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

982 F.2d 531, 299 U.S. App. D.C. 143, 1992 U.S. App. LEXIS 31130, 1992 WL 335052

• Court: Court of Appeals for the D.C. Circuit
• Decided: November 27, 1992
• Docket: 90-5233, 90-5250
• Status: Published

Opinions

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. See Hubbard v. EPA, 949 F.2d 453, 455-56 (D.C.Cir.1991), reh’g en banc granted in part, denied in part, 949 F.2d 475 (D.C.Cir.1992); Hubbard v. EPA, 809 F.2d 1, 2-4 (D.C.Cir.1986), affd en banc sub nom. Spagnola v. Mathis, 859 F.2d 223 (D.C.Cir.1988) (per curiam). We highlight only the most salient details here.

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

What is at issue is the panel’s further holding that Hubbard was entitled to receive back pay along with instatement as part of an equitable remedy. See id. at 462. Relying mainly on language in the Supreme Court’s decision in Bowen v. Massachusetts, 487 U.S. 879, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988), and on other cases that have categorized back pay as equitable relief, a split panel concluded that back pay fell within the waiver of immunity for “relief other than money damages” in 5 U.S.C. § 702,² enacted as part of the 1976 amendments to the Administrative Procedure Act (“APA”). See Hubbard, 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) (quoting United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1503, 23 L.Ed.2d 52 (1969)). Thus, Hubbard faces an uphill fight. To prevail, he must demonstrate a “legislative intent ... so 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,³ we 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 1976 amendments “indicat[es] that the drafters had in mind the time-honored distinction between damages and specific relief.” Bowen v. Massachusetts, 487 U.S. 879, 897, 108 S.Ct. 2722, 2734, 101 L.Ed.2d 749 (1988); see also S.Rep. No. 996, 94th Cong., 2d Sess. 2 (1976) (“[The amendment] would eliminate the defense of sovereign immunity in Federal court actions for specific relief____”); H.R.Rep. No. 1656, 94th Cong., 2d Sess. 4 (1976) (same), U.S.Code Cong. & AdmimNews 1976, p. 6124; 1970 Hearing, at 58 (“[A]ll ... specific relief is covered:...”) (statement of Professor Cram-ton). While these categories are not sharp-edged, back pay for someone in Hubbard’s position has traditionally been understood at common law as “damages,” not “specific relief.” See Dan B. Dobbs, Handbook on the Law of Remedies 924-27 (1973) (discussing back pay as a type of compensatory relief akin to damages) (hereinafter Dobbs on Remedies); id. at 69 n. 18; Arthur G. Sedgwick, A Treatise on the Measure of Damages § 665, at 1343 (9th ed. 1920) (discussing wages lost after wrongful discharge as a type of damages).

That conventional classification certainly makes sense in the context of this case. Specific remedies “attempt to give the plaintiff the very thing to which he was entitled." Dobbs on Remedies, at 135. At the time the EPA violated Hubbard’s rights by denying him an offer of a job as a criminal investigator, he had never worked for the EPA and thus was not entitled to any pay. Cf. United States v. Testan, 424 U.S. 392, 402, 96 S.Ct. 948, 955, 47 L.Ed.2d 114 (1976) (“The claim [for back pay] ... is that each [plaintiff] has been denied the benefit of a position to which he should have been, but was not, appointed. The established rule is that one is not entitled to the benefit of a position until he has been duly appointed to it.”). The only “entitlement” that the EPA deprived Hubbard of was the job offer he would have received except for the constitutional deprivation. Instatement is the specific relief for that deprivation; it gives Hubbard “the very thing” he was owed. On the other hand, any loss of income attributable to Hubbard’s being denied the job, like any emotional distress or harm to reputation that he may have suffered as well, is a consequence of the denial of the offer of employment. And the classic remedy for that loss is money damages.⁴ See id. at 404, 96 S.Ct. at 956 (describing a claim for back pay as one for “money damages”). That is why courts ordinarily award back pay only in the amount necessary to compensate the plaintiff for the loss that resulted from the unlawful deprivation of employment. “If [an] employee obtains other employment ..., he is ordinarily chargeable with the income from that employment, so that his damage claims against his former employer are reduced by what he makes in his new 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 clarify] 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.Code Cong. & Admin.News 1976, p. 6129. But, of course, sovereign immunity had affected government employment cases in significant ways other than as a bar on back pay relief. Prior to the 1976 amendments, when a federal employee was not hired or was fired in violation of her rights, sovereign immunity had foreclosed an injunction instating or reinstating that employee — the very relief that Hubbard has now received in this case. In fact, the same House Report that refers to “governmental employment” cites a law review article that discusses how sovereign immunity had hampered effective enforcement of employment discrimination laws against the federal government. See H.R.Rep. No. 1656, at 8 n. 20, U.S.Code Cong. & AdmimNews 1976, p. 6129 n. 20. The cited article specifically argues that the problem should be remedied by removing barriers to such injunctive relief. See Charles F. Abernathy, Sovereign Immunity in a Constitutional Government: The Federal Employment Discrimination Cases, 10 Harv.C.RC.L.L.Rev. 322, 366 (1975).⁹

The other references highlighted by Hubbard are even more tangential. Hubbard notes that the facts of Gnotta v. United States, 415 F.2d 1271 (8th Cir.1969), cert. denied, 397 U.S. 934, 90 S.Ct. 941, 25 L.Ed.2d 115 (1970), a government employment case, were specifically discussed at the 1970 Hearing. See, e.g., 1970 Hearing, at 68, 158-61. But neither Gnotta nor the discussion of it at the hearings dealt with back pay. The sovereign immunity problem in Gnotta involved a federal employee who could not obtain any form of relief because he had chosen the wrong defendants to sue. See Gnotta, 415 F.2d at 1276-78.¹⁰

Hubbard also cites references to “federal employment” in discussions relating to the removal of the amount in controversy requirement, a statutory change separate from the waiver of sovereign immunity but which was also accomplished through the 1976 amendments. See H.R.Rep. No. 1656, at 14, U.S.Code Cong. & AdmimNews 1976, p. 6134. That reference merely demonstrates that Congress understood that where sovereign immunity was waived, there was still a barrier to federal court jurisdiction if the employee’s loss was not quantifiable or did not exceed $10,000. The mention of federal employment in that context tells us zero about Congress’ intent to expand the scope of immunity for back pay.

C. Bowen v. Massachusetts

Bowen v. Massachusetts, 487 U.S. 879, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988), does not resuscitate Hubbard’s claim. Before Bowen, courts consistently found that back pay was not among the types of relief for which § 702 waived sovereign immunity. See Hostetter v. United States, 739 F.2d 983, 985 (4th Cir.1984) (dicta); McCartin v. Norton, 674 F.2d 1317, 1321-22 (9th Cir.1982); Sheehan v. Army & Air Force Exchange Service, 619 F.2d 1132, 1139-40 (5th Cir.1980), rev’d on other grounds, 456 U.S. 728, 102 S.Ct. 2118, 72 L.Ed.2d 520 (1982); Glines v. Wade, 586 F.2d 675, 681-82 (9th Cir.1978), rev’d on other grounds sub nom. Brown v. Glines, 444 U.S. 348, 100 S.Ct. 594, 62 L.Ed.2d 540 (1980); Cook v. Arentzen, 582 F.2d 870, 874-75 (4th Cir.1978). Hubbard argues that Bowen changed all that. We do not find that to be true.

As already noted, in Bowen the Supreme Court emphasized that § 702’s reference to “other than money damages” invoked the distinction between “damages” which are “ ‘sum[s] of money used as compensatory relief’ ” and “specific remedies” which “ 'are not substitute remedies at all, but attempt to give the plaintiff the very thing to which he was entitled.’ ” Bowen, 487 U.S. at 895, 108 S.Ct. at 2732 (quoting Maryland Department of Human Resources v. Dept. of Health & Human Services, 763 F.2d 1441, 1446 (D.C.Cir.1985)) (internal citations omitted). Applying that dichotomy to the case in front of it, the Court determined that Massachusetts’ suit to enforce a statutory entitlement to receive withheld federal grant-in-aid money was a suit for specific relief. See id. 487 U.S. at 900-01, 108 S.Ct. at 2735-36. The fact that the entitlement Massachusetts sought to enforce was a cash allotment did not alter this conclusion: “The State’s suit ... is not a suit seeking money in compensation for the damage sustained by the failure of the Federal Government to pay as mandated; rather, it is a suit seeking to enforce the statutory mandate itself, which happens to be one for the payment of money.” Id. at 900, 108 S.Ct. at 2735 (emphasis in original).

Bowen’s holding thus does nothing for Hubbard's cause. Hubbard’s basic claim is not for enforcement of any legal mandate that the EPA pay him a sum of money; rather, it is to force the EPA to offer him the job it denied him.

Hubbard ultimately bases his case on one line of dicta in Bowen possibly suggesting that back pay may be specific relief. In a background paragraph explaining the difference between specific and compensatory relief, the Court said:

Our cases have long recognized the distinction between an action at law for damages — which are intended to provide a victim with monetary compensation for an injury to his person, property, or reputation — and an equitable action for specific relief — which may include an order providing for the reinstatement of an employee with back pay, or for the recovery of specific property or monies, ejectment from land, or injunction either directing or restraining the defendant officer’s actions.

Id. at 893, 108 S.Ct. at 2732 (citations and emphasis omitted). Viewed in isolation, it is ambiguous whether the sentence was labelling back pay itself as specific relief, or merely making the unremarkable point that back pay often accompanies an award of reinstatement, which itself is unquestionably a form of specific relief. In the context of the entire opinion, however, we believe that the single reference cannot shoulder the burden of demonstrating that the Court intended to mandate an about-face on the hornbook view of back pay as damages as well as the decisions of all courts up to that point that back pay was not a form of specific relief for § 702 purposes but, rather, a form of compensatory damages. Bowen itself relies on Dobbs on Remedies for the distinction between specific and compensatory relief. See id. at 895, 108 S.Ct. at 2732-33. That treatise is explicit in classifying back pay as money damages. See Dobbs on Remedies, at 924-27; id. at 69 n. 18 (a claim for back pay incident to reinstatement “is precisely the claim available as damages to any wrongfully discharged employee”). Further, Bowen specifically refers to the Back Pay Act, 5 U.S.C. § 5596, as a law that provides compensatory relief. See Bowen, 487 U.S. at 906 n. 42, 108 S.Ct. at 2738 n. 42 (referring to the Back Pay Act and other statutes as laws which “attempt to compensate a particular class of persons for past injuries or labors”). In the end, we cannot rest a general waiver of sovereign immunity as to back pay for federal employees on a single, ambiguous phrase in a background, descriptive portion of the Bowen opinion. We believe that the Court would have given us more explicit guidance than that had it intended to overturn both the common law understanding of back pay as well as lower courts’ decade-long interpretation of § 702 as barring back pay relief.

A final word on Bowen. Contrary to our colleagues’ accusation, see Dissent at 540, we in no way “cavalierly” dismiss that Supreme Court decision. We find only that Bowen’s holding does not support Hubbard’s cause and that Bowen’s, dicta is ambiguous and cannot carry the weight that Hubbard seeks to place on it. See also Dissent at 544 (noting that the reference to back pay “is offered only by way of example in Bowen”).

D. Precedent From Other Areas of Law

Hubbard’s reliance on cases calling back pay “equitable” for other purposes is also misplaced. The crucial question for us is not whether back pay is “equitable,” but what Congress meant by “other than money damages” in § 702. Bowen tells us that Congress was distinguishing specific from compensatory damages. What may qualify as an “equitable remedy” in the cases Hubbard cites is not synonymous with specific relief — transfer to the plaintiff of the thing to which he was entitled by law. Thus, the fact that cases in many contexts attach the “equitable” label to back pay in no way contradicts the basic conclusion that back pay is still essentially a compensatory device. In fact, many of the same courts that classify back pay as equitable in one part of an opinion affirm its compensatory nature in the next.

For example, Hubbard points to United States v. Burke, — U.S. —, 112 S.Ct. 1867, 119 L.Ed.2d 34 (1992), as the most recent pronouncement of the equitable nature of back pay. In Burke, the question was whether back pay awarded for a violation of Title VII was “damages received ... on account of personal injury” under § 104(a)(2) of the Internal Revenue Code and thus excludable from gross income. Because the relevant Internal Revenue Service regulation interpreted the damages exclusion to apply only to remedies for tort or tort-type injuries, the Court’s analysis turned on whether Title VII provided typical tort remedies, i.e., a broad array of damages to compensate tangible and intangible injuries. See id., — U.S. at —, 112 S.Ct. at 1871-72. The Court found that Title VII authorized only back pay, injunctions and other “equitable” relief, and not the full panoply of tort damages; thus, Title VII awards were not excludable from gross income. See id., — U.S. at —, 112 S.Ct. at 1873-74. But the Court’s finding that Title VII remedies were “equitable” did not by any means foreclose its simultaneous classification of back pay as basically compensatory in nature. To the contrary, the. Court noted that “Congress declined to recompense Title VII plaintiffs for anything beyond the wages properly due them.” Id., — U.S. at —, 112 S.Ct. at 1874 (emphasis added). The same can be said of our decision in Sparrow v. Commissioner, 949 F.2d 434 (D.C.Cir.1991), cert. denied, — U.S. —, 112 S.Ct. 3009, 120 L.Ed.2d 883 (1992), which anticipated Burke. Although we found that back pay under Title VII was not damages under the Internal Revenue Code, we nevertheless recognized that back pay under Title VII was compensatory: “The remedies available under Title VII exist to make whole the employee discriminated against, that is, to place him in the same position he would have been in but for the discrimination, but not to compensate beyond that." Id. at 440 (emphasis added).

Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975), can be similarly parsed. There, the Court termed back pay under Title VII an “equitable” remedy, but continued to say that Title VII “compensat[ed]” and “ma[de] whole” the victim. See id. at 418-19, 95 S.Ct. at 2372, (internal citation omitted); see also Minna J. Kotkin, Public Remedies for Private Wrongs: Rethinking the Title VII Back Pay Remedy, 41 Hastings L.J. 1301, 1375 (1990) (noting that “equitable remedies in the Title VII context mean something quite different than traditional notions of equity”).

The same analysis holds for cases involving the Seventh Amendment right to a jury trial. Although courts have routinely found that plaintiffs seeking back pay are asking for equitable relief and thus are not entitled to a jury trial, this finding generally rests on the assumption that back pay is incidental to, or an element of, the equitable remedy of reinstatement — not on a notion that back pay itself is specific and not compensatory. Santiago-Negron v. Castro-Davila, 865 F.2d 431 (1st Cir.1989), a case that Hubbard highlights, is typical. There, the First Circuit, after reviewing relevant cases from all over, found that a § 1983 claim seeking only reinstatement and back pay was equitable and should be heard by a judge, not a. jury. See id. at 441. But its conclusion did not rest on any foundation that back pay itself was not compensatory. The court explicitly stated that back pay was “one of the items of compensatory damages.” Id.

Much the same can be said of cases that have allowed awards of back pay under the Fair Labor Standards Act (“FLSA”). In Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 80 S.Ct. 332, 4 L.Ed.2d 323 (1960), the Court found that, in order to provide a full equitable remedy, district courts could order a private employer to provide back pay to plaintiffs dismissed from work in violation of the FLSA. See id. at 292, 80 S.Ct. at 335-36. Again, labeling back pay as equitable for remedial purposes under the FLSA in no way detracted from a recognition that back pay was still essentially “compensatory” relief. See id. at 293, 80 S.Ct. at 336.¹¹

E. Back Pay as Restitution

Finally, Hubbard argues that back pay is specific because it is restitutionary — it requires the EPA only to give back to Hubbard the money that the EPA should have given him in the first place as salary for the job Hubbard was denied. In support of this argument, Hubbard cites School Committee v. Dept. of Education, 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985), where the Supreme Court characterized reimbursement of parents’ expenditures made because of a town’s failure to meet its special education requirements as “pay[ment of] expenses that [the town] should have paid all along” rather than damages. See id. at 370-71, 105 S.Ct. at 2003. But again Hubbard misconceives the essence of our inquiry. Whether we or someone else call a remedy restitutionary, equitable or anything else, it fits within § 702’s waiver only if it gives the plaintiff the specific thing to which he was originally entitled. In the School Committee case, the parents were statutorily entitled to the cost of the special education their child never received, and for which they expended their own money. Unlike Hubbard, they, like the State of Massachusetts in Bowen, met all the pre-existing legal obligations to receive a cash entitlement from the government, at the time they were denied it. See id. at 369, 105 S.Ct. at 2002 (noting that the Education for the Handicapped Act, 20 U.S.C. § 1401 et seq., provides for public payment of private school expenses when an appropriate public education cannot be provided). At any rate, the Court’s treatment of the reimbursement in School Committee as restitutionary was in a completely different context than § 702 and required no decision as to whether the relief was specific.¹² Cf. United States v. Burke, — U.S. —, 112 S.Ct. 1867, 119 L.Ed.2d 34 (finding that back pay was equitable under the Internal Revenue Code but nevertheless compensatory).

III. Conclusion

Waiver of sovereign immunity requires a clear statement of congressional intent. Section 702 itself provides no such clear statement as to back pay; its legislative history tilts against such an interpretation; no court from 1976 to 1992 has held that there is such a waiver. We can find no basis in Bowen or elsewhere on which to conclude that Congress meant to include back pay in its waiver of immunity as to specific relief “other than money damages.” Accordingly, the judgment of the district court denying back pay is

Affirmed.

1 . In a prior appeal, this court found that Hubbard was not eligible to receive Bivens damages because the Civil Service Reform Act, Pub.L. No. 95-454, 92 Stat. 1111 (codified in scattered sections of 5 U.S.C.), provides meaningful remedies for this type of employment grievance, even though none of those remedies is actually available to Hubbard. See Spagnola v. Mathis, 859 F.2d 223, 228-29 (D.C.Cir.1988) (en banc) (per curiam).

2 . Section 702 states in part:

A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party.

3 . The legislative history of § 702 consists of two committee reports and two sets of hearings. See H.R.Rep. No. 1656, 94th Cong., 2d Sess. (1976); S.Rep. No. 996, 94th Cong., 2d Sess. (1976), U.S.Code Cong. & Admin.News 1976, p. 6121; Administrative Procedure Act Amendments of 1976: Hearings Before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 94th Cong., 2d Sess. (1976); Sovereign Immunity: Hearing Before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 91st Cong., 2d Sess. (1970) (“1970 Hearing').

4 . We do not suggest that back pay must always be viewed as money damages and can never be properly categorized as specific relief. If Hubbard had been hired by the EPA and worked for the agency for a year without being paid, his legal claim might well be viewed differently. In that case, the money that Hubbard had a right to receive in exchange for his labor might well be the very thing that was taken from him.

5 . Our dissenting colleagues argue that a court, exercising equitable discretion, may in appropriate cases reduce an equitable remedy to insure that a plaintiff is not put in a better position than he would have been in absent the unlawful action. See Dissent at 541-42. But they put the cart before the horse. In deciding whether back pay is appropriate in the first place, courts customarily look to see whether the plaintiff has obtained other work during the relevant period and indeed whether he has made efforts to do so. See Dobbs on Remedies at 926. Thus, they do not deduct an amount from some preordained finite sum to take account of "compelling equitable considerations”; they ask first whether and how much the plaintiff has suffered economically from the wrong inflicted upon him.

6 . The fungible character of money undoubtedly makes the conceptualization of back pay more difficult than compensation for intangibles such as loss of reputation. Nonetheless, the principle is the same. Hubbard is seeking money damages to compensate for the economic loss he suffered as a result of not getting the job.

7 . Although the Supreme Court has said in Bowen that Congress drew a controlling distinction in § 702 between specific relief and damages, that instruction does not, of course, foreclose a supplementary inquiry into whether Congress also had a specific legislative intent to waive immunity for a particular type of relief not involved in Bowen.

8 . This silence is probably explained by the fact that Congress had already dealt with the issue of back pay and had decided not to disturb the specific compromises it had made a decade earlier — and revisited just one year before the 1976 APA amendments, see Pub.L. No. 94-172, 81 Stat. 203 — in the Back Pay Act, 5 U.S.C. § 5596. Earlier in 1976, the Supreme Court emphasized that the Back Pay Act waived sovereign immunity for back pay "in carefully limited circumstances.” United States v. Testan, 424 U.S. 392, 404, 96 S.Ct. 948, 956, 47 L.Ed.2d 114 (1976). The Court also noted that where back pay immunity had not been specifically waived the Back Pay Act intended plaintiffs to rely exclusively on more limited relief. See id. at 403, 96 S.Ct. at 955-56. Both committee reports on § 702 imply that this earlier legislative judgment, as elaborated by the Supreme Court, would not be disturbed by the new legislation. Quoting then Assistant Attorney General Scalia, both state:

Because existing statutes have been enacted against the backdrop of sovereign immunity, this will probably mean that in most if not all cases where statutory remedies already exist, these remedies will be exclusive; that is no distortion, but simply an accurate reflection of the legislative intent in these particular areas.... It would be unwise to upset these specific determinations by a general provision of this sort, without considering them individually, or even knowing what they are. In the many areas where Congress has not acted, however, and when its action is not addressed to the type of grievance which the plaintiff seeks to assert, suit would be allowed.

S.Rep No. 996, at 27 (emphasis added); accord H.R.Rep. No. 1656, at 27-28, U.S.Code Cong. & Admin.News 1976, pp. 6146, 6147. Congress had certainly "acted” in the area of back pay in federal employment, and provided relief for this “type of grievance" — although not Hubbard’s specific grievance — by allowing some federal employees deprived of income in violation of any "law, rule, regulation, or collective bargaining agreement” to receive back pay. See 5 U.S.C. § 5596(b)(1). Extending that relief to people not covered by the Back Pay Act would allow a general provision to trump the specific statutory compromises that Congress had previously made, something that Congress was apparently not willing to do through § 702.

9 . Hubbard emphasizes that the same article also said that "[wjhile claims for money from the treasury or for title to public land are certain to raise problems, it is unclear why such relief should be banned under the rubric of sovereign immunity." Abernathy, supra, at 367.. That sentence continues, however, to say that "accordingly, one can never be quite certain what relief other than land and treasury claims would be similarly barred.” Id. at 367-68. Thus, the author merely noted that the lack of a firm conceptual understanding of the grounds for sovereign immunity made the application of that doctrine difficult to predict in borderline areas. We see nothing in the article to advance Hubbard’s argument that the solution advanced in § 702 was intended to abrogate immunity for back pay awards.

10 . Our colleagues point to Leber v. Canal Zone Central Labor Union, 383 F.2d 110 (5th Cir. 1967), cert. denied, 389 U.S. 1046, 88 S.Ct. 769, 19 L.Ed.2d 838 (1968), as a case that Congress was aware of and that demonstrates an intent to waive sovereign immunity for back pay. See Dissent at 550 n. 15. But the Fifth Circuit was explicit in Leber in noting that the plaintiffs only sought declaratory and injunctive relief, not back pay. See Leber, 383 F.2d at 113 ("This appeal is from a decision ... declaring that certain regulations ... are invalid ... and enjoining the ... enforcement of] these regulations.”). As our dissenting colleagues recognize, American Guaranty Corp. v. Burton, 380 F.2d 789 (1st Cir.1967), involved specific monetary relief (i.e., the recovery of funds contributed by a debtor in bankruptcy to the Referees' Salary and Expense Fund), not back pay. We do not dispute that § 702 waived sovereign immunity for specific monetary relief; rather, we find that back pay does not qualify as such.

11 . In a few cases, back pay has been referred to as "specific relief.” While we believe that, at least in this circumstance, that label is incorrect, it is important to note that even in those cases some courts found that back pay was also compensatory. For example, United States v. N.L. Industries, Inc., 479 F.2d 354 (8th Cir.1973), while referring to back pay as specific, see id. at 378, also stated that back pay is "compensation for the tangible economic loss resulting from an unlawful employment practice.” Id. at 379 (internal citation omitted).

12 . According to Professor Laycock, restitution includes not only undoing of unjust enrichment but also restoration in kind of a specific thing. See Douglas Laycock, The Scope and Significance of Restitution, 67 Tex.L.Rev. 1277, 1279 (1989). But Professor Laycock does not intimate that back pay is restitutionary under that expanded conception; rather, he appears to warn against such a conclusion:

"Restitution” is sometimes used in a third sense — to restore the value of what plaintiff lost____ But restitution of the value of what plaintiff lost is simply compensatory damages. Used in this sense, “restitution" loses all utility as a means of distinguishing one body of law from another. Restitution must be distinguished from compensation, either by its focus on restoration of the loss in kind or by its focus on defendant's gain as a measure of recovery.

Id. at 1282-83. Giving back pay to Hubbard would return to him the "value” of the job from which he was wrongfully excluded and is thus compensatory damages, not "in kind” restitution. Cf. Edelman v. Jordan, 415 U.S. 651, 668, 94 S.Ct. 1347, 1358, 39 L.Ed.2d 662 (1974) (rejecting the description of a remedy as "equitable restitution” when the remedy was "measured in terms of a monetary loss resulting from a past breach of a legal duty on the part of ... state officials”).