FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellant,

No. 05-56235 v.

D.C. No. PARK PLACE ASSOCIATES, LTD., a  CV-04-08387-DT California limited partnership;

GEORGE HARDIE; KARD KING, INC.,

a California corporation,

Defendants-Appellees. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

No. 05-56312 v.

D.C. No. PARK PLACE ASSOCIATES, LTD., a  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
Opinion by Judge Bybee

4666 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 participate. 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

4670 UNITED STATES v. PARK PLACE ASSOCIATES
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 congressional hearings, and involve litigation in three circuits. We are

not sure if the appropriate literary metaphor belongs to Tolstoy 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 current 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 Gardens Bicycle Club (“Club”), a legal card-playing club in Bell

Gardens, California. Section 5.03 of the JVA set out procedures 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

1Because the district court could not validly confirm the arbitration

award, we do not reach the question of interest on the award. 

UNITED STATES v. PARK PLACE ASSOCIATES 4671
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 seventy 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 individuals, including some LCP partners, in the Southern District

of Florida. In March 1990, certain LCP partners were convicted 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 Dis2

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 rendered therein shall be final and binding on all of the parties, and

judgment may be entered thereon in any court of competent jurisdiction in the State of California. 

3By 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 playing. See United States v. Gilbert, 244 F.3d 888, 893 n.5 (11th Cir. 2001).

4672 UNITED STATES v. PARK PLACE ASSOCIATES
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 negotiated settlements with LCP partners, the United States ultimately obtained a fifty-five percent interest in LCP.

Consequently, the United States controlled the LCP partnership 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 managed 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 dramatically 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 proceedings, 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’

4Two 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. 

UNITED STATES v. PARK PLACE ASSOCIATES 4673
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 section 5.03 of the JVA, for alleged breaches of various provisions 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 forfeiturerelated issues pending before the court. In May 1998, the

Southern District of Florida issued an order staying the arbitration in part, but allowing it to proceed as to claims concerning 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 arbitration 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

5The mismanagement claims triggered at least one congressional hearing: 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). 

4674 UNITED STATES v. PARK PLACE ASSOCIATES
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, negligent supervision and retention, breach of fiduciary duty, conversion, 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 contract 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 complaint, 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 prejudice 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 contract 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

UNITED STATES v. PARK PLACE ASSOCIATES 4675
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 established 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 difference “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 jurisdiction 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 Federal Claims’ assumption that the arbitration provision independently precluded jurisdiction.6

Id. at 907. 

C. Park Place’s Arbitration Demand 

On June 16, 2003, Park Place filed a $100 million arbitration demand with the AAA based upon its claims before the

Court of Federal Claims, and asked the court to stay the litigation 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

6The Federal Circuit also noted that neither party had invoked the arbitration agreement. Id. The United States has consistently argued throughout 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. 

4676 UNITED STATES v. PARK PLACE ASSOCIATES
Federal Claims ruled upon Park Place’s motion to stay the litigation. 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 powers 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 terminated 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 proceedings. The court reasoned that “[g]iven its lack of subjectmatter jurisdiction to compel, arrest, or enforce arbitration,

and its questionable authority under the JVA to enter an arbitration 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

UNITED STATES v. PARK PLACE ASSOCIATES 4677
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 forfeiture 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 general 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 distributions” 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 Federal 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 postarbitration 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

4678 UNITED STATES v. PARK PLACE ASSOCIATES
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 Federal 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 Federal 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 dismiss Park Place’s appeal to the Federal Circuit. In an unpublished 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 agreement, in the appropriate district court. See id. at 435; see also

9 U.S.C. § 9. The Federal Circuit noted that although interlocutory 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 confirm 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

UNITED STATES v. PARK PLACE ASSOCIATES 4679
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 postjudgment 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 district 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 arbitration award. See 9 U.S.C. § 10. In addition, the United States

continues to argue that it has not waived its sovereign immunity 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 district 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 ques4680 UNITED STATES v. PARK PLACE ASSOCIATES
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 pursuant 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 confer jurisdiction on federal district courts over actions to compel 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 Barney, 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 federal substantive law establishing and regulating the

duty to honor an agreement to arbitrate, yet it does

not create any independent federal-question jurisdicUNITED STATES v. PARK PLACE ASSOCIATES 4681
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 federal 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 commenced 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. Section 1345 is sufficient to support the district court’s jurisdiction over the motion to vacate even though the United States

7Typically, 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.”). 

4682 UNITED STATES v. PARK PLACE ASSOCIATES
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

8The 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 sovereign, 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 Guaranty Trust Co. v. United States, 304 U.S. 126, 133 (1938)). When the arbitration 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. 

9An 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 arbitration to proceed, 

(C) denying an application under [9 U.S.C. § 206] to compel

arbitration, 

(D) confirming or denying confirmation of an award or partial 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). 

UNITED STATES v. PARK PLACE ASSOCIATES 4683
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 authorizes 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 governing law incorrectly, but when the award is completely irrational, 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 insufficient.’ ” 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

4684 UNITED STATES v. PARK PLACE ASSOCIATES
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 enforcement of an arbitration award against a general partner where

creditors have not first attempted to collect against the partnership. We consider each argument in turn. 

1. Waiver of Right to Arbitrate 

The United States first contends that the award was in manifest 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 disfavored 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 arbitration; (2) acts inconsistent with that existing right; and (3) prejudice to the party opposing arbitration resulting from such

inconsistent acts.” Fisher v. A.G. Becker Paribas Inc., 791

UNITED STATES v. PARK PLACE ASSOCIATES 4685
F.2d 691, 694 (9th Cir. 1986).10 The United States cannot satisfy the second or third Fisher requirements. We find no evidence 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 Federal 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 vigorously 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 disproportionately imposed on [the United States].” This statement, made

when considering Park Place’s motion to stay litigation pending arbitration, is insufficient to establish prejudice. See, e.g.,

Fisher, 791 F.2d at 697 (holding that even extensive discovery into both arbitrable and non-arbitrable claims before mov10Waiver 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 assertion 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 arbitrators exceeded their powers.” 9 U.S.C. § 10(a)(4). Presumably an arbitration 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. 

4686 UNITED STATES v. PARK PLACE ASSOCIATES
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 discovery referred to by the Court of Federal Claims were sunk

costs, not marginal costs, and have no bearing on the prejudice 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 Circuit’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,

UNITED STATES v. PARK PLACE ASSOCIATES 4687
Fredericksburg & Potomac R.R. Co. v. United States, 27 Fed.

Cl. 275, 287, 289 (1992) (applying Tucker Act statute of limitations 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 federal 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 sovereign 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 arbitration panel correctly applied the six-year federal statute of limitations, 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 arbitration 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

4688 UNITED STATES v. PARK PLACE ASSOCIATES
think there is a simple response to this, however, as this provision is inapplicable where recovery is sought by a partner. 

[9] “Under California law, partners are permitted to ‘maintain 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 partnership 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 creditor. Indeed, California Corporations Code § 16307(d) falls

within the article of the Code concerning “Relations of Partners 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 Partnership.” The award does not exhibit manifest disregard of California partnership law.

* * * * *

[10] The United States has not established that “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). Consequently, 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

UNITED STATES v. PARK PLACE ASSOCIATES 4689
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 relationship between these two subjects. We have occasionally “mistakenly 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 jurisdiction; 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 Public 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 jurisdictionconferring provision. Instead, subject matter jurisdiction over

actions arising under these Acts may be founded on 28 U.S.C.

§ 1333. 

4690 UNITED STATES v. PARK PLACE ASSOCIATES
[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 created 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 construed 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 jurisdiction . . . 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). 

UNITED STATES v. PARK PLACE ASSOCIATES 4691
B. Sovereign Immunity and Subject Matter Jurisdiction in 

this Case 

We are going to use sovereign immunity to frame our analysis 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 jurisdiction as well. There is some path dependence in our methodology: the theory of sovereign immunity under which a

court entertains a suit for money damages against the government 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. 

4692 UNITED STATES v. PARK PLACE ASSOCIATES
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 applicable, 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

11The 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 requirements 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 litigation 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 arbitration demand in Los Angeles, California, rather than continued as litigation in the Court of Federal Claims—that court’s earlier resolution cannot

have constituted a final judgment. 

UNITED STATES v. PARK PLACE ASSOCIATES 4693
appeal.”). For a prior ruling to become law of the case as to

a particular issue, that issue “must have been decided explicitly 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 sovereign 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 Circuit’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 contractbased 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 consideration 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

4694 UNITED STATES v. PARK PLACE ASSOCIATES
appropriate circumstances such as these, Tucker Act jurisdiction 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 arbitration demand in Los Angeles. In Hardie II, the Federal Circuit 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 arrangement’ 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 declaration 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 statements 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 contract. In other words, because there was a contract to which

the United States was a party, Congress had waived its soverUNITED STATES v. PARK PLACE ASSOCIATES 4695
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 meaning, 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 liability 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 statutory 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. 

4696 UNITED STATES v. PARK PLACE ASSOCIATES
[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 sovereign immunity is coextensive with the jurisdiction the statute

confers. The Tucker Act thus neither waives sovereign immunity for suit in, nor confers jurisdiction on, the Central District

of California. 

A separate provision, the so-called Little Tucker Act, confers 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 damages “not exceeding $10,000 in amount.” See 28 U.S.C.

§ 1346(a)(2). Parties may waive their right to receive more

12Although 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, Congress has both waived sovereign immunity over a contract claim and created jurisdiction in another court. 

UNITED STATES v. PARK PLACE ASSOCIATES 4697
than $10,000 in order to satisfy the Little Tucker Act and

obtain jurisdiction in the district court. See Marceau v. Blackfeet Hous. Auth., 455 F.3d 974, 986 (9th Cir. 2006), readopted 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 California.” 

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

4698 UNITED STATES v. PARK PLACE ASSOCIATES
contractually agreed to arbitrate any disputes arising thereunder. 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 Congress has authorized the suit or the tribe has waived its immunity.” 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 otherwisesovereign 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

13We 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 immunity 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

UNITED STATES v. PARK PLACE ASSOCIATES 4699
Park Place’s theory that the JVA constitutes a waiver to confirmation 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 Federal 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 confirmation in the Central District of California simply because the United States

assumed LCP’s position in the JVA. 

14Section 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. 

15Section 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.”). 

4700 UNITED STATES v. PARK PLACE ASSOCIATES
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. Massachusetts, 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 further 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 compensation 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, ejectUNITED STATES v. PARK PLACE ASSOCIATES 4701
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 management 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 specific 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

4702 UNITED STATES v. PARK PLACE ASSOCIATES
specific relief with compensatory relief, or relief that substitutes 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 contract 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 Federal 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 statutory rights.” N. Side Lumber Co. v. Block, 753 F.2d 1482,

1485 (9th Cir. 1985). Whether a claim is contractually or statutorily based depends upon the “source of the rights upon

UNITED STATES v. PARK PLACE ASSOCIATES 4703
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 performance 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 arbitration 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 provides, 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 sections 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 independent “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 neither legal significance nor creates any rights in favor of Park

4704 UNITED STATES v. PARK PLACE ASSOCIATES
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 provisions 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 indistinguishable 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 government’s refusal violated the Contract Settlement Act (“CSA”),

41 U.S.C. § 101 et seq., and hence that its claim was not contractually 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 independent of the Modification Center Contract. The

CSA does not impose a substantive duty on the

UNITED STATES v. PARK PLACE ASSOCIATES 4705
United States to defend these claims. That duty, if it

exists, derives from the contract. Moreover, General

Dynamics seeks specific performance of the contract. 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 arbitration 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 performance 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 contractual 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 arbitration 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 jurisdiction under either § 1345 or the supplemental jurisdiction statute, 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 “commenced by the United States.” 28 U.S.C. § 1345 (emphasis

added). We have explicitly rejected the proposition that

“§ 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) (holding that even though the party could have sought to intervene

4706 UNITED STATES v. PARK PLACE ASSOCIATES
in an action by the United States, it could not institute a separate 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 plausible. 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. 

16This 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. 

17Although 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. 

18The 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. 

UNITED STATES v. PARK PLACE ASSOCIATES 4707
[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 jurisdiction 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 original 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 district court to pass upon the validity of the same arbitration

award and the two claims thus clearly seem to share a “common nucleus of operative fact.” Bahrampour v. Lampert, 356

F.3d 969, 978 (9th Cir. 2004) (internal quotation marks omitted). 

[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 “expressly provide[s] otherwise.” The circuits that have considered 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

4708 UNITED STATES v. PARK PLACE ASSOCIATES
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 California 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 unauthorized 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 arguments, including that Park Place had waived its right to elect

arbitration. We will not permit such an understandable decision 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

19Park 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 implicated. 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

UNITED STATES v. PARK PLACE ASSOCIATES 4709
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 Federal 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 independent motion by the parties. The word “must” operates only to restrict

the court’s ability to decline to confirm without grounds where confirmation is sought. The requirement that a party actually move to confirm preserves 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. 

20We 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. 

4710 UNITED STATES v. PARK PLACE ASSOCIATES
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 postjudgment 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.

UNITED STATES v. PARK PLACE ASSOCIATES 4711