Temengil v. Trust Territory of the Pacific Islands

KOZINSKI, Circuit Judge,

concurring:

I join in the majority opinion with the exception of Section 11(A) disposing of plaintiffs’ claims under 42 U.S.C. §§ 1981 and 1983 (1982). While I agree that we lack jurisdiction to hear these claims, I reach that conclusion by a somewhat different route.

The Supreme Court has announced the general rule that “a suit is against the sovereign if ‘the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration.’ ” Dugan v. Rank, 372 U.S. 609, 620 , 83 S.Ct. 999, 1006 , 10 L.Ed.2d 15 (1963) (quoting Land v. Dollar, 330 U.S. 731, 738 , 67 S.Ct. 1009, 1012 , 91 L.Ed. 1209 (1947)). In this case, it is undisputed that the Trust Territory’s funding consists entirely of United States appropriations. See Temengil v. Trust Territory, No. CV-81-0006 (D. NMI Feb. 4, 1985) (Decision) at 19 (“[t]he Trust Territory makes much of the fact that all of its funds trace their source to the federal treasury”). Because any judgment against the Trust Territory would ultimately “expend itself on the public treasury,” Land v. Dollar, 330 U.S. at 738 , 67 S.Ct. at 1012 , I would conclude that the “ ‘essential nature and effect of the proceeding,’ ” id. (quoting Ex parte New York, 256 U.S. 490, 500 , 41 S.Ct. 588, 590 , 65 L.Ed. 1057 (1921)), is a suit against the United States.

As the United States cannot be sued without its consent, the question becomes whether the federal government has waived its sovereign immunity. It is well established “that a waiver of the traditional sovereign immunity ‘cannot be implied but must be unequivocally expressed.’ ” United States v. Testan, 424 U.S. 392, 399 , 96 S.Ct. 948, 953-54 , 47 L.Ed.2d 114 (1976) (quoting United States v. King, 395 U.S. 1, 4 , 89 S.Ct. 1501, 1502 , 23 L.Ed.2d 52 (1969)). In ruling that it had jurisdiction over plaintiffs’ action, the district court cited Marcus Garvey Square, Inc. v. Winston Burnett Constr. Co., 595 F.2d 1126 (9th Cir.1979), for the proposition that “an action against a federally funded entity is not barred by sovereign immunity where the entity’s monies are ‘severed from Treasury funds and Treasury control.’ ” Temengil v. Trust Territory, No. CV-81-0006 (D. NMI Feb. 4, 1985) (Decision) at 17-18. This misconstrues the applicable law. In analyzing the Federal Housing Administration’s (FHA) amenability to suit, the Supreme Court first determined that the provision in the National Housing Act giving the FHA the power to sue and be sued waived the United States’ sovereign immunity. FHA v. Burr, 309 U.S. 242, 244 , 60 S.Ct. 488, 490 , 84 L.Ed. 724 (1940). This waiver made a suit against the agency jurisdictionally proper. Id. Only then did Burr establish the additional requirement that recovery could only be had from funds in the possession and control of the agency. Id. at 250 , 60 S.Ct. at 492 . We followed Burr’s two-step analysis in Marcus Garvey Square, Inc.: We first determined that the National Housing Act’s sue or be sued clause made an action against the FHA jurisdictionally proper. 595 F.2d at 1131. Only then did we proceed to determine whether there were funds in the possession and control of the agency. Id.

In this case, plaintiffs have not cited, nor do I find, any waiver of sovereign immunity in the Trusteeship Agreement, the statutes passed by Congress to implement this agreement, or other pertinent legislative acts. As plaintiffs’ claims for monetary damages under sections 1981 and 1983 are in essence suits against the United States, and as the federal government has not given its consent to be sued, I would conclude that we have no jurisdiction to hear these claims.