PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 21-2140

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JOHN DOE 1; JOHN DOE 2; JOHN DOE 3; JANE DOE 1,

v.

UNITED STATES OF AMERICA,

Appellant

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On Appeal from the United States District Court 

for the Eastern District of Pennsylvania

(D.C. No. 2:20-cv-01947)

District Judge: Honorable Jan E. DuBois

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Argued: March 22, 2022

Before: BIBAS, MATEY, and PHIPPS, Circuit Judges

(Filed: June 13, 2022)

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Bradley Hinshelwood [ARGUED] 

UNITED STATES DEPARTMENT OF JUSTICE

950 Pennsylvania Avenue NW

Washington, DC 20530

Counsel for Appellant
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Jonathan D. Lindenfeld [ARGUED]

FEGAN SCOTT LLC

140 Broadway, 46th Floor

New York, NY 10016

Elizabeth A. Fegan

FEGAN SCOTT LLC

150 S. Wacker Dr., Suite 2400

Chicago, IL 60606

Counsel for Appellees

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OPINION OF THE COURT

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BIBAS, Circuit Judge.

Judges cannot right every wrong nor heal every wound. 

Even if the government hurts someone, the victim cannot sue 

it for damages without the government’s consent. Sovereign 

immunity may seem harsh. But it ensures that the federal government as sovereign waives immunity not through its judges,

but rather through elected officials who are empowered to 

spend citizens’ tax dollars. To safeguard that division of authority, we do not find that Congress waived federal sovereign 

immunity unless it has spoken clearly.

FBI employees say that Congress did that, letting them sue 

for money they lost when the government made late payments 

to their retirement accounts. Not so. Because the statute does 

not clearly waive the federal government’s immunity for the 

employees’ claims, we may not hear them. 
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I. BACKGROUND 

When Congress does not pass a budget in time, the federal 

government shuts down. Smithsonian museums close, trash 

cans in national parks overflow, and lots of federal workers do 

not get their paychecks.

All those things happened at the end of 2018, when the 

longest shutdown in history began. For more than a month, FBI 

employees, like other federal workers, were not paid. Nor did 

they get payments into their Thrift Savings Plan retirement accounts.

Once the government reopened, the employees had a right 

to back pay. Sure enough, the FBI sent them their missed 

paychecks and contributed to their Thrift accounts. But the 

contributions did not make the employees whole. While the 

government was shut down, the market had risen; “the most 

popular [Thrift] funds increased over 10%.” JA 40 ¶10. If the 

government had made its Thrift contributions on time, that 

money would have bought more shares than the late payments 

did.

So the employees filed this class-action suit under the Federal Employees’ Retirement System Act of 1986 (FERSA or 

the Act), which created their Thrift retirement plans. 5 U.S.C. 

§§8401–80. They seek compensation for the investment gains 

that they would have gotten if the government had made its 

contributions on time.

To understand their argument, we must dive into the Act. It 

requires a federal agency to contribute an amount equal to one 

percent of an employee’s salary to his retirement account.
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5 U.S.C. §8432(c)(1)(A). Plus, the employee may choose to 

contribute more of his salary; if he does, the agency must match 

part of that contribution. §8432(a), (c)(2).

Important here, the Act orders agencies to make their contributions “no later than 12 days after the end of the pay 

period.” §8432(c)(1)(A); accord §8432(c)(2)(A). But the FBI 

did not make those payments for nearly a month.

Those provisions, the employees argue, give them an enforceable right to timely Thrift contributions. Plus, they say 

they can recover their losses by suing the government in federal court. In support, they point out that the Act lets “any participant or beneficiary” of a Thrift plan sue in federal court “to 

recover benefits.” 5 U.S.C. §8477(e)(3)(C)(i). That provision, 

they contend, waives the government’s sovereign immunity for 

their claims, since this is a suit to “recover [the] benefit[]” of 

timely Thrift contributions. Id.

The government agrees that §8477(e)(3)(C)(i) waives sovereign immunity but disagrees about the scope of that waiver.

It moved to dismiss, arguing that this suit falls outside the 

waiver. It frames this case as an effort to recover consequential 

damages from the government’s late payment, arguing that 

such damages are not a “benefit” within the waiver.

The District Court agreed with the employees and refused 

to dismiss. But it certified this issue for interlocutory appeal, 

which we have jurisdiction to hear under 28 U.S.C. §1292(b).

We review the District Court’s reading of the statute de novo. 

United States v. Hodge, 948 F.3d 160, 162 (3d Cir. 2020).
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II. SOVEREIGN IMMUNITY BARS THE EMPLOYEES’ CLAIMS 

To unlock the courthouse door and sue the federal government, a plaintiff needs two keys. He must have a cause of 

action so he can “invoke the power of the courts” to remedy 

his injury. Davis v. Passman, 442 U.S. 228, 239 (1979). And 

Congress must have waived sovereign immunity for the specific remedy he seeks. Lane v. Pena, 518 U.S. 187, 197 (1996); 

see, e.g., FAA v. Cooper, 566 U.S. 284, 299 (2012) (finding 

that waiver for “actual damages” did not allow recovery for 

emotional harm).

Here, everyone agrees that §8477 both provides a cause of 

action and waives immunity for suits to “recover benefits” 

under the Thrift Savings Plan. The only issue is whether the 

employees’ suit seeks to “recover benefits.”

It does not. The Act’s text and structure show that lost earnings on late Thrift contributions are not benefits. And even if 

the waiver were ambiguous, we would read it narrowly, in favor of the government.

A. The text’s plain meaning supports the government

Start with the Act. Three provisions are on point. The first 

requires the agency to make automatic Thrift contributions 

within twelve days: 

At the time prescribed by the Executive Director, 

but no later than 12 days after the end of the pay 

period ..., the employing agency shall contribute

to the Thrift Savings Fund for the benefit of [the] 

employee....
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5 U.S.C. §8432(c)(1)(A). A second provision requires the 

agency to make matching contributions within twelve days:

[T]he employing agency ... shall make a [matching] contribution to the Thrift Savings Fund for 

the benefit of [the] employee.... The employing 

agency’s contribution shall be made ... no later 

than 12 days after the end of each such pay period.

§8432(c)(2)(A). And a third provision lets employees sue to 

“recover benefits”:

A civil action may be brought in the district 

courts of the United States ... (C) by any participant or beneficiary ... (i) to recover benefits of 

such participant or beneficiary under the provisions of subchapter III of this chapter, to enforce 

any right of such participant or beneficiary under 

such provisions, or to clarify any such right to 

future benefits under such provisions.

§8477(e)(3).

Take §8477(e)(3) first. This is a suit brought by plan “participant[s].” And because the right to Thrift contributions falls 

within “subchapter III,” the employees are suing “under [its] 

provisions.” Thus, the only issue is whether this is a suit to “recover benefits.” It is not.

A “benefit” is “[t]hat which a person is entitled to in the 

way of pecuniary assistance.” Benefit (def. 4d), Oxford English 

Dictionary (2d ed. 1989). In employment, it typically includes 
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perks like life and health insurance, paid vacation days, and 

pensions. See, e.g., 29 U.S.C. §2611(5). Thus, here it most naturally refers only to the agency’s Thrift contribution, not damages flowing from a late contribution. 

The employees ask us to include the value of timely contributions as well. But that reading does not square with the text. 

Both §8432(c)(1)(A) and (c)(2)(A) use the word “benefit” to 

refer to the agency’s contribution, not its timeliness. The former paragraph phrases the timing requirement as a limit on the 

Executive Director’s power to set the payment time, not as a 

benefit. §8432(c)(1)(A). And the latter paragraph lists the contribution requirement in the first sentence and the twelve-day 

timing requirement after it in a separate sentence. 

§8432(c)(2)(A).

In other words, the concrete benefit due is a percentage of 

salary, not the returns on that money. The verb phrase obligating the agency is “shall contribute” or “shall ... ma[k]e.” 

§8432(c)(1)(A), (c)(2)(A). The direct object of that verb

phrase, the thing to be contributed, is the “contribution,” defined as a specified percentage of the employee’s salary. 

§8432(c)(2); accord §8432(c)(1)(A). That is how much the 

agency must pay “for the benefit of [the] employee.” 

§8432(c)(1)(A), (c)(2)(A). The twelve-day timing requirement 

is not the object of the verb phrase. Rather, it is a phrase or 

sentence that functions like an adverb, specifying not what the 

agency must contribute but when.

Plus, under §8477(e)(3), the “benefit[]” must be the thing 

that the suit “recover[s].” Put another way, the market growth 

on Thrift funds would have to be a statutory “benefit.” But that 
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would mean that if the market falls, the employee would be 

entitled to a smaller late payment than if it had been paid on 

time. So in a bear market, the government could save money 

by delaying its contributions. That cannot be right.

The twelve-day limit still means something. It sets an 

enforceable deadline for contributing. If the agency delays beyond that, employees may sue after that to force it to contribute. 

B. The statutory scheme also favors the government

Confirming our reading of the text, the Act’s meaning

“becomes even more apparent when viewed in the broader statutory context.” Babcock v. Kijakazi, 142 S. Ct. 641, 645 (2022) 

(internal quotation marks omitted). Congress authorized a 

remedial scheme to let employees recover some lost earnings 

on Thrift contributions, so long as those are “lost earnings resulting from [agency] errors (including errors of omission).” 5 

U.S.C. §8432a(a)(1). A regulation implementing that section 

excludes “an act or omission caused by events that are beyond 

the control of the [Thrift Investment] Board, the [Thrift] Record Keeper, or the participant’s employing agency.” 5 C.F.R. 

§1605.1(b)(iii). The government shutdown stemmed not from

an agency error, but from events “beyond the [agencies’] control.” Id. Congress chose not to authorize remedies for Thrift 

lost earnings due to those events. We must respect that choice.

C. We construe waivers of sovereign immunity 

narrowly

The text, structure, and context suffice to resolve this case. 

But if any ambiguity remained, we would resolve it for the 
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government. To waive sovereign immunity, a statute must say 

so “clearly.” FAA v. Cooper, 566 U.S. at 291. “[I]f there is a 

plausible interpretation of the statute that would not authorize 

money damages against the Government,” we should read the 

statute in “favor of immunity.” Id. at 290–91. That clearstatement rule guards against unintentional waivers. And it ensures that elected officials, not judges, choose when to open the 

public purse.

The employees reply that §8477(e)(3) does clearly waive 

immunity. Any ambiguity is limited to the provisions conferring the benefits and whether they create a right to timely contributions. So they ask us to apply not the clear-statement rule 

but a “demonstrably lower” standard, borrowed from the

Tucker Act. United States v. White Mt. Apache Tribe, 537 U.S. 

465, 472 (2003). Under the Tucker Act, we ask only whether a 

statute “can fairly be interpreted as mandating compensation ... for the damage sustained.” Id. (internal quotation marks 

omitted).

But that Tucker Act case law does not apply here. When a 

statute has its own remedies, plaintiffs “cannot rely on [the 

Tucker Act’s] fair[-]interpretation test, and instead must stick 

to the money[-]mandating statute’s own text.” Me. Cmty. 

Health Options v. United States, 140 S. Ct. 1308, 1330 (2020) 

(internal quotation marks omitted); accord United States v. 

Bormes, 568 U.S. 6, 11–16 (2012). Here, the Act authorizes its 

own remedy by creating a cause of action in §8477(e)(3); the 

only question is its scope. And as we have explained, the Act’s 

text, its structure, and the clear-statement rule all bar suits for 

lost earnings here.
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* * * * *

The government’s late retirement payments meant that its 

employees missed out when the markets rose. But because 

Congress has not waived the government’s immunity from suit 

for these losses, the employees may not sue to recover their lost 

profits. So we will reverse and remand the District Court’s 

order.