Appeal from the United States District Court for the Northern District of California Claudia A. Wilken, District Judge, Presiding D.C. No. 4:98-cv-02094-CW
The opinion of the court was delivered by: Reinhardt, Circuit Judge:
Argued and Submitted October 6, 2010-San Francisco, California
Before: Stephen Reinhardt and Marsha S. Berzon, Circuit
Judges, and Louis H. Pollak, Senior District Judge.*
*The Honorable Louis H. Pollak, Senior District Judge for the U.S. District Court for Eastern Pennsylvania, Philadelphia, sitting by designation.
Opinion by Judge Reinhardt
The Back Pay Act waives the government's sovereign immunity from liability for interest on back pay awarded to: [a]n employee of an agency who, on the basis of a timely appeal or an administrative determination . . . is found by appropriate authority under applicable law . . . to have been affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the [employee's] pay. 5 U.S.C. §§ 5596(b)(1), (b)(1)(A)(i), (b)(2)(A). This case presents the question whether that explicit waiver of immunity applies to interest on an award of back pay against the federal government for terminating an employee in violation of the Age Discrimination in Employment Act (ADEA). We hold that it does.
Chester Wrucke and James Calzia were terminated from their positions as scientists for the U.S. Geological Survey pursuant to a 1995 Reduction in Force. Wrucke and Calzia filed appeals with the Merit Systems Protection Board (MSPB), and after exhausting their administrative remedies filed a timely complaint in the District Court for the Northern District of California in 1998.*fn1 The district court conducted a bench trial in July 2003. The district court found that Wrucke and Calzia were terminated in violation of the ADEA. After a round of appellate litigation, the details of which are not relevant to the present appeal, the case was remanded to the district court, which entered judgment granting Wrucke and Calzia back pay, as well as pre- and post-judgment interest.
On May 14, 2009, the government filed a Motion for Relief from Judgment under Fed. R. Civ. P. 60(b), asking the court to void the pre- and post-judgment interest under the theory that the ADEA did not expressly waive the federal govern-ment's sovereign immunity from interest payments.*fn2 Wrucke and Calzia, in turn, argued that the Back Pay Act's waiver of federal sovereign immunity from interest for "unjustified or unwarranted personnel action[s]" by the federal government, 5 U.S.C. § 5596(b)(1), (b)(2)(A), provides for pre- and post-judgment interest on meritorious ADEA claims for wrongful termination. The district court ...