concurring in part and dissenting in part:
I join the majority in affirming the district court’s ruling that the Environmental Protection Agency (“EPA”) acted unlawfully in failing to hire Hubbard, and in reversing the district court’s refusal to consider Hubbard’s claim for attorney’s fees. I respectfully dissent, however, from the majority’s holding that 5 U.S.C. § 702 waives the sovereign immunity of the United States as to Hubbard’s claim for back pay.
Section 702 waives the sovereign immunity of the United States in actions in which the aggrieved party seeks “relief other than money damages.” 5 U.S.C. § 702 (1988). Relying on the Supreme Court’s ruling in Bowen v. Massachusetts, 487 U.S. 879, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988), and on a series of cases that classify back pay for various purposes as “equitable” relief, the majority reasons that back pay pursuant to an order of instatement is not “money damages” and therefore does not fall outside the limits of § 702’s waiver of sovereign immunity. The majority’s argument is by no means implausible, and indeed awarding Hubbard back pay would work no injustice in light of the court’s findings as to EPA’s unconstitutional actions. The obstacle to my assent is that I do not believe that § 702, properly construed, encompasses claims for monetary *470awards of back pay as a remedy for constitutional torts.1
The text of § 702 specifically excludes claims for “money damages” from its waiver of sovereign immunity. The legislative history of § 702 makes clear that it “withdraw[s] the defense of sovereign immunity in actions seeking relief other than money damages, such as an injunction, declaratory judgment, or writ of mandamus.” H.R.Rep. No. 1656, 94th Cong., 2d Sess. 4 (1976) (emphasis supplied). The House and Senate Reports say unequivocally that the waiver is “limited only to actions of this type for specific relief.” Id. (emphasis supplied); S.Rep. No. 996 at 4.2 Because back pay or lost wages traditionally have been viewed as money damages and not specific relief, see Dan B. Dobbs, Handbook on the Law of Remedies 924-27, 929-31 (1973) (“Dobbs on Remedies”); Arthur G. Sedgwick, A Treatise on the Measure of Damages 3, 1343 (9th ed. 1920), Hubbard’s back pay claim falls within the “money damages” exception to the § 702 waiver.
Nothing in the legislative history of the 1976 amendments to § 702 — two committee reports and two sets of hearings3 — suggests otherwise. The majority notes only that both committee reports listed “governmental employment” as one of the areas that would be affected by the waiver of sovereign immunity in amended § 702. Majority opinion (“Maj. op.”) at 468. The reference appears to have originated in Professor Cramton’s testimony before the Senate Judiciary Committee as part of a general reference to cases “challenging government regulatory and enforcement activity.” Sovereign Immunity: Hearing before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 91st Cong., 2d Sess. 120 (1970).4 There is, however, nothing to indicate that this oblique reference to a general category of cases that could be affected by the amendment was meant to indicate that claims for back pay, as opposed to injunctive or declaratory re*471lief, would be excepted from the exception for money damages.5
Moreover, one of the law review articles cited in the House Report, see H.R.Rep. No. 1656 at 8 n. 21, is devoted entirely to the limitation sovereign immunity placed on effective prosecution of federal employment discrimination cases. See Charles F. Abernathy, Sovereign Immunity in a Constitutional Government: The Federal Employment Discrimination Cases, 10 Harv. C.R.-C.L.L.Rev. 322 (1975). Yet, the article concludes only that “injunctive relief in an employment discrimination case ... should not be barred by sovereign immunity principles.” Id. at 366 (emphasis supplied).
As the majority recognizes, Maj. op. at 467 n. 10, the weight of authority before Bowen indicated that § 702 did not waive the sovereign immunity of the United States as to claims for back pay. See, e.g., 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 Exch. Serv., 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, 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). My colleagues argue, however, that Bowen changed all that by expressly and implicitly including back pay within the category of “monetary relief” that does not run afoul of the “money damages” exception to § 702’s waiver.6
Certainly nothing in the holding of Bowen indicates that back pay falls within the waiver of sovereign immunity in § 702. Drawing upon Judge Bork’s exhaustive pri- or interpretation of § 702, the Bowen Court reiterated that the reference to “other than money damages” in § 702 invoked the basic distinction in the law of remedies between “damages,” which “normally refers to a sum of money used as compensatory relief,” and “specific remedies,” which “give the plaintiff the very thing to which he was entitled.” Bowen, 487 U.S. at 895, 108 S.Ct. at 2732 (quoting Maryland Dept. of Human Resources v. Department of Health and Human Services, 763 F.2d 1441, 1446 (1985)) (internal quotations and citations omitted). While noting that money is most often awarded as compensation for a wrong and is therefore classifiable as “damages” — and not within § 702’s waiver — the Court also recognized that occasionally an award of money may constitute a specie remedy that would fall within the § 702 waiver. Id. The Court cited as examples of such exceptions to “money damages” judicial orders to specifically perform a contract to borrow money, to make future monthly support payments, or to fulfill a promise to pay a money bonus under a royalty contract. Id.
In Bowen itself, the federal government was withholding funds to which the state of Massachusetts claimed it was rightfully entitled by law. The purpose of the state’s suit, the Court held, was to recover those funds and thus it constituted a suit for specific relief, or, as our court had earlier dubbed it, “specific monetary relief.” Id. at 899-900, 108 S.Ct. at 2735. In sum, the Court concluded that
*472[t]he 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).
The holding of Bowen thus offers no support for Hubbard’s claim that § 702 waives the sovereign immunity of the United States for back pay. Hubbard’s suit is not one to enforce a statutory or constitutional mandate that he be paid a specified sum of money. Nor does Hubbard seek specific performance of an agreement to pay him a specified sum of money. The constitutional right that Hubbard is entitled to enforce is his right not to be dis-criminatorily barred from the job he sought. The “specific relief” that Hubbard seeks and was granted by the district court is a right to perform as a criminal investigator at EPA. See generally Dobbs on Remedies at 924-31 (discussing separately the specific remedy of reinstatement and the damages remedy of lost wages). An award of back pay would be the classic case of “money damages” to compensate him for the time he was wrongfully kept off the job.
The only support for Hubbard in Bowen is a single sentence of dicta suggesting that an award of back pay may be included within an order for specific relief. In making the noncontroversial point that not all monetary awards are “damages,” the Court stated that
[o]ur 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 2731-32 (quoting Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 688, 69 S.Ct. 1457, 1460, 93 L.Ed. 1628 (1949)) (emphasis deleted). It is admittedly unclear from that laconic phrase whether the Court was label-ling back pay as a form of specific relief, or simply stating the unremarkable proposition that courts often include a back pay award along with the specific remedy of reinstatement in order to afford complete relief. See generally Dobbs on Remedies at 84 (noting that in a fully merged system such as that in the federal courts, a single court adjudicates both legal and equitable claims). The majority argues that the Court meant that an award of back pay itself is a form of specific relief for purposes of § 702; I am doubtful that that was the intended meaning as it would contradict the existing law and the academic authorities that the Court itself cites later in the Bowen opinion. Thus, I do not find this one statement to be dispositive on the issue of whether § 702 waives the sovereign immunity of the United States as to claims for back pay.
Bowen cites Dobbs on Remedies for the basic distinction between compensatory damages and specific relief. Id. at 895, 108 S.Ct. at 2732. Yet Dobbs’ treatise is quite clear that back pay or lost wages is compensatory relief in the nature of damages. See Dobbs on Remedies at 924-27, 69 n. 18. Additionally, classifying back pay as specific, as opposed to compensatory, relief contradicts the Bowen Court’s repeated description of the Back Pay Act, 5 U.S.C. § 5596, as a law that provides compensation for past injury. 487 U.S. at 901 n. 31, 904 n. 39, 906 n. 42, 108 S.Ct. at 2735 n. 31, 2737 n. 39, 2738 n. 42. Indeed, the Court’s several references to the Back Pay Act tend to deflate the notion that the Court was ruling that § 702 waives sovereign immunity as to back pay, for such a holding would render the Back Pay Act itself largely superfluous.7
*473The majority also argues from other areas of the law where back pay has been classified as equitable relief that it is not “money damages” for purposes of federal sovereign immunity. Maj. op. at 463-66. But I fear the majority misconstrues the essential inquiry in these contexts as they contrast with this one. Regardless of how back pay is treated for other purposes, such as the Seventh Amendment right to jury trial, the crucial issue here is what Congress intended by the phrase “other than money damages” when it amended 5 U.S.C. § 702. . According to Bowen itself, Congress was drawing the traditional distinction between compensatory and specific relief. Bowen, 487 U.S. at 895, 108 S.Ct. at 2732. And, regardless of what courts call it in different circumstances, there is no escaping the fact that back pay is designed to compensate an aggrieved party.
This is surely the case with regard to the antidiscrimination remedies of Title VII of the Civil Rights Act of 1964. The majority relies on Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975), for the proposition that back pay is deemed an equitable remedy under Title VII. Maj. op. at 463. The language of Albemarle makes clear, however, that back pay under Title VII is designed to “compen-sat[e]” or “make whole” the victim of illegal discrimination. Id. at 418-19, 95 S.Ct. at 2372.
[T]he general rule is, that when a wrong has been done, and the law gives a remedy, the compensation shall be equal to the injury. The latter is the standard by which the former is to be measured. The injured party is to be placed, as near as may be, in the situation he would have occupied if the wrong had not been committed.
Id. (quoting Wicker v. Hoppock, 6 Wall. 94, 99, 18 L.Ed. 752 (1867)).8 Likewise, the majority cites, among other Title VII cases, United States v. N.L. Industries, 479 F.2d 354, 378 (8th Cir.1973), for the proposition that back pay is a form of specific relief. Maj. op. at 466, n. 9. The N.L. Industries court itself, however, noted that back pay “is compensation for the tangible economic loss resulting from an unlawful employment practice.” Id. at 379 (internal quotation omitted). Indeed, the use of the label “equitable” to describe the mixed law and equity remedial scheme of Title VII has prompted one scholar to comment that “equitable remedies in the Title VII context mean something quite different than traditional notions of equity.” Minna J. Kotkin, Public Remedies for Private Wrongs: Rethinking the Title VII Back Pay Remedy, 41 Hastings L.J. 1301, 1375 (1990).9 Thus, whether or not back pay may, on occasion, be called an “equitable” remedy or even “specific relief” under Title VII, it has never been seriously contested that its essence is “money damages” to compensate for injuries suffered.10
As the majority points out, back pay has also on occasion been called a form of “restitution.” Maj. op. at 462, 465-66. See Curtis v. Loether, 415 U.S. 189, 197, 94 S.Ct. 1005, 1010, 39 L.Ed.2d 260 (1974) (dicta) (back pay under Title VII considered to be a form of restitution); cf. Chauffeurs, Teamsters and Helpers, Local No. 391 v. *474Terry, 494 U.S. 558, 110 S.Ct. 1339, 1348, 108 L.Ed.2d 519 (1990) (back pay under the Labor Management Relations Act was not restitutionary where suit was against plaintiffs’ union as opposed to plaintiffs’ employer). This designation, as well as deviating from the classical definition of restitution as a remedy designed to undo unjust enrichment of the defendant without regard to the loss sufferéd by the plaintiff, see Restatement of Restitution general scope note at 1 (1937); Dobbs on Remedies at 1-2; David A. Webster, Beyond Federal Sovereign Immunity, 49 Ohio St.L.J. 725, 736 (1988) (discussing the remedy of restitution and its application to the Supreme Court’s ruling in Bowen v. Massachusetts), provides no counterpoint either to Congress’ direct evidence that amended § 702 was not to include any form of money damages.11
Like Sherlock Holmes’ dog that did not bark, it is hard to imagine that the long and hard-fought battle for the § 702 waiver of sovereign immunity would have been waged without any mention of back pay as an exception to the “money damages” bar. See, e.g., Roger C. Cramton, Nonstatutory Review of Federal Administrative Action: The Need for Statutory Reform of Sovereign Immunity, Subject Matter Jurisdiction, and Parties Defendant, 68 Mich. L.Rev. 387 (1970); Charles F. Abernathy, Sovereign Immunity in a Constitutional Government: The Federal Employment Discrimination Cases, 10 Harv.C.R-C.L.L.Rev. 322 (1975); Clark Byse, Proposed Reforms in Federal “Nonstat-utory” Judicial Review: Sovereign Immunity, Indispensable Parties, Mandamus, 75 Harv.L.Rev. 1479 (1962). Such a conclusion is particularly puzzling in view of the Supreme Court’s oft-repeated insistence that “we must construe waivers strictly in favor of the sovereign.” Library of Congress v. Shaw, 478 U.S. 310, 318, 106 S.Ct. 2957, 2963, 92 L.Ed.2d 250 (1986). If back pay awards are indeed waived by § 702, they are truly the “stealth exception” to sovereign immunity.
If wishes could trump the hard-nosed rules of statutory construction, I would happily join my colleagues in reversing the district court’s denial of Hubbard’s claim for back pay. Unfortunately, I do not construe Bowen’s dicta as authoritatively ruling that Congress intended the waiver in § 702 to encompass claims for back pay. I therefore must dissent from that part of the majority’s otherwise excellent opinion.
*475ORDER
March 2, 1992.
Before MIKVA, Chief Judge, WALD, EDWARDS, RUTH B. GINSBURG, SILBERMAN, BUCKLEY, WILLIAMS, D.H. GINSBURG, SENTELLE, HENDERSON, and RANDOLPH, Circuit Judges.The Suggestion For Rehearing En Banc of appellee/cross-appellant and the response thereto have been circulated to the full Court. The taking of a vote was requested. Thereafter, a majority of the judges of the Court in regular active service voted in favor of the suggestion on the question of whether “the Administrative Procedure Act, 5 U.S.C. § 702 (1988), ... waives sovereign immunity for ... back pay.” Hubbard v. EPA, 949 F.2d 453, 462 (D.C.Cir.1991). Upon consideration of the foregoing it is
ORDERED, by the Court en banc, that the suggestion is granted in part and denied in part. The aforementioned remedy issue will be considered and decided by the Court sitting en banc.
It is Further Ordered, by the Court en banc, that the injunctive relief ordered by the District Court and affirmed by a panel of this court, 949 F.2d at 462 (“Hubbard clearly is entitled to full equitable relief. Both the prior panel and en banc decisions ... held that the court could grant equitable relief. Hubbard, 809 F.2d at 11-12; Spagnola, 859 F.2d at 229-30.”); id. at 470 (“[h]e is, therefore, entitled to instatement”); Hubbard, 735 F.Supp. 435, 440 (D.D.C.1990), on reconsideration, 739 F.Supp. 654, 657 (D.D.C.1990), clarified, 1990 WL 134824, 1990 U.S. Dist. LEXIS 11661 (D.D.C. Sept. 5, 1990) (“The Court intends for plaintiff to receive a position and salary equivalent to that to which he would have advanced by the date of his instatement, had he not been denied a position in 1982 for constitutionally impermissible reasons.”), is not disturbed by this order and is not subject to en banc review.
A future order will govern further proceedings.
. Indeed, a Bivens action, where available, is the usual damages remedy for such constitutional torts. Earlier incarnations of this action, however, found such a remedy unavailable to Hubbard. See Spagnola v. Mathis, 859 F.2d 223, 230 (D.C.Cir.1988) (en banc).
.See also H.R.Rep. No. 1656 at 5 ("[t]hese actions usually take the form of a suit for injunc-tive, declaratory or mandamus relief); S.Rep. No. 996 at 4 (same); H.R.Rep. No. 1656 at 20 (‘‘[the proposed amendment will not] expos[e] the Government to new liability for money damages”); S.Rep. No. 996 at 19 (same); Sovereign Immunity: Hearing before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 91st Cong., 2d Sess. 30-31 (1970) (noting that “[t]he explicit exclusion of monetary relief makes clear that sovereign immunity is abolished only in actions for specific relief (injunction, declaratory judgment, mandatory relief, quiet title and ejectment)") (prepared comments of Professor Roger C. Cramton). And, as Professor Kenneth Davis stated in his Senate testimony:
[the] principal effect [of the proposed amendment to § 702] is to allow suits for specific relief____ Perhaps ninety per cent of the cases affected will be suits for injunction or declaratory judgment or for both, and perhaps most of the rest will be suits for relief in the nature of mandamus. But all other specific relief is covered, including specific performance, quieting title, ejectment, habeas corpus, and all other forms of specific relief.
Id. at 222.
. See H.R.Rep. No. 1656, 94th Cong., 2d Sess. (1976); S.Rep. No. 996, 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); 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).
. Professor Cramton presented a "sampling of recent cases ... [where] sovereign immunity has been a serious issue," including several cases relating to "government employment.” Sovereign Immunity: Hearing before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 91st Cong., 2d Sess. 120, 122 (1970) (citing Leber v. Canal Zone Cent. Labor Union & Metal Trades Council, 383 F.2d 110 (5th Cir.1967), cert. denied, Bramlett v. Leber, 389 U.S. 1046, 88 S.Ct. 769, 19 L.Ed.2d 838 (1968); Mulry v. Driver, 366 F.2d 544 (9th Cir.1966); Manhattan-Bronx Postal Union v. Gronouski, 350 F.2d 451 (D.C.Cir.1965), cert. denied, Manhattan-Bronx Postal Union v. O’Brien, 382 U.S. 978, 86 S.Ct. 548, 15 L.Ed.2d 469 (1966)).
. The majority suggests that Leber, supra, involved a claim for lost wages and thus supports the notion that the amended § 702 waives sovereign immunity for similar claims for back pay. Maj. op. at 468-69 n. 12. Both the appellate and trial court decisions in Leber are quite explicit, however, that the plaintiffs sought declaratory and injunctive relief, not lost wages. Canal Zone Cent. Labor Union & Metal Trades Council v. Fleming, 246 F.Supp. 998, 999 (D.C.Z.1965) ("[tjhis action was begun ... by the filing of a complaint praying for a declaratory judgment that certain regulations are ... invalid and for an injunction restraining the further implementation of the regulations") (emphasis supplied); Leber, 383 F.2d at 113 ("[tjhis appeal is from a decision ... declaring that certain regulations ... are invalid ... and enjoining the ... en-forc[ement of] these regulations"). The passage cited by the majority noting that the Secretary of the Army “must order the payment to employees of any monetary losses resulting from invalid regulations,” 383 F.2d at 114-15, refers to an obligation imposed on the Secretary by federal law, 383 F.2d at 115 & n. 9, not to the particular relief sought by the plaintiff employees.
. Despite dicta from two other circuits, see Maj. op. at 466-67, we will be the first circuit to hold that § 702 waives sovereign immunity for claims of back pay.
. See United States v. Testan, 424 U.S. 392, 404, 96 S.Ct. 948, 956, 47 L.Ed.2d 114 (1976) (noting that the Back Pay Act "expressly provide[s] money damages as a remedy against the United States in carefully limited circumstances").
. The Albemarle Court’s use of the term "equitable remedy” in relation to back pay clearly referred to the courts’ equitable discretion under Title VII whether or not to award back pay at all. See 422 U.S. at 414-18, 95 S.Ct. at 2370.
. The same point can be made about Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 80 S.Ct. 332, 4 L.Ed.2d 323 (1960), Maj. op. at 464-65, which held that pursuant to the "historic power of equity to provide complete relief,” a district court could award lost wages to private employees discharged in violation of the Fair Labor Standards Act. 361 U.S. at 292, 80 S.Ct. at 335. This equitable power of the court, however, in no way obscures the basic fact that the award was "compensatory” in nature. Id. at 293, 80 S.Ct. at 336.
.See, e.g., Arthur G. Sedgwick, A Treatise on the Measure of Damages 3 (1920) (noting that "[elquity ... gives specific relief by decreeing the very thing to be done which was agreed to be done____ But, as a general rule, it refrains from awarding pecuniary reparation for damage sustained”) (emphasis supplied); id. at 1343 (under the heading "Damages for wrongful discharge,” noting that ”[t]he general rule in cases of wrongful discharge ... is that the plaintiff has a right to recover the stipulated wages for the full time”); see also Dobbs on Remedies at 924-27, 929-31.
. Professor Laycock, upon whom the majority relies for the proposition that restitution also encompasses "restoration in kind of a specific thing,” Maj. op. at 465-66, nowhere says that an award of back pay falls under this category of restitution:
"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.
Douglas Laycock, The Scope and Significance of Restitution, 67 Tex.L.Rev. 1282-83 (1989). An award of back pay to Hubbard grants him the "value” of the job for which he was wrongfully excluded and is thus compensatory damages, not "in kind" restitution.
Indeed, the Supreme Court has expressly rejected attempts in other contexts to label compensatory damages as “equitable restitution” for purposes of escaping the Eleventh Amendment:
But that portion of the District Court’s decree which petitioner challenges ... requires payment of state funds, not as a necessary consequence of compliance in the future with a substantive federal-question determination, but as a form of compensation to those whose applications were processed on the slower time schedule at a time when petitioner was under no court-imposed obligation to conform to a different standard. While the Court of Appeals described this retroactive award of monetary relief as a form of “equitable restitution," it is in practical effect indistinguishable in many aspects from an award of damages against the State. It will to a virtual certainty be paid from state funds, and not from the pockets of the individual state officials who were the defendants in the action. It is measured in terms of a monetary loss *475resulting from a past breach of a legal duty on the part of the defendant state officials.
Edelman v. Jordan, 415 U.S. 651, 668, 94 S.Ct. 1347, 1358, 39 L.Ed.2d 662 (1974). See also Quern v. Jordan, 440 U.S. 332, 337, 99 S.Ct. 1139, 1143, 59 L.Ed.2d 358 (1979) (“[w]e rejected the notion that simply because the lower court’s grant of retroactive benefits had been styled ‘equitable restitution’ it was permissible under the Eleventh Amendment”).