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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2007

## Text

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APPENDIX

TABLE OF CONTENTS

Appendix Page

Opinion of the
United States Court of Appeals for the
Federal Circuit
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Judgment of the
United States Court of Federal Claims
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Opinion of the
United States Court of Federal Claims
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Order of the

United States Court of Appeals for the

Federal Circuit Denying Petition for Rehearing
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Petitioners' Complaint Filed with the
United States Court of Federal Claims
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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.

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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.

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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

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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

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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

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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

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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

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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

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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

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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.

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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. §

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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

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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

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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."

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1491%3A2. Public record. Not legal advice.