Michael E. Hubbard v. Environmental Protection Agency, Michael E. Hubbard v. Administrator, Environmental Protection Agency

WALD, Before EDWARDS and Circuit FAIRCHILD,* Judges, and Senior Circuit Judge, Appeals United States Court of the Seventh Circuit.

Opinion for the Court filed Circuit Judge HARRY T. EDWARDS. Opinion concurring part dissenting part Judge filed Circuit WALD. EDWARDS, Judge: HARRY T. Circuit applied Michael but job was denied a the Environmental with (“EPA”). Agency Protection The District unlawfully found that EPA Court acted failing to hire Hubbard of his exer- because rights. First cise of The Dis- that, appropriate eq- trict ruled as Court relief, uitable Hubbard was entitled to be investigator EPA, instated as a criminal grade equal at a scale to that of 1982; however, persons hired in the trial court ruled that Hubbard could not be pay pursuant to an awarded back action under the First Amendment. The District Court also refused to consider attorney’s claim for fees under 2412(d) (1988). 28 U.S.C. Hubbard here appeals from the denial of back the trial court’s failure to rule on his re- fees; quest cross-ap- the Government peals question liability. on the agree judge We with the trial that EPA violated Hubbard’s First Amendment rights, judgment so we affirm the question District liability. remand, however, We reverse and on the judgments respect fees.

I. BACKGROUND litigation This has a dec- now consumed ade; unfortunately, disagreements be- * Sitting by designation pursuant 294(d) (1988). to 28 U.S.C. however, upon consider- investigation; great now seem parties

tween situation, of Police the MPD Chief ing the The his initiated. suit was this law when disciplinary a recommendation of rejected in the District is detailed the case tory of Accordingly, against Hubbard. action issued judgment first Court’s by MPD for sanctioned was never reviewing court opinion of this panel prior Repre- with improper any communications decision subsequent a judgment, press. or the On Dornan sentative banc, deci and two sitting en this court specifically found point, trial court the follow rendered District Court of the sions the regarding communications “Hubbard’s en case after banc of the ing a remand were not insubordinate.... investigation EPA, Hubbard review. the case after from was removed Hubbard part and in (D.C.Cir.1986),vacated aff'd broke, ultimately, nei- was publicity but the Mathis, Spagnola v. sub. nom. the demoted. It was reassigned nor ther remand, banc), (en on (D.C.Cir.1988) superiors his the judgment of considered (D.D.C. EPA, F.Supp. Hubbard act did not that Hubbard police department (D.D.C. F.Supp. 1990), modified, re- his communications inappropriately in focus, we offer case 1990). put the To F.Supp. at investigation.” the garding facts. principal of the review here a brief Dis- the a detective with In while investi- applied for an In Hubbard De- Police Metropolitan of Columbia trict newly formed Crim- the gator position with participated (“MPD”), Hubbard partment at EPA. Investigations Division inal drug Hill Capitol highly publicized in the Hubbard’s division rated personnel EPA’s drug of allegations pursuing investigation, in- He was “highly qualified.” application of Con- by Members and distribution use Beeson, Peter with an interview vited for involve- Hubbard’s staffs. gress and their director, and Division hiring the official investiga- the entire ment, apparently and Graff, investigations, chief of the William tipa from he received tion, when began chief. Both Steakley, deputy Gary Anderson’s Jack of columnist mémbers recommended that Steakley Graff Indy Badhwar. staff, Mitchell Jack however, Beeson, acted hired. Hubbard be arranged, with Following tip, Hubbard application. to Hubbard’s block staff, to use a Andersоn’s help Hubbard, Bee- with his interview Before K. Dor- Robert Representative phone in fiancee, his talked with apparently son messages. to receive as cover nan’s office report- Kiernan, Washington Post Laura to a num- eventually investigation led press con- supposed er, about drug violations. alleged ber arrests to offer Although Kiernan refused tacts. case be- in the initial arrests After the information, to have had claims Beeson any Dornan, who Representative public, came had made Hubbard feeling” “gut Select Committee was member during press improper contacts on the in- Narcotics, update requested an Although investigation. Hill Capitol then met with vestigation. Hubbard on these that he acted admitted Beeson assistant, his Mitchell congressman, not share he suspicions, did unverified investiga- outlined the Hubbard Badhwar. Steakley. As a conse- Graff or them with Repre- suspects. began to name tion and he re- was was told Hubbard quence, requested him off and Dornan cut sentative he lacked employment because jected pro- later memo, which Hubbard a written collar and in white experience requisite suspects. several vided; memo named The District investigations. corporate Dornan’s of- sent The memo was later found follows: and to Select office to fice Anderson’s prefer- had veteran’s Because published several Anderson Committee. status, required pre- Beeson ence although investigation, about columns justify document “passover” pare a any named suspects was none applicant with lower selection stories. the initial certificate on the ranking than Hubbard fi- passover document eligibles. The story, publication after Sometime Personnel the EPA submitted nally at MPD removed officials Office indicated that Hubbard was not II. The FiRST Amendment Claim requisite selected because he lacked the Pickering Education, In v. Board corporate investigative white collar or ex- 563, 574, However, perience. Hubbard had some Supreme Court held experience through training white collar employee’s that an right “exercise of his and, furthermore, and school had exten- speak public importance may issues of experience felony sive I class investi- not furnish the basis for his dismissal from gations. experience This satisfied the public employment.” evaluating chal- Vacancy criteria listed in the Announce- lenges under Pickering, the courts have (position ment. See Joint Exhibit re- four-prong utilized a test: quires conducting investigations skill Pickering cause of action has four [T]he involving major corporations, white collar First, public employee elements. crime, fraud). Moreover, several of speaking must have been on a matter of applicants the successful had less white public speech concern. If the is not of corporate experience collar or than Hub- public concern, unnecessary “it is bard. scrutinize the reasons for dis- [the] F.Supp. at 437. charge,” at least “absent the most un- Second, Later in usual circumstances.” Hubbard discovered that the court colleagues corporate MPD must with no or white “balance” thе interests the em- citizen, investigation experience ployee, collar crime in commenting upon “as pursuing been hired. After public administrative matters of interest and the inter- remedies, sued, originally bringing State, he ac- est of the employer, pro- as an Act, Privacy moting tions under the efficiency public U.S.C. servic- 552a, and the performs Constitution. Under the es it through employees.” Constitution, Third, sought eq- Hubbard employee prove both must that his uitable relief speech based on the First Amend- motivating was a substantial or Bivens-type damages. ment and discharge. After the factor in his Finally, claims, District Court government dismissed all of his employer given must be appealed Hubbard and this court opportunity prove reinstated that it would have equitable action, his but affirmed the dis- reached the same decision even absent damages missal of his protected action. Hubbard v. conduct. EPA, 11-12; 809 F.2d at Spagnola v. inquiries questions first two are

Mathis, 859 F.2d at 226-30. law for the court to resolve. The latter questions two are ordinarily of fact left Following remand and trial on the First jury. to the claim, the District Court found that EPA Ford, (D.C.Cir. had refused to hire Hubbard Hall v. 1988) (citations violation of his rights. omitted). First Amendment EPA, F.Supp. Hubbard EPA seriously does not contest the (D.D.C.1990). In opinion its initial on re- first prongs and third of the test. The mand, the District Court ruled that Hub- found, District agree, and we bard should be instated and awarded back speech Hubbard’s pub touched a matter of pay, attorneys’ but that no fees would be “Certainly, allegation lic concern. awarded. subsequent Id. at 440. In a Congress members of illegal use narcotics opinion, memorandum F.Supp. public is a matter оf F.Supp. concern.” 735 (D.D.C.1990), the District Court affirmed Additionally, at the time he com liability its ruling but reversed its award of Representative Doman, municated with pay. any dispute was not involved appeal challenges Hubbard’s regarding the denial job. Often, his speech where attorneys’ fees. EPA has concern, been found not public to be of cross appeals, contending content, that the form, District “the and context” have re Court erred in finding that it violated Hub- personal vealed it to employment address speech bard’s rights. grievances. Myers, Connick v. 1684, 1690-91, case, In this the District 138, 147-48, S.Ct. at 1374-75. Court struck balance favor of Hub- had no 76 L.Ed.2d bard. in this personal grievances case. such sug- testimony points to some government

Government in this failed to case [T]he frustrated with Hubbard, that Hubbard was gesting demonstrate virtue investigation, Trial on the pace MPD’s slow prior press, his contacts could (“Tr.”) I, reprinted Transcript vol. perform job investiga- of criminal (“J.A.”) 140, Appendix but in Joint successfully. tor with the EPA Nor did or de- surely does not contradict otherwise government attempt that it to show disputed the conclusion that the discipline tract from or morale in had an interest In- public a matter of concern. workplace irrepara- event was which would be motivation, deed, person- unless bly compromised by presence. Hubbard’s Hubbard’s speech al, itself is irrelevant to whether (citations omitted). F.Supp. public concern.1 is a matter of The EPA that the District Court asserts wrong struck the balance erred effectively EPA concedes showing discipline harm to requiring a speech was a “substantial” morale, therеby ignoring impact not to “motivating” factor in the decision office, (2) efficiency discounting the of the much at Beeson admitted as hire him. special should the deference that be accord- I, 170-75, trial, reprinted in Tr. vol. at e.g., (3) im- agencies, and ed law enforcement specifi District Court and the J.A. posing irreparable harm standard. We belief Hub cally that Beeson’s that found committed no disagree. The District Court contacts, corpo of press not lack bard had and, judgment on the legal error in its experience, investigation was rate crime hand, fully justified the court record at was not hire Hub reason” Beeson did “the real reaching in result that it did. the F.Supp. bard. investigation for MPD Hubbard’s light foregoing, we find that In of the tips received from the began as a of result “speaking on a matter Hubbard was through continued Anderson staffers and concern,” “speech a and that his public Representative in Dor- Hubbard’s cover in EPA’s motivating factor” substantial or communi did not nan’s office. Hubbard now to not to hire him. We turn decision and asked Dornan’s cate outside this circle prongs and fourth the second consider memo keep the written “confiden office to test, principal the foci of Pickering the Thus, I, this at 124-25. case tial.” Tr. vol. cross-appeal. EPA’s in a which present does not a situation employee jeopardized has government Pickering A. Balance calling press operation by a con employer’s leaking indiscriminately sensi ference or prong Pickering, the second Under in this case Nor does tive information. “is to arrive at a balance task court’s disloyal employee who acted with [employee], volve an interests of the between the at odds with ty in a otherwise citizen, upon or manner commenting matters employer. State, interests of his legitimate public and the interest concern MPD; by he disciplined efficiency of Hubbard was promoting employer, as an engaged in to have insubor through its was not found public performs it services conduct; wrongful or otherwise 88 dinate employees.” Pickering, 391 U.S. at ability compromise Smithsonian’s to meet asserts that moti- 1. The Government Hubbard’s needs. The court found that those clients’ case identical Foster makes this vation Ripley, proper stay (D.C.Cir.1981), employee within channels failed where the Foster, making complaint he known and that against employee. In court found his reorga- his own interests as an em- acted “to advance section head of the Smithsonian faced if ployee, would be no different his interests nization that would have cost him much government.” employer employee not the jurisdiction. his were outside induced Here, is no evidence Hubbard pressure there board Smithsonian clients way his own benefit. reorganization acted in telling would the clients that of unauthorized drug tain amount of risk Capitol Hill compromise the he did not appears to the premature disclosure. It F.Supp. at 439. investigation. investiga- authorizing court, are findings by the trial These tion, Department Metropolitan Police erroneous, make it clear that clearly the benefits of judgment made a impair efficien- nothing to did outweighed this cooperation in this cаse nothing operation, cy of the MPD circumstances, light risk. of these reasonably that he indicated at MPD he did ini- to the Court that Hubbard’s is clear efficiency adversely affect would Repre- press tial contacts with operation. EPA’s authorized, and Dornan were sentative to the fac- no deference if we owe Even protection. deserving of first amendment District Court and en- findings of the tual F.Supp. at 656. review, find we would still gage in novo de alleged Furthermore, the EPA’s we find report in Hubbard’s favor.2 efficiency and confiden- concern over the clearly served the Dornan Representative pretextual. investigations to be tiality of its informing policymaker public interest after was not offered until This rationale suspected drug policy of responsible for hire Hubbard. Beeson had decided not to among Members and distribution use Hubbard, Bee- passed When he first over EPA intro- and their staffs. Congress “gut nothing acted on more than son Hill Capitol no evidence that duced he feeling” assertedly developed when he any way. investigation suffered drug fiancee, his name to mentioned Hubbard’s sug- documentary evidence Although the I, reprint- Tr. Laura Kiernan. vol. that Members gests Hubbard’s claims talking Kier- J.A. 159. After ed in Congress nan, rejected involved have been apparently were Beeson press public supposed contacts no names were made on the basis of exaggerated, knowing anything about the con- without those office until by Anderson’s after those contacts. Beeson testified text of grand presented to the federal names were on more “press[ed] that he Kiernan] [Laura jury the House Ethics Committee. See and information she one occasion for than H.R.Rep. Cong., 98th 1st Sess. 390 No. “re- Hubbard],” she might have but [on column), (1983)(reprinting a Jack Anderson basically it clear give it and made fused to A. In as Defendant’s Exhibit introduced not [any information she was that had] fact, Special appointed by the the Counsel hearsay.” Tr. it firsthand but rather was Hub- House Ethics Committee found that I, 133. None- reprinted at in J.A. vol. the names of Members did not leak bard theless, he Beeson confirmed that Finally, as noted Anderson. at 14. determination, on basi- had made a based above, MPD Chief of Police reviewed the my my gut feeling from interac- cally specifically to take case and declined the Laura, together with an ab- tions with against any disciplinary action Hubbard. corporate of white collar crime and sence hardly surprising that Hubbard suf- It is experience, Mr. Hubbard was that MPD; trial discipline at as the fered no hired; pass him going that I would to be found, contacts correctly Hubbard’s court over, doc- passover drafted a we And, pass- Dornan were authorized. the purpose. with ument for that on his lack of over document was based Representative States was United [I]t corporate defen- white collar crime K. Dornan who authorized Robert experience. dant telephone number use of his office 151-52, I, reprinted in J.A. 136- Tr. vol. for undercover front Hubbard’s 37. Capitol Conducting an in- work on Hill. admitted,

vestigation persons primary the aid of out- rea- with Beeson “the As in- was the passed a cer- son” he over Hubbard police organization side the cаrries judg- (calling "independent perform constitutional Although for 2. it is clear that we must Here, novo, case"). balancing de whether or not we defer because ment on the facts of findings the factual of the District Court agree Court under either with the District Connick, balancing conduct that is unclear. See formula, we need not resolve the issue. n. 10 U.S. at 150 n. rejected Hubbard’s press, Beeson fiancee. with from his gleaned he formation employment. for 149- bid in J.A. I, reprinted vol. Tr. i.e., reason,” Hubbard’s The “other Govern- weakness The obvious experi- crime collar real con- alleged lack of white there was no case is that ment’s point, this latter ence, id., On rejection sham. was a to Beeson’s tent contacts; thus, specifically press found supposed trial court basis employment an adverse are left with not to we Beeson decided real reason nothing than more based on action that Hub- his belief was hire Hubbard re- prospective employee with speech of a press leaks responsible bard was concern. public matter of spect to a Hill in- Capitol compromised in its this hole effort to avoid apparent is troubled The Court vestigation. that law case, now asserts the Government were not at EPA officials the fact that to some- agencies are entitled enforcement reasons their true with straightforward presump- irrebuttable thing approaching an at- Their Hubbard. passing over efficiency compromised their truth, the as- tempts to conceal publicly. employees speak their whenever inadequate basis patently of a sertion position baseless. This Hubbard, the Court’s buttress rejecting police past, in the regarding As we have held EPA’s actions conclusion that First completely his “not shed constitution- does were officer application em accept[s] he rights when suspect. ally ‘Policemen, public servant. as a ployment F.Supp. at not rele lawyers, are teachers and like acted to Beeson It was after of consti version to a watered-down gated he had hiring of Hubbard block ” Washington, rights.’ Tygrett v. tutional involvement discuss Hubbard’s occasion to (D.C.Cir.1974) (quoting investigation drug Hill Capitol in the 493, 500, Jersey, 385 v. New Garrity Hopkins Hopkins. Detective Dave MPD (1967)). had communicat- Beeson told have held decisions recognize that some We about Representative Dornan ed with pro Amendment does First that “[t]he did Beeson investigation. But at time enforce in the law personal behavior tect whom, said, exactly what find out the same extent context to ment gained no Although he to what effect. con of Governmental in other areas does Beeson Hopkins, information concrete Carson, 754 F.2d cern,” v. McMullen Hop- with that his talk nonetheless claimed accepting Cir.1985). (11th Even sign of additional “provided an [Hub- kins however, not follow true, it does proper sensitivity to the lack of bard’s] consequences the individualized that in an on- information handling of sensitive ignored. See may be speech officer’s I, at Tr. vol. investigation.” going (“[Discharge at 849-50 543 F.2d Tygrett, 142. cross-examina- J.A. On reprinted in by specific finding a justified [can] his however, tion, Beeson reiterated adversely question the statements well was formed Hubbard not to hire view police officer efficiency as a his affected Hopkins: with he talked before police a Department as efficiency of the it, not decision your Q. As I added); understand v. Ca force.”) (emphasis McGehee on the (conduct was made hire Mike Hubbard (D.C.Cir.1983) F.2d 1137 sey, 718 weeks be- least August, at two the CIA’s 19th of specific review ing a case Hopkins; with Mr. to censor your regulations, conversation decision, pursuant fore writings). agent’s right? of a former parts was point my decision A. Yes. At in which Furthermore, this is not case talking feelings with gut my based vio employee employer claims Laura prohibiting [Kiernan]. agency “regulation” lated some See, e.g., Jur 170-71, J.A. 155- release information. I, reprinted in Tr. vol. 868, 883- Cty., 745 F.2d “gut feel- v. Thus, solely gensen on his based Fairfax authorized Cir.1984). was (4th contacts unverified ings” about Hubbard’s he reason- “tolerate action which Dornan; quired to Congressman through to work office, disrupt un- would ably believed in no engaged act he found that trial court authority, destroy close work- dermine in- to the respect with of insubordination 154, 103 relationships,” 461 U.S. at ing undisputed that he it is vestigation; and added); and an (emphasis at 1694 im- by MPD disciplined was never to unfold” not “allow events employer need investigation.3 during the proper conduct might harm determining whether actual against the Thus, “regulation” if a even 1692. None- occur, 103 S.Ct. at id. at information could obviate release of “unadorned theless, clear is un- assessment for an individualized need speech impact of to the speculation as in this is no evidence Pickering, there der enterprise will not government’s аny such invoked that MPD to indicate case In this Hall, suffice.” it. breached or that Hubbard regulation job solely on case, denied was specula- that its decision argues Beeson’s “unadorned EPA also basis press con- supposed because it deference tion” about Hubbard’s increased entitled to decision, tacts. hiring faced with Merely because decision. disciplinary any way to show EPA failed how firing, than hiring rather employer Dornan, Mitch- Hubbard's discussions ac ever, justify unconstitutional does not efficien- compromised his and Badhwar ell question that efficiency no serious With the can be of the MPD. cy tion. There or the Court, that “the se- interests conclude property District without even individuals EPA the decision lecting made official discriminated cannot be jobs their impermissible on an hire Hubbard not to See, speech. of their against on the basis first of his exercise basis—Hubbard’s McPherson, 483 U.S. e.g., Rankin speech,” free right of amendment 2891, 2896-97, 97 government that “the F.Supp. at em probationary that a (holding that Hub- to demonstrate in this case failed speech rea fired for not be ployee may bard, prior contacts with of his virtue sons); Healthy Board Educ. Mount job perform press, could 274, 283-84, 97 S.Ct. Doyle, 429 U.S. investigator EPA success- with the criminal (1977) (same); Frank 50 L.Ed.2d F.Supp. at 438. fully.” 735 Atkins, lin v. foregoing, we all of the On basis case, Cir.1977) (In the court Pickering prong that, under the second conclude give reason Regents need wrote: “[T]he clearly balance of interests Pickering, hire, fact need have and in for a refusal weigh in of Hubbard. favor However, equally it is at all. no reason refuse to hire they could not obvious that De- Have Made the Same B. EPA Would rea constitutionally impermissible for a Speech? cision Absent omitted), denied, (citations son.”) cert. prong of Picker the fourth Under L.Ed.2d 83 U.S. 98 S.Ct. oppor given the employer must be ing, the (1978). have reached prove that it would tunity to decisions, employers making hiring In protect even absent the same decision inferences of free to draw “reasonable are U.S. at Healthy, 429 ed conduct. Mt. employee's [prospective] harm from Hall, 576; F.2d at 258. working rela- position, his and his speech, fact, Hall, 856 F.2d at question of This ‍​​‌​‌‌‌​‌​‌​​‌​​​​‌‌‌‌​​‌​​​‌‌​​​‌‌‌‌‌​‌‌​​​‌​‌​‍is a Ford, superior.” his Hall v. tionship with findings and, such, the trial court’s Indeed, assessing pro- F.2d in aside unless may not be set point on this employer need spective employees, an v. Bes “clearly See erroneous.” Anderson showing 573-81, harm or a prove make actual City, U.S. semer (1985); in to survive a “irreparable injury” L.Ed.2d Pull order Swint, U.S. challenge Pickering. As Court under man-Standard (1982). Dis- 72 L.Ed.2d 66 Connick, re- S.Ct. employer is not in said drug court, handling Capitol Hill in his has made no tion investigation. appeal its to this EPA In regula- MPD Hubbard violated some claim that 2412(b) section because under recover fees Beeson’s beliefs that found Court trict analogous to an action was not his claim speech were but-for Hubbard’s about rise to a fee award claim give that would have to hire. We refusal of EPA’s cause F.Supp. at 1988. 735 42 U.S.C. under finding. to overturn basis reconsideration, as- sought 440. Hubbard lack of Hubbard’s EPA asserts sec- serting his claim fall under would investiga- crime corporate collar and white attorneys’ 2412(d), awards fees tion which unqualified. Hubbard experience made (other than cases any civil action testimony demonstrated But, the trial tort), including proceedings sounding experience crime corporate collar white action, agency judicial for review experi- mandatory qualification; anot was brought by against United States felonies, I investigating class ence having jurisdiction of court had, adequate substitute. was action, the court finds that unless (Testimony I, of William at 63 vol. Tr. the United States was sub- position of white candidates without Steakley). Other special stantially justified or that circum- experience were crime corporate collar or unjust. make an award stances con- The District Court at 86. hired. 2412(d)(1)(A) The Dis- 28 U.S.C. § cluded: reconsid- for trict Court denied motion quali- that Hubbard’s reflects The record eration. those exceeded to or equal fications were liability appeal on the light In of EPA’s ultimately candidates of lower-ranked issue, in the District there is no harm done positions. Hubbard hired for the request for to consider Court’s failure recom- position despite the not offered 2412(d). Melko under section See fees Graff, Steakley, shared mendation — Sullivan, —, 111 S.Ct. nyan v. light of this evi- In that he be hired. (1991)(time that were it dence, concludes the Court judg bringing petition begins when EAJA regarding the speech Hubbard’s appealable). final and not ment is have investigation, he would Capitol Hill however, error, inwas District Court investigator as a criminal hired been under no issue that there was suggesting EPA. “pre 2412(d). clearly is section F.Supp. at 439. law, case see party” under relevant vailing sum, on this be no doubt there can Eckerhart, Hensley v. was correct District record (holding violated finding that EPA Hubbard’s party is still prevailing partially rights when it refused First if he be even party), and would prevailing him. hire instatement, as entitled been Ra thought. District Court Attorneys’ III. Fees FERC, 891 v.Co. Transmission ton Gas the District Court’s Because we affirm re (D.C.Cir.1989). On 323, 327-28 determination, to de- proceed liability entertain should District Court mand the attor- may recover whether Hubbard cide for fees. petition In this pay or both. neys’ fees or back Pay section, District Court that the we conclude IV. for Back The Claim petition should entertain remand First heard Hubbard’s The Court District attorneys’ fees. general its to pursuant action all to decide findings jurisdiction of fact proposed his question In federal laws, Constitution, opportunity “arising to under the law, requested Hubbard cases States.” attorneys’ fees under of the United petition for or treaties a submit (1988). jurisdictional to “This Equal Access part of the U.S.C. relevant § authority to only not (“EAJA”), grant provides 28 U.S.C. Act Justice stated action is cause of a v. decide whether Relying Church (1988). on Unification he has been plaintiff’s claim that by Dis a (D.C.Cir.1985),the INS, F.2d Constitution, by a violation injured could held Court trict challenge to a disallowance among sidered authority to choose also but by the Secre- made disbursements Medicaid to vindi- in order remedies judicial available The Human Services. tary of Health and Lucas, rights.” Bush constitutional cate waiver of section 702’s held that Court 103 S.Ct. 462 U.S. monetary to immunity extended sovereign omitted). (citation L.Ed.2d as be characterized could which awards eq full entitled to clearly is cit- specifically The Court relief. equitable panel and en prior relief. Both the uitable pay” to with back ed “reinstatement ruling decisions, out Bivens- while banc relief, as dis- equitable a form of illustrate grant court could damages, held that the money damages. from tinguished Hubbard, at 11- 809 F.2d equitable relief. dis- recognized the long cases have Our Eq 229-30. 12; Spagnola, at law for an action between tinction is States the United against relief uitable provide to damages are intended —which Proce the Administrative by authorized compensation a victim (1988),4 (“APA”), 5 U.S.C. § Act dure repu- or person, property, to injury his immunity for relief which waives spe- action for equitable tation—and Hence, Hub damages. money than other an order include relief—which cific dis pay, as back ability to recover bard’s of an for the reinstatement providing Bivens-dam&ges, turns tinct from for “the re- pay, or employee with back properly charac pay is not back whether or monies, or specific property covery of We relief. believe equitable terized as land, either injunction or ejectment it is.5 of- restraining the defendant directing or actions.” ficer’s Equitable Pay as A. Back Relief (quot at 2731-32 487 U.S. na- equitable recognized the have Courts Foreign & Com v. Domestic ing Larson in number of pay awards ture back S.Ct. Corp., 337 merce these deci- Generally, different contexts. (1949)). Al 93 L.Ed. constitutes pay that back sions hold pay” is of to “back though the reference have plaintiff would very thing Bowen, example in it by way of fered illegal ac- the defendant’s received but-for important citation because critically is a eq- thus seen reflect tion; pay is back on the dis focuses Bowen dеcision entire decisions Some restitution. uitable equity in money awarded between tinction to an pay award as incidental justify a back “money damages.” relief and as ra- On either order. equitable instatement hard- Bowen statement Court’s support- authority tionale, strong there concept of back surprising, for the ly for back relief claim ing Hubbard’s by recognized has been equitable relief this case. contexts as in other Supreme Court Moody, Paper v. Massachu point is Bowen A well. Albemarle Co. case setts, 422 U.S. character- Supreme example, the Court (1988), in equitable Title YII pay as an back under ized expressly described Court Congress had noting that Although con- relief. award. U.S.C. 702 part: provides in 4. That section wrong legal suffering because person A not advance Although does Government action, ag- adversely or affected agency or note that our important to point, we think meaning agency within grieved action give rise does decision award judicial entitled statute is of a relevant Court. See jurisdiction Claims in the exclusive An court action review thereof. 882, 886-87 Connolly, States v. United seeking other than United States (Claims banc) (Fed.Cir.1983) (en Court did not stating agency or that an damages claim because First jurisdiction Tucker have Amendment, Act failed employee acted thereof or an officer or terms, not mandate does its capacity under color of an official to act in legal denied, U.S. money), 465 payment cert. of re- authority nor be dismissed shall not (1984); 1414, Clark v. 740 L.Ed.2d S.Ct. 79 ground it is 104 denied the that lief against be therein 89, n. 103 31 Congress, 750 F.2d Library United that the United оr the States of (same). (D.C.Cir.1984) party. indispensable an States is

463 Title VIII for race- damages statutory under that among several included back housing legal in na- were of denials VII vio- based redress Title to available remedies jury trial. awarded a and must be judicial ture the lations, observed the Court contrast, cited back the Court the equitable For pay “is back to award discretion remedy under Title VII. “historic the nature,” with consistent wages.” not, not, go Id. far as lost and do so equity to award need of We power fact, In the Court dam- 416, of say at to award 95 S.Ct. to statutory necessarily “legal” reference relief. be ages must characterized the (1988), 2000e-5(g) with Title VII comparison U.S.C. of Title VIII pay, see 42 A 1964, in- to courts’ Rights reference Act of where congressional of the Civil any new grant jury of authority, appeals not as a have held the courts of herent in an action for rein- authority. required trial is not remedial instructive, al- backpay, is and statement mechani- “[ejquity eschews It is true that express no view though we of course on flexibili- depends cal rules ... [and] In context. issue in that jury trial Congress invokes But when ty.” appeals of cases the courts Title VII tran- to further conscience Chancellor’s inte- backpay as an have characterized is re- purposes, what legislative scendent remedy, form equitable part of gral an application principled quired is the of restitution. purposes with those consistent standards like varies “equity not (citations and 196-97, [which] at 1009-10 94 S.Ct. foot.” Chancellor’s omitted). Similarly, in footnote Chauf Helpers, Local No. Teamsters feurs, 1339, 558, 110 S.Ct. 494 U.S. Terry, v. оf Title VII 391 purpose It is also the (1990), reiterated the Court L.Ed.2d 519 suffered injuries persons whole make sought “backpay dis- it has noted employment unlawful on account Title VII would very employer under by the This is shown crimination. restitutionary in nature.” to arm Congress generally took care fact that v. Naks For it also Lehman powers. at 1349.6 See equitable full courts with 2698, 166-67, 101 S.Ct. hian, to “se- purpose equity 453 U.S. is the historic (1981); 2704-05, Great justice.” L.Ed.2d complete cur[e] Assn. Savings & Loan Federal American 417-18, at 2371-72 95 S.Ct. 422 U.S. 366, 375, 99 S.Ct. Novotny, v. Armbrecht, 327 U.S. Holmberg v. (quoting (1979); Loril 2345, 2350, L.Ed. 743 392, 396, 66 S.Ct. Pons, 434 U.S. v. lard (10 Pet.) Swann, 35 U.S. (1946); Brown v. (1836)); see also 9 L.Ed. (1971) (“The ad provisions have Cong.Rec. Appeals which Those Courts give are intended been unanimous this subsection have the issue dressed exercising their under courts wide discretion for back holding an action most com- fashion the claim powers to equitable joined VII, when with at least Title (statement of Sena- possible.”) joined relief plete reinstatement Williams, introducing the Conference gives rise claim, tor damages amendments). Title VII Report to the 1972 v. Roche right. Ramos jury trial (1st Cir. Inc., Products, cases, where In Seventh F.2d Corp., 563 1991); v. Eaton Walton on whether trial turns right jury to a Babcock & (3d Cir.1977); v. Cox legal equitable, sought Cir.1972); (4th Co., F.2d equitable Wilcox to note the has continued Express, Highway Georgia pay awards. Johnson VII nature Title Cir.1969); 1122, 1125 Inc., 417 F.2d Loether, Curtis 154, 156 Co., v. Sun held Moore Oil the Court 39 L.Ed.2d been entitled have plaintiffs would damages which the employees’ Terry suit involved no breach of been there duty from the Union against for breach of their Union however, lost earn- duty representation; employees’ of fair Although representation. fair compensation ings legitimаte measure were a damages, the earnings measure of lost were by plaintiffs injuries eq- suffered legal, due for viewed as relief was nonetheless wrongdoing. very thing virtue of the Union’s earnings were not Lost uitable. 464 the idea that a must autho-

(6th Cir.1980); Corp., refuted statute Grayson v. Wickes (7th Cir.1979); 1194, pay rize a back award. “The court below Har 607 F.2d Co., the touchstone for decision the Broadcasting 583 F.2d took as May mon v. curiam); (8th Cir.1978) principle upheld jurisdiction that to be (per Slack v. 1091, (9th Cir.1975); expressly con- Havens, here contested ‘must be F.2d 1404, Congress or neces- by 923 F.2d ferred an act of Corp., K Snider v. Circle Cir.1991); sarily implied congressional from a enact- (10th Lincoln v. Board 928, (11th Cir.), In mistaken.” ment.’ this' the court was 697 F.2d cert. Regents, 290, 826, 97, Quoting denied, 78 361 U.S. at 80 S.Ct. at 334. 464 U.S. Co., Holding This line of cases also from Porter v. Warner L.Ed.2d 102 90 L.Ed. possible contention that Title U.S. answers the (1946), eq- statute, where the Court used its awards, authorized VII because jurisdiction the refund of pay uitable to force than back are somehow different rents extracted in violation of wartime question does awards. The constitutional controls, price the Court continued: “Un- Congress has created change because statute, provided by less otherwise all the Curtis, right. 415 U.S. at equitable powers District inherent of the S.Ct. at 1008. proper com- Court are available for the confronting the Although not Seventh plete jurisdiction.” exercise of that directly, this Circuit question at 334. U.S. S.Ct. proposition that in a Title has endorsed the Implied private rights of action under the not in the nature of pay VII action “back prohibition Title of discrimination VI damages, integral rather an a claim for but against handicapped provide yet anoth statutory equitable remedy.” part of the Supreme er context in which the Court has Hotel, 503 F.2d Evans v. Sheraton Park recognized equitable nature of back (D.C.Cir.1974)(quoting 177, 186 Johnson v. pay Corp. awards. Rail See Consolidated Georgia Highway Express, 417 F.2d at 624, 104 1248; Darrone, S.Ct. 1125).7 (1984). Darrone, In the Court Supreme Another area in which the question faced as a threshold matter the recognized equitable nature Court has implied right action whether or not the pay is in actions under the back awards plaintiff’s survived the death. The Court Fair Labor Standards Act. Mitchell v. held that it did: Inc., Jewelry, Robert DeMario determining the extent to which Without 4 L.Ed.2d 323 S.Ct. money damages are under available equitable juris Court held that courts had 794], think it clear 504 U.S.C. § [29 § pay. diction to back The Court first award plaintiff who al- 504 authorizes in ques characterized the action bring leges intentional discrimination tion, Secretary an action Labor to backpay. action for equitable 15(a)(3) enjoin violations of section 630, 104 S.Ct. at 1252. Id. at Act, 215(a)(3), equitable as an 29 ‍​​‌​‌‌‌​‌​‌​​‌​​​​‌‌‌‌​​‌​​​‌‌​​​‌‌‌‌‌​‌‌​​​‌​‌​‍U.S.C. § areas, foregoing action. Id. at 80 S.Ct. at 335. The In addition to equitable equitable appeals Court then held it within a court’s have authorized courts jurisdiction protect in a number of other to award back awards back See, rights e.g., created the Act. Id. at 292- Bertot v. School Dist. No. cases. (10th Cir.1979) (en Notably, at 335-36. reme FLSA, banc) VII, (equitable pay remedy unlike Title dial section of available cases); Pickering McKinley City at the time contained no reference either general. Eloy, 705 F.2d 1116 n. 3 Cir. (1958) (District 1983) (same); Roadway Express, See 29 U.S.C. 217 Courts Cline v. shown, Inc., (4th Cir.1982) restrain “for cause viola 15”). expressly (recognizing equitable tions of section The Court nature of back course, question merely 7. Of the Seventh Amendment sions recognized backpay to demonstrate that courts have way equitable remedy. in no before us now. We note these deci- as an

465 specific restitution. See Restatement in Em tutes Age Discrimination under award (1937) (equity awards 4 Check of v. Deluxe Act); Dickerson Restitution ployment taken). Although such thing (8th specific Cir. 281 the Inc., Printers, 703 F.2d does money, that alone involves award Hampton, City (same); Troy 1983) v. of Dan B. equity. See Cir.) (back pay it outside (4th take not 1000, 1002 F.2d 756 Act Rights Dobbs, Reemployment of the Law Remedies on Veteran’s Handbook under award 864, 106 a (1973) (“[ojccasionally denied, 474 U.S. 135 cert. equitable), is (1985); remedy”), v. specie quoted Skeets also a 151 88 L.Ed.2d is S.Ct. 895, 108 (8th Massachusetts, Cir. S.Ct. 487 U.S. Johnson, 805 F.2d v. in pay for back (awarding equitable 1986) violation termination terim between resti- cannot be pay arguing In that back hearing), required and the process due makes dissent, opinion, tution, our the (8th 1213 grounds, on other rev’d restitu- First, it assumes errors. two 639 Draper, banc); v. Cir.1987)(en McGhee unjust enrich- only derive from can tion Cir.1981)(same); Gur (10th 639, 646 F.2d however, enrichment, de- Unjust ment. 1115, 1122 Costanzo, F.2d 626 v. mankin field. half the fines pay back (awarding equitable Cir.1980) (3d in at “restitution” Lawyers use the word victim 42 U.S.C. § in action under means “Restitution” senses. least two blindness), basis the of discrimination by un- on and measured recovery based S.Ct. denied, 450 U.S. cert. restora- It means just enrichment. Coun v. (1981); McFerren 67 L.Ed.2d Both thing. specific a in kind of 199, 203-04 Educ., 455 F.2d ty Board of complete defini- part of usages are jury trial no was Cir.) (holding there (6th [George] Palmer [au- tion of restitution. reinstatement court ordered right where leading rеstitution treatise] the thor of deseg after fired to teachers pay and back Restitution ] and the Restatement [o/ case, back order; in discrimination regation ways.... word both use the denied, 407 U.S. equitable), cert. pay is Signifi- Scope and The Laycock, Douglas (1972); 92 S.Ct. Restitution, Castro-Davila, 865 cance Tex.L.Rev. Santiago-Negron v. omitted). It is in the (footnotes Cir.1989) (in patronage (1st F.2d that Dobbs’ statement restoration award, joined if not sense case, pay back hiring remedy is best specie money can be claim, equitable).8 damages is with miscon- Second, the dissent understood. aside, think precedents These stating that By “thing taken.” ceives request pay consti- back case the time “compensates [Hub- pay back Terry, In remedy. tutes job,” the off the kept wrongfully was bard] ways two considered Supreme Court thing taken conceived has dissent might be for back action plaintiffs’ analogy to By right to work. solely as if it restitutionary or it was equitable: if action, the dissent’s performance specific in- with intertwined to or incidental was contains contract employment hypothetical Both at 1348. junctive relief. work shall only one term —that was here. Hubbard apply factors these contract, although Such EPA. goes pay that job and denied consideration, lack not void possibly and back instatement An award it. have party would either surely not what thing precise gives Hubbard surely what imagined and consti- and therefore entitled he was damages. legal sought back that the the court case where one have identified 8. We pay or lost (“We back damages. We conclude legal at 1142 pay as treated has believe, inherently na in the however, present the are wage it does determinations Eighth damages.”). cases above. Circuit in the The legal here or reflected ture of situation Co., case, F.2d Cir.) however. Novack Investment questioned Sester In to have seems (8th Cir.), (8th modified, F.2d 926 Parkman, F.2d Brewer denied, banc), (en cert. modified, F.2d 860 1990), vacated Cir. (8th Eighth Circuit Brewer, plain banc). Cir.1991) (en jury trial plaintiff was entitled that the held reinstate pay incidental to sought back tiff discrimination reverse U.S.C. 1981 his 42 award as characterized the court ment and sought dam plaintiff The suit. equitable. 918 found court not reinstatement. ages, but relief could uncon- Aidnot mean that EPA’s but-for would have received “thing taken” 487 U.S. at be awarded. actions. stitutional above, position and As noted the Court must have been at 2730-31. both pay does not eliminate as an pay. interpretation equitable used an award of back Our damages. compensatory concept permit of example of the relief that would be Here, damages for Bowen, been they might have section 702.9 Since two ted under for retrain- stigmatic injury, incurred stated, dicta, costs one in courts have albeit relocation, consequential or other ing or pay would fall within an award of back restitutionary Simply injuries. because States, 888 v. section 702. Ulmet United compensatory primary equals the measure Cir.1989) 1028, (4th (finding F.2d its charac- it to lose does not cause element jurisdiction in the district court to award Laycock, supra, at restitution. See ter as sanctioning decision pay, although its back 1285-86. Court); DeVargas v. defer to the Claims Co., seeks would 911 Hanger-Silas The that Hubbard Mason Mason & an in- compensate 1377, (10th Cir.1990)(dicta), for cert. not be awarded F.2d 1381 — right, in intangible as fringement —, 799, of an denied, 111 112 U.S. Rather, it is intertwined actions. (1991); Bivens also Gleason v. L.Ed.2d 860 see from, with, directly an award of and flows 1044, (11th Malcom, 1048 Cir. 718 F.2d only grant- that can be instatement —relief 1983)(in dam rejecting a First Amendment equity. in ed a court claim, “As a federal ages the court wrote: equitable sought she employee, could have Immunity Sovereign B. Waiver of relief, i.e., pur pay, and back reinstatement pay award to that a back Our conclusion Administrative Procedure suant to the equitable relief constitute Hubbard would States, Act”); F.2d 938 Nixon v. United any question regarding largely disposes of J., (D.C.Cir.1991)(Edwards, 239, 251 n. 4 immunity. 702 of the Section dissenting part) concurring part immunity for all suits APA waives (“Moreover, Supreme in the wake of the eq- specific think an seeking relief we Bowen, appear it decision would Court’s pay clearly qualifies. uitable award back sought pay in had Nixon back that even action, still not be one this his suit would in Bowen Supreme Court’s decision meaning of ‘money damages’ within the for clear that section makes v. Massachusetts 702.”).10 money “damages” 5 U.S.C. proviso excluding 702’s Inc., 354, Indus., merely 378 suggests v. statement ed States N.L. (8th The dissent this 1973) ("The requests spe pay Government often is awarded to Cir. establishes that back including applicants, gether cases The Title VII cific relief for individual with reinstatement. differentials”); they type pay City way, backpay Fort Smith v. back do not see this 748, Driggers, than to dam 753 relief more akin to reinstatement 305 Ark. 808 S.W.2d Additionally, (1991) (the sought specific ages. "complaint courts have charac relief in several Bowen, pay specific pay’’); promotion relief. See terized back form of and back Eureka (“an Educ., equitable U.S. 108 S.Ct. at 2731 202 Cal. Ass'n v. Board Teacher’s specific include an Cal.Rptr. action for relief—which App.3d providing (“‘Back reinstatement of an em clearly specific order for the pay relief pay”); ployee Franks v. Bowman appellant with back requested incidental to the orders 747, 751, Co., Transp. U.S. enjoined respondents from be hired and (1976) ("the District Court him.”’) 47 L.Ed.2d discriminating against (quoting Snipes declined, however, grant mem the unnamed Bakersfield, Cal.App.3d City v. specific other classes 3 and 4 (1983)). bers of sought, Cal.Rptr. Tele But see General backpay”); an award of 318, 326, which included EEOC, phone Co. Inc., Group, Wire & Cable Riddle v. Cerro (1980) ("EEOC can Cir.1990) ("The (11th EEOC’scom F.2d relief, hiring specific or reinstate secure such as sought specific in the plaint relief for Riddle ment, damages seniority, constructive promotion.”); backpay Ward v. form of might backpay”). Telephone General be distin Police, F.2d State Arkansas EEOC, guished acting on behalf of em because 1981) ("The decree ... established Cir. consent general public, suing ployees and the guidelines specific and other re for back owed it. lief’); Wagner Corp., Elec. McClain that, Bowen, (8th Cir.1977) ("the recognize several 10. We before settlement fall pay”); that back awards do not gave specific as back Unit courts found relief such (em en, 108 S.Ct. at illus 487 as an If Bowen’s use of added). dissent, distinguish persuasive, phasis sufficiently is not tration ing relief and com between reasoning decision think relief, glоsses sec over statement finding pay is within pels a that back terms, Mary committees. Both Bowen and By its section both 702’s waiver. Dept, applied re sovereign immunity for all Human Resources land 702 waives “money damages.” The this statement to a list actions contem lief other than plated by the committee which included not heavily on this circuit’s Court relied grant-in-aid programs,” “Federal but Dept. Re Maryland Human decision “agricultural regulations, governmen Health & Human Dept. v. sources investigations, postal- (D.C.Cir.1985), employment, con tax Servs., 1441 to tal 763 F.2d matters, legis administration of it did not rate labor that term and held that strue activities, lation, Money giv control of monetary relief. subversive encompass all [and] H.R.Rep. drug regulation.” con food and for a suffered loss” en “to substitute No. “ S.Rep. (emphasis to at No. 996 at ‘attempts] damages whereas stituted 9; 8 1656 added). he plaintiff very thing to which give the ” specific relief entitled’ were agree dissent little in with the We Bowen, at 487 U.S. the waiver. See within points legislative history of section 702 2732; 895, Maryland Dept. 108 S.Ct. at including pay awards within toward Resources, (quot F.2d 763 at 1446 Human may question The not have the waiver. 135). fact at “The ing supra, D. Dobbs, given to the the exist occurred committee money is rather present case it Nonetheless, Pay the Back Act. ence of in-kind ... cannot transform than benefits hard despite the dissent’s reference “the sought specific nature of the relief — construction,” statutory nosed rules relief, damages.” in the form of legislative in the nothing statute 2733; 895, F.2d 108 S.Ct. at 763 history recoveries. excludes back No than the funds restored at 1446. less question interpretation is whether back Bowen, Hub we think to Massаchusetts damages” “money within constitutes very being part pay, bard’s back meaning exclusion. The of section 702’s withheld, unconstitutionally con thing EPA in Bowen held that Supreme Court specific relief.11 stitutes money “money dam constituted award ages” only when the Reviewing legislative history of sec “substitute[s] Bowen, 487 U.S. at 702, suffered loss.” noted that Con for a the Bowen Court (quoting Maryland 894, 2732 108 S.Ct. at gress “to eliminate the intended Resources, 763 F.2d Human immunity Dept. in all actions defense supra, at (quoting D. Dobbs, against agency 135)). specific relief Federal Here, not substitute capacity.” the back does acting in an official or officer defamation, H.R.Rep. damage, pain or 1656, any such as Cong., 2d Sess. 94th No. have S.Rep. thing exact Hubbard should is the (1976); Cong., 94th 2d Sess. but No. Second, statutory the dissent’s received. (1976), quoted Maryland Dept. being on si- 1447; argument, built Resources, 763 F.2d at Bow construction Human (1980); 62 L.Ed.2d 540 Because decisions U.S. within section 702. these (4th Arentzen, Bowen, premised F.2d 874-75 and were Cook v. were issued before States, Cir.1978). F.2d v. United assumption all awards of Ulmet on an Cf. waiver, Cir.1989) (Cook (4th view v. do not relief fell outside the Arentzen Bowen). dispositive before us. good cases issue after these law fact, does not even seek the Government States, “quite Dobbs is clear rely v. 11. The dissent asserts See Hostetter United on them. Cir.1984) wages compensatory (4th (dicta); v. or lost McCartin that back F.2d Cir.1982); damages." Norton, (9th the extent the nature of To relief in 674 F.2d 1321-22 Serv., either or our- view controls Army that Dobbs’ & Air Force Exch. Sheehan selves, (5th Cir.1980), may to embrace the idea Dobbs be read on other rev’d 1139-40 pay may specific relief. Given that be grounds, that back Wade, restitutionary/substitu- recognizes (1982); 681- Dobbs Glines relief, (9th Cir.1978), tionaiy dichotomy central grounds, 444 on other rev’d lence, pay- Massachusetts used to assert actually based on the cited canon withheld, wrongfully ments had been sovereign immunity of construction opinion of the Court focuses on the dichoto- narrowly construed. To waivers should be my substitutionary and restitu- between statutory the extent canons are reliable See, tionary e.g., relief. 487 U.S. at see, interpretation, e.g., William N. reasoning 108 S.Ct. at 2735. The Court’s Eskridge Philip P. Frickey, And Cases & regard appears eq- draw on the Legislation: And Statutes Materials On regards that as “Equity uitable maxim Policy of Public Creation ought gener- done.” done which to be See be used on (noting that canons George Principles ally Clark, Equity L. argument), “remedial side of a construction Joseph (1919); 1 Melville M. Bigelow, broadly construed” statutes should be Jurispru- Story's Equity Commentaries given Congress’ might appropriate more 1886). equity An dence ed. plaintiffs with merito- expressed intent that plaintiff to the court seeks to restore the government against not be rious claims position she in had the would have been sovereign immunity. barred illegal defendant’s action never taken S.Rep. H.R.Rep. 8, 9; No. 996 at No. place. Jacksonville Port Auth. v. Cf. (“enactment ‘urgent’ in is 8: [the bill] Adams, (D.C.Cir.1977) 556 F.2d 56-57 unnecessary injustice order to remove ‘the (holding may that District Court award ” (quoting by sovereign immunity’ caused though money due under a statute even Davis); time Kenneth “the now Professor expired). time for Had disbursement had sovereign im- come to eliminate the [has] constitutionally, EPA acted Hubbard would equitable munity defense in all actions question. in have received the relief”).12 specific Additionally, in Maryland Bowen and that, contends under The Government Resources, Dept, statutory Human the Bowen, only specif- can money awarded be necessary entitlement was to create the statutory require- is a ic relief when there statutes, grant-in-aid cause of action. The paid. In ment that those monies be other statutes, provided only the the words, argue seems to the Government grounds plaintiffs on the could com- equitable can include mon- never plain they, in the words of section ey money sought given pursu- is unless the legal wrong ‍​​‌​‌‌‌​‌​‌​​‌​​​​‌‌‌‌​​‌​​​‌‌​​​‌‌‌‌‌​‌‌​​​‌​‌​‍had ... or “suffered] [been] specific statutory authorization. ant to a adversely meaning affected the of a within light of course this makes no sense in But relevant statute.” 5 U.S.C. § pay” of the reference to “back Court’s Here, provides the First the Amendment equitable legislative history relief and the above, and, cause of action as noted “government employment” which lists Supreme plain- Court has held that even among spe- for which actions prior property tiffs no interest in their granted. Although employment discharged cific relief exer- cannot be cising rights. refers to the Medicaid statute which those As the resolution of interpretation. ciary Roger passages Professor Cramton the cited admit of that Committee any sovereign damages, did not include munity cases where im the measure of Dobbs’ statement of brought barred a back award. One of the the contract would have the em- what ployee, did, however, cases involve a claim for lost interpreta- exactly is consistent with our wages. See Leber v. Canal Zone Cent. Labor Thompson & John A. tion. See abo Robert S. Union, (5th Cir.1967) (In Equity Sebert, Jr., Damages, and Restitu- Remedies: concluding Secretary Army that the performance spe- (Specific is 2.02 indispensable party, the court wrote: “The price specif- contract cific relief and award of Secretary payment must authorize the performance.); ic D. Cases Re, and Materi- Edward pay former differential. He must order the (1987) (same). As we noted On als Remedies employees any monetary ment to losses re damage previously, wages that lost is a measure denied, sulting regulations.”), from invalid cert. specific does not also relief. not mean 389 U.S. (1968). claim, Contrary the Senate to the dissent’s Additionally, in the law review article Judiciary Committee had before it at least two advocating the amendment to section Pro examples sovereign immunity Cramton, where was used discussing fessor in the same footnote relief, committee, specific monetary including to bar the cases cited to the noted another pay. "governmen sovereign immunity The dissent contends that case where covery barred the re employment" Roger tal cited to relief. See C. cases the Senate Judi Pickering test nec- V. Conclusion prong fourth shows, EPA’s essarily violation sum, EPA Mi- we find that violated rights pre- First Amendment Hubbard’s rights First chael Hubbard’s paid being employed and refused him from when it to hire him ás a criminal vented therefore, investigator. is,He entitled to investigator. criminal as a instatement and as if he been Amendment creates the That the First Furthermore, hired. District Court up in upon points errоr rights sued should attorneys’ remand entertain an fees ruling. Relying District Court’s 2412(d). petition under 28 U.S.C. § Testan, States v. United WALD, Judge, concurring part Circuit Dis- 47 L.Ed.2d dissenting part: it did have trict Court held said, because, it pay, power to award back I join majority affirming the dis- ruling is not rule is that one trict court’s Environmental established “[t]he (“EPA”) Agency Protection acted unlawful- he position of a until to the benefit entitled Hubbard, failing ly hire revers- it.” duly appointed to has been ing the district refusal consider court’s Testan, however, F.Supp. conclud- attorney’s claim for fees. I re- Hubbard’s only that relief was due because ed no however, dissent, spectfully from the ma- covering failures there was statute jority’s holding that 5 U.S.C. 702 waives job plaintiffs upgrade classifications. sovereign immunity of the United ex- in Testan asserted no cause of action pay. as to claim for back States Pay Back Act and cept those based on the 702 waives the immuni- Section And, Act. as the Court the Classification in actions in which ty of United States noted, created a substantive neither statute aggrieved party seeks “relief other right makes the United whose breach money damages.” 702 than U.S.C. § through allegedly pay liable for lost States (1988). Relying Supreme Court’s improper classifications. See 424 U.S. at Massachusetts, Bowen v. ruling in Here, 398-407, 96 953-57. how- S.Ct. at 101 L.Ed.2d 749 ever, gives sub- the First Amendment that classify that back and on a series of cases right.13 stantive “equitable” as purposes for pay various relief, majority reasons that back Finally, statutory to defi- the extent is not to an of instatement pursuant order of the amount due neces- be nition damages” therefore does not “monеy and monetary awards as sary to characterize of the limits of 702’s waiver fall outside § relief, difficulty find no here. specific we argu- immunity. majority’s The sovereign step, pay, grade and and hence Hubbard’s implausible, and in- by no means ment is regu- governed by employment federal are awarding pay would Hubbard back deed And, to the extent the District lations. light of injustice in the court’s work discretion, required is exercise Court to unconstitutional ac- findings as to EPA’s interpreting it no different than think I my assent is The obstacle tions. determining or back properly Medicaid statute con- do not believe § strued, encompasses claims for dispute. in a Title VII 13. The form Cramton, funds taken from debtor’s statute, ministrative Action: The Corp. isdiction, solely money 1967) (sovereign immunity Expense of Sovereign Immunity, and Burton, and n. Nonstatutory illustration gives deposited fund). Parties rise (1970); refers to the Back Defendant, to the in the Referee’s Review Need American estate, pursuant barred Subject exclusive type for of Statutory Federal Ad recovery MichX.Rev. Matter Jur action for Guaranty jurisdic- (1st Pay Salary Cir. Re Act which the tion of Government ed thermore, because Court Court en, duplication with the Back Ct.Cl. action was taken (quoting the Back as employs jurisdiction mandating compensation by the Federal U.S. at 906 n. he was not an the Claims Court. Eastport claimant cites can our decision Pay relates Act. See —"whether S.S. against damage only Corp. v. employee here does not increase 108 S.Ct. at 2738 him, 5 U.S.C. § Pay fairly the ... sustained.” United was not covered Act. at the time test for (1967)). phrasing States, legislation 5595(a)(2) Hubbard, interpret- Claims Bow- n. 42 Fur- lеgislative history of the Nothing in the remedy for consti- pay as a of back

awards committee tutional torts.1 1976 amendments to 702—two § hearings3 sug- reports sets of and two — specifically excludes The text § gests majority specific corpus, F.2d at 229-30. relief. and all other forms of 222. Id. at action, available, Indeed, where is the a Bivens 1656, Cong., H.R.Rep. 2d No. Sess. damages remedy 3. See 94th such constitutional usual for 996, action, (1976); Cong., S.Rep. 2d Sess. No. 94th incarnations of this how torts. Earlier ever, (1976); Hearing Sovereign Immunity: remedy to Hub found such a unavailable before 223, Mathis, on Administrative Practice and Spagnola 859 F.2d 230 Subcommittee bard. See v. banc). (D.C.Cir.1988) (en Committee on the Judi- Procedure the Senate of (1970); Cong., ciary, Administra- 91st 2d Sess. ("[t]hese H.R.Rep. at 5 ac- 2.See No. 1656 Amendments 1976: Hear- tive Procedure Act of injunc- usually for tions tive, take the form of a suit ings Administrative the Subcommittee on before relief); declaratory S.Rep. or mandamus Committee and Procedure the Senate Practice (same); H.R.Rep. at 20 No. at 4 No. 1656 996 Cong., Judiciary, 2d Sess. on the 94th (‘‘[the expos[e] proposed amendment will not] liability money new for dam- "sampling the Government to presented a 4. Professor Cramton (same); Sovereign ages”); S.Rep. No. 996 at 19 sovereign immunity recent cases ... [where] Immunity: Hearing issue," including the Subcommittee several has been a serious before Administrative Practice and Procedure "government employment.” relating to cases Sovereign Immunity: Hearing Cong., Judiciary, on the 91st Senate Committee the Sub before (1970) (noting explicit 2d Sess. 30-31 that “[t]he Practice and Proce committee on Administrative exclusion of reliеf makes clear that Judiciary, the Senate Committee on the dure of only sovereign immunity 120, is abolished in actions (citing Cong., 2d Sess. Leber 91st judg- specific (injunction, declaratory Zone Cent. Labor Union & Trades v. Canal Metal ment, relief, eject- mandatory quiet Council, (5th Cir.1967), title and cert. de ment)") Roger 1046, (prepared Leber, of Professor nied, comments 88 S.Ct. Bramlett v. And, Cramton). Driver, Davis 769, (1968); C. as Professor Kenneth Mulry v. 19 L.Ed.2d 838 testimony: Cir.1966); stated in his Senate (9th Post F.2d Manhattan-Bronx Gronouski, (D.C.Cir.1965), proposed 350 F.2d 451 principal amend- al Union v. effect [the] [of denied, Postal Un rt. Manhattan-Bronx ment to relief____ is to allow suits for § 702] ce 978, 548, O’Brien, Perhaps ninety per 382 U.S. 86 S.Ct. cent of the ion v. (1966)). injunction suits for or L.Ed.2d 469 cases affected will be nothing in excepted exception Certainly holding of Bow lief, from the would be en indicates that back falls within the damages.5 money sovereign immunity in waiver of § Moreover, one of the law review articles Drawing Judge upon pri- Bork’s exhaustive H.R.Rep. Report, House see in the cited interpretation 702, or the Bowen § 21, entirely at 8 n. is devoted to No. 1656 that the “oth Court reiterated reference to sovereign immunity placed limitation damages” than money er in 702 invoked § prosecution employ- of federal on effective in the the basic distinction law of remedies cases. Charles F. ment discrimination “damages,” re “normally between which Abernathy, Sovereign Immunity in a compensa fers to sum of used as Government: The Federal Constitutional relief,” remedies,” tory “specific Cases, 10 Employment Discrimination “give very thing plaintiff to which (1975). Yet, C.R.-C.L.L.Rev. Harv. Bowen, he was entitled.” 487 U.S. at “injunctive re- concludes article (quоting Maryland Dept. 108 S.Ct. at 2732 employment discrimination case in an Department lief v. Human Resources Services, by sovereign not be im- F.2d should barred Health and Human (internal (1985)) quotations munity principles.” (emphasis at 366 Id. omitted). noting citations While that mon supplied). ey compensation often awarded most majority recognizes, Maj. op. at As the wrong for a therefore classifiable authority before weight 467 n. “damages” not within 702’s waiv —and indicated 702 did waive Bowen that § recognized er—the that occa Court also immunity of the United sionally money may constitute an award See, pay. e.g., claims States as to for back specie remedy fall within the would States, 739 F.2d Hostetter v. United cited as ex waiver. Id. Court Cir.1984) (4th (dicta); McCartin v. Nor amples exceptions “money dam of such to (9th Cir.1982); ton, 674 F.2d 1321-22 judicial per ages” specifically orders to Army Air Force Exch. Sheehan & make money, form a to borrow contract (5th Serv., F.2d 1139-40 Cir. monthly support payments, future 1980), grounds, 456 U.S. rev’d other pay money promise fulfill a bonus (1982); 72 L.Ed.2d royalty under a contract. Wade, F.2d 681-82 Glines v. itself, government the federal Bowen Cir.1978), grounds, rev’d on other the state withholding funds which (1980); rightfully claimed it was of Massachusetts Arentzen, Cook purpose of the state’s entitled law. (4th Cir.1978). argue, My colleagues how suit, held, those was to recover ever, changed all that ex a suit funds thus it constituted including pressly implicitly pay and back relief, or, had earlier specific as our court “monetary category the relief” within relief.” Id. it, “specific monetary dubbed sum, “money 899-900, not run of the the that does afoul at 2735. at that damages” exception to 702’s waiver.6 Court concluded § Leber, declaring regulations supra, majority suggests that certain that in- decision 5. The ... enjoining wages supports en- thus and the ... a claim for lost and are ... volved ... invalid regulations"). passage the 702 waives sover- The § notion that amended the these forc[ement of] immunity pay. noting Secretary eign for claims for back by majority similar that the cited the appellate Maj. op. payment at 468-69 Both the and n. 12. to em- Army order the “must quite explicit, resulting court decisions Leber are monetary trial from ployees losses however, sought declaratory plaintiffs 114-15, that refers regulations,” 383 F.2d at invalid relief, wages. injunctive lost Canal by Secretary imposed obligation on the to an Labor Metal Trades Council Zone Cent. Union & law, to the at 115 & n. federal (D.C.Z.1965) Fleming, F.Supp. v. ("[tjhis sought by plaintiff employ- particular relief by filing begun a was action ... ees. declaratory judgment complaint praying for a circuits, Maj. Despite two see regulations other dicta are ... invalid and for that certain 466-67, hold implemen- op. will be the first circuit to restraining at injunction an further immunity for regulations") ‍​​‌​‌‌‌​‌​‌​​‌​​​​‌‌‌‌​​‌​​​‌‌​​​‌‌‌‌‌​‌‌​​​‌​‌​‍(emphasis supplied); that waives § 702 tation of the Leber, ("[tjhis appeal pay. is claims F.2d at from a of back seeking directing restraining a suit or the defendant of- suit is not State’s [t]he compensation damage for the ficer’s actions.” the Federal the failure of sustained Id. (quoting at 2731-32 S.Ct. at mandated; pay rather to as Government Foreign Larson v. Domestic Commerce & seeking to enforce the statu- it is a suit Corp., itself, happens to tory mandate (1949)) (emphasis L.Ed. delet- money. payment of one for the ed). admittedly It is unclear from thаt (emphasis Id. at at phrase laconic whether the Court was label- original). pay relief, a ling specific back as form of simply stating proposi- the unremarkable holding Bowen thus offers no that courts a back pay often include claim that support for Hubbard’s § along specific remedy award with the sovereign immunity of the Unit- waives the complete reinstatement order to afford pay. suit is for back ed States generally relief. See Dobbs on Remedies statutory or constitu- to enforce not one (noting fully merged system that in at 84 paid specified that he be tional mandate courts, that in a single such as the federal money. sum Nor does Hubbard seek adjudicates legal court both specific agreement performance an claims). The majority argues money. The pay specified him a sum of pay Court meant an award of back right enti- that Hubbard is constitutional specific pur- is a form of relief for right is his not to be dis- tled to enforce itself 702; poses of I am doubtful criminatorily job § he barred from the meaning was the intended as it would con- “specific sought. The relief” that Hubbard existing tradict law and the academic granted district court seeks and was cites authorities that the Court itself later right perform is criminal investi- as a in the Bowen opinion. Thus, I do not find generally Dobbs on gator See EPA. at dispositive this one statement to be on the Remedies at (discussing separately remedy issue of whether 702 waives the sover- specific of reinstatement immunity of damages remedy wages). eign An States of lost United as to pay. award of back would be classic сlaims back “money compensate damages” case of Bowen Dobbs on Remedies cites wrongfully kept him time he for the compensatory basic distinction between job. off the 895, 108 damages specific relief. quite S.Ct. at 2732. Yet treatise is Dobbs’ only support for Hubbard wages clear or lost com suggesting single sentence of dicta pensatory damages. relief in the nature of that an award of back be included Dobbs on In mak- Remedies 69 n. 18. within order for relief. Additionally, specif ing point classifying that not all the noncontroversial ic, “damages,” opposed to compensatory, awards are con tradicts the Bowen Court’s repeated Court stated de Act, scription Pay of the Back U.S.C. recognized have the dis- long cases [o]ur compensa provides as a law that tinction law for between action tion past injury. 487 U.S. at n. damages provide are intended —which 39, 42, 31, 904 n. 906 n. 108 S.Ct. at 2735 n. monetary compensation for a victim with Indeed, 2737 2738 the n. n. 42. Court’s injury person, property, repu- to his or an Pay several to the Back Act equitable spe- an for references tation —and action tend that the an order to deflate the notion cific relief —which include providing ruling for the of an was 702 waives reinstatement employee pay, immunity pay, back or for the “re- as to for such hold with back monies, covery specific ing Pay or render Back Act property would the itself land, ejectment injunction largely superfluous.7 from either or 392, 404, Testan, money damages remedy against 7. See United States v. 424 U.S. as the United 948, 956, (1976) (noting circumstances"). 47 96 S.Ct. carefully States in limited Pay "expressly provide[s] the Back Act injured placed, is argues party other ar to be as near as majority also from The may be, has in the situation he would have pay the back been eas of law where occupied wrong it is if the had not com- equitable as relief that been classified “money damages” purposes for federal mitted. op. at sovereign immunity. Maj. 463-66. Hoppock, Id. Wicker v. (quoting Wall. majority I fear the misconstrues the But (1867)).8 Likewise, 18 L.Ed. 752 the they in these as inquiry contexts essential cites, cases, among Title majority other VII Regardless one. of how with this contrast Industries, United v. N.L. States purposes, for is other treated back Cir.1973), proposition for the right the to Seventh such specific pay is form of relief. that back trial, here is the crucial issue what

jury 9. The N.L. 466, n. Industries Maj. op. at by phrase Congress the “other intended itself, however, court noted back damages” it amended 5 when than tangible for compensation “is economic According itself, to 702. U.S.C. § . resulting employ from an unlawful loss drawing Congress traditional dis Id. at 379 (internal practice.” quota ment compensatory specific tinction between omitted). Indeed, the use of the label Bowen, 895, 108 at relief. 487 U.S. at S.Ct. “equitable” to the mixed law and describe And, regardless of courts call 2732. what equity Title has remedial scheme of VII circumstances, is in different there it prompted “eq one scholar to comment designed pay is escaping the fact that back uitable remedies the Title VII context compensate aggrieved party. to something quite mean different than tradi Kotkin, equity.” tional Minna notions J. regard to surely This is the case Wrongs: Public Private Remedies remedies of Title VII of antidiscrimination Back Rethinking Pay the Title Reme VII Rights majority Act of the Civil 1964. (1990).9 dy, Hastings L.J. Paper v. Moody, Albemarle Co. on relies Thus, pay may, or whether not back L.Ed.2d 422 U.S. occasion, “equitable” remedy be called an (1975), proposition that back is VII, “specific under Title it or even relief” equitable remedy under Title deemed seriously has contested that its never been language Maj. op. at 463. The VII. “money damages” compen to essence clear, however, that Albemarle makes injuries sate for suffered.10 designed “compen- to pay under Title VII whole” victim of il- “make sat[e]” out, points pay has majority As 418-19, legal discrimination. at S.Ct. form of been called a also on occasion 2372. at 465-66. Maj. op. at “restitution.” Loether, 189, 197, is, Curtis v. general wrong rule that when a [T]he (dic- done, gives has been law reme- S.Ct. ta) (back equal pay under Title VII considered dy, compensation shall be Chauffeurs, restitution); injury. latter be a form of is the standard cf. Local 391 v. Helpers, is to measured. The Teamsters and No. which former be "compensatory” "eq- in nature. Id. at the term award was 8. The Albemarle Court’s use of pay clearly remedy” relation S.Ct. at 336. uitable to back referred to the courts’ discretion un- 10.See, Sedgwick, e.g., A Arthur Treatise G. der Title VII whether or not to award back (1920) (noting Damages Measure all. See U.S. at decreeing "[elquity gives thing agreed very to be point be about done which was The same can made Mitchell done____ But, rule, Inc., Jewelry, general refrains Robert DeMario awarding pecuniary reparation Maj. op. dam- 4 L.Ed.2d 323 464- sustained”) age (emphasis supplied); pursuant at 1343 id. "historic held relief,” (under heading "Damages wrongful provide complete dis- power equity of general wages private charge,” noting cases rule in ”[t]he district award lost court could plaintiff discharged wrongful discharge employees of the of ... violation Fair wages right stipulated has Act. 361 at 80 S.Ct. to recover the Labor Standards court, time”); power see also Dobbs Remedies at 335. This ever, of the how- full 924-27, way in no fact that the 929-31. obscures the basic 1339, 1348, Sovereign Immunity in a Terry, 494 U.S. Constitutional Employment under the Government: The Federal (1990) (back pay 108 L.Ed.2d 519 Cases, Discrimination 10 Harv.C.R- Act Management Relations was not Labor Pro (1975); Byse, C.L.L.Rev. Clark against plain- restitutionary suit was where posed in Federal “Nonstat- plaintiffs’ opposed as em- tiffs’ union Reforms utory” Sovereign Judicial Review: Im ployer). designation, This as well as devi- Parties, Indispensable munity, Manda definition of resti- ating from the classical mus, (1962). 75 Harv.L.Rev. 1479 Such remedy designed unjust to undo tution as a particularly puzzling conclusion is in view enrichment of the defendant without re- Supreme oft-repeated Court’s insis by plaintiff, gard to the loss sufferéd tence that “we must construe waivers Restitution see Restatement of general Li strictly in sovereign.” favor of the Dobbs Remedies (1937); scope note at 1 Shaw, brary Congress v. Webster, Beyond Federal 1-2; of A. David 92 L.Ed.2d 250 Sovereign Immunity, 49 Ohio St.L.J. (1986). If back awards are indeed (1988) (discussing remedy of resti- by they truly waived are § application Supreme and its to the tution exception” sovereign immunity. “stealth Massachusetts), ruling in Court’s provides counterpoint either to Con- trump If wishes could the hard-nоsed gress’ that amended direct evidence construction, § statutory rules of I would any form of was not to include happily join my colleagues reversing damages.11 district court’s denial of Hubbard’s claim pay. Unfortunately, for back I do not con- dog Like Holmes’ that did not Sherlock authoritatively strue Bowen’s dicta as rul- bark, imagine long that the it is hard to ing Congress intended the waiver hard-fought of battle for waiver encompass pay. 702 to claims for back I immunity would have been part therefore must dissent from that waged without mention of back as majority’s opinion. otherwise excellent “money damages” exception to the bar. See, e.g., Nonstatutory Cramton, Roger C.

Review Federal Administrative Action: Statutory The Need Sover- Reform of eign Subject Immunity, Matter Jurisdic-

tion, Defendant, and Parties 68 Mich. (1970); Abernathy, L.Rev. 387 Charles F. Indeed, Laycock, upon majority Supreme expressly 11. Professor whom the Court has re- proposition jected attempts in relies for the encompasses that restitution also other contexts to label com- damages pensatory “equitable "restoration in kind of a restitution” for says thing,” Maj. op. escaping purposes nowhere that an the Eleventh Amendment: category portion award under this of back falls But that of the District Court’s de- petitioner challenges requires restitution: cree which funds, payment necessary of state not as a "Restitution” is sometimes used in a third consequence compliance in the future with plaintiff what sense—to restore the value of lost____ determination, federal-question a substantive of the value of what But restitution compensation but as a form of to those whose simply compensatory plaintiff lost is dam- applications sense, processed were on the slower ages. Used in this "restitution” loses all petitioner time schedule at a time when utility distinguishing body a means of one court-imposed obligation under no to con- of law from another. Restitution must be form to a different standard. distinguished compensation, While the Court either Appeals described this on restoration of the loss in kind or retroactive award of its focus monetary gain “equitable relief as as a measure a form of its focus on defendant’s resti- tution," practical recovery. indistinguish- it is in effect many Douglas Laycock, Scope Significance aspects able in from an award of dam- Restitution, ages against An 67 Tex.L.Rev. 1282-83 the State. It will to a virtual certainty funds, grants paid award of back to Hubbard him the from state and not wrongfully job pockets "value” of the for which he was from the of the individual state offi- compensatory damages, excluded and is thus cials who were the defendants in the action. It not "in kind" restitution. is measured in terms of a loss 134824, WL 1990 U.S. Dist. LEXIS ORDER (D.D.C. 1990) (“The Sept. Court 2, 1992. March plaintiff position intends for to receive a salary equivalent to which he by the his would have advanced date of WALD, MIKVA, Judge, Chief Before instatement, posi- he not been denied a GINSBURG, EDWARDS, RUTH B. constitutionally impermissi- in 1982 for BUCKLEY, WILLIAMS, SILBERMAN, reasons.”), by is not disturbed this or- ble GINSBURG, SENTELLE, D.H. to en not subject banc and is review. der HENDERSON, RANDOLPH, Circuit Judges. govern pro- A future order will further

ceedings. Banc En Rehearing Suggestion For re- appellee/cross-appellant to the circulated sponse theretо have been re- taking of a vote was Court. The full Thereafter, majority quested. regular ser- judges of the Court in active DEPARTMENT UNITED STATES OF suggestion on the vice voted favor FORCE, Logistics AIR Air Force Com “the Administrative question of whether mand, Wright-Patterson Air Force Act, ... 5 U.S.C. Procedure Ohio, Petitioner, Base, sovereign immunity ... waives EPA, pay.” Hubbard v. v.

(D.C.Cir.1991). Upon consideration of FEDERAL RELATIONS LABOR foregoing it is AUTHORITY, Respondent, of Government American Federation banc, ORDERED, by the Court en AFL-CIO, ‍​​‌​‌‌‌​‌​‌​​‌​​​​‌‌‌‌​​‌​​​‌‌​​​‌‌‌‌‌​‌‌​​​‌​‌​‍Employees, part de- suggestion granted Intervenor. remedy part. aforementioned nied by the and decided 91-1031. issue will be considered No. sitting en banc.

Court Appeals, United States

Circuit.

District of Columbia en Ordered, by the Court

It is Further Argued Oct. banc, injunctive relief ordered Dec. Decided panel affirmed the District Court and court, (“Hubbard 949 F.2d at of this full relief.

clearly is entitled to prior panel and en banc decisions Both the eq- grant court could held Hubbard, 11-12; uitable relief. id. 229-30.”); at 470 Spagnola, 859 F.2d at is, therefore, instate- entitled to (“[h]e Hubbard, F.Supp. ment”); reconsideration, (D.D.C.1990), (D.D.C.1990), clarified, F.Supp. (1979) (“[w]e reject- duty 59 L.Ed.2d 358 legal resulting past breach simply lower notion that because the ed the part of state officials. the defendant grant had been Jordan, court’s of retroactive benefits U.S. Edelman permissible styled ‘equitable restitution’ 39 L.Ed.2d Amendment”). Jordan, the Eleventh under Quern notes otherwise. “money damages” from its waiv- claims for “govern- reports committee listed legislative that both immunity. The sovereign er of it “with- the areas employment” makes clear as one of history of mental § sovereign immunity the defense be affected the waiver that would draw[s] other than seeking relief in actions immunity in amended injunction, declara- damages, such as an op.”) 468. The Majority opinion (“Maj. mandamus.” judgment, or writ tory appears originated reference to have Cong., 2d 94th Sess. H.R.Rep. No. testimony Professor before Cramton’s supplied). The House and (emphasis Judiciary part of a Committee as Senate say unequivocally that Reports Senate “challenging general reference to cases this only to actions is “limited waiver regulatory enforcement government specific type (emphasis relief.” activity.” Sovereign Immunity: Hearing Because S.Rep. No. 996 at 4.2 supplied); on Administra- the Subcommittee before wages traditionally have lost back the Senate tive Practice and Procedure of money damages viewed as been Judiciary, 91st Committee on the Cong., Hand- see Dan relief, Dobbs, B. is, however, (1970).4 There 2d Sess. Remedies 924-27, 929- book on the Law of nothing oblique refer- to indicate that (1973) (“Dobbs Remedies”); Arthur category general to a of cases ence Sedgwick, A Treatise on the Measure G. by the amendment was could be affected Damages 1920), 3, 1343 ed. pay, meant to indicate that claims “money falls claim within declaratory injunctive or re- opposed damages” exception to the waiver. both, Testan, per- (1988); declaratory judgment or for 424 U.S. at 96 S.Ct. at permitting Any duplication haps be suits for relief in based on most of the rest will 956-57. employees spe- all other action to federal the nature of mandamus. But covered, including specific per- and be- on the clear law of this circuit based yond question cific formance, title, point. Spagnola, ejectment, quieting at this habeas

Case Details

Case Name: Michael E. Hubbard v. Environmental Protection Agency, Michael E. Hubbard v. Administrator, Environmental Protection Agency

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Mar 2, 1992

Citation: 949 F.2d 453

Docket Number: 90-5250, 90-5233

Court Abbreviation: D.C. Cir.