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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 21, 2003 Decided February 10, 2004
No. 02-5325
ANNE K. ALBRECHT, ET AL.,
APPELLANTS
v.
COMMITTEE ON EMPLOYEE BENEFITS OF THE
FEDERAL RESERVE EMPLOYEE BENEFITS SYSTEM, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 00cv00317)
Philip J. McNutt argued the cause for appellants. With
him on the briefs were Michael P. Bentzen, Nicholas Wood-
field, Glenn A. Mitchell, and David U. Fierst.
Paul J. Ondrasik Jr. argued the cause for appellees. With
him on the brief were Katherine H. Wheatley, Assistant
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
General Counsel, Board of Governors of the Federal Reserve
System, Morgan D. Hodgson, and Alice E. Loughran.
Before: GINSBURG, Chief Judge, and ROGERS and TATEL,
Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: Claiming breach of fiduciary duty
and unjust enrichment, employees of the Board of Governors
of the Federal Reserve System seek the return of mandatory
contributions that they made into a defined-benefit pension
plan after actuaries determined the plan was well-funded.
They also seek to terminate their obligation to make future
contributions. The district court dismissed the claims for
lack of jurisdiction and for failure to state a claim. We
affirm.
I.
The Federal Reserve System, composed principally of the
Board of Governors and the twelve regional Federal Reserve
Banks, provides a retirement plan for all of its employees.
The retirement package encompasses two distinct pension
plans, the ‘‘Board Plan’’—the one at issue in this case—and
the ‘‘Bank Plan.’’ Both are defined-benefit plans that, re-
gardless of investment performance, entitle beneficiaries to
fixed periodic payments upon retirement. The Board and
regional Banks bear the risk of any funding deficiency: if the
plans become underfunded, the employers must make up the
difference and pay the promised benefits.
The difference between the two plans stems from a change
in Social Security coverage of federal employees. Federal
Reserve Board employees hired before January 1, 1984, pay
no Social Security taxes and receive no Social Security bene-
fits with respect to their employment with the Board. To
cover the retirement needs of these employees, the Board of
Governors created the Board Plan. As a condition of employ-
ment, employees hired before January 1, 1984, made manda-
tory payroll contributions into the Plan, set at seven percent
of salary.
3
In 1983, Congress amended the Social Security Act to
extend coverage to Board employees hired on or after Janu-
ary 1, 1984. See Social Security Amendments of 1983, Pub.
L. No. 98–21, 97 Stat. 65 (1983). For these employees, and
for all regional Bank employees, the Board created the Bank
Plan. That Plan requires no employee contributions, but
unlike employees covered by the Board Plan, those covered
by the Bank Plan pay Social Security taxes and their retire-
ment payments are adjusted to account for their Social
Security benefits.
Appellants, a putative class of current and former Board
employees hired before January 1, 1984, allege that for each
of the past twenty years, the Board Plan actuary determined
that the Plan had more than sufficient assets to satisfy
liabilities, including both benefits and administrative ex-
penses. According to appellants, retirement plan annual
reports show that Board Plan assets were 132% of projected
and accrued liabilities in 1984 and were 167% of such liabili-
ties in 1994. Based on these actuarial estimates, the Board
has not contributed to the Board Plan since 1985.
Citing these developments, appellants asked the Executive
Secretary, the Plan’s chief administrative officer, ‘‘for a re-
fund or suspension of mandatory employee contributions.’’
Letter from Comm. on Appeals, J.A. at 71. The Executive
Secretary denied their request, and the Committee on Ap-
peals, the entity charged with deciding disputes regarding the
payment of benefits, affirmed. The Committee explained
that because the claim involved not benefits, but rather a
disagreement over the pension plan’s design, neither the
Executive Secretary nor the Committee on Appeals had
authority to resolve the matter.
Appellants then filed suit in the U.S. District Court for the
District of Columbia, seeking recovery of all contributions
made since the actuary deemed the Board Plan sufficiently
funded plus the investment return on those contributions.
They also sought an injunction prohibiting the Board from
requiring further payments into the pension plan. Appellants
argued that by refusing to exercise their discretion to reduce
4
mandatory contributions, the Board of Governors and the
Committee on Employee Benefits (CEB), the Plan’s adminis-
trator, breached their fiduciary duties to beneficiaries. Ap-
pellants also alleged that after the death of the last beneficia-
ry, Board Plan surplus funds would revert to the Board or to
the Bank Plan, thereby unjustly enriching the Board or the
regional Banks. Appellants made several other claims, alleg-
ing breach of contract, unconstitutional taking, and age dis-
crimination.
In the first of two opinions, the district court dismissed
these last three claims, a dismissal that appellants do not
challenge. See Albrecht v. Comm. on Employee Benefits of
the Fed. Reserve Employee Benefits Sys., No. 00–317, slip op.
at 9–12, 15–18 (D.D.C. Mar. 30, 2001). Finding that only the
Board of Governors has authority to modify the mandatory
contribution level, the court also dismissed the fiduciary duty
claims against the CEB. Id. at 8. In the second opinion, the
district court dismissed the remaining claims. See Albrecht v.
Comm. on Employee Benefits of the Fed. Reserve Employee
Benefits Sys., No. 00–317, slip op. at 16–17 (D.D.C. Sept. 17,
2002). The court determined that the Board enjoyed sover-
eign immunity, id. at 7–8, and that because appellants’ fidu-
ciary duty claim was essentially a breach of contract action, it
could be brought only in the U.S. Court of Federal Claims
under the Tucker Act, id. at 13. In the alternative, the
district court held that appellants failed to state a claim for
breach of fiduciary duty. Id. at 14–15. The court also
dismissed the unjust enrichment claim, concluding that such a
claim may not be brought where, as here, a contract governs
the challenged conduct. Id. at 15–16. Finally, because the
request for injunctive relief rested solely on the failed claims,
the district court dismissed it as well. Id. at 17.
In this appeal, we must decide (1) whether the Board
enjoys sovereign immunity against the breach of fiduciary
duty claim, and if so, whether any statute waives that immu-
nity, and (2) whether appellants properly stated a claim for
unjust enrichment against the Board and the regional Banks.
Reviewing the district court’s decisions de novo, see Ass’n of
Civilian Technicians, Inc. v. Fed. Labor Relations Auth., 283
5
F.3d 339, 341 (D.C. Cir. 2002) (de novo review of dismissal for
lack of subject matter jurisdiction); Browning v. Clinton, 292
F.3d 235, 242 (D.C. Cir. 2002) (de novo review of dismissal for
failure to state a claim), we consider each issue in turn.
II.
We begin with appellants’ effort to escape the consequences
of the district court’s conclusion that the Board enjoys sover-
eign immunity. Despite naming the Board of Governors as a
defendant, appellants insist that they sued not the Board of
Governors, the governmental entity composed of seven indi-
viduals appointed by the President and confirmed by the
Senate to formulate monetary policy, see 12 U.S.C. § 241
(2000), but rather a so-called ‘‘Plan Board’’—a non-
governmental entity composed of those same seven individu-
als that has authority over the pension plan but performs no
governmental functions. Setting aside that the Board Plan
expressly identifies the Board of Governors as the entity with
authority to modify the employee contribution level and that
nothing in the Board Plan suggests the existence of an
alternative ‘‘Plan Board,’’ the Board points out that appellants
never made this argument in the district court and that the
claim is therefore waived. Conceding that their complaint
nowhere refers to a ‘‘Plan Board,’’ appellants urge us to
consider this newly raised argument, asserting that we did so
in similar circumstances in United States v. Rapone, 131 F.3d
188 (D.C. Cir. 1997). In that case, we decided that although
the defendant failed to bring the relevant statute to the
district court’s attention, we would consider his argument
that he was statutorily entitled to a jury trial, emphasizing
that the defendant was ‘‘not attempting to raise the issue of a
jury trial for the first time on appeal,’’ but instead offering
‘‘new legal authority for the position that he repeatedly
advanced before the district court—that he was entitled to
have his case tried before a jury.’’ Id. at 196. By contrast,
appellants here present not new legal authority for an argu-
ment raised in the district court, but rather an entirely new
argument—that the defendant is not the ‘‘Board of Gover-
nors’’ identified in the complaint. We thus agree with the
Board that the argument is waived. See, e.g., District of
6
Columbia v. Air Fla., Inc., 750 F.2d 1077, 1084 (D.C. Cir.
1984).
Appellants also claim that the Committee on Employee
Benefits is a proper defendant. According to appellants, the
CEB has authority to modify the employee contribution level,
and it breached its fiduciary duty by refusing to reduce
required contributions. Although appellants did name the
CEB in their complaint, we agree with the district court that
only the Board possesses such authority. Section 7.1 of the
Board Plan states: ‘‘The Board of Governors may increase or
decrease the current seven percent (7%) required Mandatory
Contribution upon sixty (60) days prior notice to Current
Participants.’’ Benefit Structure for Employees of the Bd. of
Governors of the Fed. Reserve Sys. Hired Prior to January 1,
1984, J.A. at 115. Appellants point to a provision in the
Federal Reserve System’s retirement plan, which covers both
the Board and the Bank Plans, that arguably suggests the
CEB has authority to change the employee contribution level.
See Ret. Plan for Employees of the Fed. Reserve Sys., J.A. at
55 (‘‘The Committee [on Employee Benefits] shall from time
to time adopt a rate or rates of contribution for all benefits
and other expenses for all members TTT and the Board of
Governors shall TTT make contributions to the PlanTTTT’’).
But the retirement plan expressly states that its provisions do
not govern if they conflict with the Board Plan, id., and
section 8.1(b) of the Board Plan expressly denies the CEB
such authority: the CEB has ‘‘no power to add to, subtract
from or modify any of the terms of the [Board Plan],’’ Benefit
Structure for Employees of the Bd. of Governors, J.A. at 121.
Despite this clear prohibition against the CEB modifying
pension plan terms, appellants argue that the very existence
of the Committee on Appeals demonstrates that the Board’s
authority to adjust contribution levels is not exclusive. This
argument rests on appellants’ mischaracterization of the
Committee on Appeals’s rejection of their claim. Although
the Committee concluded that the Board’s refusal to termi-
nate employee contributions was neither unfair nor unreason-
able, before reaching that conclusion the Committee made
clear—in language appellants fail to cite—that it rejected the
7
appeal because the issue was beyond its authority. See
Letter from Comm. on Appeals, J.A. at 71 (noting that the
claim was not ‘‘a matter for this Committee’’ and that ‘‘the
claim appeal procedure [was] the wrong mechanism to resolve
this matter’’). Contrary to appellants’ assertion, therefore,
the Board’s authority to modify the employee contribution
level is exclusive.
Having concluded that as to appellants’ breach of fiduciary
duty claim, the Board of Governors is the only proper defen-
dant, we turn to the question of the Board’s sovereign immu-
nity. Neither party disputes the Board’s status as a ‘‘NAFI,’’
a nonappropriated fund instrumentality that receives no fund-
ing through congressional appropriations. See United States
v. Hopkins, 427 U.S. 123, 125 n.2 (1976). Although the
Supreme Court has never held that NAFIs, as instrumentali-
ties of the United States government, necessarily enjoy sover-
eign immunity, it has established that where NAFIs are
‘‘arms of the government deemed by it essential for the
performance of governmental functions’’ and ‘‘share in fulfill-
ing the duties entrusted to [the federal government],’’ they
‘‘partake of whatever immunities it may have under the
[C]onstitution and federal statutes.’’ Standard Oil Co. of Cal.
v. Johnson, 316 U.S. 481, 485 (1942). More generally, we
have concluded that ‘‘[f]ederal agencies or instrumentalities
performing federal functions always fall on the ‘sovereign’
side of [the] fault line; that is why they possess immunity
that requires waiver.’’ Auction Co. of Am. v. FDIC, 132 F.3d
746, 752 (D.C. Cir. 1997).
Applying this standard, we have no doubt that the Board of
Governors enjoys sovereign immunity in this case. See Re-
search Triangle Inst. v. Bd. of Governors of the Fed. Reserve
Sys., 132 F.3d 985, 987–88 (4th Cir. 1997) (holding that the
Board of Governors enjoys sovereign immunity against a
contract action). An integral part of the federal government,
the Board conducts monetary policy, regulates banking insti-
tutions, and maintains the stability of the nation’s financial
system. See 12 U.S.C. § 248 (2000 & Supp. III 2003).
Moreover, the statute that empowers the Board authorizes it
to retain employees ‘‘necessary to conduct the business of the
8
[B]oard’’ and to fix their ‘‘salaries and fees.’’ Id. § 248(l ).
Thus, when the Board establishes its employees’ compensa-
tion package, including the terms of their pension plan, it acts
under statutory authority in furtherance of its governmental
functions. Therefore, at least with regard to the existence of
sovereign immunity, appellants’ claim against the Board is
little different from a claim against the United States. The
question, then, is whether any statute waives that immunity.
Appellants insist that they may proceed with their claim
because it falls within the Administrative Procedure Act’s
waiver of sovereign immunity for ‘‘action[s] in a court of the
United States seeking relief other than money damages and
stating a claim that an agency TTT acted or failed to act in an
official capacity.’’ 5 U.S.C. § 702 (2000). But even for claims
that are not for money damages, the APA confers no ‘‘author-
ity to grant relief if any other statute that grants consent to
suit expressly or impliedly forbids the relief which is sought.’’
Id. The Tucker Act is one such statute. See 28 U.S.C.
§ 1491 (2000). It states that ‘‘[t]he United States Court of
Federal Claims shall have jurisdiction to render judgment
upon any claim against the United States founded TTT upon
any express or implied contract with the United StatesTTTT’’
Id. § 1491(a)(1). We have held that the Tucker Act ‘‘impli-
edly forbids—in APA terms—not only district court awards
of money damages, which the Claims Court may grant, but
also injunctive relief, which the Claims Court may not.’’
Transohio Sav. Bank v. Dir., Office of Thrift Supervision,
967 F.2d 598, 609 (D.C. Cir. 1992). We have therefore held
that the APA does not waive sovereign immunity for contract
actions brought against the government in a federal district
court. Id. Accordingly, the district court lacks jurisdiction if
appellants’ breach of fiduciary duty claim is essentially a
contract action.
Turning, then, to that question—whether appellants’ claim
sounds in contract—we consider both ‘‘the source of the
rights upon which the plaintiff bases its claims’’ and ‘‘the type
of relief sought (or appropriate).’’ Megapulse, Inc. v. Lewis,
672 F.2d 959, 968 (D.C. Cir. 1982). According to appellants,
their rights derive not from contract, i.e., the Board Plan, but
9
from the Trust document and from the common law. We
disagree.
The Trust document requires the Trustee, Chase Manhat-
tan Bank, to safeguard plan assets from misuse and requires
the CEB to ensure benefit payments in accordance with the
pension plan. See Ret. Plan for Employees of the Fed.
Reserve Sys. Trust Agreement, J.A. at 185. The Trust says
nothing at all about either the Board’s responsibilities or the
level of employee contribution—the issues at stake in this
case. Appellants’ argument that their rights derive from the
common law also fails. Where a challenged action does not
implicate a trustee’s duties, the common law of trusts cannot
apply. See Hurd v. Ill. Bell Tel. Co., 136 F. Supp. 125, 135
(N.D. Ill. 1955), aff’d 234 F.2d 942 (7th Cir. 1956) (‘‘[T]he
court is unable to follow the plaintiffs’ reasoning by which
they transform the creator of the trust into the trustee. If
misconduct were charged against Bankers Trust, the law of
trusts would be relevant. But the plaintiffs’ rights in relation
to the Bell System defendants are contractual.’’). Just so
here. The Board’s refusal to modify the employee contribu-
tion level involves only the Board’s role as employer and
creator of the pension plan; it implicates neither the authori-
ty of the CEB or the Trustee, nor any fiduciary duties they
may have.
The only remaining source from which a fiduciary duty
could arise is the pension plan. Courts have long held that
employees participating in a retirement plan not governed by
the Employee Retirement Income Security Act, 29 U.S.C.
§§ 1001–461, enter into a contractual relationship with their
employer. See, e.g., Firestone Tire & Rubber Co. v. Bruch,
489 U.S. 101, 112 (1989) (‘‘Actions challenging an employer’s
denial of benefits before the enactment of ERISA were
governed by principles of contract law.’’). Indeed, appellants
themselves expressly pled that the Board Plan created a
contractual relationship. See Pls. Am. Compl. ¶ 128 (‘‘The
Board of Governors and the Committee [on Employee Bene-
fits] entered into a contract for the benefit of employees of
the Board of Governors hired prior to January 1, 1984TTTT’’);
id. ¶ 130 (‘‘Pursuant to said contract, the Board of Governors
10
and the Committee have required and continue to require
Plaintiffs to contribute seven percent (7.00%) of their wages
to the Board Plan.’’). Although carefully avoiding any refer-
ence to a contract claim in this court, appellants nonetheless
cast their arguments in essentially contractual terms. Specif-
ically, appellants’ counsel maintained at oral argument that
the Board breached a fiduciary duty when it refused to
exercise its discretion under section 7.1 of the Board Plan to
cease requiring mandatory contributions. According to coun-
sel, that refusal conflicts with section 10.2 of the Board Plan,
which he claimed requires the Board to use all funds exclu-
sively for beneficiaries. Not only does this assertion amount
to still another serious misrepresentation—counsel failed to
mention section 10.2’s last phrase which makes it clear that
the Board’s ‘‘exclusive benefit’’ obligation applies only ‘‘prior
to the satisfaction of all liabilities’’ to employees—but coun-
sel’s reliance on the Board Plan provisions demonstrates that
appellants’ claim does in fact sound in contract. This is also
clear from the remedy appellants seek, for it is the terms of
the Board Plan that will determine whether the relief
sought—recovery of past contributions and termination of
future payments—is available. See Megapulse, 672 F.2d at
968.
Although we continue to ‘‘[reject the view] TTT that any
case requiring some reference to or incorporation of a con-
tract is necessarily on the contract and therefore directly
within the Tucker Act,’’ id. at 967–68, appellants’ claim turns
entirely on the terms of a contract, i.e., the Board Plan. We
therefore agree with the district court that the Tucker Act
deprives it of jurisdiction over appellants’ breach of fiduciary
duty claim. See, e.g., Woodbury v. United States, 313 F.2d
291, 296 (9th Cir. 1963) (finding that although the plaintiffs
alleged a breach of fiduciary duty by a government agency,
the action was ‘‘essentially for breach of a contractual under-
taking,’’ and therefore covered by the Tucker Act).
III.
Appellants’ unjust enrichment claim against the Board and
the regional Banks requires little discussion. As we indicat-
11
ed, their claim against the Board rests on the terms of the
Board Plan, and ‘‘there can be no claim for unjust enrichment
when an express contract exists between the parties.’’ Schiff
v. Am. Ass’n of Retired Persons, 697 A.2d 1193, 1194 (D.C.
1997); cf. United States ex rel. Modern Elec., Inc. v. Ideal
Elec. Sec. Co., 81 F.3d 240, 247 (D.C. Cir. 1996) (‘‘Unjust
enrichment TTT rests on a contract implied in law, that is, on
the principle of quasi-contract. This TTT form of recovery is
possible in the absence of any contract, actual or implied in
fact.’’). As to the claim against the regional Banks, we need
not decide whether there is, as the Board insists, a contract
between appellants and the regional Banks that would pre-
clude the claim. Because nothing in the Board Plan requires
the Board either to terminate employee contributions or to
make refunds to employees should the Plan have a surplus,
any ‘‘enrichment’’ the Banks would enjoy if the Bank Plan
receives surplus funds could not possibly be unjust. We
therefore agree with the district court that appellants failed
to state a claim for unjust enrichment.
IV.
By suing to require the Board to terminate future pay-
ments and to refund past contributions in excess of amounts
required to fund the Board Plan, appellants, in effect, seek to
change the terms under which they accepted employment
with the Board of Governors. This court has no authority to
grant such relief.
The judgment of the district court is affirmed.
So ordered.