Does FAA backpay decision set precedent?

Thursday - 10/6/2011, 10:27am EDT

Bill Bransford, partner, Shaw Bransford and Roth

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The Federal Aviation Administration announced this week that employees, who were furloughed for two weeks this summer because of Congressional wrangling, will get back pay included in their Oct. 18 checks.

While in the past Congressional action was needed to approve backpay, Transportation Department lawyers decided — after a legislative bid for back pay failed — they didn't need separate legislation this time around to authorize make-up money.

Bill Bransford, a partner with Shaw, Bransford and Roth, joined the Federal Drive with Tom Temin and Amy Morris to discuss he legal rationale behind the decision and whether it sets a new legal precedent.

Bransford said he didn't know what led Transportation lawyers to conclude they didn't need Congress' approval to issue back pay. He cited previous incidents, along with some instances of case law supporting the need for specific authorization.

The FAA authorization that Congress eventually signed was made retroactive, leading Transportation to conclude FAA workers could be paid as if they were actually working, Bransford said.

"It's an interesting interpretation," he acknowledged. "And it's one I don't think has been made before."

As for setting a legal precedent, debates over back pay in the future will likely be "fought out on the front end," Bransford said, meaning back pay language would be included in an agency's reauthorizing legislation.

"It may complicate the resolution of future appropriations or budget battles," he explained.

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