DEPARTMENT OF thе ARMY, United States Army Commissary, Fort Benjamin Harrison, Indianapolis, Indiana; Department of the Army, Finance and Accounting Office, Fort Sam Houston, Texas, Petitioners v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent. American Federation of Government Employees Local # 1411, Intervenor.
No. 93-1655.
United States Court of Appeals, District of Columbia Circuit.
Argued Nov. 18, 1994. Decided June 9, 1995.
Rehearing and Suggestion for Rehearing In Banc Dеnied Aug. 9, 1995.
56 F.3d 273 | 149 L.R.R.M. (BNA) 2513 | 312 U.S.App.D.C. 309
Petition for Review of a Decision and Order of the Federal Labor Relations Board.
William E. Persina, Atty., Federal Labor Relations Authority, argued the cause for respondent. With him on the brief wаs William R. Tobey, Deputy Sol., Federal Labor Relations Authority. Frederick M. Herrera, Arthur A. Horowitz, and David M. Smith, entered appearances for respondent.
Judith D. Galat and Mark D. Roth, entered appearances for intervenor.
Before: GINSBURG, HENDERSON, and TATEL, Circuit Judges.
GINSBURG, Circuit Judge:
In response to a direction from the Department of the Army, the Army Finance and Accounting Office (FAO) at Fort Sam Hоuston increased from 10 to 12 days the lag between pay period and payment for certain Army employees. Because this new policy was not announced in advance to the commissary employees at Fort Benjamin Harrison, a number of them had insufficient funds in their bank accounts to cover the checks they had written. The checks were paid by debiting the overdraft lines of credit attached to their checking accounts, for which they incurred interest charges. The commissary employees’ union (American Federation of Government Employees, Local # 1411) filed a complaint with the Federal Labor Relations Authority, which held that the commissary and the FAO cоmmitted unfair labor practices by implementing the new pay-lag policy without first providing notice to the Union. The FLRA ordered the FAO, inter alia, to “[r]eimburse unit employees for all monies lost or interest charged as a result” of the policy change.
The relevant components of the Department of the Army petition for review of the FLRA‘s decisiоn, arguing that the sovereign immunity of the United States bars the above-quoted portion of the prescribed remedy. The FLRA cross-applies for enforcement of its order. Because the United States has not clearly waived its immunity from suit for this monetary relief, we grant the petition for review, deny the application for enforcement, and vacate the disputed portion of the order under review.
The fundamental principle relevant to this case, as all parties agree, is that “[t]he United States, as sovereign, is immune from suit save as it consents to be sued ... and the terms of its consent to be sued in any court define that court‘s jurisdiction to entertain the suit.” United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769-70, 85 L.Ed. 1058 (1941). The FLRA argues that the doctrinе of sovereign immunity does not apply here for three independent reasons: (A) the petitioners waived immunity through their actions before the FLRA; (B) the United States is on both sides of this case; and (C) in the Federal Service Labor-Management Relations Statute the Congress waived the immunity of the United States to the type of monetary remedy imposеd here. We find none of these arguments convincing for the reasons set out below.
A. Waiver
The FLRA makes two waiver arguments. First, the Authority argues that the Army waived its claim to sovereign immunity by appearing before the FLRA to defend its position on the merits. While it is true that the sovereign immunity of a State is waived by appearance in a federal court, see, е.g. Clark v. Barnard, 108 U.S. 436, 447, 2 S.Ct. 878, 882-83, 27 L.Ed. 780 (1883), federal sovereign immunity is not waived by appearance in any forum because “officers of the United States possess no power through their actions to waive an immunity of the United States or to confer jurisdiction on a court in the absence of some express provision of Congress.” United States v. N.Y. Rayon Importing Co., 329 U.S. 654, 660, 67 S.Ct. 601, 604, 91 L.Ed. 577 (1947); accord United States v. Mitchell, 463 U.S. 206, 215-16, 103 S.Ct. 2961, 2967-68, 77 L.Ed.2d 580 (1983).
The Authority also argues that the Army waived its right to рresent a sovereign immunity argument to this court by failing to raise it first before the agency. There, the Army made the general argument that the proposed remedy is not authorized by the Statute, but it did not raise the more specific sovereign immunity claim. Although the Statute does provide that except in “extraordinary circumstances” the reviewing cоurt is not to consider an argument that was not raised before the FLRA,
B. The Government v. The Government
The FLRA next contends that there is no sovereign immunity in “the ‘government-against-government’ situation” before us because the doctrine of sovereign immunity “was designed for the purpose of protecting the government from litigation initiated by a source outside the government‘s direct control--its citizens,” and not to protect one Government agency from litigation initiated by another. This argument invokes аn unduly circumscribed notion of the doctrine of sovereign immunity. Cf. Gray v. Bell, 712 F.2d 490, 511 (D.C.Cir.1983) (setting forth three policy bases of sovereign immunity). Not even the FLRA‘s account of the doctrine, however, suggests that the sovereign is immune only to lawsuits brought by private parties, and not to a suit such as this, brought by a government official acting for the benefit of private parties. See United States v. Horn, 29 F.3d 754, 761 (1st Cir.1994) (sovеreign immunity “stands as an obstacle to virtually all direct assaults against the public fisc, save only those incursions from time to time authorized by Congress“). Hence, the Army enjoys sovereign immunity in this instance unless the Congress has waived it, which is the thrust of the FLRA‘s final argument.
C. The Statute
The Authority argues that the Congress, in enacting the Statute, waived the Government‘s immunity to the kind of remedy it ordered in this сase. Because the Congress can waive immunity to one type of remedy without waiving immunity to another, see, e.g., United States v. Nordic Village, 503 U.S. 30, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992), it is important, as a threshold matter, to understand the remedy at issue here.
In this case, proper notice of the pay-lag policy chаnge was the thing to which the commissary employees were entitled. The interest charges for which the employees seek compensation are sums they lost only as a consequence of the Army‘s failure to give them the notice they were due. Accordingly, any compensation for such interest is properly characterized as “money damages.” Hence, the question before the court is whether the Statute waives the immunity of the United States to liability for money damages.
The section of the Statute that sets out the powers and duties of the FLRA provides that the Authority “may require an agency or a labor organization to cease and desist from violations of this chapter and require it to take any remedial action it considers appropriate to carry out the policies of this chapter.”
(A) to cease and desist ...;
(B) requiring the parties to renegotiate a collective bargaining agreement in accordance with the order ...;
(C) requiring reinstatement of an employee with backpay ...; or
(D) including any combination of the actions described in subparagraphs (A) through (C) of this paragraph or such other action аs will carry out the purpose of this chapter.
The two provisions, and particularly the phrases “any remedial action” and “such other action” in
In order to waive sovereign immunity, the Congress must “unequivocally express[ ]” its desire to do so. Irwin v. Veterans Affairs, 498 U.S. 89, 95, 111 S.Ct. 453, 457, 112 L.Ed.2d 435 (1990). This expression must appear on the face of the statute; it cannot be discerned in (lest it be concocted out of) legislative history. Nordic Village, 503 U.S. at 37, 112 S.Ct. at 1016. The Government‘s consent to a particular rеmedy must be unambiguous as well, id. at 34-36, 112 S.Ct. at 1014-16, and, in determining the scope of a partial waiver, “the Government‘s consent must be construed strictly in favor of the sovereign and not enlarged beyond what the language requires.” Id. at 34, 112 S.Ct. at 1015; accord Ardestani v. INS, 502 U.S. 129, 137, 112 S.Ct. at 515, 520-21, 116 L.Ed.2d 496 (1991). For the FLRA to prevail in this case, therefore, the statutory waiver provision must unambiguously establish that it extends to the award of money damages. See Dorsey v. Department of Labor, 41 F.3d 1551 (D.C.Cir.1994); cf. Nordic Village, 503 U.S. at 34, 112 S.Ct. at 1014-15. An Act of Congress is not unambiguous, and thus does not waive immunity, if it will bear any “plausible” alternative interpretation. See Nordic Village, 503 U.S. at 34, 112 S.Ct. at 1014-15.
Both sides agree that Sec. 10(c), the remedial provision of the National Labor Relations Act,
The FLRA also invokes Loeffler v. Frank, 486 U.S. 549, 108 S.Ct. 1965, 100 L.Ed.2d 549 (1988), suggesting that the Supreme Court there found a waiver of sovereign immunity from payment of prejudgment interest in Title VII suits upon the basis of a statute that merely authorized thе court to “order such affirmative action as may be appropriate, ... including back pay ..., or any other equitable relief as the court deems appropriate.”
The FLRA also offers a contextual argument to support its interpretation of the Statute, in the hope that context can supрly the “unequivocal expression” lacking in the text. The Authority claims that because
II. CONCLUSION
For the foregoing reasons, we grant the petition for review, deny the application for enforcement, and vacate the order of the FLRA insofar as it requires the Army to reimburse unit employees for all monies they lost or interest they were charged as a result of the change in the pay-lag policy.
So ordered.