Michael E. HUBBARD, Appellant, v. ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY, Appellee. Michael E. HUBBARD, Appellee, v. ENVIRONMENTAL PROTECTION AGENCY, Appellant.
Nos. 90-5233, 90-5250
United States Court of Appeals, District of Columbia Circuit.
Decided Nov. 27, 1992.
982 F.2d 531
Argued En Banc Sept. 30, 1992.
John D. Bates, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., R. Craig Lawrence, and Mark E. Nagle, Asst. U.S. Attys., Washington, DC, were on the brief, for appellee/cross-appellant E.P.A.
Before MIKVA, Chief Judge, WALD, EDWARDS, RUTH BADER GINSBURG, SILBERMAN, BUCKLEY, WILLIAMS, D.H. GINSBURG, SENTELLE, HENDERSON, and RANDOLPH, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALD.
Concurring opinion filed by Circuit Judge RANDOLPH, with whom Circuit Judge RUTH BADER GINSBURG joins.
Dissenting opinion filed by Circuit Judge EDWARDS, with whom Chief Judge MIKVA joins.
WALD, Circuit Judge:
This case presents a straightforward, but nonetheless hard, question of law: Has the United States waived sovereign immunity for a back pay award to an individual denied federal employment in violation of his constitutional rights? A panel of this court answered “yes” to that question, finding that
I. BACKGROUND
Michael Hubbard‘s dispute with the EPA has dragged on for more than a decade. A “frequent flyer” with this court, the facts of Hubbard‘s conflict with the EPA are chronicled in several prior opinions. See Hubbard v. EPA, 949 F.2d 453, 455-56 (D.C. Cir. 1991), reh‘g en banc granted in part, denied in part, 949 F.2d 475 (D.C. Cir. 1992); Hubbard v. EPA, 809 F.2d 1, 2-4 (D.C. Cir. 1986), aff‘d en banc sub nom. Spagnola v. Mathis, 859 F.2d 223 (D.C. Cir. 1988) (per curiam). We highlight only the most salient details here.
In 1982, Hubbard applied to be an investigator with the Criminal Investigations Division of the EPA. The EPA turned him down because of reports that, while serving as a police investigator, he improperly divulged information to the press about his probe of drug trafficking by members of Congress and their aides. A unanimous panel of this court, applying the balancing test of Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), affirmed the district court‘s finding that the EPA‘s failure to hire Hubbard violated his First Amendment rights and that Hubbard was entitled to be instated as an EPA investigator.1 See Hubbard, 949 F.2d at 461. That determination is not contested here.
What is at issue is the panel‘s further holding that Hubbard was entitled to receive back pay along with instatement as part of an equitable remedy. See id. at 462. Relying mainly on language in the Supreme Court‘s decision in Bowen v. Massachusetts, 487 U.S. 879, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988), and on other cases that have categorized back pay as equitable relief, a split panel concluded that back pay fell within the waiver of immunity for “relief other than money damages” in
II. DISCUSSION
A. Principle of Construction
The Supreme Court has counselled us repeatedly that waivers of sovereign immunity are to be construed strictly. See, e.g., Library of Congress v. Shaw, 478 U.S. 310, 318, 106 S.Ct. 2957, 2963, 92 L.Ed.2d 250 (1986). We may not find a waiver unless Congress’ intent is “‘unequivocally expressed‘” in the relevant statute. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980) (quoting United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1503, 23 L.Ed.2d 52 (1969)). Thus, Hubbard faces an uphill fight. To prevail, he must demonstrate a “legislative intent ... so
B. Section 702 and Its Legislative History
After scouring
As the Supreme Court has emphasized, the legislative history of the 1976 amendments “indicat[es] that the drafters had in mind the time-honored distinction between damages and specific relief.” Bowen v. Massachusetts, 487 U.S. 879, 897, 108 S.Ct. 2722, 2734, 101 L.Ed.2d 749 (1988); see also S.REP. NO. 996, 94th Cong., 2d Sess. 2 (1976) (“[The amendment] would eliminate the defense of sovereign immunity in Federal court actions for specific relief ....“); H.R.REP. NO. 1656, 94th Cong., 2d Sess. 4 (1976) (same), U.S.Code Cong. & Admin.News 1976, p. 6124; 1970 Hearing, at 58 (“[A]ll ... specific relief is covered ....“) (statement of Professor Cramton). While these categories are not sharp-edged, back pay for someone in Hubbard‘s position has traditionally been understood at common law as “damages,” not “specific relief.” See DAN B. DOBBS, HANDBOOK ON THE LAW OF REMEDIES 924-27 (1973) (discussing back pay as a type of compensatory relief akin to damages) (hereinafter DOBBS ON REMEDIES); id. at 69 n. 18; ARTHUR G. SEDGWICK, A TREATISE ON THE MEASURE OF DAMAGES § 665, at 1343 (9th ed. 1920) (discussing wages lost after wrongful discharge as a type of damages).
That conventional classification certainly makes sense in the context of this case. Specific remedies “attempt to give the plaintiff the very thing to which he was entitled.” DOBBS ON REMEDIES, at 135. At the time the EPA violated Hubbard‘s rights by denying him an offer of a job as a criminal investigator, he had never worked for the EPA and thus was not entitled to any pay. Cf. United States v. Testan, 424 U.S. 392, 402, 96 S.Ct. 948, 955, 47 L.Ed.2d 114 (1976) (“The claim [for back pay] ... is that each [plaintiff] has been denied the benefit of a position to which he should have been, but was not, appointed. The established rule is that one is not entitled to the benefit of a position until he has been duly appointed to it.“). The only “entitlement” that the EPA deprived Hubbard of was the job offer he would have received except for the constitutional deprivation. Instatement is the specific relief for that deprivation; it gives Hubbard “the very thing” he was owed. On the other hand, any loss of income attributable to Hubbard‘s being denied the job, like any emotional distress or harm to reputation that he may have suffered as well, is a consequence of the denial of the offer of employment. And the classic remedy for that loss is money damages.4 See id. at 404, 96 S.Ct. at 956 (describing a claim for back pay as one for “money damages“). That is why courts ordinarily award back pay only in the amount necessary to compensate the plaintiff for the loss that resulted from the unlawful deprivation of employment. “If [an] employee obtains other employment ..., he is ordinarily chargeable with the income from that employment, so that his damage claims against his former employer are reduced by what he makes in his new
Reasoning from general, and on the edges often malleable, concepts of compensation and specific relief would of course be unnecessary if there were some real evidence that Congress meant back pay to be among the class of “non-money damages” remedies for which
The closest pass that the legislative history makes to the back pay issue is a few references to “governmental employment” as among the categories of cases where relief had in the past been barred by sovereign immunity and which, in the future, might be remediable under the amendment. See, e.g., H.R.REP. No. 1656, at 9, U.S.Code Cong. & Admin.News 1976, p. 6129. But, of course, sovereign immunity had affected government employment cases in significant ways other than as a bar on back pay relief. Prior to the 1976 amendments, when a federal employee was not hired or was fired in violation of her rights, sovereign immunity had foreclosed an injunction instating or reinstating that employee—the very relief that Hubbard has now received in this case. In fact, the same House Report that refers to “governmental employment” cites a law review article that discusses how sovereign immunity had hampered effective enforcement of employment discrimination laws against the federal government. See H.R.REP. No. 1656, at 8 n. 20, U.S.Code Cong. & Admin.News 1976, p. 6129 n. 20. The cited article specifically argues that the problem should be remedied by removing barriers to such injunctive relief. See Charles F. Abernathy, Sovereign Immunity in a Constitutional Government: The Federal Employment Discrimination Cases, 10 HARV.C.R.-C.L.L.REV. 322, 366 (1975).9
The other references highlighted by Hubbard are even more tangential. Hubbard notes that the facts of Gnotta v. United States, 415 F.2d 1271 (8th Cir. 1969), cert. denied, 397 U.S. 934, 90 S.Ct. 941, 25 L.Ed.2d 115 (1970), a government employment case, were specifically discussed at the 1970 Hearing. See, e.g., 1970 Hearing, at 68, 158-61. But neither Gnotta nor the discussion of it at the hearings dealt with back pay. The sovereign immunity problem in Gnotta involved a federal employee who could not obtain any form of relief because he had chosen the wrong defendants to sue. See Gnotta, 415 F.2d at 1276-78.10
Hubbard also cites references to “federal employment” in discussions relating to the removal of the amount in controversy requirement, a statutory change separate from the waiver of sovereign immunity but which was also accomplished through the 1976 amendments. See H.R. REP. NO. 1656, at 14, U.S.Code Cong. & Admin. News 1976, p. 6134. That reference merely demonstrates that Congress understood that where sovereign immunity was waived, there was still a barrier to federal court jurisdiction if the employee‘s loss was not quantifiable or did not exceed $10,000. The mention of federal employment in that context tells us zero about Congress’ intent to expand the scope of immunity for back pay.
Bowen v. Massachusetts, 487 U.S. 879, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988), does not resuscitate Hubbard‘s claim. Before Bowen, courts consistently found that back pay was not among the types of relief for which
As already noted, in Bowen the Supreme Court emphasized that
Bowen‘s holding thus does nothing for Hubbard‘s cause. Hubbard‘s basic claim is not for enforcement of any legal mandate that the EPA pay him a sum of money; rather, it is to force the EPA to offer him the job it denied him.
Hubbard ultimately bases his case on one line of dicta in Bowen possibly suggesting that back pay may be specific relief. In a background paragraph explaining the difference between specific and compensatory relief, the Court said:
Our cases have long recognized the distinction between an action at law for damages—which are intended to provide a victim with monetary compensation for an injury to his person, property, or reputation—and an equitable action for specific relief—which may include an order providing for the reinstatement of an employee with back pay, or for the recovery of specific property or monies, ejectment from land, or injunction either directing or restraining the defendant officer‘s actions.
Id. at 893, 108 S.Ct. at 2732 (citations and emphasis omitted). Viewed in isolation, it is ambiguous whether the sentence was labelling back pay itself as specific relief, or merely making the unremarkable point that back pay often accompanies an award of reinstatement, which itself is unquestionably a form of specific relief. In the context of the entire opinion, however, we believe that the single reference cannot shoulder the burden of demonstrating that the Court intended to mandate an about-face on the hornbook view of back pay as damages as well as the decisions of all courts up to that point that back pay was not a form of specific relief for
A final word on Bowen. Contrary to our colleagues’ accusation, see Dissent at 540, we in no way “cavalierly” dismiss that Supreme Court decision. We find only that Bowen‘s holding does not support Hubbard‘s cause and that Bowen‘s dicta is ambiguous and cannot carry the weight that Hubbard seeks to place on it. See also Dissent at 544 (noting that the reference to back pay “is offered only by way of example in Bowen“).
D. Precedent From Other Areas of Law
Hubbard‘s reliance on cases calling back pay “equitable” for other purposes is also misplaced. The crucial question for us is not whether back pay is “equitable,” but what Congress meant by “other than money damages” in
For example, Hubbard points to United States v. Burke, —— U.S. ——, 112 S.Ct. 1867, 119 L.Ed.2d 34 (1992), as the most recent pronouncement of the equitable nature of back pay. In Burke, the question was whether back pay awarded for a violation of Title VII was “damages received ... on account of personal injury” under § 104(a)(2) of the Internal Revenue Code and thus excludable from gross income. Because the relevant Internal Revenue Service regulation interpreted the damages exclusion to apply only to remedies for tort or tort-type injuries, the Court‘s analysis turned on whether Title VII provided typical tort remedies, i.e., a broad array of damages to compensate tangible and intangible injuries. See id., —— U.S. at ——, 112 S.Ct. at 1871-72. The Court found that Title VII authorized only back pay, injunctions and other “equitable” relief, and not the full panoply of tort damages; thus, Title VII awards were not excludable from gross income. See id., —— U.S. at ——, 112 S.Ct. at 1873-74. But the Court‘s finding that Title VII remedies were “equitable” did not by any means foreclose its simultaneous classification of back pay as basically compensatory in nature. To the contrary, the Court noted that “Congress declined to recompense Title VII plaintiffs for anything beyond the wages properly due them.” Id., —— U.S. at ——, 112 S.Ct. at 1874 (emphasis added). The same can be said of our decision in Sparrow v. Commissioner, 949 F.2d 434 (D.C. Cir. 1991), cert. denied, —— U.S. ——, 112 S.Ct. 3009, 120 L.Ed.2d 883 (1992), which anticipated Burke. Although we found that back pay under Title VII was not damages under the Internal Revenue Code, we nevertheless recognized that back pay under Title VII was compensatory: “The remedies available under Title VII exist to make whole the employee discriminated against, that is, to place him in the same position he would have been in but for the discrimination, but not to compensate beyond that.” Id. at 440 (emphasis added).
Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975), can be similarly parsed. There, the Court termed back pay under Title VII an “equi-
The same analysis holds for cases involving the Seventh Amendment right to a jury trial. Although courts have routinely found that plaintiffs seeking back pay are asking for equitable relief and thus are not entitled to a jury trial, this finding generally rests on the assumption that back pay is incidental to, or an element of, the equitable remedy of reinstatement—not on a notion that back pay itself is specific and not compensatory. Santiago-Negron v. Castro-Davila, 865 F.2d 431 (1st Cir. 1989), a case that Hubbard highlights, is typical. There, the First Circuit, after reviewing relevant cases from all over, found that a § 1983 claim seeking only reinstatement and back pay was equitable and should be heard by a judge, not a jury. See id. at 441. But its conclusion did not rest on any foundation that back pay itself was not compensatory. The court explicitly stated that back pay was “one of the items of compensatory damages.” Id.
Much the same can be said of cases that have allowed awards of back pay under the Fair Labor Standards Act (“FLSA“). In Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 80 S.Ct. 332, 4 L.Ed.2d 323 (1960), the Court found that, in order to provide a full equitable remedy, district courts could order a private employer to provide back pay to plaintiffs dismissed from work in violation of the FLSA. See id. at 292, 80 S.Ct. at 335-36. Again, labelling back pay as equitable for remedial purposes under the FLSA in no way detracted from a recognition that back pay was still essentially “compensatory” relief. See id. at 293, 80 S.Ct. at 336.11
E. Back Pay as Restitution
Finally, Hubbard argues that back pay is specific because it is restitutionary—it requires the EPA only to give back to Hubbard the money that the EPA should have given him in the first place as salary for the job Hubbard was denied. In support of this argument, Hubbard cites School Committee v. Dept. of Education, 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985), where the Supreme Court characterized reimbursement of parents’ expenditures made because of a town‘s failure to meet its special education requirements as “pay[ment of] expenses that [the town] should have paid all along” rather than damages. See id. at 370-71, 105 S.Ct. at 2003. But again Hubbard misconceives the essence of our inquiry. Whether we or someone else call a remedy restitutionary, equitable or anything else, it fits within
III. CONCLUSION
Waiver of sovereign immunity requires a clear statement of congressional intent. Section 702 itself provides no such clear statement as to back pay; its legislative history tilts against such an interpretation; no court from 1976 to 1992 has held that there is such a waiver. We can find no basis in Bowen or elsewhere on which to conclude that Congress meant to include back pay in its waiver of immunity as to specific relief “other than money damages.” Accordingly, the judgment of the district court denying back pay is
Affirmed.
RANDOLPH, Circuit Judge, with whom RUTH BADER GINSBURG, Circuit Judge, joins, concurring:
If Hubbard prevails, the government will have to pay him money to make up for wages he never earned. That he did not earn these wages is the government‘s fault. Hubbard suffered financially as a result, and the amount of his financial loss may be specific. But I fail to see how any of this renders Hubbard‘s claim something other than a claim for money damages. It is no different than if the government had employed an individual and he thereafter suffered a disabling injury as a result of the government‘s negligence. A claim for relief in such a case would be characterized as a claim for money damages. In neither case are wages “the very thing” of which the individual was deprived. In both cases the thing lost is the opportunity to earn those wages, to create an obligation on the part of the government to pay for services rendered. Backpay makes up for that lost opportunity. It is a form of unemployment compensation; and because backpay is paid by the employer responsible for the illegal hiring or firing, it gives the employer an incentive to comply with the law. “Damages,” Judge Bork wrote in a passage relied upon by the Supreme Court, “are given to the plaintiff to substitute for a suffered loss, whereas specific remedies ‘are not substitute remedies at all, but attempt to give the plaintiff the very thing to which he was entitled.’ D. Dobbs, Handbook on the Law of Remedies 135 (1973).” Maryland Dep‘t of Human Resources v. Department of Health and Human Services, 763 F.2d 1441, 1446 (D.C. Cir. 1985), quoted with approval in Bowen v. Massachusetts, 487 U.S. 879, 895, 108 S.Ct. 2722, 2732-33, 101 L.Ed.2d 749 (1988). The suffered loss here is not wages, but the chance to earn them. Money substitutes for that loss. The back-pay award Hubbard seeks therefore constitutes “money damages” within the meaning of
I therefore concur in the court‘s opinion.
As [Justice Holmes] said in a much-quoted passage from Johnson v. United States, 163 F. 30, 32 (1st Cir. 1908): “it is not an adequate discharge of duty for courts to say: We see what you are driving at, but you have not said it, and therefore we shall go on as before.” Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning. Cabell v. Markham, 148 F.2d 737, 739 (1945) (L. Hand, J.) (citations omitted).
Ten years ago, Michael Hubbard was unlawfully denied a job with the EPA for reasons that violated his First Amendment rights. He has prevailed in his claim that he would have been employed in the job that he sought but for the Government‘s unlawful refusal to hire him. The majority now holds that, although Mr. Hubbard is entitled to the job, he cannot recover the pay that he lost. This is a gross injustice, because, under a statute intended to give meaningful relief to victims of constitutional violations, Mr. Hubbard will leave court a “winner” in name only. In future cases of this sort, Government officials will have only a limited incentive to avert constitutional violations, and they will have great incentive to prolong litigation, as here, to delay hiring and avoid paying victims like Mr. Hubbard.
Equitable actions for specific relief against the United States are authorized by
[o]ur cases have long recognized the distinction between an action at law for damages—which are intended to provide a victim with monetary compensation for an injury to his person, property, or reputation—and an equitable action for specific relief—which may include an order providing for the reinstatement of an employee with backpay....
Id. at 893, 108 S.Ct. at 2732 (emphasis added). The majority in this case now holds that the Supreme Court did not mean what it said in Bowen, and that a suit for instatement with back pay involves a claim for “money damages.” Indeed, it is telling, we think, that the majority discards Bowen as mere “dicta.” In our view, it is quite presumptuous for members of an inferior court to dismiss a decision of the Supreme Court in so cavalier a manner.
In addition to rejecting the decision as dicta, the majority also finds Bowen inapposite because “Hubbard‘s basic claim is not for enforcement of any legal mandate that the EPA pay him a sum of money“; this is a non sequitur, however, in light of the Court‘s explicit statement in Bowen that a claim for “[ ]instatement of an employee with backpay” is an “equitable action for specific relief” covered by section 702‘s waiver of sovereign immunity.
The Government‘s argument to the en banc court was no more convincing in its attempt to distinguish Bowen. Government counsel frankly conceded that Hubbard would be entitled to back pay if back pay is considered to be “specific” relief. The Supreme Court in Bowen addressed this precise point, plainly stating that a suit for “[ ]instatement with backpay” is an example of a case “long recognized” as “an equitable action for specific relief.”
The Government has attempted to narrow the scope of specific relief to exclude Hubbard‘s claim by arguing that a sum of money can only be specific relief if it is a “finite” amount, or a “sum certain,” on the
The simple truth in this case is that Hubbard seeks only an award of back pay that is “incidental to or intertwined with” injunctive relief. Chauffeurs, Teamsters and Helpers Local No. 391 v. Terry, 494 U.S. 558, 571, 110 S.Ct. 1339, 1348, 108 L.Ed.2d 519 (1990). As the court said in Bowen, and as it has observed in numerous other cases, such a claim is properly characterized as “relief other than money damages” for which sovereign immunity is waived under
During oral argument, a suggestion was made that back wages cannot be “specific relief” because any award must be adjusted downward to set off the amount of money that Hubbard earned at a replacement job before he was instated at the EPA. Apart from the obvious point that this suggestion is flatly at odds with what the Court said in Bowen, the argument is otherwise unavailing for two reasons. First, if specific relief is defined as the very thing that Hubbard is entitled to, then he is only entitled to receive the sum of money he would have earned during the time he rightfully should have been employed at EPA. Hubbard would not have taken replacement work but for EPA‘s illegal action. If we did not adjust the back-pay award, he would receive a total sum of money for that time that is greater than the sum of money he would have earned had EPA not committed its unlawful action.
An award does not cease to be specific or restitutionary in nature simply because it is measured by the plaintiff‘s loss. As noted in the RESTATEMENT OF THE LAW OF RESTITUTION, § 149 (Note on Set-off and Counterclaim) (1937):
Under ... statutes as ordinarily interpreted, unless the statute specifically provides otherwise, a cause of action for restitution is subject to such set-offs and counterclaims as would be permitted if the action were one founded upon a contract. Thus under a statute which permits set-offs or counterclaims in actions upon “contracts express or implied,” a claim which at common law could be enforced by an action of assumpsit would ordinarily be subject to a set-off or counterclaim. Likewise, a person desiring to
set off such a claim for restitution would ordinarily be entitled to do so in an action in which contractual claims could be set off.
Id. at 594-95.
The principle that a claim for “restitution” may be subject to offset has been routinely recognized and applied in this court for years. As we noted in Williams v. Washington Metropolitan Area Transit Comm‘n, 415 F.2d 922 (D.C. Cir. 1968), cert. denied, 393 U.S. 1081, 89 S.Ct. 860, 21 L.Ed.2d 773 (1969), “any proper resolution of [a] matter of restitution ... [must consider] the reality of [the parties‘] financial experience during the years in question.” Id. at 946 (awarding less than full restitution based upon claimants’ concession that some fare increase would not have been unlawful). Likewise, in Frederick County Fruit Growers Ass‘n, Inc. v. Martin, 968 F.2d 1265 (D.C. Cir. 1992), this court upheld a full restitutionary back pay award, but recognized that “less than full restitution is appropriate in certain circumstances.” Id. at 1274. This is so because restitutionary awards are governed by equitable principles, and the measure of the award rests within the sound discretion of the judge sitting in equity. If compelling equitable considerations dictate that Hubbard‘s award should be set off, then this court should exercise its equitable discretion to do so. See id.
Second, this argument skirts the fundamental inquiry in this case, which is whether back pay is a form of “specific relief” that is inextricably intertwined with equitable relief in the form of instatement. Back wages in this case are not a “substitute” for what Hubbard would have earned, or “compensation in lieu of” his salary, or even the “value” of the job. Wages are the very thing of which Hubbard was deprived, and the only thing needed to make his relief complete. Hubbard has prevailed in his civil rights claim, an injunction has already issued, and we believe that he is entitled to the wages that he would have earned but for the agency‘s unlawful action.
The majority also has suggested that awarding back pay to Hubbard would expose the government fisc to a significant number of claims unanticipated by Congress. This fear is wholly unfounded. First of all, by awarding back pay to Michael Hubbard, we are not opening a Pandora‘s box of new claims against the Government. As Judge Wald recognized at oral argument, Hubbard‘s claim is uniquely postured: he cannot sue for Bivens damages because that remedy is precluded by the Civil Service Reform Act,2 and he cannot sue in the Claims Court under the Tucker Act because he never had an employment contract with the government and because his claim is based on the First Amendment.3 Unlike most plaintiffs with employment claims against the government, Hubbard cannot pursue other statutory remedies because he was never a government employee. The Back Pay Act, for example, only provides remedies for employees of the federal government.4
Finally, considering the small group of plaintiffs that would be affected by a holding in Hubbard‘s favor, the legislative history of section 702 provides strong and convincing support for awarding back pay in this case. We believe that Congress intended section 702 to waive sovereign immunity for specific relief in the form of back pay that is incidental to and intertwined with instatement. The legislative history indicates that section 702 was intended to “strengthen” the government‘s accountability by eliminating the sovereign immunity defense “in all equitable actions for specific relief.” Id. at 4, 9; S.REP. NO. 996, 94th Cong.2d Sess. 4, 8 (1976), U.S.Code Cong. & Admin.News 1976, pp. 6124, 6129. The legislative history specifically contemplated that section 702 would waive sovereign immunity in government employment actions. H.R.REP. No. 1656 at 9; S.REP. No. 996 at 8, U.S.Code Cong. & Admin.News 1976, p. 6129. Nothing in the legislative history explicitly excludes back pay remedies. Given this evidence in favor of awarding a specific remedy of back pay, we see no reason to construe the statute so narrowly that it excludes Hubbard‘s relief. We agree with the majority that this court should not construe waivers of sovereign immunity broadly, but “[n]either should it as a self-constituted guardian of the Treasury import immunity back into a statute designed to limit it.” Indian Towing Co. v. United States, 350 U.S. 61, 69, 76 S.Ct. 122, 126, 100 L.Ed. 48 (1955).6
A. Back Pay as Equitable Relief
Courts have recognized the equitable nature of back pay awards in a number of different contexts. Generally, these decisions hold that back pay constitutes the very thing that the plaintiff would have received but for the defendant‘s illegal action; back pay is thus seen to reflect equitable restitution. Some decisions also justify a back pay award as incidental to an equitable instatement order. On either rationale, there is strong authority supporting Hubbard‘s claim for back pay relief in this case.
As noted above, Bowen v. Massachusetts is a case in point. In Bowen, the Supreme Court expressly described back pay as an equitable award. The Bowen Court considered a challenge to a disallowance of Medicaid disbursements made by the Secretary of Health and Human Services, and held that section 702‘s waiver of sovereign immunity extended to monetary awards that could be characterized as equitable relief. The Court specifically cited “reinstatement ... with backpay” to illustrate a form of equitable relief, as distinguished from money damages.
Our cases have long recognized the distinction between an action at law for damages—which are intended to provide a victim with monetary compensation for an injury to his person, property, or reputation and an equitable action for specific relief—which may include an order providing for the reinstatement of an employee with backpay, or for “the recovery of specific property or monies, ejectment from land, or injunction either directing or restraining the defendant officer‘s actions.”
487 U.S. at 893, 108 S.Ct. at 2732 (quoting Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 688, 69 S.Ct. 1457, 1460-61, 93 L.Ed. 1628 (1949)). Although the reference to “backpay” is offered only by way of example in Bowen, it is a critically important citation because the entire Bowen decision focuses on the distinction between money awarded in equity as specific relief and “money damages.”
The Court‘s statement in Bowen is hardly surprising, for the concept of back pay as equitable relief has been recognized by the Supreme Court in other contexts as well. In Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975), for example, the Court characterized back pay under Title VII as equitable relief. Although noting that Congress had included back pay among several statutory remedies available to redress Title VII violations, the Court observed that the judicial discretion to award back pay “is equitable in nature,” consistent with the “historic power of equity to award lost wages.” Id. at 416, 95 S.Ct. at 2371. In fact, the Court characterized the statutory reference to back pay, see
It is true that “[e]quity eschews mechanical rules ... [and] depends on flexibility.” But when Congress invokes the Chancellor‘s conscience to further transcendent legislative purposes, what is required is the principled application of standards consistent with those purposes and not “equity [which] varies like the Chancellor‘s foot.”
It is also the purpose of Title VII to make persons whole for injuries suffered on account of unlawful employment discrimination. This is shown by the very fact that Congress took care to arm the courts with full equitable powers. For it
422 U.S. at 417-18, 95 S.Ct. at 2371-72 (quoting Holmberg v. Armbrecht, 327 U.S. 392, 396, 66 S.Ct. 582, 584, 90 L.Ed. 743 (1946); Brown v. Swann, 35 U.S. (10 Pet.) 497, 503, 9 L.Ed. 508 (1836)); see also 118 Cong.Rec. 7168 (1971) (“The provisions of this subsection are intended to give the courts wide discretion in exercising their equitable powers to fashion the most complete relief possible.“) (statement of Senator Williams, introducing the Conference Report to the 1972 Title VII amendments).
In Seventh Amendment cases, where the right to a jury trial turns on whether the relief sought is legal or equitable, the Court has continued to note the equitable nature of Title VII back pay awards under the pre-1992 version of the statute. In Curtis v. Loether, 415 U.S. 189, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974), the Court held that damages under Title VIII for race-based denials of housing were legal in nature and must be awarded in a jury trial. For contrast, the Court cited the back pay remedy under Title VII.
We need not, and do not, go so far as to say that any award of monetary damages must necessarily be “legal” relief. A comparison of Title VIII with Title VII of the Civil Rights Act of 1964, where the courts of appeals have held that jury trial is not required in an action for reinstatement and backpay, is instructive, although we of course express no view on the jury trial issue in that context. In Title VII cases the courts of appeals
Id. at 196-97, 94 S.Ct. at 1009-10 (citations and footnote omitted). Similarly, in Terry, the Court reiterated that it has noted that “backpay sought from an employer under Title VII would generally be restitutionary in nature.” 494 U.S. at 572, 110 S.Ct. at 1349.8 See also Lehman v. Nakshian, 453 U.S. 156, 166-67, 101 S.Ct. 2698, 2704-05, 69 L.Ed.2d 548 (1981); Great American Fed. Sav. & Loan Ass‘n v. Novotny, 442 U.S. 366, 375, 99 S.Ct. 2345, 2350, 60 L.Ed.2d 957 (1979); Lorillard v. Pons, 434 U.S. 575, 584-85, 98 S.Ct. 866, 872, 55 L.Ed.2d 40 (1978).
Those courts of appeals which have addressed the issue have been unanimous in holding that an action for back pay under Title VII, at least when joined with a claim for reinstatement and not joined with a damages claim, is equitable and gives rise to no jury trial right. See Ramos v. Roche Products, Inc., 936 F.2d 43, 49-50 (1st Cir. 1991), cert. denied, —— U.S. ——, 112 S.Ct. 379, 116 L.Ed.2d 330 (1991); Walton v. Eaton Corp., 563 F.2d 66, 69, 84 (3d Cir. 1977); Cox v. Babcock & Wilcox Co., 471 F.2d 13, 14 (4th Cir. 1972); Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1125 (5th Cir. 1969); Moore v. Sun Oil Co., 636 F.2d 154, 156 (6th Cir. 1980); Grayson v. Wickes Corp., 607 F.2d 1194, 1196 (7th Cir. 1979); Harmon v. May Broadcasting Co., 583 F.2d 410 (8th Cir. 1978) (per curiam); Slack v. Havens, 522 F.2d 1091, 1094 (9th Cir. 1975); Snider v. Circle K Corp., 923 F.2d 1404, 1407 (10th Cir. 1991); Lincoln v. Board of Regents, 697 F.2d 928, 934 (11th Cir. 1983), cert. denied, 464 U.S. 826, 104 S.Ct. 97, 78 L.Ed.2d 102 (1983). This line of cases also answers the possible contention that Title VII awards, because authorized by statute, are somehow different than back pay awards. The constitutional question does not change because Congress has created the right. See Curtis, 415 U.S. at 194, 94 S.Ct. at 1008.
Although it has not confronted the Seventh Amendment question directly, this Circuit has endorsed the proposition that in a Title VII action “back pay is not in the nature of a claim for damages, but rather an integral part of the statutory equitable remedy.” Evans v. Sheraton Park Hotel, 503 F.2d 177, 186 (D.C. Cir. 1974) (quoting Johnson v. Georgia Highway Express, 417 F.2d at 1125). See also Sparrow v. Commissioner, 949 F.2d 434, 438 (D.C. Cir. 1991) (holding that back pay awards are not excludable from gross income under
Another area in which the Supreme Court has recognized the equitable nature of back pay awards is in actions under the Fair Labor Standards Act. In Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 80 S.Ct. 332, 4 L.Ed.2d 323 (1960), the Court held that courts had equitable jurisdiction to award back pay. The Court first characterized the specific action in question, an action by the Secretary of Labor to enjoin violations of section 15(a)(3) of the Act,
Implied private rights of action under the Title VI prohibition of discrimination against the handicapped provide yet another context in which the Supreme Court has recognized the equitable nature of back pay awards. See Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 104 S.Ct. 1248, 79 L.Ed.2d 568 (1984). In Darrone, the Court faced as a threshold matter the question whether or not the implied right of action survived the plaintiff‘s death. The Court held that it did:
Without determining the extent to which money damages are available under § 504 [
29 U.S.C. § 794 ], we think it clear that § 504 authorizes a plaintiff who alleges intentional discrimination to bring an equitable action for backpay.
Id. at 630, 104 S.Ct. at 1252.
Finally, in United States v. Burke, —— U.S. ——, 112 S.Ct. 1867, 119 L.Ed.2d 34 (1992), the Supreme Court held that a back pay award under Title VII was not excludable from gross income under section 104(a)(2) of the Internal Revenue Code because Title VII does not recompense tort-
In addition to the foregoing areas, the courts of appeals have authorized equitable back pay awards in a number of other cases. See, e.g., Bertot v. School Dist. No. 1, 613 F.2d 245, 250 (10th Cir. 1979) (en banc) (equitable back pay remedy available in Pickering cases); McKinley v. City of Eloy, 705 F.2d 1110, 1116 n. 3 (9th Cir. 1983) (same); Cline v. Roadway Express, Inc., 689 F.2d 481, 488-90 (4th Cir. 1982) (recognizing equitable nature of back pay award under Age Discrimination in Employment Act); Dickerson v. Deluxe Check Printers, Inc., 703 F.2d 276, 281 (8th Cir. 1983) (same); Troy v. City of Hampton, 756 F.2d 1000, 1002 (4th Cir.) (back pay under Veteran‘s Reemployment Rights Act is equitable), cert. denied, 474 U.S. 864, 106 S.Ct. 182, 88 L.Ed.2d 151 (1985); Skeets v. Johnson, 805 F.2d 767, 774-75 (8th Cir. 1986) (awarding equitable back pay for interim between termination in violation of due process and the required hearing), rev‘d on other grounds, 816 F.2d 1213 (8th Cir. 1987) (en banc); McGhee v. Draper, 639 F.2d 639, 646 (10th Cir. 1981) (same); Gurmankin v. Costanzo, 626 F.2d 1115, 1122 (3d Cir. 1980) (awarding equitable back pay in action under
These precedents aside, we think in this case Hubbard‘s back pay claim constitutes an equitable action for specific relief. In Terry, the Supreme Court considered two ways the plaintiffs’ action for back pay might be equitable: if it was restitutionary or if it was incidental to or intertwined with injunctive relief. 494 U.S. at 570-71, 110 S.Ct. at 1347-48. Both of these factors apply here. Hubbard was denied a specific job and the pay that goes with it. An award of instatement and back pay gives
In arguing that back pay cannot be restitution, the majority, in our opinion, misconceives the “thing taken.” By stating that back pay “essentially pays the plaintiff for the economic losses suffered as a result of the employer‘s wrong,” the majority has conceived of the thing taken solely as the right to work. By analogy to a specific performance action, the majority‘s hypothetical employment contract contains only one term—that Hubbard shall work for the EPA. Such a contract, although possibly not void for lack of consideration, is surely not what either party would have imagined and is surely not what Hubbard would have received but for EPA‘s unconstitutional actions. The “thing taken” must have been both the position and the pay. Our interpretation does not eliminate the concept of compensatory damages. Here, there might have been damages for stigmatic injury, costs incurred for retraining or relocation, or other consequential injuries. Simply because the restitutionary measure equals the primary compensatory element does not cause it to lose its character as restitution. See Laycock, supra, at 1285-86.
The money that Hubbard seeks would not be awarded to compensate for an infringement of an intangible right, as in Bivens actions. Rather, it is intertwined with, and flows directly from, an award of instatement—specific relief of the sort traditionally given in equity.
B. Waiver of Sovereign Immunity
Our conclusion that a back pay award to Hubbard would constitute equitable relief largely disposes of any question regarding sovereign immunity. Section 702 of the APA waives that immunity for all suits seeking specific relief and we think an equitable award of back pay clearly qualifies.
The Supreme Court‘s decision in Bowen makes clear that section 702‘s proviso excluding money “damages” did not mean that no monetary relief could be awarded. 487 U.S. at 891-901, 108 S.Ct. at 2730-36. As noted above, the Court used an equitable award of back pay as an example of the relief that would be permitted under section 702.12 Since Bowen, two courts have stated, albeit one in dicta, that an award of back pay would fall within section 702.
If Bowen‘s use of back pay as an illustration is not sufficiently persuasive, we think the reasoning of that decision compels a finding that back pay is within section 702‘s waiver. By its terms, section 702 waives sovereign immunity for all relief other than “money damages.” The Bowen Court relied heavily on this circuit‘s decision in Maryland Department of Human Resources v. Department of Health & Human Services to construe that term and held that it did not encompass all monetary relief. Money given “to substitute for a suffered loss” constituted damages, whereas “attempt[s] to give the plaintiff the very thing to which he was entitled” were specific relief and within the waiver. See Bowen, 487 U.S. at 895, 108 S.Ct. at 2732 (quoting 763 F.2d at 1446 (quoting DOBBS, supra, at 135)). “The fact that in the present case it is money rather than in-kind benefits ... cannot transform the nature of the relief sought—specific relief, not relief in the form of damages.” 487 U.S. at 895, 108 S.Ct. at 2733 (quoting 763 F.2d at 1446). No less than the funds restored to Massachusetts in Bowen, we think Hubbard‘s back pay, being part of the very thing EPA unconstitutionally withheld, constitutes specific relief.14
Reviewing the legislative history of section 702, the Bowen Court noted that Congress intended “to eliminate the sovereign immunity defense in all equitable actions for specific relief against a Federal agency or officer acting in an official capacity.” H.R.REP. NO. 1656 at 9; S.REP. No. 996 at 8, quoted in 763 F.2d at 1447; Bowen, 487 U.S. at 899, 108 S.Ct. at 2734-35 (emphasis added). The majority, in distinguishing between compensatory relief and specific relief, glosses over this statement from both committees. Both Bowen and Maryland Department of Human Resources applied this statement to a list of actions contem-
In any event, the principal question before us is whether back pay constitutes “money damages” within the meaning of section 702‘s exclusion. The Supreme Court in Bowen held that an award of money constituted “money damages” only when the money “substitutes for a suffered loss.” Bowen, 487 U.S. at 895, 108 S.Ct. at 2732 (quoting 763 F.2d at 1446 (quoting DOBBS, supra, at 135)). Here, the back pay does not substitute for any damage, such as pain or defamation, but is the exact thing Hubbard should have received. Second, to the extent that canons are reliable in statutory interpretation, see, e.g., WILLIAM N. ESKRIDGE & PHILIP P. FRICKEY, CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY 689 (1988) (noting that canons may be used on any side of a construction argument), we believe that “remedial statutes should be broadly construed” is the appropriate canon of interpretation to be applied in this case, given Congress’ expressed intent that plaintiffs with meritorious claims against the government not be barred by sovereign immunity. See H.R.REP. No. 1656 at 8, 9; S.REP. No. 996 at 7, 8, U.S.Code Cong. & Admin.News 1976, pp. 6128, 6129: (“enactment of [the bill] is ‘urgent’ in order to remove ‘the unnecessary injustice caused by sovereign immunity‘” (quoting Professor Kenneth Davis); “the time now [has] come to eliminate the sovereign immunity defense in all equitable actions for specific relief“).15
When arguing before the panel, the Government contended that, under Bowen, money awarded can only be specific relief when there is a statutory requirement that those monies be paid, or, that equitable relief can never include money unless the money sought is given pursuant to a specific statutory authorization. Before the en banc court, the Government apparently abandoned this argument for its “sum certain” theory.16 Neither theory makes sense, however, in light of the Bowen Court‘s reference to “back pay” as specific, equitable relief and the legislative history which lists “government employment” among the equitable actions for which specific relief may be granted.17 Although
Bowen refers to the Medicaid statute which Massachusetts used to assert that payments had been wrongfully withheld, the Court‘s opinion focuses on the dichotomy between substitutionary and restitutionary relief, not on statutory authorization. See, e.g., 487 U.S. at 900-01, 108 S.Ct. at 2735-36. The Court‘s reasoning in this regard appears to draw on the equitable maxim “Equity regards that as done which ought to be done.” See generally GEORGE L. CLARK, PRINCIPLES OF EQUITY § 20 (1919); 1 MELVILLE M. BIGELOW, JOSEPH STORY‘S COMMENTARIES ON EQUITY JURISPRUDENCE 68-69 (13th ed. 1886). An equity court seeks to restore the plaintiff to the position she would have been in had the defendant‘s illegal action never taken place. Cf. Jacksonville Port Auth. v. Adams, 556 F.2d 52, 56-57 (D.C. Cir. 1977) (holding that District Court may award money due under a statute even though time for disbursement had expired). Had EPA acted constitutionally, Hubbard would have received the pay in question.
Additionally, in Bowen and Maryland Department of Human Resources, the statutory entitlement was necessary to create the cause of action. The grant-in-aid statutes, and only the statutes, provided the grounds on which the plaintiffs could complain that they, in the words of section 702, had “suffer[ed] legal wrong ... or [been] adversely affected or aggrieved by agency action within the meaning of a relevant statute.”
For the foregoing reasons, we respectfully dissent.
Notes
Spagnola v. Mathis, 859 F.2d 223, 230 (D.C. Cir. 1988) (en banc) (per curiam).A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party.
In addition to the limitation on section 702, section 704 of the APA bars District Court jurisdiction over claims for which an adequate remedy in another court exists.
S.REP NO. 996, at 27 (emphasis added); accord H.R.REP. NO. 1656, at 27-28, U.S.Code Cong. & Admin.News 1976, pp. 6146, 6147. Congress had certainly “acted” in the area of back pay in federal employment, and provided relief for this “type of grievance“—although not Hubbard‘s specific grievance—by allowing some federal employees deprived of income in violation of any “law, rule, regulation, or collective bargaining agreement” to receive back pay. SeeBecause existing statutes have been enacted against the backdrop of sovereign immunity, this will probably mean that in most if not all cases where statutory remedies already exist, these remedies will be exclusive; that is no distortion, but simply an accurate reflection of the legislative intent in these particular areas.... It would be unwise to upset these specific determinations by a general provision of this sort, without considering them individually, or even knowing what they are. In the many areas where Congress has not acted, however, and when its action is not addressed to the type of grievance which the plaintiff seeks to assert, suit would be allowed.
In Wooddell v. International Bhd. of Elec. Workers, —— U.S. ——, 112 S.Ct. 494, 116 L.Ed.2d 419 (1991), the Court followed Terry to hold that the petitioner was entitled to a jury trial for his claim that the Union had violated its duty of fair representation. The petitioner sought to enjoin the Union from discriminating against him in job referrals, and sought back pay for the jobs to which the Union had failed to refer him. The Court found that the back pay petitioner sought was not properly characterized as restitutionary because it was not sought for jobs and wages that the petitioner would have been entitled to but for the Union‘s unlawful action; had the Union acted lawfully, the petitioner would have been entitled to a referral only, not to the job and its wages. Id., —— U.S. at ——, 112 S.Ct. at 497-98.
Id. at 1282-83. Giving back pay to Hubbard would return to him the “value” of the job from which he was wrongfully excluded and is thus compensatory damages, not “in kind” restitution. Cf. Edelman v. Jordan, 415 U.S. 651, 668, 94 S.Ct. 1347, 1358, 39 L.Ed.2d 662 (1974) (rejecting the description of a remedy as “equitable restitution” when the remedy was “measured in terms of a monetary loss resulting from a past breach of a legal duty on the part of ... state officials“). The majority suggests that this statement merely establishes that back pay often is awarded together with reinstatement. The Title VII cases do not see it this way, for they type back pay as relief more akin to reinstatement than to damages. Additionally, several courts have characterized back pay as specific relief. See Bowen, 487 U.S. at 893, 108 S.Ct. at 2731-32 (“an equitable action for specific relief—which may include an order providing for the reinstatement of an employee with backpay“); Franks v. Bowman Transp. Co., 424 U.S. 747, 751, 96 S.Ct. 1251, 1258, 47 L.Ed.2d 444 (1976) (“the District Court declined, however, to grant the unnamed members of classes 3 and 4 any other specific relief sought, which included an award of backpay“); Riddle v. Cerro Wire & Cable Group, Inc., 902 F.2d 918, 922 (11th Cir. 1990) (“[t]he EEOC‘s complaint sought specific relief for Riddle in the form of backpay and promotion“); Ward v. Arkansas State Police, 653 F.2d 346, 348 (8th Cir. 1981) (“[t]he consent decree ... established guidelines for back pay and other specific relief“); McClain v. Wagner Elec. Corp., 550 F.2d 1115, 1118 (8th Cir. 1977) (“the settlement ... gave no specific relief such as back pay“); United States v. N.L. Indus., Inc., 479 F.2d 354, 378 (8th Cir. 1973) (“[t]he Government requests specific relief for individual applicants, including backpay differentials“); City of Fort Smith v. Driggers, 305 Ark. 409, 808 S.W.2d 748, 753 (1991) (the “complaint sought specific relief in the form of promotion and back pay“); Eureka Teacher‘s Ass‘n v. Board of Educ., 202 Cal.App.3d 469, 247 Cal.Rptr. 790, 794 (1988) (“‘Back pay clearly is specific monetary relief incidental to the requested orders that appellant be hired and that respondents be enjoined from discriminating against him.‘“) (quoting Snipes v. City of Bakersfield, 145 Cal.App.3d 861, 193 Cal.Rptr. 760, 765 (1983)). But see General Tel. Co. v. EEOC, 446 U.S. 318, 326, 100 S.Ct. 1698, 1704, 64 L.Ed.2d 319 (1980) (“EEOC can secure specific relief, such as hiring or reinstatement, constructive seniority, or damages for backpay“). General Telephone might be distinguished because EEOC, acting on behalf of employees and the general public, is not suing for back pay owed it.“Restitution” is sometimes used in a third sense—to restore the value of what plaintiff lost.... But restitution of the value of what plaintiff lost is simply compensatory damages. Used in this sense, “restitution” loses all utility as a means of distinguishing one body of law from another. Restitution must be distinguished from compensation, either by its focus on restoration of the loss in kind or by its focus on defendant‘s gain as a measure of recovery.