[00:00:43] Speaker 04:
The next target case is number 16-13-22, Caraway and others against the United States.

[00:00:50] Speaker 04:
Mr. Cunningham.

[00:00:54] Speaker 02:
May the court please.

[00:00:55] Speaker 02:
I'm Gerald Cunningham and I'm representing the appellants.

[00:00:58] Speaker 02:
And as you know, it's a jurisdiction case from the Court of Federal Claims.

[00:01:03] Speaker 02:
And I represent the 20 clients that have one thing that's a problem from the beginning.

[00:01:09] Speaker 04:
Please speak up a little.

[00:01:12] Speaker 02:
One thing that's been a problem from the beginning is at no time have the people involved been advised of the reason for not being paid.

[00:01:25] Speaker 02:
They've not been advised of the decision-maker, the decision-making process, the reasons.

[00:01:34] Speaker 01:
What's their theory as to why they should be paid?

[00:01:37] Speaker 01:
That the government promised to pay them?

[00:01:40] Speaker 02:
Yes, sir.

[00:01:41] Speaker 01:
If that's just a promise without being incorporated to agreement with consideration, why is that binding on the government?

[00:01:49] Speaker 02:
Well, I think it comes under the 1998 release by the Administrator of the FAA who promised fair treatment and equal treatment to these people that the NACA or the bargaining unit employees received.

[00:02:08] Speaker 01:
Well, so there was an agreement with the Barden unit employees.

[00:02:11] Speaker 01:
There's no question that that's binding.

[00:02:14] Speaker 01:
And if the government says we're unilaterally going to extend that agreement to these supervisors, why is that binding on the government when it changes its mind later on?

[00:02:26] Speaker 02:
Well, when they agreed to it after the fact, number one.

[00:02:32] Speaker 02:
So in March or April, based on the

[00:02:39] Speaker 02:
released by the original administrator, Garvey.

[00:02:44] Speaker 02:
In March and April, they notified them, we're extending the terms of that agreement to everybody, bargaining unit and non-bargaining unit.

[00:02:54] Speaker 02:
I believe then it became binding.

[00:02:57] Speaker 02:
Why?

[00:02:58] Speaker 02:
Because they'd already earned the money.

[00:03:01] Speaker 02:
They worked the same as the other people that got paid, same thing.

[00:03:07] Speaker 02:
They all worked in 2002 and 2004.

[00:03:09] Speaker 02:
And if you're sitting there and you worked in 2002, 2004 for the United States of America, and then it comes to you and says, we were wrong.

[00:03:18] Speaker 02:
We made a mistake by not paying you.

[00:03:21] Speaker 02:
Now you need to be paid.

[00:03:22] Speaker 02:
I think that's binding.

[00:03:24] Speaker 02:
I mean, that's what an employer does.

[00:03:26] Speaker 02:
That's what the government does.

[00:03:27] Speaker 02:
That's what the beginning of the paragraph of their personnel management system says, fair treatment.

[00:03:36] Speaker 03:
Was it a contract?

[00:03:38] Speaker 03:
I mean, my understanding you were trying to pitch your claim on a right to money through a money man, what you viewed to be a money mandating regulation.

[00:03:51] Speaker 03:
This is not a signed contract between them.

[00:03:54] Speaker 02:
Well, neither did anybody else have a signed contract.

[00:03:57] Speaker 03:
Right, so it's not quantum Maryland or something.

[00:03:59] Speaker 03:
There was a settlement originally, right?

[00:04:01] Speaker 03:
All right, the settlement was for

[00:04:03] Speaker 02:
Not paying them for 2000, 2004.

[00:04:08] Speaker 02:
Then they came and they said, everybody should have been paid.

[00:04:11] Speaker 02:
They admitted that.

[00:04:13] Speaker 02:
They said everybody should have been paid.

[00:04:15] Speaker 02:
Then somehow 20 people don't get paid.

[00:04:20] Speaker 03:
Well, everybody should get paid.

[00:04:22] Speaker 03:
And the people who were still working there who were not in the bargaining unit got paid.

[00:04:26] Speaker 03:
But the people in the bargaining unit, non-bargaining unit who had retired then didn't get paid.

[00:04:33] Speaker 03:
And the theory was, well, the reason why we're not paying them is that the reason why we're paying the others is for a morale booster.

[00:04:42] Speaker 03:
It'd be pretty bad for morale if the non-bargaining unit people didn't get paid when the others did.

[00:04:49] Speaker 03:
But they said, well, as for people who've retired, there isn't the same morale issue because they're gone.

[00:04:56] Speaker 03:
We're not trying to keep current employees happy.

[00:05:00] Speaker 02:
With all due respect, I disagree with that.

[00:05:02] Speaker 03:
That's what I understood to be the rationale.

[00:05:05] Speaker 02:
No, the rationale was stronger than that.

[00:05:09] Speaker 02:
When that statement came out by Administrator Garvey, she said, in order to be fair, the background of that is they just signed the NACA agreement.

[00:05:21] Speaker 02:
Then they came out with the personal management system.

[00:05:25] Speaker 02:
The personal management system did not cover any managers or supervisors or staff people.

[00:05:31] Speaker 02:
I mean, staff people or managers.

[00:05:33] Speaker 02:
Administrator Garvey had some problems, and she comes out and says, we realize that we did not take care of the managers and staff people in these busy facilities or air traffic control.

[00:05:48] Speaker 02:
And she says, to correct this, we will extend the terms of any NACA agreements to the managers and staff people.

[00:06:01] Speaker 02:
So from 1998 on,

[00:06:03] Speaker 02:
The managers and staff people, the only relief they had because they were not included in the personal management system and the NAC agreement, they worked all this time under that 1998 promise commitment by Ms.

[00:06:20] Speaker 02:
Garvey, the administrator.

[00:06:22] Speaker 02:
Now the administrator is the only one that can determine the pay and the personal management system.

[00:06:28] Speaker 02:
So we've had Mr. Henson, Administrator Henson in 1996,

[00:06:34] Speaker 02:
wrote the original personal management system.

[00:06:37] Speaker 02:
In 1998, we have Administrator Garvey say, we have not been fair to the managers and the supervisors, the staff people.

[00:06:45] Speaker 02:
We have not been fair.

[00:06:47] Speaker 02:
We're extending it, and we are telling you we're going to pay you this in 1998.

[00:06:53] Speaker 02:
So everybody works in those positions from 1998 on saying, I've got the same protections as these other people do.

[00:07:01] Speaker 02:
Now we have a case in 2011 where

[00:07:05] Speaker 02:
has a chance to prove itself, and they call these people up and they say, you're getting paid just the same as everybody else.

[00:07:12] Speaker 02:
Then two months later, the manager of the facility called and said, I don't know why you're not getting paid.

[00:07:19] Speaker 02:
Now understand what Judge Clevinger said about it was because they were retired.

[00:07:24] Speaker 02:
Well, keep in mind you had the bargaining units employees that were fired, terminated for cause,

[00:07:36] Speaker 02:
And not working at the time, all got paid because they worked in 2000, 2004.

[00:07:42] Speaker 01:
At the time this promise was made, were all these people retired?

[00:07:47] Speaker 02:
No, they were all working.

[00:07:48] Speaker 01:
They were working.

[00:07:49] Speaker 01:
When did they retire?

[00:07:51] Speaker 02:
Well, it was years later.

[00:07:55] Speaker 02:
There's 20 people that had over 30 years average with the government.

[00:07:59] Speaker 02:
They were their senior managers and they started retiring, I would say in the

[00:08:05] Speaker 02:
2000s, possibly.

[00:08:07] Speaker 01:
They had all worked under that system for quite a while.

[00:08:11] Speaker 01:
So when the determination was made to reverse the promise, they were retired?

[00:08:16] Speaker 02:
Yes.

[00:08:18] Speaker 02:
When they retired, that had already been made.

[00:08:22] Speaker 02:
I mean, they had worked under that promise.

[00:08:25] Speaker 02:
I understand.

[00:08:27] Speaker 02:
Quite a while.

[00:08:28] Speaker 01:
But the problem is not only... So is your theory that by continuing to work,

[00:08:35] Speaker 01:
that created a binding agreement?

[00:08:37] Speaker 02:
Yes, absolutely.

[00:08:39] Speaker 02:
That's what she said when she wrote the thing.

[00:08:43] Speaker 02:
If you read the Garvey thing, the Garvey letter, it went worldwide to all ATC people.

[00:08:51] Speaker 02:
It was a commitment to them.

[00:08:52] Speaker 02:
It said, we neglected to cover you here, so we at the agency are covering you from now on, period.

[00:09:01] Speaker 02:
So these people worked.

[00:09:02] Speaker 02:
And when I first came on, as some of them said,

[00:09:05] Speaker 02:
We got this was totally different.

[00:09:07] Speaker 02:
We didn't know what happened.

[00:09:08] Speaker 02:
We thought we were covered.

[00:09:10] Speaker 02:
But then the problem is not only that, but when you turn around and say, we're not going to pay you, they don't tell them direct any of them except a manager friend in Atlanta did.

[00:09:25] Speaker 02:
When we tried to find out why they weren't paid, we were told, we don't know.

[00:09:31] Speaker 02:
It wasn't like Judge Clevenger thought.

[00:09:33] Speaker 02:
that it's because they were retired, they wouldn't even admit that.

[00:09:37] Speaker 02:
Because if they did, then they know they'd probably have different type cases against them.

[00:09:43] Speaker 02:
They didn't tell them at all.

[00:09:45] Speaker 02:
And so they had no way to know anything, no grounds.

[00:09:51] Speaker 02:
And the way the government works, this is built into the government.

[00:09:56] Speaker 02:
I'm sorry.

[00:09:57] Speaker 02:
I just feel very strongly about that.

[00:10:00] Speaker 02:
I think that these people are right.

[00:10:02] Speaker 02:
They really should have had something to be able to go ahead and find a place to take their case.

[00:10:08] Speaker 02:
And that's where we are here now.

[00:10:10] Speaker 02:
And what happens now, I see the end of the rope, if they can't get back into the system for someone to listen to the merits of this thing, to someone, and maybe knock them out.

[00:10:23] Speaker 02:
Maybe they can come in and say, we had a valid reason.

[00:10:26] Speaker 02:
The valid reason was it was a money thing.

[00:10:29] Speaker 02:
Boom.

[00:10:29] Speaker 02:
Then you decide whether you can go after them or not.

[00:10:32] Speaker 02:
or we had this or we had that.

[00:10:34] Speaker 02:
But when they turn around and take people with 30 plus years working and they won't tell them why, then they come out and said, we have no records of why the decision was made.

[00:10:46] Speaker 02:
We don't know who made it.

[00:10:48] Speaker 02:
And it said, it was all done orally, no records.

[00:10:53] Speaker 02:
Now, to let them slip through under that terms, I just

[00:11:00] Speaker 02:
It's rewarding an agency, and which had a terrible precedent, I think, for future government agencies to be able to take a back like that.

[00:11:09] Speaker 02:
There's been talk below in the previous court about going to the MSPB.

[00:11:16] Speaker 02:
That would have been fine.

[00:11:18] Speaker 02:
If you go to the MSPB, the first thing you get, no matter what agency you're in, you get a notice who the decision maker was and what

[00:11:28] Speaker 02:
Your appeal rights with the MSPB are.

[00:11:30] Speaker 02:
That's a requirement of all government agencies.

[00:11:33] Speaker 02:
So if the agency contends that, well, they should have gone to the MSPB, then they were bound to tell them all of these different steps they had to take.

[00:11:46] Speaker 02:
So if the worst comes to worst, if the agency wants to take a position, the board should be the one involved, then they should be allowed to go to the board as we speak today.

[00:11:55] Speaker 03:
Do you have a cause of action at the MSPB?

[00:11:56] Speaker 03:
Could you bring an action at the MSPB?

[00:11:59] Speaker 02:
What's that?

[00:12:00] Speaker 03:
Could you bring an action at the MSPB?

[00:12:03] Speaker 02:
No sir, I don't think so.

[00:12:05] Speaker 02:
Why not?

[00:12:05] Speaker 02:
I've done a tremendous amount of them.

[00:12:08] Speaker 02:
And I don't, you have to have, first of all, the board has to have jurisdiction.

[00:12:12] Speaker 03:
Why not?

[00:12:13] Speaker 03:
This decision of no jurisdiction wasn't a decision on the merits.

[00:12:17] Speaker 03:
What would preclude you from filing a suit in the MSPB?

[00:12:21] Speaker 03:
Because we still don't have the information.

[00:12:23] Speaker 03:
We don't know what they would fire for.

[00:12:25] Speaker 03:
But the argument that you're making to me here now in a court of federal claims setting sounds to me more like the kind of argument I hear in MSPB cases, that there was an agency violated its duty to do X, Y, and Z, and that's how you pitch your case.

[00:12:43] Speaker 02:
Well, sir, with all due respect to the MSPB cases that I've been involved in and what's allowed, I just don't think that's the case.

[00:12:54] Speaker 02:
They're all involving removals.

[00:12:56] Speaker 02:
They're all involving 14 days or more.

[00:12:58] Speaker 02:
The law is pretty set on it.

[00:13:00] Speaker 01:
You're saying this isn't an adverse action.

[00:13:02] Speaker 01:
It's a breach of contract.

[00:13:05] Speaker 02:
And it's not covered.

[00:13:07] Speaker 02:
It's just not covered.

[00:13:10] Speaker 04:
Let's hear from the government.

[00:13:22] Speaker 04:
Ms.

[00:13:22] Speaker 04:
Vicks.

[00:13:26] Speaker 00:
May it please the court?

[00:13:28] Speaker 00:
This court should affirm the Court of Federal Claims disposal.

[00:13:31] Speaker 01:
Suppose the government has said to these employees, if you continue to work as supervisors for the FAA, we will make good and pay you the same back pay that we're giving to the collective bargaining unit employees.

[00:13:47] Speaker 01:
Would that create a contract?

[00:13:50] Speaker 00:
No, Your Honor.

[00:13:51] Speaker 00:
That would be a unilateral... Really?

[00:13:55] Speaker 01:
You say, if you continue to work, we'll pay, we'll give you the back pay.

[00:14:00] Speaker 01:
That's not a contract?

[00:14:03] Speaker 00:
It could potentially be a contract, but in this case, Your Honor, these plaintiffs were retired by the time that the decision to pay was... No, but they were retired when the promise was made, right?

[00:14:14] Speaker 00:
Which promise, Your Honor?

[00:14:16] Speaker 01:
The promise to treat them the same way as the collective bargaining employees.

[00:14:22] Speaker 00:
They were not retired when the 1998 letter was issued that said we are extending the collective bargaining agreement to all of the supervisors and other managers.

[00:14:33] Speaker 00:
But they were retired when the settlement agreement was extended to all of the current managers.

[00:14:39] Speaker 01:
So if they were currently employed, and the government said to them, if you continue to work, we'll treat you the same way as the CBU employees, that would be a contract, right?

[00:14:50] Speaker 00:
If they were currently employed, they would have been

[00:14:52] Speaker 00:
covered under the extension of the settlement agreement.

[00:14:56] Speaker 01:
I don't understand what you're saying.

[00:14:57] Speaker 01:
I thought that was exactly the promise, was that they would be treated the same way as the CBU employees.

[00:15:04] Speaker 00:
They were told that they would be paid as the FAA transferred from the GS system to the PMS system, which does cover supervisors and managers.

[00:15:18] Speaker 00:
The collective bargaining unit and the FAA made an agreement that

[00:15:22] Speaker 00:
determined levels of pay based on air traffic at certain facilities.

[00:15:26] Speaker 00:
And when they made that agreement, the FAA did say that we would extend that agreement to the managers and supervisors.

[00:15:35] Speaker 00:
We will also determine the level of pay based on the amount of air traffic.

[00:15:41] Speaker 00:
So the 1998 agreement said they will be paid the same, but it did not extend all future agreements that the bargaining unit may have come to with the FAA.

[00:15:51] Speaker 00:
And it did not bind the FAA on this specific bargaining unit as it came 15 years, this specific agreement as it came 15 years before that agreement.

[00:16:06] Speaker 00:
The plaintiffs are not part of the bargaining agreement and they're not third party beneficiaries of the agreement.

[00:16:13] Speaker 00:
And the plaintiffs here have not

[00:16:19] Speaker 00:
have not brought their grievance through the PMS procedures, which is the only authorized way that the FAA may... But they couldn't do that.

[00:16:26] Speaker 01:
They're not a CBU employee, right?

[00:16:30] Speaker 00:
They could do it under either the grievance procedure or the appeals procedure of the PMS, which covers non-collective bargaining unit employees.

[00:16:38] Speaker 01:
So they could have... Both the grievance procedure and the appeals procedure cover non-CBU employees?

[00:16:44] Speaker 00:
Yes.

[00:16:44] Speaker 01:
But isn't that for adverse action appeals?

[00:16:47] Speaker 01:
Rather than the failure to make good on a promise?

[00:16:51] Speaker 00:
The grievance procedure covers any matter that a personal dissatisfaction that is under the control of the FAA.

[00:16:59] Speaker 00:
And I feel that this would fall under that cause of action.

[00:17:05] Speaker 00:
They could have said, why aren't you saying?

[00:17:07] Speaker 01:
This is a personal dissatisfaction claim?

[00:17:11] Speaker 00:
not being paid money that they were not promised and that they were not part of an agreement to.

[00:17:18] Speaker 01:
So you're saying that any back pay claim has to be brought through this procedure?

[00:17:23] Speaker 00:
Yes, under Section 9A.

[00:17:24] Speaker 01:
What's the authority for that?

[00:17:26] Speaker 00:
The authority that when Congress delegated to the FAA the ability to implement the personnel management system,

[00:17:38] Speaker 00:
They said in that statute in 49 USC 40122 that FAA employees may bring a grievance through the CBA if they are CBEU employees.

[00:17:49] Speaker 00:
They may go through the internal processes that the FAA sets up, or they may go to the MSPB if they have a cause of action under the MSPB.

[00:17:57] Speaker 01:
But it doesn't say they can't go to the Court of Federal Claims if there's a breach of an agreement, right?

[00:18:03] Speaker 00:
Well, Your Honor, for two reasons.

[00:18:05] Speaker 00:
They can't go to the Court of Federal Claims under the PMS.

[00:18:08] Speaker 00:
because the PMS vests jurisdiction exclusively in other forums.

[00:18:14] Speaker 00:
The grievance procedure goes through the FAA and is unreviewable.

[00:18:18] Speaker 00:
The appeals procedure can be appealed to the courts of appeals for the circuits and the MSPB obviously comes to this court.

[00:18:28] Speaker 01:
I would have thought you were arguing, well they disclaimed

[00:18:31] Speaker 01:
bringing a contract claim.

[00:18:33] Speaker 01:
This isn't a contract claim.

[00:18:34] Speaker 01:
If they had a contract claim, they could bring it in the court of federal claims, but this is a contract claim, and they can't bring it under the PMS procedures.

[00:18:43] Speaker 01:
I would have thought that would be your argument.

[00:18:45] Speaker 00:
Right, and that is correct.

[00:18:45] Speaker 00:
They did bring a contract claim in their first complaint, and they dropped it when we filed a motion to dismiss, and they amended it to say that the PMS is a money-mandating statute, and they proceeded on that claim.

[00:19:00] Speaker 00:
agree with your honor that it does seem as though they are bringing in a breach of contract claim and that it's not valid in the court of federal claims because A, they didn't have a contract and B, there's jurisdiction exclusively in other forums.

[00:19:13] Speaker 01:
Yeah, I'm not sure you're right about the second part of that.

[00:19:19] Speaker 00:
Go ahead.

[00:19:22] Speaker 00:
Plaintiffs could have used the grievance procedure under Section 4A or the appeals procedure under Section 5A.

[00:19:29] Speaker 01:
In which event you'd argue that they didn't have a remedy under that either, right?

[00:19:33] Speaker 00:
The plaintiffs argued that?

[00:19:35] Speaker 01:
You would argue that.

[00:19:36] Speaker 01:
They can't get the back pay under the PMS procedures, according to you, right?

[00:19:42] Speaker 00:
They cannot get the back pay under Section 9A because they haven't even used the PMS procedures.

[00:19:47] Speaker 01:
But if they had, you'd argue they couldn't get any relief, right?

[00:19:54] Speaker 00:
Your Honor, I feel like I can't answer that question.

[00:19:56] Speaker 00:
They haven't brought a claim under the PMS, and that Section 9A only applies to authorizations of pay if under one of the PMS procedures an employee has a decision or settlement agreement that finds they've been the subject of an unjust or unwarranted... That sounds to me as though you're saying they should have pursued it in a losery remedy.

[00:20:19] Speaker 00:
That's not the case, Your Honor.

[00:20:22] Speaker 00:
They completely ignored the personnel management procedures that were in place.

[00:20:27] Speaker 00:
They didn't try to go to the MSPB.

[00:20:29] Speaker 00:
And instead, they tried to shoehorn themselves into a settlement agreement between the Collective Bargaining Unit and the FAA, to which they're not a party and to which they're not third-party beneficiaries.

[00:20:40] Speaker 00:
So they don't have a claim based on that.

[00:20:45] Speaker 03:
You're saying that's the case they presented, and they lose on the merits.

[00:20:49] Speaker 03:
They didn't present some other case.

[00:20:51] Speaker 00:
That's correct.

[00:20:52] Speaker 00:
They did not bring a breach of contract case, and the case they did bring cannot be brought in the court of federal claims.

[00:21:01] Speaker 03:
Do they have a cause of action now?

[00:21:03] Speaker 03:
I mean, this ruling is a jurisdictional ruling, right?

[00:21:08] Speaker 03:
That's correct.

[00:21:08] Speaker 03:
And what would preclude them from going to the MSPB?

[00:21:13] Speaker 00:
Well, it's difficult to say.

[00:21:16] Speaker 00:
Because it's kind of unclear what they're actually arguing, what their claim would be.

[00:21:20] Speaker 00:
And so if they could go to the MSP or not, it would depend on how they would frame their claim.

[00:21:26] Speaker 03:
Denial of pay to which they're entitled.

[00:21:30] Speaker 00:
That is a potential claim they could bring.

[00:21:34] Speaker 00:
Right.

[00:21:35] Speaker 03:
I mean, if an agency just stops paying

[00:21:39] Speaker 03:
say you work in the justice department, they just stop paying your check.

[00:21:41] Speaker 03:
Don't you have a cause of action at the MSPB that you have an adverse action, they stop paying you?

[00:21:47] Speaker 00:
I would think so, yes.

[00:21:48] Speaker 01:
Really?

[00:21:49] Speaker 01:
I'm not aware of any cases that say that the MSPB has reached a contract authority.

[00:21:57] Speaker 00:
That's correct, they don't.

[00:21:59] Speaker 00:
They would have to frame it as a reduction in pay or

[00:22:05] Speaker 00:
It's not actually clear because it's not actually clear what they're arguing.

[00:22:07] Speaker 00:
It seems that they are bringing a breach of contract claim.

[00:22:10] Speaker 00:
And a breach of contract claim cannot be heard in the Court of Federal Claims in this instance because following Testen and this court's decision in Todd, federal employees are appointees that are not... So these plaintiffs would have to

[00:22:34] Speaker 00:
be appointed to the higher level positions before they would be entitled to any pay and they were not appointed and they would have to get a retroactive promotion in order to be entitled to the pay from 2002 to 2004.

[00:22:48] Speaker 00:
They haven't done that.

[00:22:50] Speaker 00:
They have no claim for presently due money.

[00:22:54] Speaker 00:
And for that reason, as well as the reason that the PMS procedures are exclusive, this court should affirm the lower court's dismissal for lack of jurisdiction.

[00:23:05] Speaker 04:
Any more questions?

[00:23:08] Speaker 04:
Thank you.

[00:23:09] Speaker 04:
Thank you, Ms.

[00:23:09] Speaker 04:
Schitts.

[00:23:10] Speaker 04:
Is she coming in?

[00:23:11] Speaker 04:
You have your rebuttal time for three minutes.

[00:23:14] Speaker 02:
Just a few points, Your Honor.

[00:23:19] Speaker 01:
The 1998 agreement.

[00:23:21] Speaker 01:
So you gave up your breach of contract claim, and now you sound as though you're trying to assert a breach of contract claim.

[00:23:27] Speaker 01:
That's a problem, isn't it?

[00:23:29] Speaker 02:
No, I don't think so.

[00:23:31] Speaker 02:
I think it was more we didn't know where we were going because we had no information.

[00:23:36] Speaker 02:
It was primarily the reason that we were changing.

[00:23:39] Speaker 02:
And we probably wouldn't be changing today.

[00:23:41] Speaker 02:
I don't think so.

[00:23:42] Speaker 02:
But it's awful hard when nobody will tell you why they're doing the thing.

[00:23:48] Speaker 02:
Now the problem we have, counsel pointed out the 1998, it wasn't an agreement.

[00:23:55] Speaker 02:
The 1998 was a commitment by the FAA administrator.

[00:24:00] Speaker 02:
It wasn't an agreement saying we will cover all future agreements.

[00:24:05] Speaker 02:
It was a commitment by the administrator saying we will cover all NATCA awards and procedures and treat you the same way.

[00:24:15] Speaker 02:
Now it takes a second administrator

[00:24:18] Speaker 02:
to change that, and that was never changed.

[00:24:23] Speaker 02:
That's the point about that.

[00:24:25] Speaker 02:
When they say that, oh, that didn't apply to just that NACA agreement.

[00:24:29] Speaker 02:
She wasn't talking about a NACA agreement over disagreement.

[00:24:35] Speaker 02:
She was talking about when they formed the NACA basic contract creating the FAA, the new system, the Administrator Garvey said, uh-oh, this new system

[00:24:48] Speaker 02:
does not incorporate these other people.

[00:24:52] Speaker 02:
So two years later, she came out and said, to be fair, the new system will take care of these new people from now on.

[00:24:59] Speaker 02:
She wasn't talking about an agreement where two people sat down.

[00:25:03] Speaker 02:
This was an FAA commitment, not an agreement.

[00:25:07] Speaker 02:
The next thing is, when Carol says that she doesn't know what we're going on, paragraph 9A in the personal management system is quite clear.

[00:25:18] Speaker 02:
Any settlement under a collective bargaining agreement warrants back pay if it's signed off by an official.

[00:25:27] Speaker 02:
Now, this claim is based on that paragraph of the PMS, and that is in the back pay section.

[00:25:36] Speaker 02:
The FAA has its own back pay act, basically.

[00:25:40] Speaker 02:
In the back pay section, it says, if you were affected by a wrong decision

[00:25:48] Speaker 02:
And an official of the FAA comes in and says, this was wrong.

[00:25:52] Speaker 02:
We're going to pay them.

[00:25:53] Speaker 02:
They don't have to be promoted.

[00:25:55] Speaker 02:
They don't have to be appointed.

[00:25:57] Speaker 02:
They already worked.

[00:25:58] Speaker 02:
And the FAA is saying, you worked already, so we're going to pay you.

[00:26:02] Speaker 02:
So that argument doesn't go at all.

[00:26:05] Speaker 02:
But the thing is, they had the basic paragraph, 9A, covers them all the way, and to say that

[00:26:15] Speaker 02:
Well, they can't take an action under 9A because they were not with the union.

[00:26:21] Speaker 02:
They didn't have to be.

[00:26:22] Speaker 02:
They were affected by something.

[00:26:25] Speaker 02:
And an official of the FAA in 9A said, we were wrong.

[00:26:29] Speaker 02:
We're going to pay these people.

[00:26:31] Speaker 02:
That was enough for them right there.

[00:26:33] Speaker 02:
They were acting under the PMS, period.

[00:26:37] Speaker 02:
That's all.

[00:26:38] Speaker 02:
I think I've covered the rest in the reply brief of some disagreements we have on the procedures.

[00:26:43] Speaker 02:
Thank you.

[00:26:44] Speaker 04:
OK, thank you.

[00:26:45] Speaker 04:
Thank you both.

[00:26:45] Speaker 04:
The case is taken into submission.