“It is beyond question . . . that the APA does not provide an independent basis for subject matter jurisdiction in the district courts.”
How later courts described this case
- “It is beyond question . . . that the APA does not provide an independent basis for subject matter jurisdiction in the district courts.”
- “The age-old rule that a court may not in any case, even in the interest of justice, extend its jurisdiction where none exists has always worked injustice in particular cases.”
- noting that motions to vacate and confirm arbitra- tion awards arise directly out of contract
- applying the FTCA statute of limitations
Written by the judges who cited it.
The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 05-56235
PARK PLACE ASSOCIATES, LTD., a D.C. No.
CV-04-08387-DT
California limited partnership;
GEORGE HARDIE; KARD KING, INC.,
a California corporation,
Defendants-Appellees.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 05-56312
PARK PLACE ASSOCIATES, LTD., a D.C. No.
CV-04-08387-DT
California limited partnership;
GEORGE HARDIE; KARD KING, INC., OPINION
a California corporation,
Defendants-Appellants.
Appeal from the United States District Court
for the Central District of California
Dickran M. Tevrizian, District Judge, Presiding
Argued May 10, 2007
Submitted April 15, 2009
Pasadena, California
Filed April 22, 2009
Before: Barry G. Silverman, Kim McLane Wardlaw, and
Jay S. Bybee, Circuit Judges.
4665
4666 UNITED STATES v. PARK PLACE ASSOCIATES
Opinion by Judge Bybee
4670 UNITED STATES v. PARK PLACE ASSOCIATES
COUNSEL
Peter D. Keisler, David M. Cohen, Franklin E. White, Jr.,
Civil Division, Department of Justice, Washington, DC, for
the petitioner-appellant.
Christopher H. Buckley, Jr., Daniel W. Nelson, Thomas H.
Dupree, Jr., Amir C. Tayrani, Gibson, Dunn & Crutcher,
Washington, DC, for the respondents-appellees.
OPINION
BYBEE, Circuit Judge:
An arbitration panel in Los Angeles awarded Park Place
Associates, Ltd. $93,612,892 against the United States, after
a proceeding in which the United States declined to partici-
pate. Under the Federal Arbitration Act (“FAA”), 9 U.S.C.
§ 1 et seq., where a controversy has been arbitrated pursuant
to a valid arbitration provision and the arbitrator has made an
award, the parties may seek to confirm, see 9 U.S.C. § 9, or
to vacate, see 9 U.S.C. § 10, that award in the appropriate
UNITED STATES v. PARK PLACE ASSOCIATES 4671
court. The District Court for the Central District of California
denied the United States’ motion to vacate the award and
granted Park Place’s motion to confirm the award.
Because we, no less than private parties, “must turn square
corners” when we deal with the government as a litigant,
Rock Island, A. & L. R. Co. v. United States, 254 U.S. 141,
143 (1920), we find that, under the unique circumstances
presented here, the district court had jurisdiction over the
United States’ motion to vacate, and we affirm the district
court’s order denying that motion. However, we find that the
district court had no authority to confirm the arbitration award
against the United States and we vacate the district court’s
order granting Park Place’s motion.1 We remand to the district
court with instructions to dismiss the action to confirm as
barred by sovereign immunity.
I. FACTS AND PROCEEDINGS
The events at issue span twenty years, resulted in congres-
sional hearings, and involve litigation in three circuits. We are
not sure if the appropriate literary metaphor belongs to Tol-
stoy or to Kafka, but we are going to set forth the history of
this case in some detail.
The contract and arbitration provision that governs the cur-
rent dispute was part of an agreement between two private
parties and did not involve the United States. In 1983, Park
Place entered into a Joint Venture Agreement (“JVA”) with
LCP Associates to develop, own, and operate the Bell Gar-
dens Bicycle Club (“Club”), a legal card-playing club in Bell
Gardens, California. Section 5.03 of the JVA set out proce-
dures for dispute resolution between the contracting parties,
requiring that the parties arbitrate controversies arising under
the JVA in Los Angeles County, California; that an arbitration
1
Because the district court could not validly confirm the arbitration
award, we do not reach the question of interest on the award.
4672 UNITED STATES v. PARK PLACE ASSOCIATES
award would be “final and binding”; and that “judgment may
be entered [on an arbitration award] in any court of competent
jurisdiction in the State of California.”2 Park Place originally
held a thirty percent interest and LCP held the remaining sev-
enty percent interest in the Club, which opened for business
in November 1984.3 In 1987, after certain loans were repaid,
Park Place’s share increased to thirty-five percent and LCP’s
interest decreased to sixty-five percent.
A. Forfeiture of the Club
What Park Place did not know was that LCP had financed
more than twelve million dollars of the initial investment
using the proceeds of a drug trafficking ring. United States v.
Gilbert, 244 F.3d 888, 894 (11th Cir. 2001). The United
States discovered this fraudulent activity following a money
laundering investigation, and in 1987, indicted various indi-
viduals, including some LCP partners, in the Southern District
of Florida. In March 1990, certain LCP partners were con-
victed of laundering the profits of a drug-smuggling business.
In April 1990, a jury returned a verdict in favor of the United
States in a subsequent forfeiture proceeding pursuant to the
Racketeer Influenced and Corrupt Organizations Act
(“RICO”), 18 U.S.C. § 1963. In response, the Southern Dis-
2
In full, section 5.03 provides:
5.03 Arbitration.
Any dispute or controversy arising under, out of, in connection
with, or in relation to this Agreement, or any breach thereof, or
in connection with the dissolution thereof, shall be determined
and settled by arbitration in Los Angeles County pursuant to the
rules of the American Arbitration Association. Any award ren-
dered therein shall be final and binding on all of the parties, and
judgment may be entered thereon in any court of competent juris-
diction in the State of California.
3
By 1990 the Club was reportedly the largest card club in the world.
The Club differs from a Las Vegas-style casino in that the house has no
stake in the game, but makes its money by charging players a fee for play-
ing. See United States v. Gilbert, 244 F.3d 888, 893 n.5 (11th Cir. 2001).
UNITED STATES v. PARK PLACE ASSOCIATES 4673
trict of Florida entered an order forfeiting the entire Club to
the United States in rem and freezing all distributions to LCP,
Park Place, and their respective partners. In either May or
September 1990, the district court confirmed that Park Place
was an innocent owner and returned its thirty-five percent
interest in the Club.
The United States retained its interest in LCP following the
forfeiture proceedings. By August 1993, as the result of nego-
tiated settlements with LCP partners, the United States ulti-
mately obtained a fifty-five percent interest in LCP.
Consequently, the United States controlled the LCP partner-
ship and, because LCP was the majority shareholder in the
venture, possessed effective control of the Club under the
terms of the JVA. From 1990 to 1999, the United States man-
aged its interest in LCP—and the Club—through a series of
trustees appointed by the Southern District of Florida on its
behalf. The United States continued its control of the Club’s
management until it sold its LCP interests in May 1999.4
According to Park Place, the Club’s value declined dramati-
cally during the period the United States managed it.
B. Court Proceedings
The arbitration underlying this litigation concerns the
United States’ conduct during its eight-year management of
the Club. Early on, Park Place disputed the forfeiture proceed-
ings, the United States’ right to sell the seized interests, and
trustee compensation. Park Place brought these claims, which
are not part of the present action, in the Southern District of
Florida. Separately, in proceedings leading to the arbitration
underlying this litigation, Park Place sought recovery for the
United States’ conduct after the forfeiture. Specifically, Park
Place pursued relief for what it claimed was the United States’
4
Two years after the United States divested its interest in the Club, the
Eleventh Circuit declared the forfeiture proceedings void. Gilbert, 244
F.3d at 922.
4674 UNITED STATES v. PARK PLACE ASSOCIATES
gross mismanagement of the Club.5 As will be explained,
Park Place proceeded on this second set of claims in a series
of courts.
In June 1997, Park Place served the successor trustee, as
general partner of LCP, with an arbitration demand under sec-
tion 5.03 of the JVA, for alleged breaches of various provi-
sions of the JVA and violations of California law in
connection with the management of the Club. In response, the
United States filed a motion for an order to show cause,
requesting that the Southern District of Florida preclude Park
Place from continuing with the arbitration on forfeiture-
related issues pending before the court. In May 1998, the
Southern District of Florida issued an order staying the arbi-
tration in part, but allowing it to proceed as to claims concern-
ing the United States’ daily operation of the Club. As directed
by the court, Park Place withdrew several claims from its
arbitration demand, but it maintained the claims as to the
Club’s management. Shortly thereafter, Park Place requested
the American Arbitration Association (“AAA”) to hold the
arbitration matter in abeyance until May 1999. That arbitra-
tion demand was never revived.
In April 1998, Park Place filed suit in the Central District
of California seeking, among other things, damages in excess
of $150 million against the United States. As it had in the
Southern District of Florida, Park Place asserted that the
United States mismanaged the Club during the eight years of
its control. Specifically, Park Place claimed the United States
failed to dispose promptly of its interest in the Club; failed to
protect Park Place’s rights and interests; and failed to preserve
and protect the Club’s value as an ongoing business by, for
example, failing to hire or train competent and experienced
5
The mismanagement claims triggered at least one congressional hear-
ing: Asset Forfeiture Program: A Case Study of the Bicycle Club Casino,
Perm. Subcomm. on Investigations, Comm. on Govt’l Affairs, S. Hrg.
104-526 (1996).
UNITED STATES v. PARK PLACE ASSOCIATES 4675
casino managers; failing to modernize the Club’s facility; and
failing to market the Club when business in the area became
increasingly competitive. Park Place asserted claims before
the district court pursuant to the Federal Tort Claims Act and
the United States Constitution, including negligence, negli-
gent supervision and retention, breach of fiduciary duty, con-
version, breach of contract, and breach of the covenant of
good faith and fair dealing. It requested money damages, an
accounting, and the imposition of a constructive trust.
Although Park Place’s complaint included a breach of con-
tract claim, it did not mention the Tucker Act as a basis for
the district court’s jurisdiction over that claim, but instead
relied on supplemental jurisdiction for all the state law claims.
The United States moved to dismiss Park Place’s com-
plaint, contending that the Central District of California
lacked subject matter jurisdiction over Park Place’s claims.
The Central District of California granted the United States’
motion and, in December 1998, dismissed the case with preju-
dice with respect to all claims except the four contract claims.
As to the contract claims, the Central District of California
explained that although federal district courts have concurrent
jurisdiction with the Court of Federal Claims as to contract
claims against the United States not exceeding $10,000, the
Court of Federal Claims has exclusive jurisdiction over con-
tract claims in excess of $10,000. See 28 U.S.C.
§§ 1346(a)(2), 1491(a)(1). The Central District of California
directed Park Place to file its contract claims in the proper
forum, the Court of Federal Claims.
On October 26, 1999, Park Place filed a complaint in the
Court of Federal Claims, again alleging that the United States
had breached its contractual obligations to Park Place under
the JVA and seeking $150 million in damages. The United
States moved to dismiss for lack of subject matter jurisdiction
and for failure to state a claim upon which relief could be
granted. In August 2000, the Court of Federal Claims granted
the United States’ motion and dismissed the complaint for
4676 UNITED STATES v. PARK PLACE ASSOCIATES
lack of jurisdiction. The court found that because the JVA
was a contract between Park Place and LCP, Park Place’s lack
of privity with the United States deprived the court of subject
matter jurisdiction over the breach of contract claims. The
court also noted that even if the JVA bound the United States,
the arbitration clause in the JVA—to which Park Place had
not had recourse—would preclude jurisdiction.
The Federal Circuit vacated the judgment of the Court of
Federal Claims and remanded for further proceedings. Hardie
v. United States, 19 F. App’x 899, 900 (Fed. Cir. 2001)
(“Hardie I”). The court held that privity of contract was estab-
lished because “the United States has elected to step into the
shoes of the general partner of LCP, and PPA had no choice
but to accept its new ‘partner.’ ” Id. at 905. It made no differ-
ence “that the United States happened to obtain its ‘interest’
in the Bicycle Club through forfeiture, as opposed to any
other means.” Id. Accordingly, there was “Tucker Act juris-
diction over contract-based claims” even though there was
“no literal contract between the plaintiff and the United
States.” Id. The Federal Circuit also rejected the Court of Fed-
eral Claims’ assumption that the arbitration provision inde-
pendently precluded jurisdiction.6 Id. at 907.
C. Park Place’s Arbitration Demand
On June 16, 2003, Park Place filed a $100 million arbitra-
tion demand with the AAA based upon its claims before the
Court of Federal Claims, and asked the court to stay the litiga-
tion pending the arbitration. In response, the United States
requested that the AAA terminate the arbitration or, in the
alternative, suspend the proceedings until after the Court of
6
The Federal Circuit also noted that neither party had invoked the arbi-
tration agreement. Id. The United States has consistently argued through-
out this litigation as an alternative to its opposition on sovereign immunity
grounds, that Park Place waived its right to elect arbitration because it
chose instead to pursue its claims in the federal courts.
UNITED STATES v. PARK PLACE ASSOCIATES 4677
Federal Claims ruled upon Park Place’s motion to stay the liti-
gation. Before the arbitration panel, the United States again
asserted that, because it was not a named party to the JVA and
it acquired the interest in LCP pursuant to its sovereign pow-
ers under RICO, it could not be held liable under state law.
When the arbitration panel informed the United States that it
would proceed absent a court order that arbitration be termi-
nated or suspended, the United States filed a motion with the
Court of Federal Claims to enjoin the arbitration proceedings
on grounds of sovereign immunity.
In November 2003, the Court of Federal Claims issued an
order denying both Park Place’s motion to stay the litigation
and the United States’ motion to stay the arbitration proceed-
ings. The court reasoned that “[g]iven its lack of subject-
matter jurisdiction to compel, arrest, or enforce arbitration,
and its questionable authority under the JVA to enter an arbi-
tration award [because the choice of law provision calls for
entry of an award only in a court of competent jurisdiction ‘in
the State of California’], the court may not give either party
the equitable relief it expects or demands here.”
The following month, the United States asked the Federal
Circuit for an injunction pending its interlocutory appeal of
the Court of Federal Claims’ decision, which was denied. In
May 2004, the Federal Circuit dismissed the interlocutory
appeal for lack of jurisdiction. Hardie v. United States, 367
F.3d 1288, 1291 (Fed. Cir. 2004) (“Hardie II”). The Federal
Circuit rejected the argument that the United States had not
waived its sovereign immunity as to binding arbitration. Id. at
1290-91. The court reiterated that “the United States was
bound by the terms of the [JVA] under the law applicable to
contracts between private individuals because it had elected to
step into the shoes of the general partner of LCP, and [Park
Place] had no choice but to accept its new ‘partner’ . . . [and
c]onsequently, the United States is subject to the arbitration
clause of the joint venture agreement just as any private party
4678 UNITED STATES v. PARK PLACE ASSOCIATES
would be.” Id. at 1291 (internal quotation marks omitted)
(referring to Hardie I, 19 F. App’x at 905).
Meanwhile, in April 2004, a ten-day arbitration hearing
took place in Los Angeles. Prior to the hearing, the United
States responded to the demand, helped select the arbitration
panel members, and participated in the preliminary hearing;
however, the United States refused to participate in discovery
and failed to attend the arbitration hearing. Following the
hearing, the arbitration panel found in favor of Park Place.
The panel rejected the United States’ immunity argument,
noting that the Eleventh Circuit had invalidated the RICO for-
feiture proceeding under which the United States had obtained
its interest in the Club, see Gilbert, 244 F.3d at 922, and that
the United States chose to become LCP’s general partner,
engaged in a concerted effort to obtain control of the Club and
reap pecuniary gain, and consequently “shed whatever public
personna [sic]” it had and “stepped into the shoes” of the gen-
eral partner of LCP. In a 67-page award issued in July 2004,
the panel found that “[a]s a result of the [United States’]
breaching conduct, [Park Place] suffered, and continue[s] to
suffer, significant diminution of [its] partnership distribu-
tions” and awarded Park Place a total sum of $93,612,892.
D. The Current Litigation
On September 14, 2004, Park Place filed motions in the
Court of Federal Claims to confirm the arbitration award and
for prejudgment interest. See 9 U.S.C. § 9. The United States
filed an opposition and later requested that the Court of Fed-
eral Claims treat its opposition as a motion to vacate in the
event the court concluded it had jurisdiction. See 9 U.S.C.
§ 10.
In the meantime, on October 8, 2004, while the post-
arbitration motions were pending before the Court of Federal
Claims, the United States filed its own complaint and motion
in the Central District of California to vacate the arbitration
UNITED STATES v. PARK PLACE ASSOCIATES 4679
award. This is the case before us in this appeal. On November
8, 2004, Park Place asked the Central District of California to
stay the action pending final resolution by the Court of Fed-
eral Claims.
On December 2, 2004, the Court of Federal Claims denied
Park Place’s motion to confirm the arbitration award and
stayed the case pending resolution of the United States’
motion in the Central District of California. The Court of Fed-
eral Claims held that it “ha[d] no statutory or other authority
to decide or enter judgment on an arbitration award against
the government . . . [and] may not hear petitions to vacate or
modify an arbitral award because[, under the FAA,] such
authority is vested exclusively in the federal district courts.”
Furthermore, the JVA precluded it from entering relief by
specifically providing that “judgment may be entered [on an
arbitration award] in any court of competent jurisdiction in
the State of California.” On December 9, 2004, the Central
District of California stayed the action relating to the United
States’ motion to vacate the arbitration award pending Park
Place’s appeal to the Federal Circuit.
On March 3, 2005, the United States filed a motion to dis-
miss Park Place’s appeal to the Federal Circuit. In an unpub-
lished order, the Federal Circuit granted the motion and
dismissed Park Place’s appeal on April 8, 2005. Hardie v.
United States, 134 F. App’x 434, 436 (Fed. Cir. 2005)
(“Hardie III”). The Federal Circuit observed that the FAA
allows a party to seek confirmation of an arbitration award
either in the court specified in the agreement that included the
arbitration provision or, if no court is specified in the agree-
ment, in the appropriate district court. See id. at 435; see also
9 U.S.C. § 9. The Federal Circuit noted that although interloc-
utory orders are not ordinarily immediately appealable, the
FAA permits the interlocutory appeal of certain court orders
concerning arbitration, such as the denial of a motion to con-
firm by such a court. See Hardie III, 134 F. App’x at 435-36;
see also 9 U.S.C. §16(a)(1)(D). However, the Federal Circuit
4680 UNITED STATES v. PARK PLACE ASSOCIATES
concluded that this order was not appealable, because the
Court of Federal Claims was neither the court specified in the
JVA, nor a district court properly having jurisdiction over the
motion. Hardie III, 134 F. App’x at 436.
In April 2005, Park Place filed a motion to confirm the
arbitration award and a motion for prejudgment and postjudg-
ment interest in the Central District of California. The Central
District of California granted Park Place’s motion to confirm,
denied the United States’ motion to vacate, and denied Park
Place’s motion for prejudgment and postjudgment interest.
The United States timely petitioned for review of both the dis-
trict court’s denial of its motion to vacate and the district
court’s granting of Park Place’s motion to confirm. Park Place
filed a cross-appeal challenging the denial of postjudgment
interest.
II. OVERVIEW OF THE APPEAL
On appeal, the United States asserts that the Central District
of California erred in denying its motion to vacate the arbitra-
tion award. See 9 U.S.C. § 10. In addition, the United States
continues to argue that it has not waived its sovereign immu-
nity to the confirmation of an arbitration award under the
FAA and, therefore, the Central District of California lacked
authority to grant Park Place’s motion to confirm the award.
See 9 U.S.C. § 9. In response, Park Place contends the Central
District of California had jurisdiction to entertain the motion
to confirm because the sovereign immunity question had
already been resolved by the Federal Circuit and could not be
re-raised in the district court. Park Place also appeals the dis-
trict court’s denial of its motion for postjudgment interest.
We review a district court’s decision to confirm or vacate
an arbitration award de novo. See Collins v. D.R. Horton, Inc.,
505 F.3d 874, 879 (9th Cir. 2007); Woods v. Saturn Distrib.
Corp., 78 F.3d 424, 427 (9th Cir. 1996). We also review ques-
UNITED STATES v. PARK PLACE ASSOCIATES 4681
tions of sovereign immunity and subject matter jurisdiction de
novo. Clinton v. Babbitt, 180 F.3d 1081, 1086 (9th Cir. 1999).
Because, as we explain, there are different jurisdictional
bases for the motion to vacate and the motion to confirm, we
first consider the United States’ motion to vacate and then
turn to Park Place’s motion to confirm.
III. THE UNITED STATES’ MOTION TO VACATE
Under the FAA, once a controversy has been arbitrated pur-
suant to a valid arbitration provision and the arbitrator has
made an award, either party to the arbitration may file a
motion to vacate an arbitration award. See 9 U.S.C. § 10. We
consider first the jurisdictional grounds for entertaining the
motion, and then turn to the merits of the request for vacatur.
A. Jurisdiction
[1] The FAA provides a means of judicial enforcement
where a controversy has been arbitrated pursuant to a valid
arbitration provision and the arbitrator has made an award.
See 9 U.S.C. §§ 9, 10. However, the FAA does not itself con-
fer jurisdiction on federal district courts over actions to com-
pel arbitration or to confirm or vacate arbitration awards, see
9 U.S.C. § 4; Garrett v. Merrill Lynch, Pierce, Fenner &
Smith, Inc., 7 F.3d 882, 883-84 (9th Cir. 1993), nor does it
create a federal cause of action giving rise to federal question
jurisdiction under 28 U.S.C. § 1331. See Kehr v. Smith Bar-
ney, Harris Upham & Co., Inc., 736 F.2d 1283, 1287 (9th Cir.
1984). As the Supreme Court has explained:
The [FAA] is something of an anomaly in the field
of federal-court jurisdiction. It creates a body of fed-
eral substantive law establishing and regulating the
duty to honor an agreement to arbitrate, yet it does
not create any independent federal-question jurisdic-
4682 UNITED STATES v. PARK PLACE ASSOCIATES
tion. . . . [T]here must be diversity of citizenship or
some other independent basis for federal jurisdiction.
Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460
U.S. 1, 25 n.32 (1983); see also Southland Corp. v. Keating,
465 U.S. 1, 15 n.9 (1984). An action under the FAA is an
action in contract to enforce the arbitration provision. See Volt
Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ.,
489 U.S. 468, 474 (1989) (the FAA was created “to overrule
the judiciary’s longstanding refusal to enforce agreements to
arbitrate and place such agreements upon the same footing as
other contracts” (internal citations and quotations omitted)).
Accordingly, as in any contract dispute, to be brought in fed-
eral court an action under the FAA must have an independent
basis for jurisdiction. See Luong v. Circuit City Stores, Inc.
368 F.3d 1109, 1111 (9th Cir. 2004).7
[2] Section 1345 of Title 28 furnishes an independent basis
for federal subject matter jurisdiction for “all civil actions,
suits or proceedings commenced by the United States.” 28
U.S.C. § 1345; see United States v. Yakima Tribal Court, 806
F.2d 853, 858 (9th Cir. 1986). Here, the United States com-
menced civil proceedings when it filed a complaint and
motion to vacate the arbitration award in the Central District
of California on October 8, 2004. See FED. R. CIV. P. 3. Sec-
tion 1345 is sufficient to support the district court’s jurisdic-
tion over the motion to vacate even though the United States
7
Typically, the diversity statute, 28 U.S.C. § 1332, supplies jurisdiction
for actions under the FAA. See Theis Research, Inc. v. Brown & Bain, 400
F.3d 659, 662 (9th Cir. 2005); Circuit City Stores, Inc. v. Najd, 294 F.3d
1104, 1106 (9th Cir. 2002). The United States, however, is neither a state
nor a citizen of a state, and may neither sue nor be sued under § 1332. See
28 U.S.C. § 1332(e); State of Texas v. Interstate Commerce Comm’n, 258
U.S. 158, 160 (1922); United States v. Dry Dock Sav. Inst., 149 F.2d 917,
918 (2d. Cir. 1945) (“Obviously the United States is not a citizen of any
state.”).
UNITED STATES v. PARK PLACE ASSOCIATES 4683
did not initiate the arbitration proceedings that underlie the
current action.8
[3] The FAA also enumerates orders from which an appeal
may be taken. Although the denial of a motion to vacate an
arbitration award is not one of the specified grounds for appeal,9
the order falls within the catchall provision providing for
appeal of “a final decision with respect to an arbitration that
is subject to this title.” 9 U.S.C. § 16(a)(3); see Bridas
8
The United States filed a motion to vacate as a defensive measure, and
its timing reflects the short statute of limitations governing such motions.
Although a party seeking to confirm an arbitration award has one year to
apply to a court for confirmation, see 9 U.S.C. § 9, “[n]otice of a motion
to vacate . . . an award must be served . . . within three months after the
award is filed or delivered,” 9 U.S.C. § 12 (emphasis added). As sover-
eign, the United States is generally not subject to limitations periods,
except “when Congress has expressly created one” such as in the FAA.
United States v. Thornburg, 82 F.3d 886, 893 (9th Cir. 1996) (citing Guar-
anty Trust Co. v. United States, 304 U.S. 126, 133 (1938)). When the arbi-
tration panel entered an award on July 9, 2004, that date triggered the
statute of limitations periods for any motions to confirm or vacate under
the FAA. The United States timely filed its notice of appeal.
9
An appeal may be taken from—
(1) an order—
(A) refusing a stay of any action under [9 U.S.C. § 3],
(B) denying a petition under [9 U.S.C. § 4] to order arbitra-
tion to proceed,
(C) denying an application under [9 U.S.C. § 206] to compel
arbitration,
(D) confirming or denying confirmation of an award or par-
tial award, or
(E) modifying, correcting, or vacating an award.
(2) an interlocutory order granting, continuing, or modifying an
injunction against an arbitration that is subject to this title; or
(3) a final decision with respect to an arbitration that is subject
to this title.
9 U.S.C. § 16(a).
4684 UNITED STATES v. PARK PLACE ASSOCIATES
S.A.P.I.C. v. Gov’t of Turkm., 345 F.3d 347, 353 (5th Cir.
2003). We have previously found such orders appealable. See
Fid. Fed. Bank, FSB v. Durga Ma Corp., 386 F.3d 1306, 1308
(9th Cir. 2004); Sovak v. Chugai Pharm. Co., 280 F.3d 1266,
1271 (9th Cir. 2002). We thus have jurisdiction over the
United States’ appeal of the district court’s order pursuant to
28 U.S.C. § 1291.
B. Merits
[43] On appeal, the United States asserts that the district
court erred in denying its motion to vacate under 9 U.S.C.
§ 10. Section 10 restricts the permissible grounds for vacatur
to four specified circumstances. In relevant part, § 10 autho-
rizes vacatur “where the arbitrators exceeded their powers, or
so imperfectly executed them that a mutual, final, and definite
award upon the subject matter submitted was not made.” 9
U.S.C. § 10(a)(4). We have strictly interpreted this standard,
emphasizing that “review of the award itself is both limited
and highly deferential.” PowerAgent Inc. v. Elec. Data Sys.
Corp., 358 F.3d 1187, 1193 (9th Cir. 2004) (internal quotation
marks omitted). As such, “arbitrators exceed their powers in
this regard not when they merely interpret or apply the gov-
erning law incorrectly, but when the award is completely irra-
tional, or exhibits a manifest disregard of law.” Kyocera
Corp. v. Prudential-Bache Trade Servs., Inc., 341 F.3d 987,
997 (9th Cir. 2003) (internal quotation marks and citations
omitted). This means that “ ‘[i]t must be clear from the record
that the arbitrators recognized the applicable law and then
ignored it. As such, mere allegations of error are insuffi-
cient.’ ” Collins, 505 F.3d at 879 (quoting Carter v. Health
Net of Cal., Inc., 374 F.3d 830, 838 (9th Cir. 2004)).
The United States offers three independent reasons why the
arbitration award was in manifest disregard of the law and
thus warrants vacatur. First, the United States contends that
Park Place waived any right to arbitrate claims against the
United States by abandoning its 1997 arbitration demand in
UNITED STATES v. PARK PLACE ASSOCIATES 4685
favor of litigation. Second, the United States argues that the
arbitration panel should have applied the California rather
than the federal statute of limitations. Third, the United States
asserts that California partnership law precludes the enforce-
ment of an arbitration award against a general partner where
creditors have not first attempted to collect against the part-
nership. We consider each argument in turn.
1. Waiver of Right to Arbitrate
The United States first contends that the award was in man-
ifest disregard of the law because Park Place waived its right
to arbitration under the JVA. The United States raised the
waiver issue before the arbitration panel in its response to
Park Place’s arbitration demand and before the district court
in its motion to vacate. The panel rejected the United States’
argument without explanation and the district court held it
need not revisit the issue. Although the United States asserts
that waiver is a question for courts, not arbitrators, we need
not address this question because no matter the appropriate
decision-maker, our review under 9 U.S.C. § 10 is the same.
Because the United States now raises this argument as part of
its motion to vacate, we review the arbitration award for
whether it exhibits a manifest disregard of the law of waiver.
[5] The right to arbitration, like any other contract right,
can be waived. See Van Ness Townhouses v. Mar Indus.
Corp., 862 F.2d 754, 758-59 (9th Cir. 1988). However, we
have emphasized that “waiver of the right to arbitration is dis-
favored because it is a contractual right, and thus ‘any party
arguing waiver of arbitration bears a heavy burden of
proof.’ ” Id. at 758 (quoting Belke v. Merrill Lynch, Pierce,
Fenner & Smith, 693 F.2d 1023, 1025 (11th Cir. 1982)). To
demonstrate waiver of the right to arbitrate, a party must
show: “(1) knowledge of an existing right to compel arbitra-
tion; (2) acts inconsistent with that existing right; and (3) prej-
udice to the party opposing arbitration resulting from such
inconsistent acts.” Fisher v. A.G. Becker Paribas Inc., 791
4686 UNITED STATES v. PARK PLACE ASSOCIATES
F.2d 691, 694 (9th Cir. 1986).10 The United States cannot sat-
isfy the second or third Fisher requirements. We find no evi-
dence that Park Place abandoned its right to arbitrate. Park
Place first sought arbitration in 1997 in Florida. The United
States opposed that effort and prevailed in part. Park Place
subsequently asked the AAA to hold the matter in abeyance
to pursue suit, first in California and then in the Court of Fed-
eral Claims. It then renewed its arbitration demand in 2003.
As the United States knows well, Park Place has vigorously
pursued its remedies, and the United States has just as vigor-
ously resisted its efforts at every step. Park Place has not
abandoned its arbitration rights; it has only moved the battle
from one venue to another.
[6] In any event, the United States has not shown it has
been prejudiced by the delay. Its sole assertion of prejudice
rests on an observation by the Court of Federal Claims, of
“the extreme burdens of discovery, which were disproportion-
ately imposed on [the United States].” This statement, made
when considering Park Place’s motion to stay litigation pend-
ing arbitration, is insufficient to establish prejudice. See, e.g.,
Fisher, 791 F.2d at 697 (holding that even extensive discov-
ery into both arbitrable and non-arbitrable claims before mov-
10
Waiver of a right is distinct from forfeiture of a right. As we have
explained, “[w]aiver is ‘the intentional relinquishment or abandonment of
a known right,’ whereas forfeiture is ‘the failure to make the timely asser-
tion of [that] right.’ ” United States v. Jacobo Castillo, 496 F.3d 947, 952
n.1 (9th Cir. 2007) (en banc) (alteration in original) (quoting United States
v. Olano, 507 U.S. 725, 733 (1993)).
Park Place asserts that a waiver argument may not be raised after an
arbitration award has been entered. We do not find any such limitation in
the FAA. Although § 10 does not specifically refer to waiver as grounds
for vacatur, it does not discuss any specific legal grounds for vacatur.
Instead, its general language encompasses any way in which “the arbitra-
tors exceeded their powers.” 9 U.S.C. § 10(a)(4). Presumably an arbitra-
tion panel exceeds its power by entering an award in manifest disregard
of law where the prevailing party plainly waived its right to arbitration in
a way that prejudiced an opposing party.
UNITED STATES v. PARK PLACE ASSOCIATES 4687
ing to compel arbitration is insufficient prejudice for a waiver
if that discovery is available for trial of the non-arbitrable
claim in federal district court). Moreover, the costs of discov-
ery referred to by the Court of Federal Claims were sunk
costs, not marginal costs, and have no bearing on the preju-
dice the United States would suffer by proceeding through
arbitration. It is far from clear that the arbitration panel was
wrong, much less that the award exhibits a manifest disregard
of law. In light of the deference we afford the arbitrators, we
decline to accept this basis for vacatur.
2. Statute of Limitations
The United States also contends that the arbitration panel
erred in applying the six-year federal statute of limitations
from the Tucker Act, see 28 U.S.C. § 2501, rather than the
four-year limitations period for California breach of contract
actions, see CAL. CIV. PROC. § 337, and erred in tolling the
limitations period pending the Court of Federal Claims suit.
The United States asserts that, consistent with the Federal Cir-
cuit’s holdings, because the United States was “standing in
the shoes of” the former general partner of LCP, it should be
subjected to the California statute of limitations, like any
other private party.
[7] The United States’ argument has no merit, and certainly
cannot meet the higher threshold of establishing that the
award exhibits a manifest disregard of the law. In the case of
an action brought under the Federal Tort Claims Act
(“FTCA”), we have long recognized that “[a] court must look
to state law for the purpose of defining the actionable wrong
for which the United States shall be liable, but to federal law
for the limitations of time within which the action must be
brought.” Poindexter v. United States, 647 F.2d 34, 36 (9th
Cir. 1981); see also United States v. Kubrick, 444 U.S. 111,
117-18 (1979) (applying the FTCA statute of limitations). The
Court of Federal Claims has reached the same conclusion as
to actions brought pursuant to the Tucker Act. Richmond,
4688 UNITED STATES v. PARK PLACE ASSOCIATES
Fredericksburg & Potomac R.R. Co. v. United States, 27 Fed.
Cl. 275, 287, 289 (1992) (applying Tucker Act statute of limi-
tations although Virginia law governed claims). Despite the
United States’ contention that such a result is unfair where the
statutes of limitations differ, we have emphasized that the fed-
eral statute of limitations governs “even when the state period
of limitations is longer or shorter.” Poindexter, 647 F.2d at
36. Because the statute of limitations period of the Tucker Act
is an express condition on the United States’ waiver of sover-
eign immunity, courts should neither extend nor narrow that
waiver beyond that which Congress intended. Cf. Kubrick,
444 U.S. at 117-18.
[8] The United States also argues that, even if the arbitra-
tion panel correctly applied the six-year federal statute of lim-
itations, the panel erroneously calculated the limitations
period as beginning on October 26, 1999, the date Park Place
filed suit in the Court of Federal Claims. Measuring from that
date, the arbitration panel found that because all alleged
breaches occurred after October 26, 1993, the arbitration
action was timely. Relying on California law, the United
States asserts that it was “absurd” to use that date, and that the
arbitration panel should have calculated the limitations period
as triggered by the filing of the arbitration demand, not the
start of litigation. We offer no view as to whether the arbitra-
tion panel is correct. We can conclude that the date the panel
chose has a reasonable basis in common sense and that the
award did not manifestly disregard the law.
3. California Partnership Law
Lastly, the United States argues that California partnership
law precludes enforcing an arbitration award against a general
partner where creditors have not first attempted to collect
against the partnership. To support this proposition, the
United States cites California Corporations Code § 16307(d),
which prohibits “[a] judgment creditor of a partner” from
“levy[ing] execution against the assets of [a] partner.” We
UNITED STATES v. PARK PLACE ASSOCIATES 4689
think there is a simple response to this, however, as this provi-
sion is inapplicable where recovery is sought by a partner.
[9] “Under California law, partners are permitted to ‘main-
tain an action against the partnership or another partner for
legal or equitable relief.’ ” Schnabel v. Lui, 302 F.3d 1023,
1030 (9th Cir. 2002) (quoting CAL. CORP. CODE § 16405(b));
see also Tyrone v. Kelley, 507 P.2d 65, 74 (Cal. 1973). The
Federal Circuit noted this proposition in Hardie I, when it
allowed Park Place to sue the government under the JVA. See
19 F. App’x at 903 (“Under the law of California, which
indisputably governs the [JVA], the general partner of a part-
nership is directly liable for the partnership’s debts.” (citing
CAL. CORP. CODE §§ 15509(1), 16306)). The statute cited by
the United States, California Corporations Code § 16307(d),
concerns recovery by “a judgment creditor of a partner.” The
recovery here was sought by a partner directly, not its credi-
tor. Indeed, California Corporations Code § 16307(d) falls
within the article of the Code concerning “Relations of Part-
ners to Persons Dealing with Partnerships” and is inapt to this
situation. By contrast, the appropriate provision, California
Corporations Code § 16405(b), is contained within the article
entitled “Relations of Partners to Each Other and to Partner-
ship.” The award does not exhibit manifest disregard of Cali-
fornia partnership law.
* * * * *
[10] The United States has not established that “the arbitra-
tors exceeded their powers, or so imperfectly executed them
that a mutual, final, and definite award upon the subject mat-
ter submitted was not made.” 9 U.S.C. § 10(a)(4). Conse-
quently, we affirm the district court’s denial of the United
States’ motion to vacate.
IV. PARK PLACE’S MOTION TO CONFIRM
Having concluded that there are no grounds for vacating
the award, we turn to the more difficult question of whether
4690 UNITED STATES v. PARK PLACE ASSOCIATES
it may be confirmed. The government contends that it may
not because the United States has not waived its sovereign
immunity to confirmation in the Central District of California.
Park Place argues that the same court that the United States
invited to vacate the arbitration award must be able to confirm
it as well. As the history of this case amply demonstrates,
nothing is going to be simple, but in the end we agree with
the United States.
A. The Relationship Between Sovereign Immunity and
Subject Matter Jurisdiction
This case presents questions of both sovereign immunity
and subject matter jurisdiction. There is a complex relation-
ship between these two subjects. We have occasionally “mis-
takenly equate[d] sovereign immunity with lack of subject
matter jurisdiction.” Powelson v. United States, 150 F.3d
1103, 1104 (9th Cir. 1998) (“Powelson II”). Although the
concepts are related, sovereign immunity and subject matter
jurisdiction present distinct issues. See Arford v. United
States, 934 F.2d 229, 231 (9th Cir. 1991).
[11] A waiver of sovereign immunity means the United
States is amenable to suit in a court properly possessing juris-
diction; it does not guarantee a forum. See Alvarado v. Table
Mountain Rancheria, 509 F.3d 1008, 1016 (9th Cir. 2007)
(“To confer subject matter jurisdiction in an action against a
sovereign, in addition to a waiver of sovereign immunity,
there must be statutory authority vesting a district court with
subject matter jurisdiction.”). For example, both the Suits in
Admiralty Act (“SAA”), 46 U.S.C. § 741 et seq., and the Pub-
lic Vessels Act (“PVA”), 46 U.S.C. § 781 et seq., waive the
United States’ sovereign immunity, with the latter even
explicitly providing for damages. See 46 U.S.C. §§ 30903,
31102. However neither statute contains a jurisdiction-
conferring provision. Instead, subject matter jurisdiction over
actions arising under these Acts may be founded on 28 U.S.C.
§ 1333.
UNITED STATES v. PARK PLACE ASSOCIATES 4691
[12] Conversely, the mere existence of a forum does not
waive sovereign immunity. As we observed in Powelson II,
“[a] statute may create subject matter jurisdiction yet not
waive sovereign immunity.” 150 F.3d at 1105; see also
Arford, 934 F.2d at 231 (holding that 28 U.S.C. § 1340 cre-
ated subject matter jurisdiction, but “[did] not constitute a
waiver of sovereign immunity.”). For example, 28 U.S.C.
§ 1331 grants district courts original jurisdiction over “all
civil actions arising under the Constitution, laws or treaties of
the United States,” but it does not waive sovereign immunity.
See Hughes v. United States, 953 F.2d 531, 539 n.5 (9th Cir.
1992). As we have observed, “ ‘[section 1331] cannot be con-
strued as authorizing suits of this character against the United
States, else the exemption of sovereign immunity would
become meaningless.’ ” Dunn & Black, P.S. v. United States,
492 F.3d 1084, 1088 n.3 (9th Cir. 2007) (quoting Geurkink
Farms, Inc. v. United States, 452 F.2d 643, 644 (7th Cir.
1971)).
We have occasionally treated jurisdiction and sovereign
immunity as though they were the same inquiry. See, e.g.,
Powelson v. United States, 979 F.2d 141, 145 (9th Cir. 1992)
(“Powelson I”). Any imprecision in our language may be due
to the fact that the two most important waivers of sovereign
immunity for damages are the FTCA, 28 U.S.C. § 2671 et
seq., for torts committed by government employees acting in
the scope of their employment, and the Tucker Act, 28 U.S.C.
§1491, for actions sounding in contract. Both of these acts
contain an independent conferral of jurisdiction. 28 U.S.C.
§ 1346(b)(1) (“[T]he district courts . . . shall have exclusive
jurisdiction of civil actions on claims against the United
States, for money damages [based on tort]”); 28 U.S.C.
§ 1346(a)(2) (“The district courts shall have original jurisdic-
tion . . . of . . . [a]ny civil action against the United States [for
damages sounding in contract]”); see also GREGORY C. SISK,
LITIGATION WITH THE FEDERAL GOVERNMENT §§ 3.02, 3.04(b),
4.02(b), 4.04(a) (4th ed. 2006).
4692 UNITED STATES v. PARK PLACE ASSOCIATES
B. Sovereign Immunity and Subject Matter Jurisdiction in
this Case
We are going to use sovereign immunity to frame our anal-
ysis in this case. Because sovereign immunity and subject
matter jurisdiction are so closely linked in suits against the
government, we will inevitably address subject matter juris-
diction as well. There is some path dependence in our meth-
odology: the theory of sovereign immunity under which a
court entertains a suit for money damages against the govern-
ment may limit, or perhaps even determine, the venues in
which there is subject matter jurisdiction.
As the party asserting a claim against the United States,
Park Place has the burden of “demonstrating an unequivocal
waiver of immunity.” Cunningham v. United States, 786 F.2d
1445, 1446 (9th Cir. 1986). Park Place makes four arguments
in support of its claim that sovereign immunity does not bar
its motion to confirm in the Central District of California: (1)
the Federal Circuit’s earlier decisions in Hardie I and Hardie
II held that the United States waived its sovereign immunity
when it assumed ownership of LCP’s interests, and the United
States thus may not contest the issue of sovereign immunity;
(2) independent of the Hardie decisions, the United States
specially waived its immunity by assenting to the JVA and its
arbitration clause; (3) Congress waived the United States’
immunity to this action under § 702 of the Administrative
Procedure Act; and (4) the United States waived its sovereign
immunity to a motion to confirm when it filed its motion to
vacate. We consider each argument in turn. We conclude that
the Tucker Act is the only means by which the United States
can be said to have waived its sovereign immunity in this case
and that the district court did not have jurisdiction under the
Tucker Act.
UNITED STATES v. PARK PLACE ASSOCIATES 4693
1. The Hardie I and II Decisions
Park Place principally relies on the decisions by the Federal
Circuit in Hardie I and Hardie II to support its claim of
waiver. The Federal Circuit’s decisions, to the extent applica-
ble, govern as law of the case.11 The law of the case doctrine,
which posits that “when a court decides upon a rule of law,
that decision should continue to govern the same issues in
subsequent stages in the same case,” Arizona v. California,
460 U.S. 605, 618 (1983), applies equally to decisions of
coordinate appellate courts. See Christianson v. Colt Indus.
Operating Corp., 486 U.S. 800, 816 (1988); Jeffries v. Wood,
114 F.3d 1484, 1488-89 (9th Cir. 1997) (en banc) (“Law of
the case is a jurisprudential doctrine under which an appellate
court does not reconsider matters resolved on a prior
11
The Central District of California characterized the binding effect of
the Federal Circuit’s holding as collateral estoppel. We think, however,
that the doctrine of collateral estoppel is inapplicable here, and the more
appropriate doctrine is law of the case. The doctrine of collateral estoppel,
or issue preclusion, provides that “once a court decides an issue of fact or
law necessary to its judgment, that decision precludes relitigation of the
same issue on a different cause of action between the same parties.”
Kremer v. Chem. Const. Corp., 456 U.S. 461, 466 n.6 (1982).
Here, neither of the Federal Circuit’s determinations meets the require-
ments for estoppel. “To be given preclusive effect, a judgment must be a
final adjudication of the rights of the parties and must dispose of the litiga-
tion on the merits.” Media Techs. Licensing, LLC v. Upper Deck Co., 334
F.3d 1366, 1369 (Fed Cir. 2003). The Federal Circuit did not render final
judgment on Park Place’s claims. In Hardie I, the Federal Circuit reversed
the Court of Federal Claims’ dismissal of Park Place’s breach of contract
claim against the United States for lack of subject matter jurisdiction, and
remanded for further consideration on the merits. See 19 F. App’x at 903.
In Hardie II, the Federal Circuit dismissed for lack of jurisdiction the
United States’ appeal of an order by the Court of Federal Claims denying
its motion to enjoin the arbitration proceeding in Los Angeles, California.
See 367 F.3d at 1289, 1291. Although the Federal Circuit discussed and
preliminarily resolved issues of sovereign immunity to suit and arbitration,
it did not render a final judgment. Indeed, because the claim before us is
the identical claim addressed by the Federal Circuit—pursued in an arbi-
tration demand in Los Angeles, California, rather than continued as litiga-
tion in the Court of Federal Claims—that court’s earlier resolution cannot
have constituted a final judgment.
4694 UNITED STATES v. PARK PLACE ASSOCIATES
appeal.”). For a prior ruling to become law of the case as to
a particular issue, that issue “must have been decided explic-
itly or by necessary implication in the previous disposition.”
Herrington v. County of Sonoma, 12 F.3d 901, 904 (9th Cir.
1993) (internal quotation marks and alteration omitted).
Park Place claims that the Federal Circuit’s decisions in
Hardie I and Hardie II are law of the case and waive the sov-
ereign immunity of the United States not only in the Court of
Federal Claims but in the district courts as well. We disagree.
A fair reading of those decisions reveals that the Federal Cir-
cuit’s conclusions necessarily relied upon the Tucker Act as
the basis for the waiver of sovereign immunity.
In Hardie I, Park Place filed suit in the Court of Federal
Claims against the United States for breach of the JVA,
claiming that the court had jurisdiction over the suit under the
Tucker Act. The Court of Federal Claims dismissed the suit
because there was no privity between Park Place and the
United States and thus “no contract upon which a Tucker Act
claim may lie.” 19 F. App’x at 901.
The Federal Circuit reversed the decision of the Court of
Federal Claims. The Federal Circuit found that there was no
bright-line rule for determining privity. “Instead, . . . this
court has recognized Tucker Act jurisdiction over contract-
based claims where there is no literal contract between the
plaintiff and the United States.” Id. at 905. The court
explained that the “privity issue in this case presents a consid-
eration typically absent” in cases before the court. Id. In the
usual case, the United States enters into an arrangement with
a prime contractor and a subcontractor brings suit, claiming
it has stepped into the prime’s shoes. Here, the United States
was not a principal to the contract. Instead, “the United States
ha[d] elected to step into the shoes of the general partner of
LCP. . . . The United States was not compelled to become the
general partner of LCP; instead, it chose to do so.” Id. at 905-
06. The Federal Circuit concluded as follows: “In short, in
UNITED STATES v. PARK PLACE ASSOCIATES 4695
appropriate circumstances such as these, Tucker Act jurisdic-
tion over contract-based claims extends beyond those alleging
breach of a contract to which both the plaintiff and the United
States are named parties.” Id. at 906.
In Hardie II, the Federal Circuit again considered sovereign
immunity and jurisdiction over Park Place’s claims, this time
in the arbitration context. After Hardie I, Park Place had
shifted its focus from litigation to arbitration by filing an arbi-
tration demand in Los Angeles. In Hardie II, the Federal Cir-
cuit considered an order by the Court of Federal Claims
refusing to enjoin that arbitration proceeding. See 367 F.3d at
1289. The Federal Circuit rejected the United States’ position
that it was not subject to binding arbitration, reasoning that it
had already decided “that arbitration is a ‘contractual arrange-
ment’ and that the United States is bound by the contractual
arrangements contained within the joint venture agreement.”
Id. at 1291. The Federal Circuit then concluded that the
United States’ consent to arbitration was not independent of
its “waiver of sovereign immunity as to the breach of contract
claims,” id., and noted that it had previously ruled in Hardie
I that the Court of Federal Claims “had jurisdiction under the
Tucker Act to adjudicate [Park Place’s] contract claim.” Id. at
1289.
Park Place relies heavily on the Federal Circuit’s declara-
tion in Hardie I that the United States had “step[ped] into the
shoes of the general partner of LCP,” and the court’s later
statement in Hardie II that “the United States is subject to the
arbitration clause of the joint venture agreement just as any
private party would be,” 367 F.3d at 1291. When these state-
ments are read in context, however, it is clear that the Federal
Circuit was simply concerned with whether the United States
was in privity of contract with Park Place. Answering that
question in the affirmative, the Federal Circuit held that Park
Place could bring an action under the Tucker Act on the con-
tract. In other words, because there was a contract to which
the United States was a party, Congress had waived its sover-
4696 UNITED STATES v. PARK PLACE ASSOCIATES
eign immunity in the Tucker Act for suits on the contract
brought in the Court of Federal Claims.
[13] The fact that Park Place pled the Tucker Act, the Court
of Federal Claims dismissed for want of jurisdiction under the
Tucker Act, and the Federal Circuit framed its discussion in
terms of the Tucker Act is critical to understanding Hardie I
and Hardie II. The “step into the shoes” metaphor on which
Park Place relies is not a free-standing principle that the
United States was to be treated, literally, as a private entity.
Indeed, if the Federal Circuit had in fact intended this mean-
ing, it would have simply affirmed the Court of Federal
Claims’ original decision in Hardie I, but on the ground that
the Court of Federal Claims has no jurisdiction over contract
disputes between private parties. Rather, the Federal Circuit
used the metaphor to explain why Park Place could bring a
suit sounding in contract against the United States when the
United States was not a signatory to the contract.
Park Place’s theory of the Federal Circuit’s decisions in
Hardie I and Hardie II also makes little sense for another,
related reason. To establish the United States’ potential liabil-
ity under the JVA, the Federal Circuit needed only to find that
the United States was in privity of contract with LCP, since
the Tucker Act straightforwardly waived the United States’
sovereign immunity if privity were found to exist. Under Park
Place’s theory, however, the Federal Circuit did not simply
decide that the United States was in privity of contract with
Park Place and hence that Park Place could maintain an action
under the Tucker Act in the Court of Federal Claims. Rather,
Park Place would have us believe that, without citing any stat-
utory authority besides the Tucker Act, the Federal Circuit
broadly held the United States’ sovereign immunity waived in
the district courts as well, even though such a holding was in
no sense necessary to its resolution of the case before it. We
may not treat sovereign immunity so cavalierly; certainly, the
Federal Circuit did not.
UNITED STATES v. PARK PLACE ASSOCIATES 4697
[14] For the same reasons the Federal Circuit found that the
Tucker Act was a proper source of jurisdiction for Park
Place’s claims in the Court of Federal Claims, it cannot be the
basis for jurisdiction in the Central District of California. The
Court of Federal Claims possesses exclusive jurisdiction of
claims arising under the Tucker Act in excess of $10,000, see
28 U.S.C. § 1491(a)(1); Wilkins v. United States, 279 F.3d
782, 785 (9th Cir. 2002), and Park Place’s contract claims
were properly before that court.12 The Tucker Act supplies
both a basis for the exercise of subject matter jurisdiction and
a concomitant waiver of sovereign immunity in the Court of
Federal Claims. This is a package deal—the waiver of sover-
eign immunity is coextensive with the jurisdiction the statute
confers. The Tucker Act thus neither waives sovereign immu-
nity for suit in, nor confers jurisdiction on, the Central District
of California.
A separate provision, the so-called Little Tucker Act, con-
fers concurrent jurisdiction in the district courts for certain
contract claims against the United States, but the Little Tucker
Act’s jurisdictional grant is limited to claims for money dam-
ages “not exceeding $10,000 in amount.” See 28 U.S.C.
§ 1346(a)(2). Parties may waive their right to receive more
12
Although we are tempted to state, as we have on occasion, that the
Court of Federal Claims has exclusive jurisdiction over contract claims
against the United States, see Skokomish Indian Tribe v. United States,
410 F.3d 506, 511 (9th Cir. 2005) (en banc); M-S-R Pub. Power Agency
v. Bonneville Power Admin., 297 F.3d 833, 840 (9th Cir. 2002); Wilkins
v. United States, 279 F.3d 782, 785 (9th Cir. 2002), the Supreme Court has
explained that the Court of Federal Claims does not possess “exclusive
jurisdiction of Tucker Act claims for more than $10,000 . . . . Rather, that
court’s jurisdiction is ‘exclusive’ only to the extent Congress has not
granted any other court authority to hear the claims that may be decided
by the [Court of Federal Claims].” Bowen v. Massachusetts, 487 U.S. 879,
910 n.48 (1988). We think it is more precise to state that the Tucker Act
exclusively grants jurisdiction to the Court of Federal Claims, but that
court’s jurisdiction is concurrent to the extent that, in another act, Con-
gress has both waived sovereign immunity over a contract claim and cre-
ated jurisdiction in another court.
4698 UNITED STATES v. PARK PLACE ASSOCIATES
than $10,000 in order to satisfy the Little Tucker Act and
obtain jurisdiction in the district court. See Marceau v. Black-
feet Hous. Auth., 455 F.3d 974, 986 (9th Cir. 2006), readop-
ted on reh’g, 540 F.3d 916, 929 (9th Cir. 2008); United States
v. Johnson, 153 F.2d 846, 848 (9th Cir. 1946). The Little
Tucker Act, however, cannot supply the proper basis for the
district court’s jurisdiction—as Park Place acknowledges—
because Park Place has not waived its claims in excess of
$10,000. See 28 U.S.C. § 1346(a)(2).
[15] Thus, after Hardie I and Hardie II, the United States
may have waived its sovereign immunity to the arbitration
under the JVA, but the basis for that waiver, the Tucker Act,
conditions its waiver on jurisdiction to the Court of Federal
Claims. Or, to put it differently, the Tucker Act has not
waived the sovereign immunity of the United States to suit in
the Central District of California, and accordingly, to the
extent Park Place relies on the Tucker Act for its waiver of
sovereign immunity, that court lacked authority to confirm the
arbitration award.
2. The JVA as a Special Waiver
Park Place alternatively contends that the United States
specially waived its sovereign immunity to confirmation of
the arbitration award by entering into the JVA. The district
court accepted this alternate theory. The court observed that
the JVA provides that disputes arising thereunder “shall be
determined and settled by arbitration . . . pursuant to the rules
of the [AAA]” and that any arbitration award could be entered
“in any court of competent jurisdiction in the State of Califor-
nia.”
The district court found support for its position in C & L
Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of
Oklahoma, 532 U.S. 411 (2001), but that decision has nothing
to do with either the United States or the Tucker Act. In C&L,
a private party contracted with an Indian tribe, and the parties
UNITED STATES v. PARK PLACE ASSOCIATES 4699
contractually agreed to arbitrate any disputes arising thereun-
der. See id. at 414-16. The Supreme Court noted that the tribe
had sovereign immunity—“even for breach of contract
involving off-reservation commercial conduct—unless Con-
gress has authorized the suit or the tribe has waived its immu-
nity.” Id. at 414 (internal quotation marks omitted). The Court
held that the tribe had waived that immunity “by the clear
import of the arbitration clause,” and was therefore “amenable
to a state-court suit to enforce an arbitral award.” Id.
[16] Although C & L shares some facts with the present
case—both involve an arbitration award against an otherwise-
sovereign entity—it is inapposite. The issue in C & L was
whether the Indian tribe had waived its sovereign immunity
to suit based on contract. We need not consider this question
here insofar as the issue relates to contract: the Tucker Act
waives the sovereign immunity of the United States for such
suits, and the Federal Circuit has determined that the United
States is a party to the contract here, the JVA. To the extent
Park Place seeks to enforce the JVA, the United States is thus
subject to suit under the Tucker Act. The relevant question is
where such a suit could be brought. Congress has specified
that for suits in excess of $10,000, jurisdiction is only proper
in the Court of Federal Claims.13 We therefore cannot accept
13
We leave for another day interesting questions regarding the scope of
the government’s authority to abrogate sovereign immunity by contract in
situations and fora not covered by the Tucker Act. For purposes of this
case, it suffices to note two related points.
First, although we accept the Federal Circuit’s conclusion that the
United States is bound by the arbitration clause for purposes of the Tucker
Act, there is no evidence that the United States has waived its sovereign
immunity outside the confines of that Act. Any such waiver must be
unequivocal, see Dep’t of Energy v. Ohio, 503 U.S. 607, 615 (1992), and
the United States was not a party to the original JVA. Park Place has not
pointed us to any other law or agreement that waives the sovereign immu-
nity of the United States for contracts or arbitrations in this case.
Second, the Attorney General has charge of litigation in which the
United States is an interested party. See 28 U.S.C. §§ 516, 519. As part of
4700 UNITED STATES v. PARK PLACE ASSOCIATES
Park Place’s theory that the JVA constitutes a waiver to con-
firmation in the Central District of California.14
3. The APA Waiver
[17] Alternatively, Park Place asserts that Congress waived
the United States’ immunity to confirmation through the
Administrative Procedure Act, 5 U.S.C. § 702.15 Section 702
provides as follows:
his authority to direct litigation, the Attorney General may compromise
claims by settlement or arbitration. See Constitutional Limitations on Fed-
eral Government Participation in Binding Arbitration, 19 U.S. Op. Off.
Legal Counsel 208, 209 & n.3 (1995). The government may expressly
enter into binding arbitration “assuming the availability of authority to
effect any remedy that might result from the arbitration.” Id. at 232 & n.4.
However, although there are procedures by which the Attorney General
may consent to binding arbitration on behalf of the United States, those
procedures have plainly not been followed here. See Developing Guidance
for Binding Arbitration: A Handbook for Federal Agencies, 65 Fed. Reg.
50,005 (Aug. 16, 2000). Thus, even assuming his authority to do so, we
cannot see that the Attorney General has somehow consented to confirma-
tion in the Central District of California simply because the United States
assumed LCP’s position in the JVA.
14
Section 5.03 of the JVA not only provides for binding arbitration, but
it specifies that the arbitration shall be conducted in Los Angeles and that
judgment on any award “may be entered thereon in any court of competent
jurisdiction in the State of California.” The forum-selection clause—
agreed to by Park Place and LCP before the United States was deemed a
party to the contract—is, at best, consent to personal jurisdiction and
venue. See Dow Chem. Co. v. Calderon, 422 F.3d 827, 831 (9th Cir.
2005). The clause cannot confer subject matter jurisdiction on California
courts, federal or state.
15
Section 702 waives sovereign immunity; however, it does not confer
federal jurisdiction. See, e.g., Califano v. Sanders, 430 U.S. 99, 107
(1977) (“[T]he APA does not afford an implied grant of subject-matter
jurisdiction permitting federal judicial review of agency action.”); Tucson
Airport Auth. v. Gen. Dynamics Corp., 136 F.3d 641, 645 (9th Cir. 1998)
(“It is beyond question . . . that the APA does not provide an independent
basis for subject matter jurisdiction in the district courts.”); Presbyterian
Church v. United States, 870 F.2d 518, 524 (9th Cir. 1989); S. Delta
Water Agency v. United States, 767 F.2d 531, 535 (9th Cir. 1985)
(“Congress’s waiver of sovereign immunity [in 5 U.S.C. § 702] does not
by itself confer jurisdiction.”).
UNITED STATES v. PARK PLACE ASSOCIATES 4701
A person suffering legal wrong because of agency
action, or adversely affected or aggrieved by agency
action within the meaning of a relevant statute, is
entitled to judicial review thereof. An action in a
court of the United States seeking relief other than
money damages and stating a claim that an agency
or an officer or employee thereof acted or failed to
act in an official capacity or under color of legal
authority shall not be dismissed nor relief therein be
denied on the ground that it is against the United
States . . . .
5 U.S.C. § 702. In order for the APA’s waiver to apply to
Park Place’s motion to confirm, three conditions must all be
met: (1) Park Place’s claim must not seek “money damages”;
(2) an adequate remedy for its claims must not be available
elsewhere; and (3) Park Place’s claims must not seek relief
expressly or impliedly forbidden by another statute. Tucson
Airport Auth. v. Gen. Dynamics Corp., 136 F.3d 641, 645 (9th
Cir. 1998). In this case, Park Place plainly cannot meet either
the first or third conditions for § 702 waiver.
With regard to the first condition, in Bowen v. Massachu-
setts, 487 U.S. 879 (1988), the Supreme Court cautioned that
“[t]he fact that a judicial remedy may require one party to pay
money to another is not a sufficient reason to characterize the
relief as ‘money damages.’ ” Id. at 893. The Bowen Court fur-
ther explained this point as follows:
Our cases have long recognized the distinction
between an action at law for damages—which are
intended to provide a victim with monetary compen-
sation 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 backpay, or for
the recovery of specific property or monies, eject-
4702 UNITED STATES v. PARK PLACE ASSOCIATES
ment from land, or injunction either directing or
restraining the defendant officer’s actions.
Id. (internal quotation marks, emphasis, and citation omitted).
The Court continued on, explaining that “money damages . . .
normally refers to a sum of money used as compensatory
relief” and that “[d]amages are given . . . to substitute for a
suffered loss, whereas specific remedies are not substitute
remedies at all, but attempt to give the plaintiff the very thing
to which he was entitled.” Id. at 895 (internal quotation marks
and emphasis omitted).
[18] The issue presented by Park Place’s motion to confirm
then, is this: Is the $93,612,892 awarded by the arbitration
panel specific relief, the very thing to which Park Place was
entitled under the JVA; or is it damages, a substitute remedy
compensating Park Place for losses suffered as a result of the
alleged breaching conduct of the United States? We think the
answer is clearly the latter. Park Place’s arbitration demand
was based upon its claims before the Court of Federal Claims
and the arbitration panel justified its decision by reasoning
that “[a]s a result of the [United States’] breaching conduct,
[Park Place] suffered, and continue[s] to suffer, significant
diminution of [its] partnership distributions.” The arbitration
award is “relief that substitutes for that which ought to have
been done” in that it compensates Park Place for the United
States’ mismanagement of the Club during its eight-year man-
agement period, as found by the arbitration panel.
Resisting this conclusion, Park Place points out that the
Bowen Court noted that specific relief can encompass “the
recovery of specific property or monies,” 487 U.S. at 893
(emphasis in original), and argues that it simply seeks the spe-
cific sum of money set forth in the arbitration panel’s decision
and authorized by the JVA. This argument is unavailing. The
entire point of specific relief is that it is relief that the plaintiff
would be owed even if the defendant had never engaged in
wrongful conduct. This is why the Supreme Court contrasted
UNITED STATES v. PARK PLACE ASSOCIATES 4703
specific relief with compensatory relief, or relief that substi-
tutes for that which ought to have been done. The Bowen
Court did acknowledge that specific relief can encompass
money, but the examples the Court cited—such as a contract
to lend money or a promise to pay a money bonus under a
royalty contract, see 487 U.S. at 895—further illustrate that
Park Place’s argument is untenable. The JVA was not a con-
tract for the payment of money. What Park Place was entitled
to under the contract was a managing partner that did not
grossly mismanage its business. The arbitration award was
compensation, or a substitute, for the United States’ alleged
failure to meet that standard. Accordingly, Park Place cannot
meet the first requirement for a waiver of sovereign immunity
under § 702.
The conclusion that Park Place seeks money damages by
itself requires us to reject its contention that Congress waived
the United States’ immunity to confirmation through the
APA. However, even if confirmation of the arbitration award
could be framed as involving something other than an award
of money damages, this action would nonetheless be barred
by the Tucker Act.
Section 702 makes clear that it does not confer “authority
to grant relief if any other statute that grants consent to suit
expressly or impliedly forbids the relief which is sought.” The
Tucker Act provides that “[t]he United States Court of Fed-
eral Claims shall have jurisdiction to render judgment upon
any claim against the United States founded . . . upon any
express or implied contract with the United States.” 28 U.S.C.
§ 1491(a)(1). Accordingly, we have consistently held that,
while the Tucker Act precludes interpreting the APA as a
waiver of sovereign immunity for contract-based claims in
the district courts, the Tucker Act does not strip the district
courts of jurisdiction in cases that “rest[ ] at bottom on statu-
tory rights.” N. Side Lumber Co. v. Block, 753 F.2d 1482,
1485 (9th Cir. 1985). Whether a claim is contractually or sta-
tutorily based depends upon the “source of the rights upon
4704 UNITED STATES v. PARK PLACE ASSOCIATES
which the plaintiff bases its claim.” N. Star Alaska v. United
States, 14 F.3d 36, 37 (9th Cir. 1994) (internal quotation
marks omitted).
[19] Based on these established principles, we conclude
that Park Place’s action to confirm is a contract-based claim
impliedly barred by the Tucker Act. As the Court of Federal
Claims correctly noted, “[e]ntering judgment on an arbitration
award is tantamount to granting a request for specific perfor-
mance of the JVA.” See also Lafarge Conseils Et Etudes, S.A.
v. Kaiser Cement & Gypsum Corp., 791 F.2d 1334, 1340 (9th
Cir. 1986) (noting that motions to vacate and confirm arbitra-
tion awards arise directly out of contract). We have no doubt
that a suit seeking specific performance of a contract is a
“contractually” based claim for purposes of the APA and the
Tucker Act.
Park Place nonetheless suggests that the motion to confirm
is based on its statutory rights under 9 U.S.C. § 9, which pro-
vides, inter alia, that “any party to the arbitration may apply
to the court so specified for an order confirming the award,
and thereupon the court must grant such an order unless the
award is vacated, modified, or corrected as prescribed in sec-
tions 10 and 11 of this title.” We disagree.
The Supreme Court has made very clear that the FAA was
enacted in order to facilitate judicial enforcement of contracts
and that an action under the FAA is simply an action to
enforce the arbitration provision of the parties’ contract. See
Volt Info. Scis., Inc., 489 U.S. at 474 (the FAA was created
“to overrule the judiciary’s longstanding refusal to enforce
agreements to arbitrate and place such agreements upon the
same footing as other contracts” (internal quotation marks and
citation omitted)). The FAA “does not impose” any indepen-
dent “substantive dut[ies]” upon the United States. Tucson
Airport Auth., 136 F.3d at 647. Indeed, the mere existence of
an arbitration award against the federal government has nei-
ther legal significance nor creates any rights in favor of Park
UNITED STATES v. PARK PLACE ASSOCIATES 4705
Place absent a contractual provision binding the United States
to the arbitration award. Thus, Park Place’s claim clearly does
“not exist independent of the . . . [c]ontract.” Id. The fact that
a statute gives us general authority to enforce contractual pro-
visions regarding arbitration (without mentioning the United
States specifically) does not mean that a plaintiff’s suit is not
based solely on rights created by the contract.
Indeed, we rejected an argument materially indistinguish-
able from the one Park Place makes here in Tucson Airport
Authority. In that case, the plaintiff’s predecessor in interest
modified various aircraft for the United States military under
a “Modification Center Contract.” Id. at 643. The contract
provided that, upon its termination, the United States would
assume all obligations that the plaintiff had undertaken in
good faith in connection with its work for the military. Id. The
United States nonetheless refused to assume the plaintiff’s
defense in four separate civil suits filed against it. Id. On
appeal to this court, the plaintiff contended that the govern-
ment’s refusal violated the Contract Settlement Act (“CSA”),
41 U.S.C. § 101 et seq., and hence that its claim was not con-
tractually based.
The CSA stated that war contracts “shall not be reopened,
annulled, modified, set aside, or disregarded by any officer,
employee, or agent of the United States,” 41 U.S.C. § 103(m),
while the FAA declares that courts should confirm arbitration
awards “unless the award is vacated, modified, or corrected as
prescribed in sections 10 and 11 of this title.” 9 U.S.C. § 9.
Thus, both statutes set forth a mechanism for the enforcement
of contracts but do not create any statutory rights distinct from
the terms of any contract entered into by the parties. We thus
rejected the plaintiff’s claim that it merely sought to enforce
“statutory” rights under the CSA:
General Dynamics’s CSA claims do not exist inde-
pendent of the Modification Center Contract. The
CSA does not impose a substantive duty on the
4706 UNITED STATES v. PARK PLACE ASSOCIATES
United States to defend these claims. That duty, if it
exists, derives from the contract. Moreover, General
Dynamics seeks specific performance of the con-
tract. The conclusion follows that these claims are
contractually-based.
136 F.3d at 647. Similarly here, the FAA does not impose a
substantive duty on the United States to participate in arbitra-
tion or abide by an arbitration award. That duty, if it exists,
derives from the contract. Moreover, just like the plaintiff in
Tucson Airport Authority, Park Place seeks specific perfor-
mance of the contract.
[20] We express no opinion on whether Park Place has an
adequate remedy elsewhere. Because Park Place’s motion to
confirm seeks both money damages and enforcement of con-
tractual rights, the APA’s limited waiver is inapplicable here.
4. Waiver Through Filing of the Motion to Vacate
Finally, Park Place argues that the United States waived its
immunity to confirmation when it moved to vacate the arbi-
tration award. Park Place suggests that the district court had
jurisdiction over the United States’ motion to vacate under 28
U.S.C. § 1345, and that its motion to confirm was so related
to the motion to vacate that the district court acquired jurisdic-
tion under either § 1345 or the supplemental jurisdiction stat-
ute, 28 U.S.C. § 1367. Neither statute will support Park
Place’s claim to a waiver of sovereign immunity.
[21] By its terms, § 1345 encompasses only actions “com-
menced by the United States.” 28 U.S.C. § 1345 (emphasis
added). We have explicitly rejected the proposition that
Ҥ 1345 [may] establish[ ] jurisdiction for a suit against the
United States, by drawing its essence from a separate action
previously commenced by the United States.” Fid. & Cas. Co.
v. Reserve Ins. Co., 596 F.2d 914, 916 (9th Cir. 1979) (hold-
ing that even though the party could have sought to intervene
UNITED STATES v. PARK PLACE ASSOCIATES 4707
in an action by the United States, it could not institute a sepa-
rate action against the United States).16 In this case, the United
States filed a motion to vacate the arbitration award in the
Central District of California on October 8, 2004, for which
28 U.S.C. § 1345 served as the basis for jurisdiction.17 That
motion followed Park Place’s motion to confirm, which it had
filed on September 14, 2004, in the Court of Federal Claims.18
Because § 1345 will not support an original action by Park
Place, Park Place’s own jurisdictional theory depends on the
fortuity of the United States’ decision to file a motion to
vacate, to which it could attach its motion to confirm. We do
not think § 1345 can be used in this creative way. See Orff v.
United States, 545 U.S. 596, 602-04 (2005). Moreover, even
if Park Place is correct that § 1345 gave the district court
jurisdiction over its motion to confirm, § 1345 plainly does
not constitute a waiver of sovereign immunity.
Park Place’s second jurisdictional argument is more plausi-
ble. Park Place contends that the supplemental jurisdiction
statute, 28 U.S.C. § 1367, when read in conjunction with
§ 1345, supports the district court’s jurisdiction. Park Place
reasons that because the Central District of California had
jurisdiction over the United States’ motion to vacate under
§ 1345, it had supplemental jurisdiction over Park Place’s
motion to confirm because the motions were inextricably
intertwined.
16
This principle is subject to a narrow exception: “when the United
States files suit it may subject itself to various compulsory and permissive
counterclaims for recoupment or set-off.” Id. at 917; see also United
States v. Shaw, 309 U.S. 495 (1940); United States v. Agnew, 423 F.2d
513, 514 (9th Cir. 1970) (per curiam). As Park Place concedes, its claim
is not a counterclaim permitted under such an exception.
17
Although this motion was filed ninety-one days after the arbitration
award on July 9, 2004, this appears to be “within three months after the
award [was] filed” on July 8, 2004. 9 U.S.C. § 12.
18
The United States opposed the motion on jurisdictional grounds and
asked the Court of Federal Claims to treat its opposition as a motion to
vacate if the court concluded it had jurisdiction.
4708 UNITED STATES v. PARK PLACE ASSOCIATES
[22] The text of § 1367 appears to support Park Place’s
argument. That section provides that “the district courts shall
have supplemental jurisdiction over all other claims that are
so related to claims in the action within such original jurisdic-
tion that they form part of the same case or controversy under
Article III of the United States Constitution.” 28 U.S.C.
§ 1367(a). The Supreme Court has emphasized that “[§]
1367(a) is a broad grant of supplemental jurisdiction over
other claims within the same case or controversy, as long as
the action is one in which the district courts would have origi-
nal jurisdiction” and cautioned against fashioning limitations
on that grant without support in the statutory text. Exxon
Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 558-59
(2005). As Park Place observes, both the United States’
motion to vacate and its motion to confirm required the dis-
trict court to pass upon the validity of the same arbitration
award and the two claims thus clearly seem to share a “com-
mon nucleus of operative fact.” Bahrampour v. Lampert, 356
F.3d 969, 978 (9th Cir. 2004) (internal quotation marks omit-
ted).
[23] Having said that, we note that predicating jurisdiction
on § 1367 is also not without difficulties. More specifically,
and as noted above, the Tucker Act conditions the United
States’ waiver of sovereign immunity over contract-based
claims seeking more than $10,000 on jurisdiction in the Court
of Federal Claims. Section 1367 itself makes clear that its
provisions do not apply where another federal statute “ex-
pressly provide[s] otherwise.” The circuits that have consid-
ered the issue have thus rejected the argument Park Place
makes here—that the exclusive jurisdiction granted to the
Court of Federal Claims by the Tucker Act may be overridden
by the general grant set forth in § 1367. See Dia Nav. Co.,
Ltd. v. Pomeroy, 34 F.3d 1255, 1267 (3d Cir. 1994); Pershing
Div. of Donaldson, Lufkin & Jenrette Secs. Corp. v. United
States, 22 F.3d 741, 744 (7th Cir. 1994). However, we need
not definitively decide this issue because § 1367, like § 1345,
does not constitute a waiver of the United States’ sovereign
UNITED STATES v. PARK PLACE ASSOCIATES 4709
immunity and thus cannot support the district court’s decision
to confirm the arbitration award.
More broadly, we emphasize that the theory on which Park
Place relies here depends entirely upon the Department of
Justice’s decision to file suit in the Central District of Califor-
nia to vacate the arbitration award. Had the United States not
filed that suit, Park Place could not credibly suggest that
§ 1345 or § 1367 permitted the Central District of California
to confirm the arbitration award. Only Congress can waive the
United States’ sovereign immunity, Dunn & Black, 492 F.3d
at 1090—litigation strategy gone awry is thus generally not a
sufficient condition for awarding a money judgment against
the United States. Cf. OPM v. Richmond, 496 U.S. 414, 428
(1990) (“If agents of the Executive were able, by their unau-
thorized oral or written statements to citizens, to obligate the
Treasury for the payment of funds, the control over public
funds that the Clause reposes in Congress in effect could be
transferred to the Executive.”).
This case illustrates the wisdom of that rule. Under 9
U.S.C. § 12, a motion to vacate an arbitration award must be
filed within three months. The United States filed the motion
to vacate as a defensive measure, apparently reasoning that,
if it did not do so quickly, it would forfeit its remaining argu-
ments, including that Park Place had waived its right to elect
arbitration. We will not permit such an understandable deci-
sion to open the public treasury in a manner that Congress has
not authorized and that the government in no sense can be
said to have consented to in filing the motion to vacate. We
therefore reject this argument.19
19
Park Place’s assertion that confirmation follows as “the necessary and
automatic consequence of deny[ing the] motion to vacate” inaccurately
describes the FAA even in cases where sovereign immunity is not impli-
cated. We recognize that the motions to vacate and to confirm are in some
sense inversely related. Where an award has been vacated, it cannot be
confirmed; conversely, where a party has properly applied for an order, a
4710 UNITED STATES v. PARK PLACE ASSOCIATES
V. CONCLUSION
Our reversal of the district court’s judgment confirming the
arbitration award essentially returns Park Place to the Court
of Federal Claims, the only forum in which its contract claims
may plausibly be said to belong.20 We recognize that the Fed-
eral Circuit has seemingly suggested, albeit in a somewhat
opaque disposition, that neither it nor the Court of Federal
Claims may confirm the arbitration award. We express no
opinion on whether this decision was correct, but we
acknowledge the frustrating nature of this result for Park
court must confirm an award that has not been vacated. See 9 U.S.C. § 9.
However, although it may be convenient for a single court to hear both
motions, nothing in the FAA requires that they be brought in the same
court. See Cortez Byrd Chips, Inc. v. Bill Harbert Constr. Co., 529 U.S.
193, 204 (2000). More importantly, a court’s denial of a motion to vacate
does not automatically mean that the award will be confirmed. Even where
the court has denied a motion to vacate an arbitration award, a party to the
arbitration must file a separate motion to confirm to empower the district
court to issue an order confirming the award. See 9 U.S.C. § 9.
Park Place points out that § 9 states that “a court must grant [an order
of confirmation] unless the award is vacated.” (emphasis added). We think
that this reads § 9 out of context. In full, § 9 provides that “any party to
the arbitration may apply to the court so specified for an order confirming
the award, and thereupon the court must grant such an order unless the
award is vacated . . . .” Viewed in context, it is clear that the court must
confirm the award where it has not been vacated, but only upon an inde-
pendent motion by the parties. The word “must” operates only to restrict
the court’s ability to decline to confirm without grounds where confirma-
tion is sought. The requirement that a party actually move to confirm pre-
serves the possibility that neither side will do so because neither side is
satisfied with the award. In sum, the confirmation of an award does not
follow as “automatic” or “necessary” after the denial of a motion to
vacate. Although the provisions are inversely related in some sense, action
upon either provision may imply action as to the other, but does not cause
it.
20
We note that Park Place’s contract claims remain pending in the Court
of Federal Claims, but that proceedings have been stayed in that court
since 2005, subject to the resolution of this litigation.
UNITED STATES v. PARK PLACE ASSOCIATES 4711
Place. In 1993, Park Place entered into a contract providing
a right to arbitrate any claims arising thereunder. The Court
of Federal Claims first told Park Place that it may not arbitrate
there and must arbitrate elsewhere, and now we have barred
Park Place from our courts. However, we have previously
acknowledged that “the concept of make-whole relief inherent
in much of the common-law tradition does not apply in the
context of actions brought against the United States” and that
“a suit against the United States must start from the opposite
assumption that no relief is available.” Tucson Airport Auth.,
136 F.3d at 644. Although we sympathize with Park Place’s
apparent jurisdictional predicament, we simply cannot waive
sovereign immunity where Congress has not, and we cannot
exercise jurisdiction where none exists. See Christianson, 486
U.S. at 818 (“The age-old rule that a court may not in any
case, even in the interest of justice, extend its jurisdiction
where none exists has always worked injustice in particular
cases.”).
[24] Consequently, we AFFIRM the district court’s denial
of the United States’ motion to vacate the arbitration award.
Because we conclude that the Central District of California
lacked authority to confirm the arbitration award, we
VACATE the district court’s grant of Park Place’s motion to
confirm the award. We also VACATE the district court’s
denial of Park Place’s motion for prejudgment and postjudg-
ment interest. We remand this case to the district court with
instructions to dismiss the confirmation action as barred by
sovereign immunity. Each party shall bear its own costs and
fees on appeal.
AFFIRMED in part; VACATED in part and
REMANDED.