U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

Janice R. Bohac v. Department of Agriculture, No. 99-3306 (Fed. Cir., Feb. 14, 2001).

Non-pecuniary damages are not recoverable under the Whistleblower Protection Act because the government has not waived its sovereign immunity with respect to such claims.

After winning her MSPB appeal on the ground that her removal violated the Whistleblower Protection Act, Ms. Bohac filed a motion for damages, requesting an award of $14,021 for pecuniary losses and $150,000 for non-pecuniary damages. The non-pecuniary damages included damages for physical and emotional suffering, damage to her personal and professional reputation, and damages for various injuries to her family life. The MSPB, citing Kinney v. Agriculture, 82 MSPR 338 (1999), held that it does not have authority under 5 USC 1221(g)(1)(A)(ii) to award non-pecuniary damages.

The Federal Circuit agreed with the Board. In coming to this conclusion, the court said that because this is a suit against the Government, it cannot allow recovery unless there has been a waiver of sovereign immunity. It cited the Supreme Court's ruling in Lane v. Pena, 518 US 187 (1996) which held that "waiver of the Federal Government's sovereign immunity must be unequivocally expressed in statutory text . . . and will not be implied."

The court looked at the meaning of the provision for "consequential damages" in the case law and found no established common law meaning that would include non-pecuniary damages in the context of contract law and no well-defined meaning in the tort context. It noted that if Congress had intended to allow broad recovery for non-pecuniary damages, it would likely have used the well-understood term "compensatory damages." The court also noted that the legislative history of the 1994 amendment to the Whistleblower Protection made no references to compensatory damages or to the type of damages sought by Ms. Bohac.

This decision shows that the Board's authority to order remedial relief has limits.