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59 FLRA No. 147
U. S. Dept. of Justice, Federal Bureau of Prisons, U. S. Penitentiary, Marion, Illinois and AFGE, Council of Prison Locals, Local 2343, (Pratte, Arbitrator) 0-AR- 3730 (Decided April 8, 2004)
After finding that the Agency improperly required the grievant to obtain medical documentation for a 2-day absence, the Arbitrator ordered the Agency to pay the grievant's co-pay and mileage expenses for his doctor's visit. The Authority set aside the award.
The Authority found that 5 C.F.R. § 630.403 was in effect and was applicable in this case. The Authority also found that the Agency did not establish that the Arbitrator's conclusion that the regulation was applied improperly was contrary to law. As to the remedy, the Authority noted that the United States is immune from liability under the doctrine of sovereign immunity. Sovereign immunity can be waived by statute, but a waiver will be found only if unequivocally expressed in statutory text and not implied. The Authority noted that the remedial provisions of the Statute does not meet the strict test for waiver of sovereign immunity. Accordingly, it stated that it will not award money damages that do not constitute pay, allowances, or differentials, without an express and unambiguous grant of authority to do so. In this case, neither the Union nor the Arbitrator pointed to any statute that would support a waiver of sovereign immunity in the circumstances of this case. Accordingly, the award of money damages was set aside as contrary to law.