PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_______________

No. 21

- 2140

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

v.

UNITED STATES OF AMERICA, Appellant

_______________ 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

_______________ Argued: March 22, 2022

Before: BIBAS, MATEY, and PHIPPS, Circuit Judges

(Filed: June 13

, 2022 )

_______________ Bradley Hinshelwood [ARGUED]
U NITED S TATES D EPARTMENT OF J USTICE 950 Pennsylvania Avenue NW Washington, DC 20530 Counsel for Appellant2 Jonathan D. Lindenfeld [ARGUED]
F EGAN S COTT LLC 140 Broadway, 46th Floor New York, NY 10016

Elizabeth A. Fegan
F EGAN S COTT LLC 150 S. Wacker Dr. , Suite 2400 Chicago, IL 60606 Counsel for Appellees

_______________

OPINION OF THE COURT

_______________ 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. S overeign immunity may seem harsh

. B ut it ensures that the federal government as sovereign waive s immunity not through its judges

, but rather through el ected officials who are empowered to spend citizens’ tax dollars . To safeguard that division of authority , we do not find that Congress waive d 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’ clai ms , we may not hear the m

.3 I. B ACKGROUND

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 t he 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 go vernment 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 un der the Federal Employees’ Retirement System Act of 1986 (FERSA or the Act)

, which create d their Thrift retirement plans. 5 U.S.C. §§ 8401

– 80 . They seek compensation for the investment gains that they would have gotten if t he 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

p ercent of an employee’s salary to his retirement account.4 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 th eir 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 saythey can recover their losses by suing the government in federal court. In support, they point out that the Act lets “ any participant or beneficiar y ” 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 gov ernment’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 pay ment, 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).
W e review the District Court’s reading of the statute de novo. United States v. Hodge , 948 F.3d 160, 162 (3d Cir. 2020).5 II. S OVEREIGN I MMUNITY B ARS THE E MPLOYEES ’ C LAIMS

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). AndCongress 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, 29 9 (2012) (finding that waiver for “actual damages” did not allow recover y for emotional harm).

Here, everyone agrees that § 8477 both provides a cause of action and waives immunity for s uits 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 i f
the waiver were ambiguous, we would read it narrowly, in favor of the government.

A. The text’s p lain meaning supp orts 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 n o later than 12 days after the end of the pay period ...

, the employing agency shall contribut e to the Thrift Savings Fund for the benefit of [the] employee....6 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 laterthan 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 ofsuch participant or beneficiary under the provisions of subchapter III of this chapter, to enforce any right of s uch 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 includes7 perks like life and health insurance, paid vacation days, and pensio ns. See, e.g. , 29 U.S.C. § 2611(5)

. Thus

, here it m ost 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 doe s 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. Th e 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 i t 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 “shal l

... 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 specif ied 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 h ave to be a statutory “benefit.” But that8 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 t he 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 earningson 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 sec tion 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, struct ure, and context suffice to resolve this case. But if any ambiguity remained, we would resolve it for the9 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

. ” I d. at 290

– 91

. That clear

statement rule guards against unintentional waivers. And i t ensures that elected officials , not judges, choose when to open the public purse

. The employees reply that § 8477(e)(3) does clearly waiveimmunity. 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 astatute “can fairly be interpreted as mandating compensation

... for the damage sustained.” Id. (internal quotation marks omitted).

Bu t that Tucker Act case law does not apply here . W hen 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, 13 30 (2020) (internal quotation marks omitted); accord United States v.
Bormes , 568 U.S. 6, 1 1

– 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. A nd a s we have explained, the Act’s
text, its structure, and the clear

- statement rule all bar suits for lost earnings here.10 * * * * *

The government’s late retirement payments meant that its employees missed out when the markets rose. But becau se 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

.