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

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No. 07-393 | tre rey

In the Supreme Court of the Gnited States

TED A. BRODOWY, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FORA WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT

Solicitor General

Counsel of Record

PETER D. KEISLER

Assistant Attorney General

JEANNE E. DAVIDSON

KIRK MANHARDT

JOAN M. STENTIFORD

Attorneys

Department of Justice

Washington, D.C. 20530-0001

202) 514-2217

QUESTION PRESENTED

Whether the court of appeals correctly determined

that petitioners were not entitled to a two-step pay

increase pursuant to 5 U.S.C. 5334(b) (2000 & Supp. V

2005) upon their transfer to positions within the Air

Traffic Controller pay system.

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955 (2007) ....... 6

Libretto v. United States, 230 Ct. Cl. 790 (1982) ......... 7

National Air Traffic Controllers Ass’n v. Secretary of

Transp., 997 F. Supp. 874 (N.D. Ohio 1998) .......... 2

Papasan v. Allain, 478 U.S. 265 (1986) ..............4.. 6

United States v. Clark, 454 U.S. 555 (1982) ......... 4,7,8

Statutes and regulation:

Transportation and Related Agencies Appropriations

Act, 1996, Pub. L. No. 104-50, § 347(a), 109 Stat.

SB Ee Us SRT oo vc oc vccctceveececéess 2,8

§ 347(b), 109 Stat. 460 (49 U.S.C. 40122(g)(2)) ...... 2

I is cc cn cba abide edeeeheaens ee es 7

5 U.S.C. 5331 ...... I ee PE an Pe EN CRE ere 7

5 U.S.C. 5334(b) (2000 & Supp. V 2005) .......... 4, 5, 7,8

EE CSc cab dandecunecdséedecneseweane 2

a I op nos oS ss o's es caus enueuss sanaseds 7

Jn the Supreme Court of the Gnited States

No. 07-393

TED A. BRODOWY, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-11la)

is reported at 482 F.3d 1370. The opinion of the United

States Court of Federal Claims (Pet. App. 13a-31a) is

unreported.

JURISDICTION

The judgment of the court of appeals was entered on

April 12, 2007. A petition for rehearing was denied on

June 22, 2007 (Pet. App. 32a-33a). The petition for a

writ of certiorari was filed on September 20, 2007. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

1. Petitioners are ten current or former air traffic

controllers for the Federal Aviation Administration

(1)

(FAA). Pet. App. 2a. In the 1990s, the FAA categorized

air traffic control towers into five levels, according to

the volume of air traffic they handled and the complexity

of the overall operations at each tower. /d. at 3a. Level

1 facilities were the least complex and least busy; Level

5 facilities were the busiest and most complex. /bid.

Controllers’ government pay grades were determined by

facility level. Each of the petitioners worked in a Level

1 facility until late 1999. Jd. at 3a, 5a.

In the early 1990s, the FAA decided to privatize op-

erations at all of its Level 1 facilities. Pet. App. 4a. As

part of the privatization plan, controllers working at

Level 1 facilities were given the opportunity to transfer

to higher-level facilities and thereby remain FAA em-

ployees. /bid. Petitioners were scheduled to be trans-

ferred to higher-level! facilities in August 1998. Jbid. In

March 1998, however, their transfers were postponed

when a district court vacated the FAA’s privatization

program for failure to perform a required cost/benefit

analysis. /bid.; see National Air Traffic Controllers

Ass'n v. Secretary of Transp., 997 F. Supp. 874, 884-885

(N.D. Ohio 1998). The privatization program did not

resume until 1999, after the FAA performed the re-

quired cost/benefit analysis. See Pet. App. 4a-5a.

2. In 1995, Congress enacted legislation authorizing

the FAA Administrator to implement a new personnel

management system for FAA employees, providing

for “greater flexibility in * * * compensation.”

Department of Transportation and Related Agencies

Appropriations Act, 1996 (Appropriations Act), Pub.

L. No. 104-50, § 347(a), 109 Stat. 460 (49 U.S.C.

40122(¢)(1)); see also 49 U.S.C. 106(/)(1). The General

Schedule (GS) pay system no longer applied to FAA em-

ployees. See Appropriations Act, Pub. L. No. 104-50,

§ 347(b), 1.9 stat. 460 (49 U.S.C. 40122(g¢)(2)). Pursuant

to that authority, the FAA issued an administrative or-

der on April 1, 1996, instituting a new pay system that,

for the time being, mirrored the GS pay system pending

conversion of the air traffic controllers to a new pay sys-

tem. Pet. App. 3a n.1, 9a-10a.

In 1998, the FAA and petitioners’ union, the National

Air Traffic Controllers Association (NATCA), negoti-

ated a new pay system for NATCA members through a

collective bargaining agreement. Pet. App. 4a. Imple-

mentation of the new Air Traffic Controller (ATC) pay

system was governed by “Pay and Reclassification

Rules” agreed to by NATCA and the FAA. Under the

new system, each employee was assigned an ATC level

and a pay band. /bid. Rule 35 provided a formula,

based on a controller’s grade and step under the GS pay

system, for conversion to the ATC pay system. /d. at

4a-5a; see zd. at 41a-44a (text of Rule 35).

The new ATC pay system took effect in October

1998, and superseded the GS system for all controllers

except those (including petitioners) still working at

Level 1 facilities, which the FAA still intended to privat-

ize. Pet. App. 5a. Pursuant to Rule 35, controllers

working at Level 1 facilities continued to be paid “in

accordance with their current pay policies with the ex-

ception that their base pay will be increased by 5% in

the first year.” Jd. at 5a, 44a.

Petitioners ultimately transferred to higher-level

facilities in late 1999. Pet. App. 5a. At that time, they

were converted to the new ATC pay system using the

formula in Rule 35, based upon the GS grade and step

level at which they were then working. /bid.

3. In August 2005, petitioners filed suit in the

United States Court of Federal Claims, claiming that

their transfers entitled them to higher salaries. Pet. 3;

Pet. App. 538a-54a. They alleged that upon transferring

to their new, higher-level facilities, they were entitled to

be given a two-step pay increase under the GS pay sys-

tem before their conversion to the ATC pay system.

Petitioners relied on 5 U.S.C. 5334(b) (2000 & Supp. V

2005), which states in pertinent 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.

Petitioners claimed that because they did not receive

the two-step pay increase under Section 5334(b), they

were assigned to a lower ATC level and pay band than

similarly situated air traffic controllers who transferred

to higher-level facilities before the conversion to the

ATC pay system. Pet. App. 5a-6a.

4. The Court of Federal Claims dismissed the com-

plaint. Pet. App. 13a-3la. The court held that petition-

ers had failed to identify an applicable money-mandating

statute and therefore had not properly invoked the

court’s jurisdiction under the Tucker Act. Jd. at 18a-

19a. The court acknowledged that Section 5334(b) is a

money-mandating statute, but held that it did not apply

to petitioners at all. /d. at 24a-29a, 30a. Relying on

United States v. Clark, 454 U.S. 555, 561 (1982), the

court held that “[t]he plain language of section 5334(b),

as well as the implementing regulations, compel the con-

clusion that the statute only covers promotions or trans-

fers within the GS system.” Pet. App. 27a. Petitioners

transferred to higher-level facilities only after all such

facilities had already converted to the new system, so

they did not transfer within the GS pay system. /bid.

The court also rejected petitioners’ attempts to identify

an alternative money-mandating statute. Jd. at 19a-24a,

29a-30a.

5. The court of appeals unanimously affirmed. Pet.

App. la-lla. The court explained that Section 5334(b) is

intended to ensure that any promotion to a higher GS

grade results in a pay increase; because, for instance, a

GS-10, step 10, makes more than a GS-11, step 1, Section

5334(b) ensures that an employee promoted from GS-10

to GS-11 will receive a higher salary. Pet. App. 6a-7a.

Under this Court’s decision in Clark, the court of ap-

peals held, Section 5334(b) performs that function only

for transfers within the GS pay system. /d. at 7a.

The court of appeals rejected petitioners’ contention

that they had, in fact, transferred within the GS pay

system. Pet. App. 7a-8a. Petitioners could not rely on

the conclusory allegation in their complaint that they

had undergone a “GS-to-GS” transfer; indeed, their own

pleading showed that “by the time they transferred to

higher level facilities, those facilities had already

transitioned to the ATC system.” /bid.

Finally, the court of appeals noted that the complaint

should have been dismissed for failure to state a claim,

rather than for lack of subject matter jurisdiction. Sec-

tion 5334(b) is a money-mandating statute, and although

it does not apply to petitioners, their attempt to plead a

claim under Section 5334(b) was sufficient to invoke the

jurisdiction of the Court of Federal Claims. Pet. App.

9a-lla. The court of appeals observed, however, that

“the distinction between the two forms of dismissal has

no apparent practical effect in this case.” /d. at lla.

ARGUMENT |

The decision of the court of appeals is correct and

does not conflict with any decision of this Court or of any

other court. Further review is unwarranted.

1. Petitioners contend (Pet. 13-19) that the court of

appeals erred by rejecting their contention that their

conversion occurred in two steps—first a transfer to the

new facility while remaining on the GS pay system, then

a conversion to the ATC pay system. See Pet. App. 7a.

They argue that the complaint pleaded this two-step

sequence as a factual matter, and that the court of ap-

peals was required to credit it. That is incorrect.

As the court of appeals recognized, the complaint

alleged only that petitioners were entitled to receive an

increase under the GS pay system after transfer but

before conversion. See Pet. App. 48a-50a. This asser-

tion is a legal one, and the courts below were not re-

quired to credit it at the pleading stage. See, e.g., Bell

Atl. Corp. v. Twombly, 1278. Ct. 1955, 1965 (2007) (cit-

ing Papasan v. Allain, 478 U.S. 265, 286 (1986)). In-

deed, petitioners’ own complaint showed that their new

facilities had already converted to the ATC pay system

before they arrived, see Pet. App. 39a-40a.

Thus, the court of appeals correctly concluded that

when petitioners transferred to the higher-level facili-

ties, they were transferring outside the GS pay system.

In any event, petitioners’ fact-bound assertions about

the correct reading of their complaint and the nature of

their conversion do not warrant further review.

2. Petitioners also argue (Pet. 19-20) that even if the

court of appeals were correct that they transferred out

of the GS pay system, Section 5334(b) should still apply

to their transfers. But as the court. of appeals correctly-

held, this Court and the Federal Circuit’s predecessor

court (the Court of Claims) have long since established

that Section 5334(b) applies “only to promotions or

transfers of employees already within the GS system,”

and not to transfers into or out of the GS pay system

(absent some special indication by Congress). United

States v. Clark, 454 U.S. 555, 561 (1982); see Libretto v.

United States, 230 Ct. Cl. 790, 790 (1982).

Petitioners contend that the court of appeals misap-

plied Clark and that the ATC pay system is sufficiently

similar to the GS pay system that Section 5334(b) should

apply to transfers between the two different systems.

Pet. 19-21. That argument is unavailing. In Clark, this

Court did not hold that a “relationship” between the GS

pay system and another pay system could render Sec-

tion 5334(b) applicable to transfers between the two. To

the contrary, the Court held that the “plain meaning” of

Section 5334(b) and its related definitional provisions,

see 5 U.S.C. 5102(a)(5), 5331, shows that the statute ap-

plies only to transfers within the GS pay system. Clark,

454 U.S. at 561. The Court also pointed to the relevant

federal agency’s consistent interpretation of the statute

as applying only within the GS pay system. /d. at 565-

566. To resolve “any lingering doubt,” the Court noted

the absence of any legislative history supporting the

notion that Congress meant to provide a two-level boost

when employees transfer between the GS pay system

and the Wage System; this was “hardly surprising,” the

Court noted, because the GS pay system and the Wage

System had “no necessary or obvious relationship.” /d.

at 563, 564. The Court never suggested that establish-

" See 5 C.F.R. 531.214(a) (“The promotion rule in 5 U.S.C. 5334(b)

and the implementing rules in this section apply only to a GS employee

who is promoted from one GS grade to a higher GS grade.”); Clark, 454

U.S. at 566 n.15.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.