UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DAVID PAWLICK, Individually and on

behalf of all others similarly

situated,

Plaintiff-Appellant,

v.

No. 97-2459

HAZEL O'LEARY, Secretary of

Energy, United States Department

of Energy; MARIO FIORI, Department

of Energy Manager at Savannah

River Site,

Defendants-Appellees.

Appeal from the United States District Court

for the District of South Carolina, at Aiken.

Charles E. Simons, Jr., Senior District Judge.

(CA-95-3300-1-6)

Argued: May 5, 1998

Decided: June 26, 1998

Before MURNAGHAN and LUTTIG, Circuit Judges, and

FRIEDMAN, United States District Judge for the Eastern District

of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Richard Donald Ries, Columbia, South Carolina, for

Appellant. Frances Cornelia Trapp, Assistant United States Attorney,
Columbia, South Carolina, for Appellees. ON BRIEF: Kelli Sullivan,

SUGGS & KELLY, P.A., Columbia, South Carolina, for Appellant.

J. Rene Josey, United States Attorney, Columbia, South Carolina, for

Appellees.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Plaintiff-appellant, David Pawlick, individually and as a proposed

class representative, filed suit in the district court alleging a cause of

action under portions of the 1993 Defense Authorization Act (the

"Act"), which directs the Department of Energy ("DOE") to develop

workforce restructuring plans for nuclear facilities being downsized

because of the end of the Cold War. 42 U.S.C. § 7274h-j. Pawlick

was employed by a subcontractor (Raytheon) who provided support

services to the DOE at its Savannah River Site. Pawlick was involuntarily terminated in June, 1995, as the result of the workforce restructuring at the Site.

Pawlick contends that although the DOE followed the Act by creating a workforce restructuring plan for the Savannah River site, the

DOE violated the Act by declining to offer subcontractor employees

the same benefits offered to management and operating (M&O) contractor employees. Employees of M&O contractors received a more

comprehensive termination benefits package than did employees of

subcontractors like Raytheon.1 Pawlick argues that the Act required

that employees of subcontractors be treated equally with employees

of contractors.

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1 Apparently, the DOE offered M&O employees more comprehensive

benefits because those benefits were specifically required by the M&O

contracts. Appellee's Brief at 6.

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We hold that the district court was correct in dismissing plaintiff's

claim because the Act did not create any rights enforceable by appellant in federal court. The district court concluded that, because the

Act conferred discretion on the DOE to develop the restructuring plan

-- and to determine what benefits to offer terminated employees --

the plaintiff could not maintain a cause of action for mandamus or

under the Administrative Procedure Act (APA), and also concluded

that the restructuring Act itself did not create a private cause of

action. J.A. at 182-86.

As to the first two asserted bases of jurisdiction, the district court

was correct that neither will lie unless the DOE lacks the discretion

to distinguish between subcontractor and contractor employees in

allocating benefits under a workforce restructuring plan.2 Plaintiff

apparently concedes as much, and contends only that the agency does

not, in fact, have the discretion to confer different employment benefits on subcontractor and contractor employees.

The Act generally commits the development and implementation of

workforce restructuring plans -- including employee termination benefit packages -- to the discretion of the DOE. While the Act states

that the DOE "shall" develop a restructuring plan, the statute speaks

in discretionary terms about the content of the plan.3 Even appellant

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2 See, e.g., Central South Carolina Chapter v. United States District

Court for the District of South Carolina, 551 F.2d 559 (4th Cir. 1977)

(A "writ of mandamus will not issue to compel an act involving the exercise of judgment and discretion;" "[t]he law must not only authorize the

demanded action, but require it" and "the duty must be clear and indisputable"); Electricities of North Carolina, Inc. v. Southeastern Power

Admin., 774 F.2d 1262, 1266 (4th Cir. 1985) (recognizing that agency

action is unreviewable under the APA if the action is "committed to

agency discretion by law").

3 See, e.g., 42 U.S.C.§ 7274h(c) ("In preparing the plan . . . the Secretary shall be guided by the following objectives "); id. § 7274h(c)(1) (the

plan "should be accomplished so as to minimize social and economic

impacts" and "should" be made after notice to employees); id.

§ 7274h(c)(2) ("Employees . . . shall, to the extent practicable, receive

preference in any hiring of the DOE"); id. § 7274h(d) ("The Secretary

shall, subject to the availability of appropriations for such purpose"

work to carry out the restructuring plan.) (emphases added).

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acknowledges, as he must, that "the statute gives the Secretary discretion to determine specific benefits provided to the employees." Appellant's Brief at 8. He contends, nonetheless, that the DOE lacks the

discretion to distinguish between subcontractor and contractor

employees. No language in the Act, however, requires the DOE to

treat subcontractor employees on par with other DOE contractor

employees. The statute does define the term DOE employees for purposes of the Act to include subcontractor employees, see 42 U.S.C.

§ 7274j(2), but the statute does not preclude the workforce restructuring plan from accounting for differences in employee status and does

not indicate that subcontractor-versus-contractor employee status is

an impermissible basis for making such distinctions. Presumably,

then, while subcontractor employees count as employees whose interests the DOE is directed to consider in developing its plan, the DOE

is no more precluded from providing a different level of benefits

based on subcontractor-versus-contractor employee status than based

on length of employment. Accordingly, because the DOE was acting

within the realm of its discretionary authority, neither plaintiff's mandamus nor his APA claim is cognizable.

Appellant also asks this court to imply a private cause of action to

enforce the Defense Authorization Act. When asked to imply a private right of action, the "task [of the courts] is limited solely to determining whether Congress intended to create the private right of action

asserted." Touche Ross & Co. v. Redington, 442 U.S. 560, 568

(1979). The Supreme Court has made clear that, absent affirmative

evidence that Congress intended to create a private right enforceable

in federal court, the courts should not imply a private cause of action.

For example, in Touche Ross, the Court declined to create an implied

cause of action under § 17(a) of the Securities Exchange Act of 1934,

which imposed a duty on brokers to maintain records. The Court reasoned that

the statute by its terms grants no private rights to any identifiable class and proscribes no conduct as unlawful. And . . .

legislative history of the 1934 Act simply does not speak to

the issue of private remedies under § 17(a). At least in such

a case as this, the inquiry ends there: The question whether

Congress, either expressly or by implication, intended to

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create a private right of action, has been definitely answered

in the negative.

Id. at 576. The Court also cautioned that"implying a private right of

action on the basis of congressional silence is a hazardous enterprise,

at best," id. at 571, and observed that

where, as here, the plain language of the provision weighs

against implication of a private remedy, the fact that there

is no suggestion whatsoever in the legislative history that [a

statute] may give rise to suits for damages reinforces our

decision not to find such a right of action implicit within the

section.

Id. (citing Cort v. Ash, 422 U.S. 66, 82-84 (1975)).

As with the statute at issue in Touche Ross, Congress clearly did

not intend for the 1993 Defense Authorization Act to create a private

cause of action. The very fact that the provisions at issue were passed

in what was essentially an appropriations bill would seem to indicate

as much. More importantly, the plain language of the statute weighs

against implying a private right of action because the language does

not confer on DOE employees a right to a certain kind of benefits

package, but rather clearly commits the content and terms of the

restructuring plans to the discretion of the DOE. 4 Indeed, this Act is

precisely the kind of act for which the Court has been most reluctant

to imply a private cause of action. While "[t]he Court consistently has

found that Congress intended to create a cause of action `where the

language of the statute explicitly confer[s] a right directly on a class

of persons that include[s] the plaintiff in the case,'" Universities

Research Ass'n v. Coutu, 450 U.S. 754, 771-72 (1981) (citation omitted), it has also observed that

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4 Appellant's analogy to circuit court cases about the Airline Deregulation Act of 1978 is thus inapt because that Act specifically created a right

of first hire in protected employees. See 49 U.S.C. § 42103 (providing

that each "protected employee of an air carrier . . . is entitled to be the

first employed").

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there "would be far less reason to infer a private remedy in

favor of individual persons" where Congress, rather than

drafting the legislation "with an unmistakable focus on the

benefitted class," instead has framed the statute simply as a

general prohibition or a command to a federal agency .

Id. at 772 (emphasis added) (citations omitted) (declining to imply a

private cause of action under the Davis-Bacon Act, which required

that federal construction contracts contain certain minimum wage provisions, because the Act was "simply `phrased as a directive to federal

agencies engaged in the disbursement of public funds'"). The Defense

Authorization Act is just such a command to a federal agency: the Act

directs the DOE to create workforce restructuring plans, but leaves

the details to the agency's discretion. Implication of a private right of

action would simply interfere with the DOE's exercise of that discretion.

Additionally, appellant concedes that there is no legislative history

indicating that Congress intended to create a private cause of action,

and that -- in fact -- there is no legislative history whatsoever for the

specific provisions at issue. Appellant's Brief at 13. Moreover, the

fact that the implied cause of action would be against the federal government is yet another reason to be particularly wary of implication.

Waivers of federal sovereign immunity "must be unequivocally

expressed in statutory text," Lane v. Pena, 518 U.S. 187, 192 (1996),

and must be strictly construed in favor of the U.S. Id.

Accordingly, it would be improper for this court to imply a private

cause of action under the Act. The district court having correctly

determined that appellant does not have a remedy in federal court, the

dismissal of plaintiff's claims is affirmed.

AFFIRMED

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