FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID P. ADAM; LANFORD ADAMI;
JAMES P. CALZIA; BELA CSEJTEY,
JR.; ALICE S. DAVIS; JAMES L.
DRINKWATER; ARTHUR B. FORD;
ARTHUR GRANTZ; BARRY F.
HIRSHORN; H. MAHADEVA IYER;
CHI-YU KING; STEPHEN L. LEWIS; No. 09-17091
ALLAN G. LINDH; DENNIS M.
MANN; A. THOMAS OVENSHINE; D.C. No.
4:98-cv-02094-CW
BRENT D. TURRIN; CHESTER T.
WRUCKE, OPINION
Plaintiffs-Appellants,
v.
GAIL NORTON, Secretary of the
U.S. Department of the Interior,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Claudia A. Wilken, District Judge, Presiding
Argued and Submitted
October 6, 2010—San Francisco, California
Filed March 1, 2011
Before: Stephen Reinhardt and Marsha S. Berzon, Circuit
Judges, and Louis H. Pollak, Senior District Judge.*
*The Honorable Louis H. Pollak, Senior District Judge for the U.S. Dis-
trict Court for Eastern Pennsylvania, Philadelphia, sitting by designation.
3007
3008 ADAM v. NORTON
Opinion by Judge Reinhardt
3010 ADAM v. NORTON
COUNSEL
Mary Dryovage, San Francisco, California, for the plaintiff-
appellants.
Joseph P. Russoniello, United States Attorney, Joann M.
Swanson, Assistant United States Attorney, and Steven J.
Saltiel, Assistant United States Attorney, San Francisco, Cali-
fornia, for defendant-appellee the United States.
OPINION
REINHARDT, Circuit Judge:
The Back Pay Act waives the government’s sovereign
immunity from liability for interest on back pay awarded to:
[a]n employee of an agency who, on the basis of a
timely appeal or an administrative determination . . .
is found by appropriate authority under applicable
law . . . to have been affected by an unjustified or
unwarranted personnel action which has resulted in
the withdrawal or reduction of all or part of the
[employee’s] pay.
5 U.S.C. §§ 5596(b)(1), (b)(1)(A)(i), (b)(2)(A). This case
presents the question whether that explicit waiver of immu-
nity applies to interest on an award of back pay against the
federal government for terminating an employee in violation
of the Age Discrimination in Employment Act (ADEA). We
hold that it does.
I.
Chester Wrucke and James Calzia were terminated from
their positions as scientists for the U.S. Geological Survey
ADAM v. NORTON 3011
pursuant to a 1995 Reduction in Force. Wrucke and Calzia
filed appeals with the Merit Systems Protection Board
(MSPB), and after exhausting their administrative remedies
filed a timely complaint in the District Court for the Northern
District of California in 1998.1 The district court conducted a
bench trial in July 2003. The district court found that Wrucke
and Calzia were terminated in violation of the ADEA. After
a round of appellate litigation, the details of which are not rel-
evant to the present appeal, the case was remanded to the dis-
trict court, which entered judgment granting Wrucke and
Calzia back pay, as well as pre- and post-judgment interest.
On May 14, 2009, the government filed a Motion for Relief
from Judgment under Fed. R. Civ. P. 60(b), asking the court
to void the pre- and post-judgment interest under the theory
that the ADEA did not expressly waive the federal govern-
ment’s sovereign immunity from interest payments.2 Wrucke
and Calzia, in turn, argued that the Back Pay Act’s waiver of
federal sovereign immunity from interest for “unjustified or
unwarranted personnel action[s]” by the federal government,
5 U.S.C. § 5596(b)(1), (b)(2)(A), provides for pre- and post-
judgment interest on meritorious ADEA claims for wrongful
termination. The district court sided with the government,
holding that the “[Back Pay] Act does not expressly waive
1
The district court dismissed the claims of twelve additional plaintiffs
challenging the Reduction in Force, and this court affirmed that denial on
appeal. Those twelve plaintiffs are not involved in the present appeal.
2
Because sovereign immunity is a limitation on the district court’s
subject-matter jurisdiction, it can be asserted any time prior to final judg-
ment, as “[t]he government may not be equitably barred from asserting
jurisdictional requirements.” See Vacek v. U.S. Postal Service, 447 F.3d
1248, 1253 (9th Cir. 2006); see also Grupo Dataflux v. Atlas Global
Group, L.P., 541 U.S. 567, 571 (2004) (“Challenges to subject-matter
jurisdiction can of course be raised at any time prior to final judgment.”)
(citing Capron v. Van Noorden, 2 Cranch 126 (1804)); Dunn & Black,
P.S. v. United States, 492 F.3d 1084, 1090 (9th Cir. 2007) (“It is well
established that the federal government cannot waive sovereign immunity
by failing to raise it before the district court.”).
3012 ADAM v. NORTON
immunity for interest on back pay under the ADEA.” Calzia
and Wrucke now appeal.
II.
[1] In Library of Congress v. Shaw, 478 U.S. 310 (1986),
the Supreme Court held that under the “no-interest rule,” “[i]n
the absence of express congressional consent to the award of
interest separate from a general waiver of immunity to suit,
the United States is immune from an interest award.” Id. at
314. The ADEA’s waiver of federal sovereign immunity does
not expressly waive the federal government’s immunity from
awards of interest. See 29 U.S.C. § 633a. The Back Pay Act,
however, does explicitly waive the government’s immunity
from interest on back pay awarded for certain types of “unjus-
tified or unwarranted personnel action[s].” 5 U.S.C.
§ 5596(b)(1), (b)(2)(A). We therefore must determine whether
the Back Pay Act’s waiver of sovereign immunity from inter-
est on back pay awards against the federal government
extends to back pay awarded under the ADEA. We hold that
it does.
[2] The Back Pay Act was passed in 1966 with the goal of
“establish[ing] a single, general, and comprehensive pay
adjustment authority to be applied after an erroneous or
unwarranted personnel action is corrected.” H.R. Rep. No. 89-
32, at 1 (1965). It makes back pay, “payable with interest,”
available to:
An employee of an agency who, on the basis of a
timely appeal or an administrative determination . . .
is found by appropriate authority under applicable
law, rule, regulation, or collective bargaining agree-
ment, to have been affected by an unjustified or
unwarranted personnel action which has resulted in
the withdrawal or reduction of all or part of the pay,
allowances, or differentials of the employee—
ADAM v. NORTON 3013
5 U.S.C. §§ 5596(b)(1), (b)(1)(A)(i), (b)(2)(A) (emphasis
added). By its clear terms, this express waiver of sovereign
immunity applies to actions, such as this one, in which an
agency employee sues the federal government under substan-
tive anti-discrimination statutes such as the ADEA, alleging
that a wrongful personnel action resulted in “the withdrawal
or reduction of . . . pay, allowances, or differentials.” Cf.
Brown v. Sec’y of the Army, 918 F.2d 214, 216 (D.C. Cir.
1990) (“[W]e find in [the Back Pay Act’s] text no hint of an
exclusion of, or exemption for, federal sector Title VII adjudi-
cations.”). In so finding, we join with three other circuits that
have concluded that the Back Pay Act’s waiver of immunity
from interest awards applies to a federal employee’s termina-
tion or reduction in pay in violation of substantive anti-
discrimination statutes. See, e.g., Woolf v. Bowles, 57 F.3d
407, 410-11 (4th Cir. 1995); Edwards v. Lujan, 40 F.3d 1152,
1154 (10th Cir. 1994); Brown, 918 F.2d at 217-218.
Our conclusion is compelled by the Back Pay Act’s text.
The Act waives federal sovereign immunity for both back pay
and interest, when: 1) the plaintiff is an employee of an
agency; 2) the plaintiff makes a “timely appeal” or obtains
“an administrative determination” regarding such a personnel
action; 3) the plaintiff obtains a favorable ruling “under an
applicable law, rule, regulation, or collective bargaining
agreement” from an “appropriate authority” stating that the
plaintiff has been “affected by an unjustified or unwarranted
personnel action”; and 4) the unjustified personnel action
resulted in a “withdrawal or reduction” of the plaintiff’s pay,
allowances, or differentials. See 5 U.S.C. § 5596(b)(1).
[3] Here, plaintiffs, who served as scientists for the U.S.
Geological Survey, were clearly “employee[s] of an agency.”
5 U.S.C. § 5596(b)(1).3 Plaintiffs also filed a “timely appeal”
3
See also 5 C.F.R. § 550.803 (“When the term employee is used to
describe an individual who is making a back pay claim, it also may mean
a former employee.”).
3014 ADAM v. NORTON
as defined by the Office of Personnel Management regula-
tions that interpret the Act. Those regulations state that the
requirement for a timely appeal is met when:
An employee or an employee’s personal representa-
tive initiates an appeal or grievance under an appeal
or grievance system, including appeal or grievance
procedures included in a collective bargaining agree-
ment; a claim against the Government of the United
States; a discrimination complaint; or an unfair labor
practice charge
and “an appropriate authority accepts that appeal, grievance,
claim, complaint, or charge as timely filed.” 5 C.F.R.
§ 550.804 (b)(1)-(2) (emphasis added). Here, plaintiffs initi-
ated “an appeal or grievance under an appeal or grievance
system” by filing an appeal of their termination with the Merit
Systems Protection Board (MSPB), which recognized the
appeal as timely filed. Moreover, plaintiffs’ suit in the district
court, which was likewise recognized as timely filed, involved
both “a claim against the Government of the United States”
and “a discrimination complaint.” 5 C.F.R. § 550.804(b)(1).
Thus, both the plaintiffs’ MSPB appeal and their district court
action satisfy the Back Pay Act’s requirement for a “timely
appeal.”
[4] Furthermore, the district court that rendered judgment
for the plaintiffs in this case was, without question, an “appro-
priate authority” to make a finding of wrongful termination in
this case. Though the statute’s language is quite clear even
without reference to the OPM’s interpretation, the agency’s
Back Pay Act regulations confirm this straightforward conclu-
sion, defining an “appropriate authority” as “an entity having
authority in the case at hand to correct or direct the correction
of an unjustified or unwarranted personnel action, including
. . . a court.” 5 C.F.R. § 550.803.4 It is quite clear that the
4
The government argues that a court cannot serve as an “appropriate
authority” under the Back Pay Act, notwithstanding § 550.803’s explicit
ADAM v. NORTON 3015
Back Pay Act’s reference to an “unjustified or unwarranted
personnel action” on its face encompasses a termination that
violates the ADEA, and, again, the OPM regulations confirm
this most reasonable reading of the statute:
Unjustified or unwarranted personnel action means
an act of commission or an act of omission . . . that
an appropriate authority subsequently determines, on
the basis of substantive or procedural defects, to
have been unjustified or unwarranted under applica-
ble law, Executive order, rule, regulation, or manda-
tory personnel policy established by an agency or
through a collective bargaining agreement. Such
actions include personnel actions and pay actions
(alone or in combination).
5 C.F.R. § 550.803 (emphasis added). Thus, an appropriate
authority found that an act of commission (plaintiffs’ termina-
tion) was unjustified by virtue of substantive violation of
plaintiffs’ rights (age discrimination) under applicable law
statement to the contrary. It does so on the basis of an unexplained citation
to a Court of Claims case, Bell v. United States, 23 Cl. Ct. 73, 76 (1991).
Bell did not arise under the Back Pay Act and does not hold that a court
is not an appropriate authority under the Back Pay Act. Indeed, Bell’s only
possible relevance to this case is that it refers to the Supreme Court’s hold-
ing in United States v. Fausto, 484 U.S. 439 (1988), that under the Civil
Service Reform Act of 1978, “nonepreference members of the excepted
service” cannot obtain judicial review under the Back Pay Act for certain
categories of personnel actions, such as actions “based on unacceptable
job performance.” Id. at 445. But the Supreme Court’s holding in Fausto
was limited to specific categories of civil service claims brought by spe-
cific categories of government employees, and does not entail a conclu-
sion that a court is not an “appropriate authority” under the Back Pay Act.
See id. at 455 (“[The CSRA’s] deliberate exclusion of employees in
respondent’s service category from the provisions establishing administra-
tive and judicial review for personnel action of the sort at issue here pre-
vents respondent from seeking review in the Claims Court under the Back
Pay Act.”) (emphasis added).
3016 ADAM v. NORTON
(the ADEA). Finally, plaintiffs’ termination indisputably led
to a “withdrawal or reduction of all or part of the pay, allow-
ances, or differentials of the employee.”
[5] Moreover, the ADEA is without question an “applica-
ble law” for purposes of the Back Pay Act. The OPM’s regu-
lations do not define “applicable law,” nor is the meaning of
“applicable” otherwise obvious from the text of the statute.
However, the House committee report for the Back Pay Act
states that the phrase “applicable law” is intended “to cover
those laws and regulations, now or hereafter in effect, which
provide the basis for operations under the Government per-
sonnel systems.” H.R. Rep. No. 89-32, at 4 (1965) (emphasis
added). The ADEA provides precisely such a basis for federal
personnel operations by barring a wide range of federal
employers, including all “executive agencies,” from carrying
out personnel actions that discriminate against employees
over the age of 40. See 29 U.S.C. § 633a. Such a broad and
mandatory proscription, which governs all personnel actions
undertaken by federal executive agencies, plainly provides a
“basis for operation under the [federal] Government personnel
system.” Any doubt as to the ADEA’s central role in the fed-
eral personnel system is dispelled by the statute’s treatment in
the Civil Service Reform Act (CSRA) of 1978, which “estab-
lished a comprehensive system for reviewing personnel action
taken against federal employees.” Fausto, 484 U.S. at 455.
The CSRA created an elaborate procedure for the vindication
of civil servants’ ADEA claims, including a requirement that
federal agencies resolve ADEA claims, a requirement that
agency decisions be appealable to the Merit Systems Protec-
tion Board, and a provision for judicial review. See 5 U.S.C.
§ 7702(a). By explicitly providing for resolution of ADEA
claims as part of its comprehensive “framework for evaluating
adverse personnel actions against [federal employees],”
Fausto, 484 U.S. at 443, the CSRA confirms that the ADEA’s
ban of age discrimination is a basic civil service protection,
and precisely the sort of “applicable law” that Congress con-
templated in adopting the Back Pay Act’s waiver of sovereign
ADAM v. NORTON 3017
immunity. Thus, one need not look any further than the text
of the Back Pay Act to recognize that the Act waives the fed-
eral government’s immunity from liability for interest in cases
such as this one. Calzia and Wrucke were “employee[s] of an
agency who, on the basis of a timely appeal [their district
court action] . . . [were] found by appropriate authority [the
district court] under applicable law [the ADEA] . . . to have
been affected by an unjustified or unwarranted personnel
action which has resulted in the withdrawal . . . of all or part
of” their pay. 5 U.S.C. § 5596(b)(1). All of the Back Pay
Act’s conditions for a waiver of sovereign immunity on inter-
est are clearly satisfied in this case, and Calzia and Wrucke
are accordingly entitled to interest on the award of back pay
they secured in the district court.
III.
The government’s arguments to the contrary are wholly
unpersuasive. That the ADEA itself does not waive the gov-
ernment’s sovereign immunity from interest is irrelevant. The
Back Pay Act was intended to provide “a more uniform and
equitable basis” for awards of back pay to federal employees.
H.R. Rep. No. 89-32, at 1 (1965) (emphasis added). Reflect-
ing the goal of uniformity in back pay awards, the Act’s
waiver of immunity expressly extends to cases in which a per-
sonnel action is found to be unwarranted under “applicable
law, rule, regulation, or collective bargaining agreement.” 5
U.S.C. § 5596(b)(1). This language clearly does not contem-
plate that the Back Pay Act’s waiver of immunity applies only
to laws, rules, regulations, or collective bargaining agree-
ments that contain their own separate waiver of sovereign
immunity. The Act’s text does not hint at such a limitation,
and reading such a limitation into the Act would result in a
fragmented back pay scheme completely at odds with the
Act’s purpose of establishing “a single, general, and compre-
hensive pay adjustment authority to be applied after an erro-
neous or unwarranted personnel action is corrected.” H.R.
Rep. No. 89-32, at 1 (1965).
3018 ADAM v. NORTON
We disagree with the Eighth Circuit’s holding that, under
the no-interest rule, “to provide the sovereign immunity
waiver [for interest] absent in Title VII, the separate statute
must, at a minimum, unequivocally express Congress’s intent
to waive sovereign immunity under Title VII.” Arneson v.
Callahan, 128 F.3d 1243, 1246 (8th Cir. 1997). The Eighth
Circuit’s approach, which directly conflicts with that of the
D.C. Circuit as well as that of the Fourth and Tenth Circuits,
would render impracticable Congress’s goal of creating a sin-
gle uniform system for civil servant back pay awards, as it
would require the Back Pay Act to be constantly amended to
explicitly reference each new substantive employment statute
enacted by Congress. We see no reason why the no-interest
rule requires such a result, as that rule merely requires that the
federal government’s waiver of immunity from an award of
interest be express—not that the waiver must specifically
mention every statute to which it may conceivably apply. See
Library of Congress v. Shaw, 478 U.S. 310, 311 (1986). There
is no logical reason why the rule should bar Congress from
adopting a general waiver of immunity from an award of
interest, so long as it does so in express terms, as it did in the
Back Pay Act.
[6] For similar reasons, it is not relevant that plaintiffs did
not bring an action under the Back Pay Act itself. As the Dis-
trict of Columbia Circuit has explained, “the Back Pay Act is
an auxiliary measure” in relation to substantive
antidiscrimination statutes such as the ADEA. Mitchell, 918
F.2d at 217 (emphasis added).5 Just as civil rights plaintiffs
need not bring suit under 42 U.S.C. § 1988 in order to collect
attorney’s fees from the government under that provision, a
5
This is not to say that the Back Pay Act will always serve only as an
auxiliary measure: where a finding of an unwarranted personnel action is
based upon an agency regulation or other legal rule which does not itself
create a federal cause of action, the Back Pay Act may provide a cause of
action for the recovery of back pay in federal court. See, e.g., Fausto, 484
U.S. at 442.
ADAM v. NORTON 3019
federal employee suing the government for violation of a sub-
stantive antidiscrimination statute need not bring suit under
the Back Pay Act in order to receive back pay and interest
from the United States. Where a federal employee brings an
action under an “applicable law” that itself provides a federal
cause of action and waives the government’s immunity from
suit, the operation of the Back Pay Act’s waiver of interest
turns not on whether the suit is brought under the Back Pay
Act, but rather on whether the express terms of the Back Pay
Act are satisfied, as they clearly are in this case.
The government poses the question of why, if the Back Pay
Act (which was enacted in 1966) were intended to waive
immunity in suits brought under substantive anti-
discrimination statutes, Congress found it necessary to amend
Title VII in 1972 to permit discrimination suits against the
federal government, and why it found it necessary to again
amend Title VII in 1991 to allow for awards of interest. The
government’s argument regarding the 1972 amendments to
Title VII confuses the issue of the government’s substantive
liability for violations of Title VII with the question of its lia-
bility for interest once such a violation has been found. The
Back Pay Act does not waive the government’s sovereign
immunity from suit under statutes such as the ADEA or Title
VII; it merely waives the government’s immunity from cer-
tain remedies where the government has already waived its
immunity from suit. Because the Act operates only where the
government has already waived its immunity from suit, it did
not obviate the need for Congress to expressly waive the gov-
ernment’s immunity from suit for violations on its part of
Title VII’s anti-discrimination provisions.
Likewise, Congress’s decision to amend Title VII in 1991
to allow for awards of interest followed shortly after the D.C.
Circuit’s 1990 decision in Brown v. Mitchell, 918 F.2d 214.
Brown held that although the Back Pay Act applies to Title
VII suits, because the Act is limited to personnel actions
resulting in a “withdrawal or reduction of all or part of the
3020 ADAM v. NORTON
[employee’s] pay,” its remedies were unavailable to plaintiffs
who sued under Title VII not regarding a reduction in pay, but
rather regarding wrongfully withheld promotions. Id. at 220;
see also United States v. Testan, 424 U.S. 392, 406 (1976)
(holding that Back Pay Act does not provide a remedy for
misclassified federal employees). Congress’s 1991 amend-
ments to the Civil Rights Act allowed Title VII plaintiffs to
obtain interest even in cases, such as denials of promotion, not
involving such a “withdrawal or reduction” of an employee’s
pay. As such, the 1991 amendments expanded upon the inter-
est waiver of the Back Pay Act, and would not be rendered
superfluous, as the government suggests, by a reading of that
Act, such as the D.C. Circuit had just given it.
IV.
[7] The “government offers no convincing reason why the
Back Pay Act does not supply the immunity waiver prescrip-
tion absent in” the ADEA. Brown, 918 F.2d at 216. Our con-
clusion that the Back Pay Act does, in fact, provide such a
waiver, is the only one available to us in light of the Act’s
clear and unequivocal language, as well as Congress’s clear
intent that the Act define a uniform remedial scheme for all
awards of back pay against the federal government. Calzia
and Wrucke are accordingly entitled to an award of interest in
addition to the back pay already awarded to them by the dis-
trict court.
REVERSED and REMANDED.