Hubbard v. Administrator, E.P.A.

• Decision Date: 27 November 1992
• Docket Number: Nos. 90-5233,90-5250,s. 90-5233
• Citation: 982 F.2d 531
• Parties: , 61 USLW 2345 Michael E. HUBBARD, Appellant, v. ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY, Appellee. Michael E. HUBBARD, Appellee, v. ENVIRONMENTAL PROTECTION AGENCY, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 531

982 F.2d 531

299 U.S.App.D.C. 143, 61 USLW 2345

Michael E. HUBBARD, Appellant, v.ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY, Appellee.

Michael E. HUBBARD, Appellee, v.ENVIRONMENTAL PROTECTION AGENCY, Appellant.

Nos. 90-5233, 90-5250.

United States Court of Appeals District of Columbia Circuit.

Argued En Banc Sept. 30, 1992.

Decided Nov. 27, 1992.

Peter B. Broida, Arlington, VA, with whom Timothy Haake, Washington, DC, was on the brief, for appellant/cross-appelleeMichael E. Hubbard.

John D. Bates, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., R. Craig Lawrence, and Mark E. Nagle, Asst. U.S. Attys., Washington, DC, were on the brief, for appellee/cross-appellant E.P.A.

Before MIKVA, Chief Judge, WALD, EDWARDS, RUTH BADER GINSBURG, SILBERMAN, BUCKLEY, WILLIAMS, D.H. GINSBURG, SENTELLE, HENDERSON, and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

Concurring opinion filed by Circuit Judge RANDOLPH, with whom Circuit Judge RUTH BADER GINSBURG joins.

Dissenting opinion filed by Circuit Judge EDWARDS, with whom Chief Judge MIKVA joins.

WALD, Circuit Judge:

This case presents a straightforward, but nonetheless hard, question of law: Has the United States waived sovereign immunity for a back pay award to an individual denied federal employment in violation of his constitutional rights?A panel of this court answered "yes" to that question, finding that 5 U.S.C. § 702's waiver of sovereign immunity for "relief other than money damages" encompasses back pay.On revisiting this issue en banc, we find no clear evidence from the language of the statute, its legislative history, or the case law that § 702 waives sovereign immunity for back pay.We thus affirm the district court's decision that Michael Hubbard may not receive back pay as part of a remedy for the Environmental Protection Agency's ("EPA") refusal to hire him in violation of his First Amendment rights.

I.BACKGROUND

Michael Hubbard's dispute with the EPA has dragged on for more than a decade.A "frequent flyer" with this court, the facts of Hubbard's conflict with the EPA are chronicled in several prior opinions.SeeHubbard v. EPA, 949 F.2d 453, 455-56(D.C.Cir.1991), reh'g en banc granted in part, denied in part, 949 F.2d 475(D.C.Cir.1992);Hubbard v. EPA, 809 F.2d 1, 2-4(D.C.Cir.1986), aff'd en banc sub nom.Spagnola v. Mathis, 859 F.2d 223(D.C.Cir.1988)(per curiam ).We highlight only the most salient details here.

In 1982, Hubbard applied to be an investigator with the Criminal Investigations Division of the EPA.The EPA turned him down because of reports that, while serving as a police investigator, he improperly divulged information to the press about his probe of drug trafficking by members of Congress and their aides.A unanimous panel of this court, applying the balancing test of Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811(1968), affirmed the district court's finding that the EPA's failure to hire Hubbard violated his First Amendment rights and that Hubbard was entitled to be instated as an EPA investigator.¹SeeHubbard, 949 F.2d at 461.That determination is not contested here.

What is at issue is the panel's further holding that Hubbard was entitled to receive back pay along with instatement as part of an equitable remedy.Seeid. at 462.Relying mainly on language in the Supreme Court's decision in Bowen v. Massachusetts, 487 U.S. 879, 108 S.Ct. 2722, 101 L.Ed.2d 749(1988), and on other cases that have categorized back pay as equitable relief, a split panel concluded that back pay fell within the waiver of immunity for "relief other than money damages" in 5 U.S.C. § 702, ² enacted as part of the 1976amendments to the Administrative Procedure Act("APA").SeeHubbard, 949 F.2d at 462-69.The en banc court now finds that Hubbard may not receive back pay because Congress has not expressed an unequivocal intent to waive sovereign immunity for such relief.

II.DISCUSSION

A.Principle of Construction

The Supreme Court has counselled us repeatedly that waivers of sovereign immunity are to be construed strictly.See, e.g., Library of Congress v. Shaw, 478 U.S. 310, 318, 106 S.Ct. 2957, 2963, 92 L.Ed.2d 250(1986).We may not find a waiver unless Congress' intent is " 'unequivocally expressed' " in the relevant statute.United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607(1980)(quotingUnited States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1503, 23 L.Ed.2d 52(1969)).Thus, Hubbard faces an uphill fight.To prevail, he must demonstrate a "legislative intent ... so clear and explicit as to brook no reasonable doubt."In re Perry, 882 F.2d 534, 544(1st Cir.1989).

B.Section 702 and Its Legislative History

After scouring § 702's text and legislative history, ³we find no such clear evidence of an intent to waive sovereign immunity as to back pay.The text of § 702 is cryptic indeed, referring only to "relief other than money damages."The legislative history suggests to us, but does not ultimately compel the conclusion, that the waiver does not include back pay.

As the Supreme Court has emphasized, the legislative history of the 1976amendments"indicat[es] that the drafters had in mind the time-honored distinction between damages and specific relief."Bowen v. Massachusetts, 487 U.S. 879, 897, 108 S.Ct. 2722, 2734, 101 L.Ed.2d 749(1988);see alsoS.REP. NO. 996, 94th Cong., 2d Sess. 2(1976)("[The amendment] would eliminate the defense of sovereign immunity in Federal court actions for specific relief....");H.R.REP. NO. 1656, 94th Cong., 2d Sess. 4(1976)(same), U.S.CodeCong. & Admin.News 1976, p. 6124;1970 Hearing, at 58("[A]ll ... specific relief is covered....")(statement of Professor Cramton).While these categories are not sharp-edged, back pay for someone in Hubbard's position has traditionally been understood at common law as "damages," not "specific relief."See DAN B. DOBBS, HANDBOOK ON THE LAW OF REMEDIES 924-27 (1973)(discussing back pay as a type of compensatory relief akin to damages)(hereinafter DOBBS ON REMEDIES);id. at 69 n. 18;ARTHUR G. SEDGWICK, A TREATISE ON THE MEASURE OF DAMAGES§ 665, at 1343 (9th ed. 1920)(discussing wages lost after wrongful discharge as a type of damages).

That conventional classification certainly makes sense in the context of this case.Specific remedies "attempt to give the plaintiff the very thing to which he was entitled."DOBBS ON REMEDIES, at 135.At the time the EPA violated Hubbard's rights by denying him an offer of a job as a criminal investigator, he had never worked for the EPA and thus was not entitled to any pay.Cf.United States v. Testan, 424 U.S. 392, 402, 96 S.Ct. 948, 955, 47 L.Ed.2d 114(1976)("The claim [for back pay] ... is that each [plaintiff] has been denied the benefit of a position to which he should have been, but was not, appointed.The established rule is that one is not entitled to the benefit of a position until he has been duly appointed to it.").The only "entitlement" that the EPA deprived Hubbard of was the job offer he would have received except for the constitutional deprivation.Instatement is the specific relief for that deprivation; it gives Hubbard "the very thing"he was owed.On the other hand, any loss of income attributable to Hubbard's being denied the job, like any emotional distress or harm to reputation that he may have suffered as well, is a consequence of the denial of the offer of employment.And the classic remedy for that loss is money damages.⁴Seeid. at 404, 96 S.Ct. at 956(describing a claim for back pay as one for "money damages").That is why courts ordinarily award back pay only in the amount necessary to compensate the plaintiff for the loss that resulted from the unlawful deprivation of employment."If [an] employee obtains other employment ..., he is ordinarily chargeable with the income from that employment, so that his damage claims against his former employer are reduced by what he makes in his new job."DOBBS ON REMEDIES, at 925.⁵ Thus, back pay essentially pays the plaintiff for the economic losses suffered as a result of the employer's wrong; it does not return to the plaintiff anything which was rightfully his in the first place.⁶

Reasoning from general, and on the edges often malleable, concepts of compensation and specific relief would of course be unnecessary if there were some real evidence that Congress meant back pay to be among the class of "non-money damages" remedies for which § 702 waived immunity.⁷ But there is none.The statute and its legislative history never mention back pay.⁸ That fact alone gives us pause; it is difficult to conclude that throughout the six-year long struggle to amend § 702 to include a waiver of government immunity, all factions understood that the provision would include back pay, but nobody bothered to say it out loud.Reliance on such an inference certainly does not square with the requirement that we find a clear and explicit legislative intent to waive sovereign immunity.It is also a questionable assumption in light of the potentially significant effect on the public fisc of waiving back pay immunity.Cf.S.REP. NO. 996, at 19("The committee does not believe that enactment of [the proposed amendments], which [are] procedural in nature and clarif[y] the jurisdiction of the Federal courts while marginally expanding it, will require additional appropriation of funds to either the judiciary or the agencies.").

The closest pass that the legislative history makes to the back pay issue is a few references to "governmental employment" as among the categories of cases where relief had in the past been barred by sovereign immunity and which, in the future, might be remediable under the amendment.See, e.g., H.R.REP. NO. 1656, at 9, U.S.CodeCong. & Admin.News 1976, p. 6129.But, of course, sovereign immunity had affected government...