United States Court of Appeals for the Federal Circuit · Contracts
ContractsWhistleblower Protection ActSovereign ImmunityStatutory InterpretationDamagesconsequential damagesnon-pecuniary damagespain and suffering
Facts
Janice Bohac successfully challenged her removal from a research geneticist position with the Department of Agriculture on the ground that it violated the Whistleblower Protection Act. She then sought $14,021.32 in pecuniary losses and $150,000 in non-pecuniary damages for physical and emotional suffering, damage to her personal and professional reputation, and injuries to her family life. The administrative judge awarded the pecuniary amount but denied non-pecuniary damages, concluding they were not allowable consequential damages under the Act. The Board denied review, relying on its decision in Kinney.
Issue
Does 5 U.S.C. § 1221(g)(1)(A)(ii) permit recovery of non-pecuniary damages, such as pain and suffering, reputational injury, and injury to family life, as "consequential damages" under the Whistleblower Protection Act? Relatedly, has the government waived sovereign immunity for such claims?
Rule
Section 1221(g)(1)(A)(ii) is properly read to refer to "consequential damages," not "consequential changes," but that phrase is limited to reimbursement of reasonable and foreseeable out-of-pocket pecuniary losses. It does not authorize non-pecuniary damages, and no waiver of sovereign immunity for such damages may be implied absent an unequivocal statutory expression.
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One of 10 multiple-choice questions for this case. Pick an answer to see why.
Nina Alvarez, a federal engineer in Albuquerque, prevailed on an individual whistleblower action after her suspension was set aside. She seeks reimbursement for counseling bills and mileage to medical appointments, and also $90,000 for anxiety, humiliation, and loss of sleep caused by the retaliation.
What is the best disposition of Nina's damages request under the governing rule?
Explanation. The majority held that the statute's reference to consequential damages permits reimbursement of reasonable and foreseeable out-of-pocket pecuniary losses, including items like medical costs and travel expenses, but not non-pecuniary harms such as pain and suffering or emotional distress. Because this is a claim against the government, any waiver of sovereign immunity must be unequivocally expressed and strictly construed, and the statute does not clearly authorize emotional-distress damages. (Derived from Bohac v. Department of Agriculture (n.d.).)