Gonzalez v. Department of Transportation

Dissenting opinion filed by Circuit Judge, DYK.

The majority holds that employees of the Federal Aviation Administration (“FAA”), alone among federal employees, may not secure back pay when appealing adverse actions to the Merit Systems Protection Board (“Board”). In my view, this anomalous approach is contrary to the statute and to our prior precedent, and deprives FAA employees of a crucial remedy for improper agency action.

Even assuming that the majority is correct in holding that the Back Pay Act, 5 U.S.C. § 5596, does not apply to FAA employees, we have previously held that the Board has…