## Facts

- Janice R. Bohac, a USDA research geneticist, was removed from her position.
- She appealed to the Merit Systems Protection Board (MSPB), alleging her removal violated the Whistleblower Protection Act of 1989 (WPA).
- The MSPB found the removal violated the WPA and granted corrective action.
- Bohac moved for damages seeking $14,021.32 in pecuniary losses and $150,000 in non-pecuniary damages for physical and emotional suffering, reputational harm, and injury to family life.
- An MSPB administrative judge awarded the requested pecuniary damages but denied non-pecuniary damages as outside “consequential damages” under 5 U.S.C. § 1221(g)(1)(A)(ii).
- The full MSPB denied review, relying on its prior decision holding it lacked authority under § 1221(g)(1)(A)(ii) to award non-pecuniary damages.
- Bohac petitioned the Federal Circuit for review.

## Issues

1. Whether 5 U.S.C. § 1221(g)(1)(A)(ii) authorizes an award of non-pecuniary damages (pain and suffering, reputational harm, and injury to family life) as “reasonable and foreseeable consequential damages.”
2. Whether the WPA contains an unequivocal waiver of sovereign immunity permitting recovery of such non-pecuniary damages against the United States.

## Decision

- The Federal Circuit affirmed the MSPB’s denial of non-pecuniary damages.
- The court held that § 1221 does not authorize non-pecuniary damages and does not waive sovereign immunity for such claims.
- Bohac’s pecuniary damages award remained intact, but her request for $150,000 in non-pecuniary damages was barred.

## Legal Principles

- Waivers of federal sovereign immunity must be unequivocally expressed in statutory text and are strictly construed in favor of the United States; ambiguous remedial language does not extend liability.
- Under § 1221(g)(1)(A), the listed remedies (back pay and benefits, medical costs incurred, travel expenses) indicate a focus on economic losses; the residual phrase “any other reasonable and foreseeable consequential damages” is limited to the same type of pecuniary harm.
- Applying ejusdem generis, a general term following specific economic items is read to cover similar economic, out-of-pocket losses rather than intangible harms.
- Congress’s omission of explicit authorization for “compensatory damages” or specified categories such as emotional distress supports a reading that non-pecuniary damages are excluded from § 1221 remedies.

## Conclusion

The Federal Circuit held that the WPA’s corrective-action provision in 5 U.S.C. § 1221(g)(1)(A)(ii) permits recovery of reasonable, foreseeable economic consequential damages but does not authorize non-pecuniary damages; absent explicit statutory language, sovereign immunity bars awards for emotional distress, reputational injury, and related intangible harms.


Bohac v. Dep’t of Agric., 239 F.3d 1334 (Fed. Cir. 2001)