De Archibold v. U.S.

• Decision Date: 14 September 2007
• Docket Number: No. 2007-1032.,2007-1032.
• Citation: 499 F.3d 1310
• Parties: Rogelio DE ARCHIBOLD (and other similarly situated individuals), Plaintiffs-Appellants, v. UNITED STATES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

499 F.3d 1310

Rogelio DE ARCHIBOLD (and other similarly situated individuals), Plaintiffs-Appellants, v. UNITED STATES, Defendant-Appellee.

No. 2007-1032.

United States Court of Appeals, Federal Circuit.

September 14, 2007.

Robert E. Goodman, Jr., of Dallas, TX, argued for plaintiffs-appellants.

Timothy P.McIlmail, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee. With him on the brief were Peter D. Keisler, Assistant Attorney General, Jeanne E. Davidson, Director, and Mark A. Melnick, Assistant Director. Of counsel was James P. Laurence, Assistant United States Attorney, United States Attorneys Office, Northern District of Texas, of Fort Worth, TX.

Before RADER, BRYSON, and MOORE, Circuit Judges.

MOORE, Circuit Judge.

Rogelio De Archibold and numerous other alleged former employees of the Army Air Force Exchange Service (AAFES) in the Republic of Panama (collectively "De Archibold") appeal the dismissal for lack of subject matter jurisdiction by the United States District Court for the Northern District of Texas. See De Archibold v. United States, No. 03-1871, 2006 WL 763059 (N.D.Tex. Mar. 24, 2006). We affirm.

BACKGROUND

De Archibold brought claims in the United States Court of Federal Claims alleging that the United States is liable for amounts due to plaintiffs under Panamanian labor law as a consequence of plaintiff's employment with AAFES in Panama. According to De Archibold, the Panama Canal Treaty: Implementation of Article IV, U.S.-Pan., Sept. 7, 1977, 33.1 U.S.T. 308 (Agreement in Implementation) requires the United States to follow Panamanian labor law when employing Panamanian nationals in Panama. See Agreement in Implementation art. VII, ¶ (2). The Court of Federal Claims concluded that it lacked jurisdiction to hear De Archibold's claims under the Tucker Act, 28 U.S.C. § 1491(a)(2) (2006), as the underlying basis for those claims was the Treaty Concerning the Permanent Neutrality and Operation of the Panama Canal, U.S.-Pan., Sept. 7, 1977, 33 U.S.T. 1 (Panama Canal Treaty), between the United States and the Republic of Panama. See De Archibold v. United States, 57 Fed.Cl. 29 (2003). Because De Archibold's claims were dependent on the Panama Canal Treaty, the CFC concluded 28 U.S.C. § 1502 expressly prohibited that court from exercising jurisdiction. De Archibold, 57 Fed.Cl. at 34.

Because De Archibold also asserted that jurisdiction was proper under 28 U.S.C. § 1331, the Court of Federal Claims transferred the case to the United States District Court for the Northern District of Texas for a determination of whether that court had subject matter jurisdiction over De Archibold's claims. De Archibold, 57 Fed.Cl. at 34. The district court found that it lacked subject matter jurisdiction over De Archibold's claims under 28 U.S.C. §§ 1331 and 1346(a)(2) and dismissed the claims. See De Archibold, 2006 WL 763059, at *2-3, 5-6.

De Archibold appeals. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(2).

DISCUSSION

Whether a district court has subject matter jurisdiction over an action is a question of law that we review de novo. See Moyer v. United States, 190 F.3d 1314, 1317-18 (Fed.Cir.1999).

De Archibold contends that the district court has jurisdiction under the Little Tucker Act, 28 U.S.C. § 1346(a)(2), because the Agreement in Implementation constitutes an express contract between plaintiffs and AAFES.¹ As an alternative basis for jurisdiction, De Archibold argues that the district court has jurisdiction under 28 U.S.C. § 1331 because the Agreement in Implementation constitutes a waiver of sovereign immunity permitting suits for money damages against the United States for a violation of its terms. We address these contentions in turn.

A. Little Tucker Act Jurisdiction

The Little Tucker Act, 28 U.S.C. § 1346(a)(2), waives the government's sovereign immunity for, inter alia, claims of breach of express or implied contract brought against the United States government. See Doe v. United States, 372 F.3d 1308, 1312 (Fed.Cir.2004) ("The pertinent portions of the . . . Little Tucker Act waive sovereign immunity for claims `founded . . . upon any express . . . contract with the United States. . . .'"). Although Congress has waived the United States' sovereign immunity for certain contract claims against the government, we are presented with the question of whether the Agreement in Implementation is a contract falling within that waiver. If executive agreements between sovereign nations are "express contracts" within the meaning of the Little Tucker Act, then the United States has waived its sovereign immunity for suits under executive agreements such as the Agreement in Implementation. If these agreements between sovereign nations are not "express contracts" under the Little Tucker Act, sovereign immunity acts as a jurisdictional bar to De Archibold's claims. See, e.g., United States v. Sherwood, 312 U.S. 584, 587-88, 61 S.Ct. 767, 85 L.Ed. 1058 (1941).

To determine whether the Agreement in Implementation is an "express contract" encompassed by the Little Tucker Act's waiver of sovereign immunity, we focus on the language of this provision. Section 1346(a)(2), like all waivers of sovereign immunity, must be "strictly interpreted." See Sherwood, 312 U.S. at 590, 61 S.Ct. 767 (This "section must be interpreted in light of its function in giving consent of the Government to be sued, which consent, since it is a relinquishment of sovereign immunity, must be strictly interpreted."). Any ambiguity in section 1346(a)(2) should be resolved in favor of the sovereign. See Dep't of the Army v. Blue Fox, Inc., 525 U.S. 255, 262, 119 S.Ct. 687, 142 L.Ed.2d 718 (1999) (The Supreme Court has "frequently held . . . that a waiver of sovereign immunity is to be strictly construed, in terms of its scope, in favor of the sovereign" and that "[s]uch a waiver must be `unequivocally expressed' in the statutory text."). We cannot resort to the legislative history to find a waiver not otherwise unequivocally expressed in the statute. See Lane v. Peña, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996) ("A statute's legislative history cannot supply a waiver that does not appear clearly in any statutory text."); United States v. Nordic Village, Inc., 503 U.S. 30 37, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992) ("[T]he `unequivocal expression' of elimination of sovereign immunity that we insist upon is an expression in the statutory text. If clarity does not exist there, it cannot be supplied by a committee report.").

Applying these principles to the present case, we conclude that the Little Tucker Act does not waive the United States' sovereign immunity for claims based on the Agreement in Implementation. Executive agreements, such as the Agreement in Implementation, are agreements between the United States and foreign nations. Such agreements have long been treated by the judiciary as treaties. See, e.g., Weinberger v. Rossi, 456 U.S. 25, 29-32, 102 S.Ct. 1510, 71 L.Ed.2d 715 (1982); United States v. Belmont, 301 U.S. 324, 330-31, 57 S.Ct. 758, 81 L.Ed. 1134 (1937); B. Altman & Co. v. United States, 224 U.S. 583, 597, 32 S.Ct. 593, 56 L.Ed. 894 (1912); Kwan v. United States, 272 F.3d 1360, 1362 (Fed.Cir.2001). The Agreement in Implementation is part and parcel to the Panama Canal Treaty and constitutes a means to effectuate the United States' obligations under Article IV of that Treaty. If Congress had intended to confer jurisdiction on the federal courts for claims arising under treaties and executive agreements carte blanche, Congress would have clearly stated so.² We do not think that Congress would have used the term "express contract" to encompass international executive agreements and treaties in light of the separation of powers considerations implicated when the judiciary is asked to entertain questions that are expressly delegated to the executive as part of the executive's power to conduct foreign affairs.³ See U.S. CONST. art. II, § 2.

We recognize that courts have referred to treaties and executive agreements between sovereign nations as contractual in nature. See, e.g., Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 253, 104 S.Ct. 1776, 80 L.Ed.2d 273 (1984) ("A treaty is in the nature of a contract between nations."); Washington v. Wash. State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 675, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979) ("A treaty, including one between the United States and an Indian tribe, is essentially a contract between two sovereign nations."); Santovincenzo v. Egan, 284 U.S. 30, 40, 52 S.Ct. 81, 76 L.Ed. 151 (1931) ("As treaties are contracts between independent nations, their words are to be taken in their ordinary meaning as understood in the public law of nations." (internal quotations and citation omitted)); Head Money Cases, 112 U.S. at 598, 5 S.Ct. 247 ("A treaty is primarily a compact between independent nations."); Foster, 27 U.S. (2 Pet.) at 314 ("A treaty is in its nature a contract between two nations."). This is not dispositive on the issue of whether the United States can be sued for an alleged breach of an executive agreement or treaty under the Little Tucker Act. Although treaties are "in the nature of a contract between nations," Trans World, 466 U.S. at 253, 104 S.Ct. 1776, they are not "express contracts" within 28 U.S.C. § 1346(a)(2). To hold otherwise would violate the principle that waivers of sovereign immunity are strictly construed in favor of the sovereign. See Blue Fox, 525 U.S. at 262, 119 S.Ct. 687. We conclude that in the absence of clear and unequivocal language to the contrary, treaties and international executive agreements between sovereign nations, such as the Agreement in Implementation, are not within the waiver of sovereign immunity for claims of breach of an "express contract" contained in the Little Tucker...