Hubbard v. Environmental Protection

• Decision Date: 03 March 2000
• Citation: 205 F.3d 1315
• Parties: (Fed. Cir. 2000) MICHAEL HUBBARD, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, and MERIT SYSTEMS PROTECTION BOARD, Intervenor. <A HREF="#fr1-*" name="fn1-*">* 99-3029 DECIDED:
• Court: U.S. Court of Appeals — Federal Circuit

Page 1315

205 F.3d 1315 (Fed. Cir. 2000)

MICHAEL HUBBARD, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, and MERIT SYSTEMS PROTECTION BOARD, Intervenor.^*

United States Court of Appeals for the Federal Circuit

99-3029

DECIDED: MARCH 3, 2000

Appealed from: Merit Systems Protection Board

Stephen M. Kohn, National Whistleblower Legal Defense and Education Fund, argued for petitioner. With him on the brief was David K. Colapinto.

Michal L. Tingle, Attorney, Commercial Litigation Branch, Civil Division, of Washington, DC, argued for respondent. With him on the brief were David W. Ogden, Acting Assistant Attorney General; David M. Cohen, Director; and Kirk T. Manhardt, Assistant Director.

Eric D. Flores, Attorney, Office of the General Counsel, Merit Systems Protection Board, of Washington, DC, argued for intervenor. With him on the brief were Mary L. Jennings, General Counsel; and Martha B. Schneider, Assistant General Counsel.

Before RADER, Circuit Judge, FRIEDMAN and ARCHER, Senior Circuit Judges.

FRIEDMAN, Senior Circuit Judge.

The principal question in this case is whether the Merit Systems Protection Board ("Board") correctly held that it lacked authority to award back pay for the period between the Environmental Protection Agency ("EPA")'s wrongful refusal to hire the petitioner Hubbard and its hiring of him eleven years later pursuant to court order. Another question is whether the Board erroneously refused to order non-monetary relief. We affirm.

I

A. In 1982, Hubbard applied to the EPA for a position as a criminal investigator. The EPA did not hire him because, as the district court found, it had been told that while working as a detective for the District of Columbia Metropolitan Police, he had revealed to the press and to a member of Congress information about the police department's Capitol Hill drug investigation.

Hubbard sued the EPA in the United States District Court for the District of Columbia, seeking instatement and back pay. The court ruled that the EPA had violated Hubbard's First Amendment rights in refusing to hire him. The court ordered him instated in the position, but denied him back pay or money damages and did not make the order retroactive. See Hubbard v. EPA, 735 F. Supp. 435, 440-41 (D.D.C. 1990); Hubbard v. EPA, 739 F. Supp. 654, 657 (D.D.C. 1990) (modifying original order).

The Court of Appeals for the District of Columbia Circuit affirmed. See Hubbard v. EPA, 982 F.2d 531 (1992) (en banc). In denying Hubbard back pay, the court held that the waiver of sovereign immunity in the Administrative Procedure Act for "relief other than money damages," 5 U.S.C. § 702, does not cover back pay.

EPA then hired Hubbard for the criminal investigative position he had sought, effective March 8, 1993, but declined to give him back pay to the time when it originally rejected him.

B. In May 1994, the Office of Special Counsel, on Hubbard's behalf, filed a complaint with the Board, seeking monetary relief under the Back Pay Act, 5 U.S.C. § 5596, and the Civil Service Reform and Whistleblower Protection Acts, 5 U.S.C. §§ 1214(b)(4)(A), (g), and 2302(b)(11). The complaint alleged that the EPA's refusal to hire Hubbard violated his First Amendment rights and constituted a "prohibited personnel practice" under the Civil Service Reform Act, 5 U.S.C. § 2302(b)(11), that the Board could remedy. Hubbard intervened in the proceeding. He sought the additional relief of EPA posting notices both nationally and regionally acknowledging its commission of a prohibited personnel practice and stating the agency's commitment to a work environment free of such practices, and a cease and desist order.

The Civil Service Reform Act prohibits personnel actions, including "appointment[s]," see 5 U.S.C. § 2302(a)(2)(A)(i), "if the taking of or failure to take such action violates any law, rule, or regulation implementing, or directly concerning, the merit system principles contained in section 2301." 5 U.S.C. § 2302(b)(11). Section 2301 provides in pertinent part that "[f]ederal personnel management should be implemented consistent with the following merit system principles: . . . (2) All applicants for employment should receive fair and equitable treatment in all aspects of personnel management . . . with proper regard for their . . . constitutional rights." 5 U.S.C. § 2301(b)(2). The Act also authorizes the Board to take "corrective action" if it finds that a prohibited personnel practice occurred. See 5 U.S.C. § 1206(c)(1)(B) (1988).

In 1989, in the Whistleblower Protection Act, Pub. L. No. 101-12, §§ 3(a)(8), 11, 103 Stat. 16, 18, 19 (1989), Congress replaced section 1206(c)(1)(B) with a new section 1214, which, similar to its predecessor, gave the Board authority to "order such corrective action as the Board considers appropriate, if the Board determines that the Special Counsel has demonstrated that a prohibited personnel practice . . . has occurred." 5 U.S.C. § 1214(b)(4)(A). Section 1214 was further amended in 1994 to add a new subsection (g), which provides that "corrective action under this section . . . may include- (1) that the individual be placed, as nearly as possible, in the position the individual would have been in had the prohibited personnel practice not occurred; and (2) . . . back pay and related benefits . . . and any other reasonable and foreseeable consequential damages." 5 U.S.C. § 1214(g).

The Board concluded that the EPA had committed a "prohibited personnel practice" by refusing to hire Hubbard, but that neither the Back Pay Act, nor the relief provisions in 5 U.S.C. § 1214 authorized it to grant the monetary relief requested. See Special Counsel v. EPA, 79 M.S.P.R. 542, 555 (1998). The Board held that the Back Pay Act applies only to employees and former employees and not to applicants for employment. See id. at 547.

Treating Hubbard's claim as one for money damages under section 1214, the Board concluded it had no authority to make such an award in this case. First, the Board held that 5 U.S.C. § 1214(g), which in 1994 authorized the Board to award back pay and consequential damages, does not cover conduct before its enactment, because it "conferred a new right to monetary relief," which "[i]f applied retroactively . . . would attach new legal consequences to conduct that took place before its enactment." See id. at 550. Second, the Board held that prior to 1994, it had no authority to award money damages in corrective action cases. See id. at 550. The "corrective action" provision of 5 U.S.C. § 1214(b)(4)(A), the Board reasoned, "does not constitute a clear unequivocal waiver of sovereign immunity that would permit [it] to award money damages in corrective action cases." Id. at 551.

Finally, the Board denied Hubbard's request for non-monetary relief, noting that "the case involves actions that occurred over fifteen years ago" and that "the requested posting and cease and desist order would serve no useful purpose under these circumstances." Id. at 555-56 n.8.

In this appeal Hubbard does not challenge the Board's rulings (1) that the Back Pay Act covers only present and former employees, not applicants for employment, and (2) that section 1214(g) does not apply retroactively. He contends only (1) that the Board's authority in section 1214(b)(4)(A) to take "corrective action" constituted a waiver of the government's sovereign immunity and authorizes the Board to award back pay and (2) that the Board erred in refusing to provide the non-monetary relief he sought.

II

The Board correctly held that its statutory authority to "order corrective action" to remedy a prohibited personnel practice did not constitute a waiver of sovereign immunity that would permit it to award back pay covering the period for which Hubbard had improperly been denied employment. "A waiver of the Federal Government's sovereign immunity must be unequivocally expressed in statutory text, and will not be implied. Moreover, a waiver of the Government's sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign. To sustain a claim that the Government is liable for awards of monetary damages, the waiver of sovereign immunity must extend unambiguously to such monetary claims. A statute's legislative history cannot supply a waiver that does not appear clearly in any statutory text; the unequivocal expression of elimination of sovereign immunity that we insist upon is an expression in statutory text." Lane v. Pena, 518 U.S. 187, 192 (1996) (internal citations and quotation marks omitted).

Here, as in Lane, "[t]he clarity of expression necessary to establish a waiver of the Government's sovereign immunity against monetary damages for [prohibited personnel practices] is lacking in the text of the relevant provisions." Id. The phrase "order corrective action" does not specifically provide for, or even suggest the payment of monetary compensation. It is a general term that, as the Board stated, "is not specific enough to itself constitute a clear waiver of sovereign immunity." Special Counsel v. EPA, 79 M.S.P.R. at 551.

Hubbard contends that

the Board erred when it analyzed the portion of the CSRA authorizing "corrective action" in isolation to the other aspects of the law which clearly and unequivocally demonstrated that corrective action applied to "applicants" for employment, such as Mr. Hubbard, and authorized the correction of any "decision concerning pay."

He notes that the statute applies to "applicants for employment," see 5 U.S.C. § 2301(b)(2), and that the definition of "prohibited personnel practice" includes "decision[s] concerning pay," see 5 U.S.C. § 2302(a)(2)(A)(ix). He argues that, "[u]nder a plain meaning of the statute, 'corrective action' authorized the Board to 'correct' a 'personnel action' impacting an 'applicant' for employment related directly to a 'decision concerning pay.'" Thus, he contends that the EPA's decision not to...