UNPUBLISHED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Affirmed by unpublished per curiam opinion.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.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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 involun-
tarily terminated in June, 1995, as the result of the workforce restruc-
turing at the Site.

Pawlick contends that although the DOE followed the Act by creat-
ing 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) con-
tractor 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.
_________________________________________________________________
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 appel-
lant 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 bene-
fits on subcontractor and contractor employees.

The Act generally commits the development and implementation of
workforce restructuring plans -- including employee termination ben-
efit 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 exer-
cise of judgment and discretion;" "[t]he law must not only authorize the
demanded action, but require it" and "the duty must be clear and indispu-
table"); 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 Secre-
tary 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).

                    3
acknowledges, as he must, that "the statute gives the Secretary discre-
tion to determine specific benefits provided to the employees." Appel-
lant'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 pur-
poses of the Act to include subcontractor employees, see 42 U.S.C.
§ 7274j(2), but the statute does not preclude the workforce restructur-
ing 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 inter-
ests 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 man-
damus 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 pri-
vate right of action, the "task [of the courts] is limited solely to deter-
mining 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 rea-
soned that

          the statute by its terms grants no private rights to any identi-
          fiable 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 omit-
ted), it has also observed that
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4 Appellant's analogy to circuit court cases about the Airline Deregula-
tion 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").

                    5
          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 pro-
visions, 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 discre-
tion.

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 gov-
ernment 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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