the ATC pay system; they never transferred

to a higher grade within the GS system and thus

were not entitled to the benefits of the two-step

increase in pay received by controllers who

9A

transferred at a time when the GS system was in

effect for all the facilities.

Although our legal analysis of the plaintiffs’

claim under section 5334(b) tracks that of the Court

of Federal Claims, that court dismissed the case for

lack of jurisdiction and not on the merits. In that

respect, we disagree with the court's disposition.

The trial court agreed that section 5334(b) is a-

"money-mandating statute” and that if the

appellants had been able to show they were persons

entitled to the benefits of that statute, they would

have been entitled to relief from the Court of Federal

Claims. Where plaintiffs have invoked a money-

mandating statute and have made a non-frivolous

assertion that they are entitled to relief under the

statute, we have held that the Court of Federal

Claims has subject-matter jurisdiction over the case.

See Fisher v. United States, 402 F.3d 1167, 1175-76

(Fed. Cir. 2005); see also Doe v. United States, 463

F.3d 1314, 1323-26 (Fed. Cir. 2006); In re United

States, 463 F.3d 1328, 1335 (Fed. Cir. 2006).

An unusual quirk in this case is that at the

time of their transfer from the Level 1 facilities, the

plaintiffs were not technically being paid pursuant to

the GS schedule set forth in title 5 of the U.S. Code,

but instead were being paid pursuant to the FAA's

Personnel Management System, the administrative

order that adopted the GS pay system for the

interim period pending conversion of the air traffic

controllers to the ATC system. The statute that

authorized the Administrator to implement a

compensation scheme for the agency in 1996 also

provided that the portions of title 5 containing the

10A

GS system would no longer apply to FAA employees.

See 49 U.S.C. § 40122. After April 1, 1996, FAA

employees such as the plaintiffs were therefore being

paid in accordance with the GS compensation

system, but because of administrative order, not

because of statutory direction.

That unusual feature does not alter our

analysis of the jurisdictional issue, however, because

the Court of Federal Claims has jurisdiction over

money claims founded not only on statutes, but also

on “any regulation of an executive department.” 28

U.S.C. § 1491. An agency directive dealing with

personnel policy qualifies as such a regulation if (1)

the agency was authorized to issue the regulation;

(2) the agency conformed to all procedural

requirements in promulgating the regulation; (3) the

agency intended the regulation to create a binding

rule; and (4) the provision does not contravene a

statute. Hamlet v. United States, 63 F.3d 1097,

1105 (Fed. Cir. 1995).

The FAA's adoption of the GS pay system in

the 1996 Personnel Management System clearly

qualifies as a regulation under that test. It was

specifically authorized by statute and is not in

conflict with the GS system compensation provisions

or any other law; it was promulgated by the

Administrator as directed by Congress; as a

regulation dealing with "a matter relating to agency

management or personnel," formal rulemaking was

not required, 5 U.S.C. § 553(a)(2); and the agency's

statement, in mandatory language, of its intention to

continue to pay employees under the GS scale

plainly reflects an intention to be bound by the

11A

compensation policy set forth in the regulation. See

Hamlet, 63 F.3d at 1105-06 & n.6. Treating the

references to section 5334(b) in the complaint as

directed to the Administrator's regulatory adoption

of the standards of that statute as well as the other

portions of the GS statutory scheme, we hold that

the Personnel Management System was a binding,

money-mandating regulation and that the Court of

Federal Claims had jurisdiction over the plaintiffs’

claim on that basis. The dismissal in this case

therefore should have been for failure to state a

claim upon which relief can be granted, not for lack

of jurisdiction. Because the distinction between the

two forms of dismissal has no apparent practical

effect in this case, however, we need not remand for

purposes of correcting the judgment in that respect.

See Lewis v. United States, 70 F.3d 597, 603-04

(Fed. Cir. 1995); see also Doe v. United States, 463

F.3d at 1325 (dismissal of claim for want of

jurisdiction was error, but error was harmless

because action should have been dismissed on the

merits); Moden v. United States, 404 F.3d 1335,

1340-41 (Fed. Cir. 2005) (same). Instead, we merely

note that for any possible future effect that the

judgment in this case may have, the dismissal

should be regarded as a dismissal on the merits

rather than for want of jurisdiction.

Each party shall bear its own costs for this

appeal.

AFFIRMED.

12A

In The United States Court of Federal Claims

No. 05-961C (consolidated)

TED A. BRODOWY, ET AL..,

JUDGEMENT

THE UNITED STATES

Pursuant to the court’s Opinion, filed July 11,

2006, granting defendant’s Motion to Dismiss,

IT IS SO ODERED AND ADJUDGED this

date, pursuant to Rule 58, that the complaint is

dismissed. Each party shall bear its own costs.

Brian Bishop

Clerk of Court

July 11, 2006 By: /s/

Deputy Clerk

NOTE: As to appeal, 60 days from this date, see

RCFC 58.1, re number of copies and listing of all

plaintiffs. Filing fee is $455.00.

13A

In the United States Court of Federal Claims

Case No. 05-961C (Consolidated)

(Filed: July 11, 2006)

NOT TO BE PUBLISHED

FEES IA TOIT IC TI IIE KI

TED A. BRODOWY, ET AL..,.

Plaintiffs,

v.

THE UNITED STATES OF AMERICA,

Defendant.

OK 2 A ee oe ee oe ee oe ee oe ee a ee oe EE EK EE EE EK KE EK HE

+* £@#etet&tste & He &iH OF

Malcom Scott Young, Thompson Hine, LLP,

Cincinnati, Ohio, attorney of record for Plaintiffs.

Joan M. Stentiford, Commercial Litigation

Branch, Department of Justice, Washington 0.C:,

attorney of record for Defendant. With her on the

briefs were Peter D. Keisler, Assistant Attorney

General, David M. Cohen, Director, Kathryn A.

Bleecker, Assistant Director, and David R. Feniger,

Trial Attorney.

Sarah Leigh Martin, law clerk.

14A

OPINION

BASKIR, Judge.

Plaintiffs, current or former air traffic controllers,

had been paid under the General Schedule ("GS")

pay system prior to 1999. They all transferred to

higher level facilities after the FAA converted all

higher level facilities to a new pay system (the "ATC"

system). They bring claims for back pay, alleging

that they were entitled to a re-grade of their pay

before or upon transferring to the new facilities and

into the ATC pay system.. Plaintiffs fail to establish

that their Complaint is grounded on a money-

mandating statute. Therefore, the Defendant's

Motion to Dismiss under Rule 12(b)(1) for lack of-

subject matter jurisdiction Is granted. See Fisher v.

United States, 402 F.3d 1167,1175 (Fed. Cir..2005).

BACKGROUND

Plaintiffs are ten air traffic controllers currently or

formerly employed by the U.S. Federal Aviation

Administration ("FAA") who seek the retroactive

recovery of wages pursuant to the Back Pay Act.

The FAA formerly employed air traffic controllers at

facilities ranging in classification from Level 1

through Level 5, Level 5 towers being the busiest.

The GS level of air traffic controllers was a function

of their facility, ranging from GS 10 for Level 1 to GS

15 for Level 5. According to the Plaintiffs, all air

traffic controllers were compensated under the

(FG)GS pay system before 1998. The FG system

refers generically to the system that was to be

developed for FAA personnel pursuant to 49 U.S.C. §

15A

40122(g)(1)..See Def. Br. at 19. The General

Service ("GS") pay system is the general pay system

for employees of the Federal Government in

administrative, professional, and technical positions

that is commonly utilized at other government

agencies. The Plaintiffs continued to be paid under

the GS system until late 1999, and they refer to that

compensation as the (FG)GS system.

In July 1998, the National Air Traffic Controllers

Association ("NATCA") and the FAA reached a

collective bargaining agreement ("CBA") regarding

the institution of a new pay system. This Air Traffic

Controller ("ATC") pay system created a set of "Pay

and Reclassification Rules" for FAA employees that

was to replace the existing (FG)GS pay system.

Under the new ATC pay system, air traffic

controllers at each of the Level 2 through 5 facilities

were given an ATC designation that ranged from 6

through 12. The ATC pay system provided broader

"pay bands" within each level that replaced the

grades and steps of the previous (FG)GS pay system.

Rule 35 of the agreement outlined. a two-step

procedure for converting the pay levels of air traffic

controllers in Level 2 to 5 facilities from the (FG)GS

to the ATC pay system. Rule 35's formula was not

merit based, but rather tied to the air traffic

controllers' previous grade and step levels under the

old system. Level 1 facilities, however, were not

classified within the new ATC levels.

Level 1 facilities were slated for private operation.

From 1994 to 1998, the FAA privatized over seventy-

five percent of its Level 1 air traffic facilities. Air

traffic controllers at Level 1 facilities had to relocate

16A

to another higher level facility to remain employed

by the FAA, or could retire or resign from federal

service. The FAA transferred these Level 1 air

traffic controllers to other higher level facilities. The

FAA then applied 5 U.S.C. § 5334(b), which dictates

pay conversions for promotions or transfers within

GS pay system, to establish the employees’ higher

pay grades under the (FG)GS pay system

corresponding with their new, higher level jobs.

Then, on October 1, 1995, the new ATC pay system

came into effect for air traffic controllers employed at

Level 2 to 5 facilities. Upon this conversion, the

FAA applied Rule 35 to convert the pay levels of

each employee who was already employed at

facilities ranging from Level 2 through 5.

In March 1998, a US District Court temporarily

vacated the FAA's privatization program. See Nat'l

Air Traffic Controllers Assn v. Sec'y of DOT, 997 F.

Supp. 874 (N.D. Ohio 1998). The FAA thus did not

transfer its remaining Level 1 air traffic controllers,

including Plaintiffs, before converting to the new

ATC pay system. Plaintiffs remained at their Level

1 facilities and continued to be compensated under

the (FG)GS pay system. The FAA did. not establish

an ATC pay scale for Level 1 facilities. When in

1999 the privatization program was allowed to

continue, Plaintiffs were transferred to higher level

facilities in or about October, November, or

December 1999, approximately a year after the

conversion to the ATC system had taken effect at

those facilities.

Plaintiffs transferred directly into the ATC pay

system when they began at their higher level

17A

facilities in 1999. Thus, their pay was automatically

converted into the ATC pay system. Plaintiffs were

assigned the lowest pay grade in the corresponding

pay band of the ATC system, essentially being

treated as newly hired employees. Plaintiffs allege

that they understood from the FAA that they would

transfer to the new ATC facilities under the (FG)GS

pay regulations, be re-graded, and then through

application of Rule 35 would convert into the ATC

pay system at a higher level, just as the other air

traffic controllers had. However, the FAA did not

apply 5 U.S.C. § 5334(b) to determine Plaintiffs’ new

pay levels.

Plaintiffs filed their Complaint in this Court on

August 31, 2005. They bring claims for back pay

under the Back Pay Act; Rule 35 of the Pay and

Reclassification Rules of the CBA, the Fifth

Amendment to the U.S. Constitution, the

Classification Act, and 5 U.S.C. § 5334(b). Plaintiffs

claim that they lost pay steps they had earned under

the (FG)GS pay system when they were assigned

the lowest pay grade at their respective new

facilities. The Defendant filed a Motion to Dismiss,

which was fully briefed .and argued.

ANALYSIS

Before the Court is the Defendant's Motion to

Dismiss for lack of subject matter Jurisdiction, based

on Rule 12(b)(1) of the U.S. Court of Federal Claims

("RCFC"), or in the alternative, for failure to state a

claim upon which relief can be granted under RCFC

12(b)(6). Because we find no subject matter

jurisdiction, we do not address Defendant's

18A

arguments under Rule 12(b)(6) for failure to state a

claim.

On motions to dismiss, the Court views the facts

alleged in the Complaint in the light most favorable

to the non-moving party. See Patton v. United

States, 64 Fed. CI. 768, 773 (2005). Because the

Defendant's Motion challenges this Court's

jurisdiction, we may also consider outside evidence.

Id. at 773.

The U.S. Court of Federal Claims is, like all Federal

courts, a court of limited jurisdiction. See Brown v.

United States, 105 F.3d 621, 623 (Fed. Cir. 1997).

This Court may only hear a claim brought against

the United States if Congress specifically and

unambiguously waived the Government's sovereign

immunity for such a suit. United States v. King, 395

U.S. 1, 4 (1969). According to the Tucker Act, a suit

may be brought in this Court if it is founded upon

the Constitution, an Act of Congress, a regulation, or

a contract with the United States, if it does not

sound in tort. 28 U.S.C. § 1491(a)(1).

The Tucker Act does not itself create a substantive

right of recovery; a plaintiff must identify a money-

mandating provision creating a substantive right

and waiving the United States' sovereign immunity

in order for this Court to have jurisdiction. E.g.,

United States v. Mitchell, 445 U.S. 535, 538 (1980);

United States v. Testan, 424. U.S. 392, 398 (1976).

A money-mandating provision is one that "can fairly

be interpreted as mandating compensation by the

Federal Government for the damage sustained."

19A

Testan, 424 U.S. at 400 (quoting Eastport S.S..

Corp. v. United States, 178 Ct. Cl. 599, 607 (1967)).

The Defendant's Motion also focuses on the

argument that. Plaintiffs are seeking the benefit of

positions to which they have not been appointed.

However, the Court must first examine the

provisions relied upon by Plaintiffs to determine

whether any of them confers jurisdiction on this

Court. As the necessary money-mandating

provision, Plaintiffs rely upon the Back Pay Act, the

ATC Pay and Reclassification Rules embodied in the

collective bargaining agreement, the, Fifth

Amendment to the U.S. Constitution, 5 U.S.C. §

5101 (the Classification Act) and 5 U.S.C. § 5334(b).

At oral argument Plaintiffs rested solely on the

latter-statute, but as jurisdiction is not waivable, we

examine these other possible grounds as well.

A. The Back Pay Act

The Plaintiffs seek compensation under the Back

Pay Act, 5 U.S.C. § 5596, for money allegedly due

them based on an improper grade determination:

The Back Pay Act entitles an employee to money

damages when he or she Is found by appropriate

authority under applicable law, rule, regulation; or

collective bargaining agreement, to have been

affected by an unjustified or unwarranted personnel

action which has resulted in the withdrawal or

reduction of all or part of his or her pay. 5 U.S.C. §

5596(b)(1).

It is well established that the Back Pay Act is not

itself a jurisdictional statute, as Plaintiffs' counsel

20A

conceded at oral argument. See Salinas v. United

States, 52 Fed. Cl. 399, 401 (2002), an, 323 F.3d

.1047 (Fed. Cir. 2003) (citing United States v.

Connolly, 716 F,2d 882, 887 (Fed. -Cir.1983)). In

order for this Court to have jurisdiction over a claim

for back pay, "'[s]ome provision of law other than the

Back Pay Act must first mandate, or at least be

interpreted to mandate, money damages to an

employee suffering an unjustified-or unwarranted

personnel action ..." Salinas, 52-Fed. CI. at 401

(quoting Walker v. United. States, 11 CI. Ct. 77, 80

(1986)); accord Spagnola v. Stockman, 732 F.2d 908,

912 (Fed. Cir. 1984). For these reasons, we must

determine whether Plaintiffs have identified a

statute or provision, other than the Back Pay Act,

that mandates an award of money damages.

B. The Collective Bargaining

Agreement

In its Motion, the Defendant contends that this

Court does not have jurisdiction over a claim to

enforce a collective bargaining agreement. In this

case, the Plaintiffs rely upon the ATC Pay and

Reclassification Rules, which are contained in a

Memorandum of Understanding between the FAA

and the NATCA, entered into on July 9, 1998.

Plaintiffs ask us to enforce Rule 35, which requires

that certain steps be taken when transferring

employees from the FG(GS) system to the ATC

system, including a step increase.

The Civil Service Reform Act ("CSRA") governs the

enforcement of collective bargaining agreements in

federal employment. See 5 U.S.C. § 7101 et seq. It

21A

provides that negotiated grievance procedures,

required to be in all CBAs, are "the exclusive

administrative procedures for resolving grievances

which fall within its coverage." 5 U.S.C. § 7121(a)(1).

The Court of Appeals for the Federal Circuit has

held that Congress' addition of the word

"administrative" to this provision in 1994 expressed

its intent to allow judicial relief for employee

grievances that fall within the scope of the

negotiated grievance procedures. Mudge v. United

States, 308 F.3d 1220 (Fed. Cir. 2002); accord

O'Connor v. United States, 308 F.3d 1233 (Fed. Cir.

2002). That is, the CSRA was not intended to

prohibit judicial remedies that were otherwise

provided by law. In contrast, the. Court of Appeals

in Salinas v. United States; 323-F.3d 1047 (Fed. Cir.

2003),*held that the Merit Systems Protection Board

had exclusive jurisdiction over the plaintiffs

grievance claim, brought pursuant to the Back Pay

Act.

In Zaccardelli v. United States; 68 Fed; CI. 426, 433

(2005), Judge Firestone reconciled these holdings

and explained when the Court of Federal Claims has

jurisdiction over claims based upon a CBA:

When read together, Salinas; Mudge, and

O'Connor stand for the proposition that the

jurisdiction of the Court of Federal Claims

over a claim covered by the CSRA depends on

whether the claim involves a statutory basis

for jurisdiction that is independent of the

CSRA.

22A

(emphasis added), In addition to a CBA and the

CSRA, the cited cases involved claims pursuant to

the Back Pay Act, the Prevailing Wage Systems Act,

and the Fair Labor Standards Act, respectively. See

Id. at 432.

The court in Zaccardelli noted that the Court of

Federal Claims had jurisdiction over the plaintiffs’

claims in Mudge and O'Connor, but not in Salinas.

As mentioned earlier, this Court does not have

jurisdiction based solely upon the Back Pay Act.

Only the plaintiffs in Mudge and O'Connor, then,

had articulated an independent, money mandating

provision (the Prevailing Wage Systems Act and the

Fair Labor Standards Act, respectively).

The CBA itself is not a contract within the meaning

of the Tucker Act, so the plaintiff in Zaccardelli, who

had not identified any other money-mandating

statute, had not established jurisdiction in the Court

of Federal Claims. Id. at 433. Zaccardelli is holding

is consistent with our reading of the rule set forth in

Mudge - that the CSRA does not deprive the

employee of a judicial remedy for an employee

grievance if jurisdiction in this Court otherwise

exists. See Mudge, 308 F.3d at 1232 (The CSRA "no

longer restricts a federal employee's right to pursue

an employment grievance in court.").

One reason for the Zaccardelli rule is that federal

employment is governed by statute, not by contract,

Adams uv. United States, 391 F.3d 1212, 1221 (Fed.

Cir. 2004), so a collective bargaining agreement

cannot be an independent basis to challenge a

violation of federal employment. In addition,

23A

although the CSRA does not deprive a plaintiff of his

right to enforce independent statutory rights in

court, it does provide a comprehensive scheme of

administrative review applicable to remedy adverse

employment actions. See Mudge, 308 F.3d at 1228..

The Merit Systems Protection Board's jurisdiction

over those administrative claims prevents this Court

from hearing suits for back pay based solely on.

violations of the CSRA that are covered by its

administrative-review provisions. See Salinas, 323

F.3d at 1049; see also Zaccardelli, 68 Fed. CI. at 433

(refusing to assert jurisdiction over "claims of

violations of the CBA [that] are simply employee

grievances, which are governed by the CBA's

grievance procedures; as set forth in the CSRA").

Applying Zaccardelli to the current case, it is clear

that this Court has jurisdiction over Plaintiffs’

claims only if they identify a money-mandating

provision that is independent of the CBA itself.

C. The Classification Act

In their Complaint, Plaintiffs claim jurisdiction

based upon the Classification Act of 1949, 5 U.S.C. §

5101. However, the parties do not address this

statute in their briefs. Section 5101 provides for "a

plan for classification of positions whereby... the

principle of equal pay for substantially equal work

will be followed." Jd. The Plaintiffs invoke this

statute apparently because they were treated

differently from all other air traffic controllers who

were converted to the ATC pay system.

24A

In Testan, the Supreme Court squarely held that the

Classification Act is not a money-mandating statute

that waives the Government's sovereign immunity.

Testan, 424 U.S. at 399-400. Although it provides

for a classification system of equal pay for equal

work, “none of these several sections contains an

express provision for an award of backpay to a

person who has been erroneously classified." Jd.

As stated in Testan, it is not the case that Plaintiffs

have no remedy at all — administrative relief is

detailed in the Classification Act, id. at 403, as it is

for enforcement of collective bargaining agreements

in the Civil Service Reform Act, Zaccardelli,.68 Fed.

CI. at 433. It is only the case that employees cannot

seek retroactive classification and monetary relief in

this Court for violations of those statutes alone.

D. 50U.S.C. § 5334(b)

Plaintiffs, citing 5 U.S.C. § 5334(b), claim that they

are entitled to a pay increase. That statute provides

in part:

An employee who is promoted or transferred

to a position in a higher grade Is entitled to

basic pay at the lowest rate of the higher

grade which exceeds his existing rate of basic

pay by not less than two step-increases of the

grade from which he is promoted or

transferred.

5 U.S.C. § 5334(b) (emphasis added). "Grade" is

given the definition it has in section 5102, see

§5331(a), which defines it as:

25A

includ[ing] all classes of positions which,

although different with respect to kind or

subject-matter of work, are sufficiently

equivalent as to — (A) level of difficult and

responsibility; and (B) level of qualification

requirements of the work; to warrant their

inclusion within one range of rates of basic

pay in the General Schedule.

5 U.S.C. § 5102(a)(5) (emphasis added).

The implementing regulations define the

scope of coverage as follows:

This subpart covers employees who occupy

positions classified and paid under the GS

classification and pay system ....

5 C.F.R. § 531.202. Under the regulations,

"promotion" means:

a GS employee's movement from one GS grade

to a higher GS grade while continuously

employed (including such a movement in

conjunction with a transfer).

5 C.F.R. § 531.203 (emphasis added). "Transfer"

means:

a change of an employee, without a break in

service of 1 full workday, from one branch of

the Federal Government (executive,

264A

legislative, or judicial) to another or from one

agency to another.

Id.

In examining an employee promotion from a non-GS

position to a GS position, the U.S. Supreme Court

held that section 5334(b) only applies to promotions

within the GS system. United States v. Clark, 454

U.S. 555, 561 (1982). In Clark, the employees were

promoted from a position in the prevailing rate wage

system ("WS") to a position .of a higher grade in the

GS system. The Court looked to the plain language

of the statute and section 5102's definition of

"grade," as quoted above. That term specifically

references steps in the General Schedule. The Court

concluded that the plain language of the statute

compels the conclusion that the two-step increase

rule of .section 5334(b) applies "only to promotions or

transfers of employees already within the GS

system." Id.

Plain meaning notwithstanding, the Court in Clark

also examined the legislative history of section

5334(b) and concluded that Congress was only

concerned with movement within the GS system, not

movement between the GS and WS systems. Id. at

564. Finally, the Court analyzed a then-existing

regulation, which dearly stated that the pay increase

only applied to transfers or promotions within the

GS system. ..Because "the construction of a statute

by those charged with its administration is entitled

to great deference," the Court concluded that the pay

increase did not apply to employees transferring

from another system. Id. at 565-66.

27A

It was not clear whether the Supreme Court's

reasoning in Clark also applied to the reverse

situation — a promotion from the GS system to

another system. The Federal Circuit has held that it

did. Libretto v. United States, 230 Ct. CI. 790

(1982); Morriss v. United States, 231 Ct. CI.811

(1982). The Federal Circuit in those cases clearly

stated:

It therefore follows that section 5334(b) does

not apply to movement between GS and WS in

either direction.

Libretto; 230 Ct. Cl. at 791; Morriss, 231 Ct. Cl. at

812.

Although the ATC system is distinct from the WS

system, the Supreme Court's reasoning applies

equally to the instant case. The plain language of

section 5334(b), as well as the implementing

regulations, compel the conclusion that the statute

only covers promotions or transfers within the GS

system. See Clark, 454 U.S. at 561. Plaintiffs

explicitly recognize that the Supreme Court's ruling

limits section 5334's application to "transfers or

promotions within the GS pay system." PI. Br. at 25.

While they claim the benefits of section 5334(b) and

claim it was "violated," Jd., they cannot escape the

fact that all Level 2 through 5 ATC facilities were

converted to the ATC pay system in 1998, see CSUF

{ 10. Thus, Plaintiffs were transferred from the GS

system to the ATC system in 1999; their transfers

were not "within the GS system" as required by

Clark.

28A

Plaintiffs’ counsel posited at oral argument that

Clark is distinguishable from the present case.

Unlike the WS system, the ATC system is essentially

the same as the GS system. The Plaintiffs here did

not change jobs, but were merely converted from one

pay system to a new system that was, in effect, the

same as the old. Plaintiffs’ argument falls for two

reasons. First, there are important differences

between the ATC and GS pay systems, as Plaintiffs'

counsel explained at oral argument. The ATC

system does not contain steps within each pay band

or grade, as the GS system does. Thus, an employee

in a given ATC position is not subject to periodic

increases In pay based on seniority.

Second, the Supreme Court's holding in Clark rested

primarily upon the plain language of section 5334(b)

and its implementing regulations -— not upon the

distinction between the GS and WS systems. Clark,

454 U.S. at 560-61. The Court's conclusion that

there was "no necessary or obvious relationship"

between the GS and WS systems was an additional

yet unnecessary reason in support of its ruling; we

do not read that as the determining rationale for the

Court's holding. See Id. at 564-65. We think the

rule set forth in Clark is clear and must be applied.

in this case. See Id. at 561 ("[T]he statute and the

accompanying regulations reveal a congressional

intent to apply the two-step increase provision of §

5334(b) only to promotions or transfers of employees

already within the GS system.").

Plaintiffs further argue that they were entitled to a

pay increase based on a grade calculation after their

29A

promotion but before they were converted to the ATC

pay system. Pl. Br. at 13. They claim that section

5334(b) should have been applied to them "upon"

their transfer to a new facility but "prior to" their

conversion to the ATC pay system. See PI. Br. at 19.

This is an attempt to fall within the coverage of

section 5334(b) by implying that the transfer

consisted- of two separate steps — first, a transfer

"within" the GS system to a new facility, and second,

a conversion to the new ATC system. However, they

do not allege in their Complaint that their promotion

in fact consisted of these two steps, or that they were

ever paid under the GS system after transferring to

their new ATC facilities. Their argument fails to

acknowledge that the transfer to a new facility was a

transfer into the ATC system. The new facilities had

already been converted to the ATC system in

October of 1998, and the FG (GS) pay system no

longer existed for air traffic controllers. Their

transfer was simultaneously one to a new facility

and to a new pay system.

Plaintiffs do not point to any statutory provision that

entitles them to a pay increase under the GS system

prior to a transfer or promotion to the position that

allegedly gives them the right to a higher rate of pay.

The plain language of section 5334(b) applies upon

the transfer or promotion in question, not sometime

prior.

E. The Fifth Amendment

The Plaintiffs rely upon the Fifth Amendment to the

U.S. Constitution in their Complaint. Although they

do not specify which clause of the Fifth Amendment

they refer to, they appear to be invoking the equal

30A

protection clause. See Complaint at J 64 ("Plaintiffs

were converted in a different, and unequal manner

in violation of the Fifth Amendment ....).

Neither the Fifth Amendment's due process clause,

Murray v. United States, 817 F.2d 1580 (Fed.

Cir.1987), nor its equal protection clause, Bounds v.

United States,1 C1. Ct. 215 (1983), aft'd. without op.,

723 F.2d 68 (Fed. Cir. 1983), is a money-mandating

provision within the meaning of the Tucker Act. In

their brief, the Plaintiffs do not respond to the

Defendant's argument that we have no jurisdiction

over due process claims. Although nothing prevents

the Court from hearing constitutional claims, we

must property assert jurisdiction over the complaint

in the first instance. See Terran v. Sec'y of DHHS,

195 F.3d 1302, 1309-10 (Fed. Cir. 1999).

CONCLUSION

None of the provisions cited by the Plaintiffs is

money-mandating, except section 5334(b). That

provision is, however, clearly inapplicable to

Plaintiffs' circumstances. Therefore, in the absence

of a money-mandating provision supporting

Plaintiffs' claims, we conclude we have no subject

matter jurisdiction.

31A

Defendant's Motion to Dismiss is hereby

GRANTED, and Plaintiffs’ Complaint is

DISMISSED. Each party is to bear its own

costs.

IT IS SO ORDERED.

LAWRENCE M. BASKIR

Judge

32A

TED A. BRODOWY, DIRK G. BROWN,

CAROLYN M. GANDY, RON D. GANDY, TRACY

JENSON, KENNETH B. KARNATH,

JONATHAN A. MENDELSON, CLYDE A.

SMITH, SHARON WILKINS, and MARILYN

_ YAMAMOTO,

Plaintiffs-Appellants,

Vv.

UNITED STATES,

Defendant-Appellee.

2006-5113

UNITED STATES COURT OF

APPEALS FOR THE FEDERAL

CIRCUIT

June 22, 2007, Decided

June 22, 2007, Filed

NOTICE: THIS DECISION WAS ISSUED AS

UNPUBLISHED OR NONPRECEDENTIAL AND

MAY NOT BE CITED AS PRECEDENT. PLEASE

REFER TO THE RULES OF THE FEDERAL

CIRCUIT COURT OF APPEALS FOR RULES

GOVERNING CITATION TO UNPUBLISHED OR

NONPRECEDENTIAL OPINIONS OR ORDERS.

PRIOR HISTORY: Brodowy v. United States,

482 F.3d 1370, 2007 U.S. App. LEXIS 8374 (Fed.

Cir., 2007)

COUNSEL: _ [*1) For Carolyn M. Gandy, Clyde A.

Smith, Dirk G. Brown, Jonathan A. Mendelson,

33A

Kenneth B. Karnath, Marilyn Yamamoto, Ron D.

Gandy, Sharon Wilkins, Ted A. Brodowy, Tracy

Jenson, Plaintiffs-Appellants: YOUNG, MALCOLM

SCOTT, PRINCIPAL ATTORNEY, Thompson Hine

LLP, Cincinnati, OH.

For United States, Defendant-Appellee:

STENTIFORD, JOAN M., PRINCIPAL ATTORNEY,

Department of Justice, Washington, DC.

JUDGES: Before Newman, Circuit Judge,

Clevenger, Senior Circuit Judge, and Bryson, Circuit

Judge.

OPINION

ORDER

A petition for rehearing having been filed by

the Appellant, and a response thereto having been

invited by the court and filed by the Appellee,

UPON CONSIDERATION THEREOF, it is

ORDERED that the petition for rehearing be,

and the same hereby is, DENIED.

The mandate of the court will issue on June

29, 2007.

34A

IN THE UNITED STATES COURT OF FEDERAL

CLAIMS

a TED A. BRODOWY

361 BEST PLACE ROAD

HELENA, MT 59602

and

2. DIRK G. BROWN

2120 DOPPLER STREET

STRASBURG, CO 80136

and

3. CAROLYN M. GANDY

267 JENNINGS ROAD

HORSEHEADS, NY 14845

and

4, RON D. GANDY

267 JENNINGS ROAD

HORSEHEADS, NY 14845

and

5. TRACY JENSON

32377 N. 6TH AVE.

SPIRIT LAKE, IDAHO 83869

and

6.

35A

KENNETH B. KARNATH

7800 SUNROSE DR. NW

ALBUQUERQUE, NM 87120

10.

and

JONATHAN A. MENDELSON

57 STEEPLE DRIVE

KINTNERSVILLE, PA 18930

and

CLYDE A. SMITH

1341 DAYTON ROAD

HARRISBURG, PA 17113

and

SHARON WILKINS

19064 E. BELLEWOOD DR.

AURORA, CO 80015

and

MARILYN YAMAMOTO

P.O. BOX 711345

MOUNTAIN VIEW, HI 96771

Plaintiffs,

¥.

THE UNITED STATES

Defendant.

36A

COMPLAINT

J urisdiction

11. Jurisdiction in this Complaint is proper

under the Tucker Act, 28 U.S.C. §1491, for the

reason that the Administrator of the Federal

Aviation Administration (FAA), which is part of the

United States Department of Transportation,

violated Title V of the U.S. Code, including but not

limited to 5 U.S.C. §5101 and §5334, and violated

the Air Traffic Control (ATC) Pay and

Reclassification Rules implemented by the FAA, and

violated the Fifth Amendment Clause to the U.S.

Constitution for purposes of converting Plaintiffs

from the (FG)GS pay system into the ATC pay

system in or about October, November, and

December 1999.

12. The Tucker Act, 28 U.S.C. §1491(a)(1),

provides that, "The United States Court of Federal

Claims shall have jurisdiction to render judgment

upon any claim against the United States founded

either upon the Constitution, or any Act of Congress

or any regulation of an executive department, or

upon any express or implied contract with the

United States, or for liquidated or unliquidated

damages in cases not sounding in tort."

13. Pursuant to the Back Pay Act, 5 U.S.C.

§5596, each of the Plaintiffs are entitled to the

retroactive recovery of wages back to in or about

October, November, or December 1999 because each

37A

Plaintiff, as federal employees, have undergone an

unjustified or unwarranted personnel action by the

breach of the ATC Pay and Reclassification Rules,

breach of 5 U.S.C. §5101 and $5334, and breach of

the Fifth Amendment to the U.S. Constitution, that

has resulted in the reduction of compensation to

which each of the Plaintiff-employees are otherwise

entitled.

Parties

14. Plaintiffs are, or were at all relevant

times, employed as air traffic controllers by the FAA,

an administrative part of the DOT, which is an

executive branch agency of the United States.

15. The Defendant is the United States

government and_ specifically the FAA, an

administrative part of the United States Department

of Transportation.

The Facts

16. In the early 1990s, the FAA determined

that it would privatize operations at 129 Level 1 air

traffic control towers (FAA-operated towers) from

1994 through 1998, approximately 25 per year.

17. This decision by the FAA caused all air

traffic controllers employed’ by the FAA at Level 1

air traffic control towers to either (1) relocate to

another FAA facility in order to remain employed by

the FAA as air traffic control specialists; or (2) retire

or resign from federal service.

38A -

18. In the 1990s, the FAA had five

classifications of air traffic control towers, classified

according to the level of complexity and the volume

of the air traffic they handle, ranging from Level 1

through Level 5, with Level 5 towers being the

busiest towers.

19. From 1994 through in or about March

2, 1998, when each of those air traffic controllers

transferred from their Level 1 facilities to a higher

level facility, the FAA applied 5 U.S.C. §5334(b) for

purposes of determining their (FG)GS rate of pay at

their new facility.

20. 5 U.S.C. §5334(b) provides that "an

employee who is promoted or transferred to a

position in a higher grade is entitled to basic pay at

the lowest rate of the higher grade which exceeds his

existing rate of basic pay by not less than two step-

increases of the grade from which he is promoted or

transferred. If, in the case of an employee so

promoted or transferred who is receiving basic pay

at a rate in excess of the maximum rate of his grade,

there is no rate in the higher grade which is at least

two step-increases above his existing rate of basic

pay, he is entitled te-- (1) the maximum rate of the

higher grade; or (2) his existing rate of basic pay, if

that rate is the higher.”

21. On March 2, 1998, the U.S. District

Court for the Northern District of Ohio in National

Air Traffic Controllers Association, MEBA, AFL-CIO

v. Secretary of Department of .Transportation (N.D.

Ohio 1998), 997 F. Supp. 874, vacated the

FAA's privatization program for FAA-operated Level

39A

1 towers for the reason that that FAA's decision to

privatize Level 1 facilities did not meet the

cost/benefit requirements of the Office of

Management and Budget Circular A-76; a copy of

which decision is attached as Exhibit "A".

22. At the time of the Court decision on

March 2, 1998, the FAA had already privatized over

75% of its Level 1 air traffic facilities with the

remaining Level 1 air traffic facilities scheduled to

be privatized in August 1998.

23. Each of the Plaintiffs in this lawsuit,

namely Ted A. Brodowy, Dirk G. Brown, Carolyn M.

Gandy, Ron D. Gandy, Tracy A. Jenson, Kenneth B.

Karnath, Jonathan A. Mendelson, Clyde A. Smith,

Sharon Wilkins, and Marilyn Yamamoto, were

employed as air traffic controllers for the FAA at

Level 1 facilities in March 1998 at the time of the

Court decision in National Air Traffic Controllers

Association, MEBA, AFL-CIO v. Secretary of

Department of Transportation, supra.

24. For the reason that the U.S. District

Court in National Air Traffic Controllers

Association, MEBA, AFL-CIO, supra, vacated the

privatization of Level 1 facilities, the Plaintiffs in

this lawsuit did not move to new air traffic facilities

in August 1998 as previously scheduled by the FAA.

25. Effective October 1, 1998, the FAA

instituted a new pay system for air traffic controllers

called the Air Traffic Controller pay system (ATC

pay system) which converted air traffic controllers at

40A

Level 2 through Level 5 air traffic facilities from the

(FG)GS pay system to the ATC pay system.

26. Level 1 air traffic facilities were not

converted into the ATC pay system, effective October

1, 1998.

27. The FAA did not establish an ATC pay

scale at a Level 1 facility effective October 1, 1998,

and air traffic controllers who worked at those

facilities continued to be paid under the (FG)GS pay

system at that time..

28. Upon implementation of the ATC pay

system, each of the Level 2 through Level 5 air

traffic control towers were given an ATC grade, that

ranged from 6 through 12.

29. Under the (FG)GS pay system, Level 2

through Level 5 air traffic facilities were higher

grade facilities than Level 1 facilities, and upon

changing to ATC facilities, these former Level 2

through Level 5 air traffic facilities continued to be

higher grade facilities than the Level 1 air traffic

facilities.

30. Each of the ATC grades had pay bands,

analogous to the “steps” under the (FG)GS pay

system.

31. This ATC pay system was created by

reason of a reduction of front-line managers to front-

line personnel that created an approximate $200

million dollar pool for pay raises to the controllers.

41A

32. Conversion into the ATC pay system

was based upon a formula tied into the air traffic

controller's grade and step level under the (FG)GS

pay system; it was not merit based.

33. Pursuant to 5 U.S.C. §5101(1)(A), the

basic rate of pay that a federal employee is to receive

is governed by the principle of equal pay for

substantially equal work.

34. Conversion into ATC pay system was

not supposed to deviate from the aforementioned

principle in 5 U.S.C. §5101(1)(A) that each air traffic

controller is to receive equal pay for substantially

equal work.

35. A Rule 35 (hereafter the "Conversion

Rule") was adopted by the FAA for purposes of

converting an air traffic controller from the (FG)GS

pay scale to the ATC pay scale .

36. The Conversion Rule (Rule 35) allowed

air traffic controllers to maintain their former grade

and steps under the FG(GS) pay system when

converted to the ATC pay system.

37. The Conversion Rule (Rule 35)

provides:

35.CPC Conversion from the FG

Pay Schedules to the ATC Pay

Levels.

Effective October 1, 1998, the

following steps will be taken to

42A

transition bargaining unit‘employees

to the ATC pay system. It is

understood that the pay targets

established under these rules will not

be changed unless required to

accommodate distribution of the

$200 million dollars as specified in

paragraph 5 of the Principal MOA.

Step 1: Establish the

percentage difference between

each employee's current FG grade

and step above the current FG

grade step for their assigned

facility (including locality).

Step 2: Multiply the

minimum base pay of the assigned

ATC level pay band by that

percentage. Add that figure to the

minimum of the pay band to

establish each employees target

base pay. If the employee's target

base pay does not exceed their current

base pay by a minimum of 9.1%, the

employee's target base pay will be

adjusted upward to meet this

minimum. Each employee's target

base pay will be transitioned in three

phases to reach the target base pay.

Year 1: Determine the first

transitional base pay for each

employee by:

43A

A. Add 4.1% (ATRA) to each

employee’s base pay (FG grade, step

plus locality);

B. Add any applicable IIP

and/or Pay Demonstration

entitlement; then,

C. Subtract the transition

base pay from the target base pay to

determine the amount of increase in

base pay to be apportioned over the

three years of the transition.

Determine the amount to be

apportioned in each year by the

following approximate percentages:

Year 1=32.094%, Year

2=36.785%, Year 3=31.121% (totaling

100%). Add the year one increment to

the transition pay base to determine

the year one base pay; and,

D. Add (A), (B) and (C) to

determine the first transitional base

pay, retroactive to October 1, 1998.

Year 2: Add the identified

dollar amount (Year 2(C)) to

employee's base pay in the first full

pay period of fiscal year 2000.

Year 3: Add the identified

dollar amount (Year 3(C)) to

44A

employee's base pay in the first full

pay period of fiscal year 2001.

Note: Facilities currently

classified as Level 1, and that are

scheduled to be contracted out by

end of fiscal year 1998, will not be

classified within the new ATC

levels. Those facilities will be treated

in_ accordance with current pay policies

(A copy whereof is attached as

part of Exhibit "B”.)

38. The FAA did not apply the Conversion

Rule (Rule 35) to any of the Plaintiffs in October

1998 because they were at a Level 1 facility on that

date and each of the Plaintiffs remained under the

(FG)GS pay system as indicated in the note to the

Conversion Rule (Rule 35).

39. The only reason that the Plaintiffs

continued to be at a Level 1 facility in October 1998

was because their Level 1 facility had not been

privatized pursuant to the U.S. District Court

decision in National Air Traffic Controllers

Association, MEBA, AFL-CIO v. Secretary of

Department of Transportation (N.D. Ohio 1998), 997

F. Supp. 874.

40. The FAA applied the Conversion Rule

(Rule 35) to all other air traffic controllers who

converted from the (FG)GS pay system into the ATC

45A

pay system effective October 1998, and were

employed at Level 2 through Level 5 air traffic

facilities.

41. In or about March 1999, the FAA

represented to the Court in National Air Traffic

Controllers Association, MEBA, AFL-CIO uv.

Secretary of Department of Transportation, supra

that it had complied with OMB Circular A-76 and

that the privatization of remaining Level 1 air traffic

towers was appropriate.

42. All air traffic controllers remaining at

Level 1 facilities had until on or about April 1, 1999,

to decide what ATC air traffic facility to transfer to,

and a higher grade ATC air traffic facility paid more

than a lower grade ATC pay facility.

43. In 1999, the FAA scheduled Plaintiffs

(and other remaining air traffic controllers at Level 1

facilities) to transfer to ATC facilities in or about

October, November, or December 1999 at which time

each of the Plaintiffs would convert into the ATC pay

system.

44. All ATC facilities in 1999 were

previously Level 2 through 5 air traffic facilities and

were facilities of a higher grade under the (FG)GS

pay system than the Level 1 air traffic facilities that

were being privatized.

45. At the time that Plaintiffs were

transferred to their higher grade ATC facilities in or

about October, November, or December 1999,

Plaintiffs were paid under the (FG)GS pay system.

46A

46. For the reason that Plaintiffs continued

to be paid in 1999 in accordance with (FG)GS pay

regulations, they should have transferred to their

new ATC air traffic facilities in accordance with 5

U.S.C. §5334(b) for purposes of determining their

appropriate grade and step at such facilities, and

then had the Conversion Rule (Rule 35) applied to

them to convert them from the (FG)GS pay system to

the ATC pay system, as was done with all other air

traffic controllers who transferred te higher level

facilities and converted into the ATC pay system

prior to the Court decision rendered in National Air

Traffic Controllers Association, MEBA, AFL-CIO v.

Secretary of Department of Transportation, supra.

47. The FAA did not apply 5 U.S.C.

§5334(b) and the Conversion Rule (Rule 35) to each

of the Plaintiffs to convert them from the (FG)GS

pay system into the ATC pay system in or about

October, November, or December 1999, and as a

result Plaintiffs lost earned grade and pay steps

during their conversion from the (FG)GS pay system

to the ATC pay system.

48. At the time that each of the Plaintiffs

chose an ATC air traffic facility to transfer to in

1999, Plaintiffs understood from the FAA that they

would transfer to the new ATC facilities under the

(FG)GS pay regulations and then through

application of the Conversion Rule (Rule 35) would

convert into the ATC pay system, and each of the

Plaintiffs detrimentally relied upon _ that

understanding from the FAA for purposes of

choosing a particular ATC air traffic facility to which

to transfer.

47A

49. An ATC pay band is approximately

$30,000 wide, and each of the Plaintiffs sustained

losses of between approximately $10,000.00 per year

and $30,000.00 per year by reason of the FAA’s

failure to transfer them to their ATC facilities

pursuant to 5 U.S.C. §5334(B) for purposes of

establishing their appropriate grade and step at

such facility, and then apply the Conversion Rule

(Rule 35) to convert them into the ATC pay system

in or about October, November, or December 1999.

50. Since in or about October, November,

and December 1999, Plaintiffs have exhausted all

known means, without resort to this instant

litigation, in an attempt to have the FAA apply 5

U.S.C. §5334(b) to them upon their transfer to a

higher facility for purposes of establishing their

appropriate grade and step, and apply the

Conversion Rule (Rule 35) to convert them from the

(FG)GS pay system to the ATC pay system as was

applied to convert all other air traffic controllers

from the (FG)GS to the ATC pay system who were

not otherwise delayed by reason of the U.S. District

Court Decision in National Air Traffic Controllers

Association, MEBA, AFL-CIO, supra, that had

vacated the privatization of Level 1 facilities because

of the FAA's violation of law.

51. Through this lawsuit, Plaintiffs demand

equal treatment for purposes of conversion from the

(FG)GS pay system into the ATC pay system as was

accorded all other air traffic controllers who

converted into the ATC pay system who were not

otherwise delayed by reason of the U.S. District

48A

Court Decision in National Air Traffic Controllers

Association, MEBA, AFL-CIO, supra.

COUNT L:

THE FAA VIOLATED TITLE V, 5 U.S.C.

5334(B) AND 5101(1)(A), ITS ATC PAY AND

IFI ION N

CONVERTING PLAINTIFF'S FROM THE

F PAY M TO THE PAY

YSTEM E } IFF BACK

PAY, FUTURE PAY ADJUSTMENT AND

B I E KE T,2

U.S.C. §14 PAY ACT, 5 U.S.C.

§5596

52. Plaintiffs incorporate ll _ prior

allegations set forth in paragraphs 1 through 51 of

the Complaint as if fully rewritten herein.

53. The United States unlawfully bypassed

and violated its pay regulations by not applying 5

U.S.C. §5334(b) to Plaintiffs in or about October,

November, and December 1999, for purposes of —

establishing their appropriate grade and step level

at their new higher grade facility for purposes of

conversion into the ATC pay system.

54. The United States’ failure to apply 5

U.S.C. §5334(b) to each of the Plaintiffs upon their

transfer to higher level facilities in October,

November, and December 1999 meant that Plaintiffs

were treated differently than all prior air traffic

controllers who transferred from Level 1 facilities to

higher level facilities from 1994 through March 2,

49A

1998, during the first three (3) years of the

privatization of Level 1 facilities.

55. The United States further violated its

own ATC Pay and Reclassification Rules by not

applying the Conversion Rule (Ruie 35) to convert

each of the Plaintiffs from the (FG)GS pay system

into the ATC pay system, after establishing their

appropriate grade and step level pursuant to 5

U.S.C. §5334(b) at their new facilities, in or about

October 1999, November 1999, December 1999,

when such Conversion Rule (Rule 35) was applied to

all other air traffic controllers converted into the

ATC pay system from the (FG)GS pay system who

were not delayed by reason of the U.S. District Court

Decision in National Air Traffic Controllers

Association, MEBA, AFL-CIO, supra, that had

vacated the privatization of Level 1 facilities because

of the FAA's violation of law.

56. Asa result of the United States failure

to apply 5 U.S.C. §5334(b) to each of the Plaintiffs to

establish their appropriate grade and step level at

their new facilities in October, November, and

December 1999, and use of the Conversion Rule

(Rule 35) to convert them from the (FG)GS pay

system to the ATC pay system, the Plaintiffs have

suffered a loss of earned grade and pay steps during

their conversion from the (FG)GS pay system into

the ATC pay system as compared to other air traffic

controllers to whom 5 U.S.C. §5334(b) and the

Conversion Rule (Rule 35) were applied, and have

sustained losses in compensation and earned

benefits since October, November, or December 1999

in amounts ranging between $50,000.00 and

50A

$150,000.00, which damages will continue to grow

each year of their employment and into retirement

because retirement income is based upon a

percentage of their pay while an active air traffic

controller.

58. The sole reason that Plaintiffs did not

transfer from their Level 1 air traffic facility in 1998

and prior to the implementation of the ATC pay

system effective October 1998 is the Court decision

as reported in National Air Traffic Controllers

Association, MEBA, AFL-CIO v. Secretary of

Department of Transportation (N.D. Ohio 1998), 997

F. Supp. 874.

59. The FAA refused to apply the

Conversion Rule (Rule 35) to Plaintiffs effective

October, November or December 1999 upon their

conversion into the ATC pay system in retaliation to

the litigation giving rise to National Air Traffic

Controllers Association, MEBA, AFL-CIO v.

Secretary of Department of Transportation (N.D.

Ohio 1998), 997 F. Supp. 874.

60. The Plaintiffs were entitled to transfer

to their new ATC air traffic facilities in or about

October, November, and December 1999, and have 5

U.S.C. §5334(b) applied for purposes of determining

their appropriate grade and step level at their new

facilities, and then convert into the ATC pay system

through utilization of the Conversion Rule (Rule 35)

in the same manner as all other air traffic

controllers who converted into the ATC pay system

who were not delayed by reason of the U.S. District

Court Decision in National Air Traffic Controllers

Association, MEBA, AFL-CIO, supra, that had

51A

vacated the privatization of Level 1 facilities because

of the FAA's violation of law.

61. The FAA violated 5 U.S.C. §5334(b)

when they failed to apply that statutory provision to

Plaintiffs upon their transfer to higher level facilities

in October, November, and December 1999, to

establish their (FG)GS grade and step and violated

the Conversion Rule (Rule 35) and 5 U.S.C.

§5101(1)(A), when they failed to utilize the

Conversion Rule (Rule 35) to convert Plaintiffs from

the (FG)GS pay system to the ATC pay system in

October, November, and December 1999, and these

violations entitle Plaintiffs to relief under the Back

Pay Act, 5 U.S.C. §5596, and the adjustment of back

pay, current and future pay and benefits retroactive

to October, November, or December 1999 when they

converted into the ATC pay system.

OUNT ILI:

THE FAA VIOLATED THE FIFTH

AMENDMENT TO THE U.S. CONSTITUTION

BY NOT APPLYIN LE V, 5 U.S.C. 5334(B

AND RULE 35 OF ITS ATC PAY AND

RECLASSIFICATION RULES TO CONVERT

PLAINTIFFS FROM THE (FG)GS PAY SYSTEM

TO THE ATC PAY SYSTEM, IN THE SAME

MANNER AS APPLIED TO ALL OTHER AIR

TRAFFIC CONTROLLERS NOT DELAYED

FROM CONVERTING INTO THE ATC PAY

SYSTEM BY REASON OF THE U.S. DISTRICT

COURT DECISION IN NATIONAL AIR

TRAFF INTROLLERS ASSOCIATION,

MEBA, AFL-CIO, SUPRA, ENTITLIN

52A

PLAINTIFFS TO BACK PAY, FUTURE PAY

ADJUSTMENT AND BENEFITS UNDER THE

TUCKER ACT, 28 U.S.C. §1491 AND BACK PAY

| ACT, 5 U.S.C. §5596

62. Plaintiffs incorporate all _ prior

allegations set forth in paragraphs 1 through 61 of

the Complaint as if fully rewritten herein.

63. The United States did not apply 5

U.S.C. §5334(b) to each of the Plaintiffs for purposes

of establishing their grade and step upon their

transfer to higher grade facilities in October,

November, and December 1999, and did not apply

the Conversion Rule (Rule 35) to convert Plaintiffs

from the (FG)GS pay system to ATC pay system

because they were delayed from transferring from

their Level 1 facilities by reason of the U.S. District

Court Decision in National Air Traffic Controllers

Association, MEBA, AFL-CIO, supra.

64. The United States’ failure to apply 5

U.S.C §5334(b) to each of the Plaintiffs upon their

transfer to higher grade air traffic facilities in

October, November, and December 1999 for purposes

of establishing their grade and step, and failure to

apply the Conversion Rule (Rule 35) to convert each

of the Plaintiffs from the (FG)GS pay system to the

ATC pay system, meant that Plaintiffs were

converted in a different, and unequal manner in

violation of the Fifth Amendment to the U.S.

Constitution, when compared to all other air traffic

controllers who converted into the ATC pay system

from the (FG)GS pay system who were not delayed

by reason of the U.S. District Court Decision in

53A

National Air Traffic Controllers Association, MEBA,

AFL-CIO, supra.

65. Asa result of the United States failure

to apply 5 U.S.C. §5334(b) to each of the Plaintiffs

upon their transfer to higher level facilities in

October, November, and December 1999 for purposes

of establishing their grade and step, and the

Conversion Rule (Rule 35) to convert Plaintiffs from

the (FG)GS pay system to the ATC pay system,

Plaintiff have sustained losses in compensation and

earned compensation benefits since October,

November, or December 1999 in amounts ranging

between $50,000.00 and $150,000.00, which

damages will continue to grow each year of their

employment and into retirement because retirement

income is based upon a percentage of their pay while

an active air traffic controller.

REQUEST FOR RELIEF

WHEREFORE, Plaintiffs request the

following relief from this Court:

A. Declaratory Judgment against the

United States that it violated 5 U.S.C. $5334(b), by

not applying that statutory provision to establish

each of the Plaintiffs’ grade and step upon their

transfer to higher grade air traffic control facilities

in or about October, November, and Jecember 1999,

and that the United States violated 5 U.S.C.

5101(1)(A) and its ATC Pay and Reclassification

Rules by not applying the Conversion Rule (Rule 35)

to convert each of the Plaintiffs from the (FG)GS pay

system into the ATC pay system.

54A

B. Declaratory Judgment against the

United States that it violated the Fifth Amendment

to the U.S. Constitution for failing to apply 5 U.S.C.

§5334(b) to each of the Plaintiffs for purposes of

determining their appropriate grade and step upon

their transfer to higher grade air traffic facilities in

October, November, and December 1999 and failure

to apply the Conversion Rule (Rule 35) to convert

Plaintiffs from the (FG)GS pay system to the ATC

pay system as was applied to all other controllers

converted into the ATC pay system who were not

delayed from this conversion by reason of the U.S.

District Court Decision in National Air Traffic

Controllers Association, MEBA, AFL-CIO, supra.

C. That the FAA retroactively effect the

transfer of Plaintiffs to their new higher grade

facilities in or about October, November, or

December 1999 by applying 5 U.S.C. §5334(b) to

determine their appropriate and step at such

facilities, and then apply the Conversion Rule (Rule

35) to each of the Plaintiffs to convert them into the

ATC pay system (as was done to all other air traffic

controllers not delayed from this conversion by

National Air Traffic Controllers Association, MEBA,

AFL-CIO, supra), with full back pay/benefit

adjustments pursuant to the Back Pay Act, 5 U.S.C.

§5596 and other applicable laws, as well as current

and future pay/benefit adjustments.

D. Prejudgment interest on all monetary

sums awarded to Plaintiffs;

55A

E. Plaintiffs’ attorneys fees and costs; and

F. Such other relief as the Court deems

just.

Respectfully submitted,

M. Scott Young, Esq.

THOMPSON HINE, LLP

312 Walnut Street, Suite 1400

Cincinnati, Ohio 45202

Tele: (513) 352-6617

Fax: (513) 241-4771

Scott. Young@Thompsonhine.co

Attorneys for Plaintiffs