Misra v. Smithsonian Astrophysical Observatory

United States Court of Appeals
For the First Circuit

No. 00-2013

BIJOY MISRA,

Plaintiff, Appellant,

v.

SMITHSONIAN ASTROPHYSICAL OBSERVATORY;
I. MICHAEL HEYMAN,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Torruella, Chief Judge,

Stahl, Senior Circuit Judge,

Boudin, Circuit Judge.

Christie M. Charles, with whom George F. Gormley, was on brief,
for appellant.
Cynthia W. Lie, with whom Donald K. Stern, United States Attorney,
and Rayford A. Farquhar, Assistant U.S. Attorney, were on brief, for
appellees.
May 3, 2001

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 TORRUELLA, Chief Judge. The Smithsonian Astrophysical

Observatory ("SAO") was established as part of the Smithsonian

Institution ("Smithsonian") to conduct research in astrophysics and

related space sciences. Smithsonian employees are paid from one of two

sources: federal funds or funds controlled by the Smithsonian Trust, a

private entity. Bijoy Misra, a computer scientist of Indian origin,

worked as a "trust fund" employee of the SAO until he was laid off in

1992. Although Misra understood that he was to be rehired shortly, he

was subsequently turned down for eight different positions for which he

was qualified. Misra then brought this Title VII claim alleging that

the SAO had discriminated against him in violation of the Civil Rights

Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. The district court

granted summary judgment for the SAO, concluding that the court lacked

subject matter jurisdiction over the claim due to Misra's failure to

exhaust his administrative remedies. Misra v. Smithsonian

Astrophysical Observatory, No. 98-11998 (D. Mass. Apr. 11, 2000). We

agree and affirm the decision of the district court.

DISCUSSION

Under the principle of sovereign immunity, individuals may

not sue the United States without its consent. United States v.

Mitchell, 463 U.S. 206, 212 (1983) (citing United States v. Sherwood,

312 U.S. 584, 586 (1941)). This immunity extended to suits brought

under the Civil Rights Act of 1964 (the "Act"). See Brown v. Gen.

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Servs. Admin., 425 U.S. 820, 825 (1976) (indicating that § 2000e(b),

which covers "employers," does not include the federal government). In

1972, Congress amended the Act to waive the federal government's

sovereign immunity for employment discrimination actions against

various federal agencies and institutions and to permit federal court

jurisdiction over such violations. 42 U.S.C. § 2000e-16(a); see Brown,

425 U.S. at 829. Congress also outlined, as a condition of this

waiver, a series of administrative remedies which a claimant must

exhaust before filing suit in federal court. Irwin v. Dep't of

Veterans Affairs, 498 U.S. 89, 94 (1990); Brown, 425 U.S. at 833-34.

Under the amended Act, § 2000e-16(a) "provides the exclusive judicial

remedy for claims of discrimination in federal employment." Brown, 425

U.S. at 835.

The Smithsonian is a federal agency which enjoys sovereign

immunity from suit. Cf. Expeditions Unlimited Aquatic Enters. v.

Smithsonian Inst., 566 F.2d 289, 296-97 (D.C. Cir. 1977) (finding that

the Federal Tort Claims Act, which waives sovereign immunity for tort

actions against the federal government, applies to the Smithsonian);

accord Johnson v. Smithsonian Inst., 189 F.3d 180, 189 (2d Cir. 1999);

Genson v. Ripley, 681 F.2d 1240, 1241-42 (9th Cir. 1982); see also 20

U.S.C. §§ 41-47 (establishing Smithsonian charter). With respect to

employment discrimination, courts in the past have grappled with the

question of whether Title VII offered a remedy for Smithsonian

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employees. See, e.g., Rivera v. Heyman, 157 F.3d 101, 102 (2d Cir.

1998) (reviewing a district court's decision that the Rehabilitation

Act, which adopts the remedies of the Civil Rights Act, did not provide

relief for employees of the Smithsonian because it was not an

"executive agency").1 This ambiguity was resolved when Congress passed

the Workforce Investment Act of 1998, Pub. L. No. 105-220, 112 Stat.

936 Sec. 341(a) (1998), which amended § 2000e-16(a) to include the

Smithsonian.2 In doing so, Congress explicitly waived the Smithsonian's

1 The original language of § 2000e-16(a) read as follows:

All personnel actions affecting employees or
applicants for employment (except with regard to
aliens employed outside the limits of the United
States) in military departments as defined in
section 102 of Title 5, in executive agencies as
defined in section 105 of Title 5 (including
employees and applicants for employment who are
paid from nonappropriated funds), in the United
States Postal Service and the Postal Rate
Commission, in those units of the Government of
the District of Columbia having positions in the
competitive service, and in those units of the
legislative and judicial branches of the Federal
Government having positions in the competitive
service, and in the Library of Congress shall be
made free from any discrimination based on race,
color, religion, sex, or national origin.

42 U.S.C. § 2000e-16(a) (1972). Since the Smithsonian was not
identified in the statute, the district court in Rivera analyzed
whether it fit any of the other named categories. See Rivera v.
Heyman, 982 F. Supp. 932, 937-39 (S.D.N.Y. 1997). The issue was moot
on appeal as the Workforce Investment Act had been by then passed. See
Rivera, 157 F.3d at 103-04.
2 The Workforce Investment Act also amended the Age Discrimination in
Employment Act of 1967, 29 U.S.C. § 633a(a), and the Rehabilitation Act

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sovereign immunity with respect to Title VII claims. Like all other

entities listed in that provision, the Smithsonian may only be sued in

federal court if the aggrieved employee or applicant for employment has

exhausted all available administrative remedies.

Misra contends that he is not subject to the exhaustion

requirement because he is paid out of the Smithsonian Trust, not from

federal funds. In effect, Misra reasons that because he is paid from

private monies, the Smithsonian should be treated as a private

institution with respect to his claim. This is simply not so. The

doctrine of sovereign immunity focuses on the nature of the entity

being sued, not on the claimant. As such, Misra's employment status

does not have any effect on the sovereign immunity enjoyed by the

Smithsonian or the conditions that must be met in order for that

immunity to be waived. In fact, the only question with regard to

Misra's employment is whether he is included in the class of persons to

whom Congress has given permission to sue the Smithsonian for Title VII

violations. See 42 U.S.C. § 2000e-16(a) (allowing "employees or

applicants for employment" to bring suit). Since § 2000e-16(a) is the

exclusive remedy for such individuals, Brown, 425 U.S. at 835,

accepting Misra's argument that he is not a "federal employee" (and

hence not subject to that provision) would only lead to the conclusion

of 1973, 29 U.S.C. § 791. Workforce Investment Act Sec. 341(b)-(c)
(1998). The amendments apply retroactively to any claims brought
before their passage. Id. at Sec. 341(d).

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that he has no remedy at all. Cf. Rivera, 157 F.3d at 102 (noting that

to have an action anywhere, an employee of the Smithsonian must have a

remedy under the provision waiving sovereign immunity).

We hold that to bring his Title VII claim against the

Smithsonian in federal district court, Misra was required to exhaust

his administrative remedies. Since he concedes that he did not do so,

the district court lacked subject matter jurisdiction over his action.

We affirm.

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