Gallo v. Department of Transportation , 689 F.3d 1294 ( 2012 )

United States Court of Appeals
for the Federal Circuit
__________________________
JANE L. GALLO,
Petitioner,
v.
DEPARTMENT OF TRANSPORTATION,
Respondent.
__________________________
2011-3094
__________________________
Petition for review of the Merit Systems Protection
Board in No. AT0353000909-B-1.
__________________________
Decided: August 1, 2012
__________________________
WILLIAM L. BRANSFORD, Shaw, Bransford & Roth, PC,
of Washington, DC, argued for petitioner. With him on
the brief was MARIA N. COLEMAN.
DAVID D’ALESSANDRIS, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for respon-
dent. With him on the brief were TONY WEST, Assistant
Attorney General, JEANNE E. DAVIDSON, Director, and
HAROLD D. LESTER, JR., Assistant Director. Of counsel on
the brief was THERESA D. DUNN, Office of the Regional
2 GALLO v. TRANSPORTATION
Counsel, Federal Aviation Administration, of Fort Worth,
Texas.
__________________________
Before BRYSON, CLEVENGER, and LINN, Circuit
Judges.
LINN, Circuit Judge.
Appellant Jane L. Gallo (“Gallo”) appeals the final de-
cision of the Merit Systems Protection Board (“Board”)
denying her restoration rights under 5 U.S.C. § 8151(a).
See Gallo v. Dep’t of Transp., 116 M.S.P.R. 1 (2011)
(“Board Decision”). Because the Board erred in interpret-
ing “resumes employment with the Federal Government”
under § 8151(a), and because any pay increases that Gallo
would have received based on her creditable service time
with the federal government are “benefits based on length
of service” under 5 U.S.C. § 8151(a), this court reverses
the decision of the Board and remands for further pro-
ceedings consistent with this opinion.
I. BACKGROUND
In 1982, Gallo began her career at the Department of
Transportation (“Department”) Federal Aviation Admini-
stration (“FAA” or “Agency”) as an air traffic control
specialist (“ATCS”). She served as an operational ATCS
through January 1995 when she experienced a com-
pensable job-related injury for which she received Office
of Workers’ Compensation Program (“OWCP”) benefits
under the Federal Employee’s Compensation Act (“FECA”
or “the Act”). In March 1995, Gallo had sufficiently
recovered to return to her ATCS position on light duty
status. In January 1996, however, Gallo lost her medical
certification that was required for her to continue as an
operational ATCS. Despite her injury, Gallo then applied
for and was assigned to a full-time “non-operational”
position as an automation specialist, a position in the
GALLO v. TRANSPORTATION 3
same grade and step with the General Schedule (“GS”)
(GS-14, Step 7), but which did not provide the same
retirement service credit or night and weekend pay as the
operational ATCS position. Gallo worked for the govern-
ment as an automation specialist from April 14, 1996,
through June 18, 2000, the entire time during which she
received OWCP benefits under FECA to account for the
pay differential in her reassigned position. During Gallo’s
reassignment to the automation specialist position, the
Agency converted its operational ATCS employees to a
new “AT” pay plan as a result of negotiations between the
Agency and the union representing operational ATCS
employees. The conversion did not apply to the automa-
tion specialist position.
Gallo fully recovered from her 1995 injury in 2000.
Prior to her recovery, on December 27, 1999, Gallo applied
for a supervisory ATCS position. The selecting official
selected Gallo on March 1, 2000, to be effective August 13,
2000. In April 2000, Gallo received medical clearance for
reinstatement as an operational ATCS, and the Agency
terminated her OWCP benefits on June 18, 2000. Imme-
diately thereafter, on June 22, 2000, Gallo applied for
restoration under 5 U.S.C. § 8151(b)(2), which provides
the right to priority consideration for restoration to the
“former or equivalent position” for Federal employees who
have overcome a compensable injury “within a period of
more than one year after the date of commencement of
compensation.” On August 13, 2000, the Agency assigned
Gallo to the supervisory ATCS position for which she had
previously been selected. In setting her salary, the
Agency did not take into account pay increases that had
been granted exclusively to operational ATCS employees
during the period when Gallo was working as an automa-
tion specialist. Gallo v. United States, 76 Fed. Cl. 593,
595 (2007). “These pay increases came about as a result
of the 1998 [ATCS] pay reform.” Id. “The FAA, likewise,
did not credit [] Gallo for the time she has spent in her
4 GALLO v. TRANSPORTATION
automation specialist job when it calculated her seniority
in the new position.” Id. at 595-96 (emphasis added);
accord Appellee Br. 10.
On September 8, 2000, Gallo filed an appeal to the
Board asserting that the Agency violated 5 U.S.C.
§ 8151(a) by failing to adjust her salary to provide pay
benefits that the Agency granted to operational ATCS
employees while she served as an automation specialist.
The administrative judge (“AJ”) dismissed her appeal for
lack of jurisdiction based on the conclusion that the
“Office of Personnel Management (OPM) regulations do
not afford employees, whose full recovery from a com-
pensable injury takes longer than one year, the right to
appeal an alleged ‘improper restoration’ to the Board.”
Gallo v. Dep’t of Transp., No. AT-0353-00-0909-I-1, slip
op. at 5 (M.S.P.B. Jan. 3, 2001). Gallo did not appeal this
decision or seek reconsideration at that time, but rather:
(1) in September 2005, filed a discrimination complaint
with the Department of Transportation, which was ulti-
mately dismissed; and (2) in August 2006, filed a com-
plaint in the U.S. Court of Federal Claims (“Claims
Court”) for improper restoration under § 8151(a). The
Claims Court dismissed Gallo’s claim for lack of jurisdic-
tion on the grounds that, inter alia, the Board has exclu-
sive jurisdiction over actions arising under § 8151(a).
Gallo, 76 Fed. Cl. at 610. On appeal, this court affirmed,
and encouraged the Board to reopen Gallo’s earlier appeal
in light of that holding. Gallo v. United States, 529 F.3d
1345, 1352 (Fed. Cir. 2008) (Gallo I) (“Given our decision
. . . that the Board’s limited view of its jurisdiction over
claims under section 8151(a) is incorrect, we assume that
the Board would look favorably on a motion to reopen.”).
Accordingly, on February 20, 2009, the Board granted
Gallo’s motion to reopen her previous appeal. On recon-
sideration, the Board nevertheless dismissed Gallo’s
appeal for failure to state a claim because it held that,
GALLO v. TRANSPORTATION 5
based on Gallo’s continued employment with the federal
government, Gallo did not “resume employment with the
Federal Government” as required for rights and benefits
under § 8151(a). Board Decision at 6 (emphasis added).
In the alternative, the Board held that “even if [Gallo] had
resumed employment with the Federal Government, she
would not be entitled to the relief she seeks” because “the
benefits she seeks are not based upon length of service.”
Id. Gallo appeals, and this court has jurisdiction pursu-
ant to 5 U.S.C. § 7703(b)(1) and 28 U.S.C. § 1295(a)(9).
II. DISCUSSION
A. “resumes employment with the Federal Government”
Gallo argues that the Board erred by construing “re-
sumes employment with the Federal Government” in 5
U.S.C. § 8151(a) to require the employee to physically
leave the federal government upon a compensable injury.
This court reviews the Board’s statutory interpretations
de novo. Jones v. Dep’t of Transp., 295 F.3d 1298, 1304
(Fed. Cir. 2002).
Section 8151(a) provides that:
In the event the individual resumes employment
with the Federal Government, the entire time dur-
ing which the employee was receiving compensa-
tion under this chapter shall be credited to the
employee for the purposes of within-grade step in-
creases, retention purposes, and other rights and
benefits based upon length of service.
5 U.S.C. § 8151(a) (emphases added). Section 8151(b),
relevant to the interpretation of subsection (a), provides:
Under regulations issued by the [OPM]—
6 GALLO v. TRANSPORTATION
(1) [Full recovery within 1 year:] the department
or agency which was the last employer shall im-
mediately and unconditionally accord the em-
ployee, if the injury or disability has been
overcome within one year after the date of com-
mencement of compensation . . . , the right to re-
sume his former or an equivalent position, as well
as all other attendant rights which the employee
would have had, or acquired, in his former posi-
tion had he not been injured or disabled, including
the rights to tenure, promotion, and safe-guards in
reductions-in-force procedures, and
(2) [Full recovery after 1 year:] the department or
agency which was the last employer shall, if the
injury or disability is overcome within a period of
more than one year after the date of commence-
ment of compensation, make all reasonable efforts
to place, and accord priority to placing, the em-
ployee in his former or equivalent position within
such department or agency, or within any other
department or agency.
5 U.S.C. § 8151(b) (emphases added).
Gallo argues that § 8151(a) provides restoration rights
to federal employees, such as herself, who resume em-
ployment in their former positions, or in positions equiva-
lent thereto, after recovering from a compensable injury,
regardless of whether the employee remains otherwise
employed by the federal government while receiving
OWCP benefits under FECA. Gallo cites FECA’s legisla-
tive history as evidence that Congress intended that
“Federal employees . . . who are injured on the job and
receiving disability compensation . . . will incur no loss of
benefits which they would have received absent the injury
or disease.” Appellant’s Br. 17 (quoting S. Rep. No. 93-
1081, reprinted in 1974 U.S.C.C.A.N. 5341, 5344) (em-
GALLO v. TRANSPORTATION 7
phasis added). According to Gallo, the Board was re-
quired to interpret FECA liberally to “to effectuate its
humanitarian purposes, with exemptions and exceptions
narrowly construed and doubts resolved in favor of the
employee.” Id. (quoting Brown v. Jefferson, 451 A.2d 74,
77 (D.C. 1982)). Gallo argues that, instead of resolving
doubts in her favor, the Board “recognize[d] the apparent
unfairness in the fact that an employee who remains off
duty while injured potentially has greater statutory
protection than one who works in another position while
injured,” Board Decision at 6, but nevertheless declined to
interpret the ambiguous statute in favor of the employee.
Appellant’s Br. 21.
The Department counters that the Board correctly in-
terpreted the language “resumes employment with the
Federal Government” in § 8151(a) to require physical
separation from the federal government. According to the
Department, a reading of the statute that does not require
physical separation renders the words “with the Federal
Government” superfluous, and Congress would not have
included the limiting phrase “with the Federal Govern-
ment” if it did not intend to incorporate a physical separa-
tion requirement. The Agency contends that if the statute
did not require physical separation, Congress would have
clarified that “resumes employment” means “returning to
the time of injury position, duties, or craft,” which it did
not do. Appellee’s Br. 16 (citing 120 Cong. Rec. 27,675
(1974) (“The bill further helps to assure that Federal
employees . . . who are injured on the job and return to
Federal employment within 1 year, that during their
period of disability they will incur no loss of benefits that
they would have received absent the injury or disease.”)
(emphasis in Brief)). To the extent the statute provides
greater protection to federal employees who remain “idle”
while injured, the Department responds that “it is up to
Congress to change the law.” Id. 20. The Department
also contends that the OPM’s implementing regulations
8 GALLO v. TRANSPORTATION
interpreting 5 U.S.C. §§ 8151(a) and (b) exclude employ-
ees like Gallo, who accept a different position within the
federal government at the same grade.
This court disagrees that § 8151(a) requires physical
separation from the federal government. On its face, the
language of the statute is ambiguous. On the one hand, it
may be reasonable to interpret the statute as the De-
partment argues—to require physical separation based on
the presence of the modifier “with the Federal Govern-
ment,” modifying “resumes employment”; on the other
hand, it is also just as reasonable to conclude that Con-
gress included the phrase “with the Federal Government”
simply to indicate that § 8151(a) applies only to Federal
employees who resume employment within the federal
government—i.e., not elsewhere, such as the private
sector or state government. Interpreting the phrase “with
the Federal Government” in this sense, the phrase is not
superfluous.
FECA’s legislative history indicates congressional in-
tent to protect injured Federal employees who are receiv-
ing OWCP compensation under the Act, regardless of
whether or where the injured employee worked while
receiving that compensation. See S. Rep. No. 93-1081,
reprinted in 1974 U.S.C.C.A.N. 5341, 5352 (“The amend-
ment made by [§ 8151] would assure injured employees
who are able to return to work at some later date that,
during their period of disability, they will incur no loss of
benefits that they would have received were they not in-
jured.” (emphases added)); 120 Cong. Rec. 27,675 (1974)
(“It is essential that injured or disabled employees of all
covered departments and agencies . . . be treated in a fair
and equitable manner. The Federal Government should
strive to attain the position of being a model employer.”).
The language of § 8151(a) stating that “the entire time
during which the employee was receiving compensation
GALLO v. TRANSPORTATION 9
under [FECA] shall be credited” indicates that it is not
separation from the federal government, but rather the
entitlement to compensation under FECA that is the
deciding factor in determining eligibility under § 8151(a).
This court agrees with the dissenting opinion below that
“Congress intended section 8151(a) to encompass situa-
tions, such as exists here, in which an employee resumes
her former position or equivalent thereof after having
been forced to leave it due to a compensable injury, but
who remained otherwise employed by the Federal Gov-
ernment during the interim period while receiving OWCP
compensation.” Board Decision at 14 (Wagner, J. dissent-
ing).
The Board’s narrow interpretation of § 8151(a), to ex-
clude employees who do not physically separate from the
federal government, is contrary to the OPM’s interpreta-
tion of the statute in its implementing regulations. OPM
regulation 5 C.F.R. § 353.103(b) defines an eligible em-
ployee under § 8151(a) as one “who was separated or
furloughed from an appointment without time limitation
. . . as a result of a compensable injury”; and OPM regula-
tions 5 C.F.R. §§ 353.301(a) and (b) define an eligible
employee under §§ 8151(b)(1) and (2) to include an em-
ployee who “accepts a lower-graded position in lieu of
separation and subsequently fully recovers” (emphases
added). Gallo fits squarely within 5 C.F.R. § 353.103(b)’s
definition of an eligible employee under 5 U.S.C. § 8151(a)
as one who resumed employment after “separation . . .
from an appointment . . . as a result of compensable
injury.” 5 C.F.R. § 353.103(b) (emphasis added). The
Department admits that Gallo was separated from her
ATCS “appointment,” Oral Argument at 22:41-23:18,
available at http://www.cafc.uscourts.gov/oral-argument-
recordings/all/gallo.html.
Moreover, under 5 C.F.R. §§ 353.301(a) and (b), an in-
jured employee who “accepts a lower-graded position in
10 GALLO v. TRANSPORTATION
lieu of separation and subsequently fully recovers” quali-
fies for restoration under § 8151(b). In Gallo I, this court
explained that under “[s]ubsection (a) . . . , once an em-
ployee has been restored as directed by subsection (b), the
entire time during which the employee was receiving
compensation must be credited for purposes of calculating
rights and benefits that are based on length of service.”
529 F.3d at 1349 (emphasis added). Thus, under the
OPM’s implementing regulations, to which we accord
deference under Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984), and under the
statutory scheme as interpreted by this court, subsection
(a) cannot properly be interpreted to require physical
separation from the federal government. See 5 C.F.R. §§
353.301(a) and (b); Gallo I, 529 F.3d at 1349.
Accordingly, this court holds that physical separation
from the federal government is not required to “resume[]
employment with the Federal Government” under
§ 8151(a). Because Gallo was undisputedly separated
from her appointment as an ATCS, see 5 C.F.R.
§ 353.103(b), and because she received compensation
under FECA during the entire period of her “separation,”
she qualifies for restoration benefits “based on length of
service” under § 8151(a).
Because the court concludes that Gallo directly quali-
fies for any rights and benefits to which she may be
entitled under § 8151(a), this court need not address
whether Gallo was entitled to or received priority consid-
eration for restoration under 5 U.S.C. § 8151(b)(2), despite
the parties’ extensive briefing on this issue.
B. “rights and benefits based upon length of service”
The Board determined that “even if [Gallo] had re-
sumed employment with the Federal Government, she
would not be entitled to the relief she seeks” because “the
GALLO v. TRANSPORTATION 11
benefits she seeks are not based upon length of service.”
Board Decision at 6.
i.
Gallo cites OPM regulation 5 C.F.R. § 353.107, which
provides that an employee who is restored after com-
pensable injury is “entitled to be treated as though he or
she had never left,” and argues that she is “entitled to
both the pay and retirement credit that she would have
received had she not been injured.” Appellant Br. 27.
According to Gallo, “benefits and pay increases are []
determined by an employee’s service in a specific posi-
tion,” and not in government service generally. Id. at 29.
Gallo’s argument tracks the dissenting opinion below,
which finds that benefits based on length of service, for
example, within-grade pay increases, “are very much
determined by an employee’s service in a specific posi-
tion.” Board Decision at 16 (Wagner J., dissenting).
The Department counters that the benefits Gallo
seeks are not benefits based on length of service. The
Department argues that 5 U.S.C. § 8151(b)(1) confers to
employees who fully recover within one year the right to
immediate restoration “as well as all other attendant
rights which the employee would have had, or acquired, in
his former position had he not been injured.” The Gov-
ernment goes on to point out, however, that because Gallo
did not recover within one year, she is not entitled to be
treated under that section and instead falls only under
§ 8151(a), under which an employee’s rights are not as
broad. See Burtch v. U.S. Postal Serv., 47 M.S.P.R. 518,
521 (1991). According to the Department, Gallo already
“received all rights and benefits based on length of service
to which she was entitled, as her service as a Federal
employee was uninterrupted during the entire time of her
injury.” Appellee’s Br. 28. Although the legislative
history indicates that injured employees will “incur no
12 GALLO v. TRANSPORTATION
loss of benefits” upon restoration, 120 Cong. Rec. 27,675,
the Department argues that “that entitlement is not
limitless.” Appellee’s Br. 28 (citing Smit v. Dept. of Treas-
ury, 50 M.S.P.R. 492, 495-96 (1991) (the right to adminis-
tratively uncontrollable overtime is not encompassed
under either §§ 8151(a) or (b)(1)); Burtch, 47 M.S.P.R. at
522 (the right to earn sick and annual leave is not encom-
passed under either §§ 8151(a) or (b)(1)); Nixon v. Dep’t of
Treasury, 104 M.S.P.R. 189, 194 (2006) (no entitlement to
restoration to a position of the same standing within the
organization); and True v. Office of Pers. Mgmt., 926 F.2d
1151, 1155-56 (Fed. Cir. 1991) (no entitlement to civil
service retirement credit).
ii.
Because Gallo “resume[d] employment with the Fed-
eral Government” and made a claim for improper restora-
tion under § 8151(a), she is entitled to “the rights and
benefits based upon length of service” guaranteed in
§ 8151(a). The remaining question is whether seniority
within the AT pay system and time credit “as if she had
never left” her ATCS position are “right[s] and benefit[s]
based upon length of service” under § 8151(a).
Section 8151(a) guarantees that “the entire time dur-
ing which the employee was receiving compensation
under this chapter shall be credited to the employee for
the purposes of within-grade step increases, retention
purposes, and other rights and benefits based upon length
of service.” 5 U.S.C. § 8151(a). In turn, OPM regulation 5
C.F.R. § 353.107, which “tracks the language of
[§] 8151(a),” Gallo I, 529 F.3d at 1349, provides that:
Upon reemployment, an employee absent because
of uniformed service or compensable injury is gen-
erally entitled to be treated as though he or she
had never left. This means that a person who is
GALLO v. TRANSPORTATION 13
reemployed following . . . full recovery from com-
pensable injury receives credit for the entire pe-
riod of the absence for purposes of rights and
benefits based upon seniority and length of ser-
vice, including within-grade increases, career ten-
ure, completion of probation, leave rate accrual,
and severance pay.
5 C.F.R. § 353.107 (emphasis added).
Although these “rights and benefits based upon length
of service” seem to be broadly articulated, 5 C.F.R.
§ 353.107 uses the term “generally” in qualifying the
language “entitled to be treated as though he or she had
never left.” Moreover, § 8151(a) must be interpreted in
the context of the statutory scheme as a whole, so as not
to render the language in § 8151(b)(1) superfluous. See
Gallo I, 529 F.3d at 1349 (“Construing subsection (a) to
have independent substantive force is required by ‘the
elementary canon of construction that a statute should be
interpreted so as not render one part inoperative.’” (quot-
ing Colautti v. Franklin, 439 U.S. 379, 392 (1979)).
Indeed, Gallo agrees that § 8151(b)(1) conveys a broader
scope of restoration rights to employees who return to
service within one year of compensable injury than does
§ 8151(a), Oral Argument at 3:30-3:52, but contends that
many of the rights guaranteed under §§ 8151(a) and (b)(1)
may overlap, id. at 7:26-7:36.
The legislative history also supports the proposition
that the scope of restoration rights guaranteed under
§ 8151(a)—which does not specify a period of absence—
must be construed more narrowly than the scope of resto-
ration rights under § 8151(b)(1)—which is limited to
employees who return to employment within one year.
While the Senate Committee Report indicates Congres-
sional intent that § 8151 serves to “assure [that] injured
employees who are able to return to work at some later
14 GALLO v. TRANSPORTATION
date . . . will incur no loss of benefits that they would have
received were they not injured,” S. Rep. No. 93-1081,
reprinted in 1974 U.S.C.C.A.N. 5341, 5352, the legislative
history also evidences a clear intention that the Act would
provide greater protection for employees restored within
one year:
The bill further helps to assure that Federal em-
ployees . . . who are injured on the job and return
to Federal employment within 1 year . . . will incur
no loss of benefits that they would have received
absent the injury or disease. Additionally, it pro-
vides a guaranteed right to an injured Federal
employee to return to his former or equivalent po-
sition if he recovers within 1 year.
120 Cong. Rec. 27,675 (1974) (emphases added).
A comparison of §§ 8151(a) and (b)(1) is helpful to as-
certain the restoration rights and benefits guaranteed
under § 8151(a). Section 8151(b)(1) guarantees “all . . .
attendant rights which the employee would have had, or
acquired, in his former position had he not been injured or
disabled, including the rights to tenure, promotion, and
safeguards in reductions-in-force procedures. 35 U.S.C.
§ 8151(b)(1) (emphasis added). Section 8151(b)(1) specifi-
cally mentions the employee’s former position, whereas
§ 8151(a) only references “time.” § 8151(a) (guaranteeing
time credit for the purposes of “within-grade step in-
creases, retention purposes, and other rights and benefits
based on length of service” (emphasis added)). Moreover,
§ 8151(b)(1) includes the right to merit or quality based
“promotion” and “tenure,” which are not based on time
generally, but rather time in a specific position, and fall
outside the scope of § 8151(a).
The Board considered the additional pay that Gallo
seeks to be “based on length of service in a particular
GALLO v. TRANSPORTATION 15
position, i.e., an operational ATCS position, rather than
length of service in government generally.” Board Deci-
sion at 7 (“We find that the term ‘length of service’ in the
statute refers to overall government service.”). The Board
reasoned that the specific examples of “rights and benefits
based upon length of service” in § 8151(a)—within-grade
step increases and retention rights—are not determined
based on length of service in any specific position, but
rather based on the completion of the requisite number of
weeks of “creditable service,” 5 C.F.R. § 531.405(a), which
is defined as “[c]ivilian employment in any branch of the
Federal Government,” 5 C.F.R. § 531.406(a). Board
Decision at 8.
While we agree that under 5 C.F.R. §§ 531.405(a) and
531.406(a), “creditable service” is based on government
service generally, we disagree with the Board’s conclusion
that Gallo is not entitled to the time that she spent serv-
ing the government as an automation specialist. Indeed,
the Board even states that “OPM’s regulations specifically
contemplate combining service in different positions for
purposes of completing the waiting period [required for a
within-grade pay increase].” Board Decision at 10. When
Gallo was restored to her ATCS position, and later pro-
moted, she was entitled to her creditable service time—
which the Department admits includes service in any
branch of the federal government, and thus must include
Gallo’s service time as an automation specialist. The
Board erred to the extent it held that Gallo would not be
entitled to her service time as an automation specialist,
and that this time could not be credited to her for the
purposes of determining her appropriate rating or “grade”
within the AT system.
When Gallo was restored to her ATCS position, and
later promoted, she was entitled to her creditable service
time towards the equivalent of “within grade step-
increases” in the AT pay system, based on creditable
16 GALLO v. TRANSPORTATION
service time. We hold that Gallo was not entitled to
position specific promotions (i.e., promotions not based
solely on creditable service time), however, which fall
outside of her benefits based on “length of service” with
the federal government generally. Accordingly, this court
remands to the Board for the Board to: (1) reinstate
Gallo’s creditable service time as an automation special-
ist; (2) determine Gallo’s appropriate seniority level and
corresponding pay under the AT compensation system
based upon her creditable service time, including her time
spent serving as an automation specialist (the AT com-
pensation system is not present in the record on appeal,
and thus we do not hold one way or another whether her
creditable service time will or will not impact her compen-
sation level in the AT pay system, and leave this inquiry
to the Board on remand); and (3) award Gallo any addi-
tional compensation to which she was entitled, effective to
the date of her restoration to the supervisory ATCS
position. See 49 U.S.C. § 4122(g)(2) (Feb. 14, 2012
amendment) (The Board possesses authority to award
compensation under the Back Pay Act.).
Gallo is not entitled to the retirement credit she seeks
because this court unequivocally held in True that
§ 8151(a) does not encompass civil service retirement
credit, a right based on actual employment time, not
including time that an employee was receiving OWCP
compensation under FECA. 926 F.2d at 1156.
III. CONCLUSION
For the foregoing reasons, this court reverses the de-
cision of the Board with respect to the statutory interpre-
tation of “resumes employment with the Federal
Government,” and remands for determination of the
“rights and benefits based on length of service” to which
Gallo is entitled consistent with this opinion.
GALLO v. TRANSPORTATION 17
REVERSED AND REMANDED