author: Justice Thomas Justice Kennedy,

text:
    CUNNINGHAM v. HAMILTON COUNTY, OHIO
    No. 98-727.
    Argued April 19, 1999
    Decided June 14, 1999

      Thomas, J., delivered the opinion for a unanimous Court. Kennedy, J., filed a concurring opinion, post, p. 210.

      Thomas C. Goldstein argued the cause for petitioner. With him on the briefs were Jonathan D. Schiller and Teresa L. Cunningham.

      John J. Arnold argued the cause for respondent. With him on the brief were Carl J. Stick and Shannon M. Reynolds.

   Justice Thomas

delivered the opinion of the Court.

Federal courts of appeals ordinarily have jurisdiction over appeals from “final decisions of the district courts.” 28 U. S. C. § 1291. This case presents the question whether an order imposing sanctions on an attorney pursuant to Federal Rule of Civil Procedure 37(a)(4) is a final decision. We hold that it is not, even where, as here, the attorney no longer represents a party in the case.

I

Petitioner, an attorney, represented Darwin Lee Starcher in a federal civil rights suit filed against respondent and other defendants. Starcher brought the suit after his son, Casey, committed suicide while an inmate at the Hamilton County Justice Center. The theory of the original complaint was that the defendants willfully ignored their duty to care for Casey despite his known history of suicide attempts.

A Magistrate Judge oversaw discovery. On May 29, 1996, petitioner was served with a request for interrogatories and documents; responses were due within 30 days after service. See Fed. Rules Civ. Proe. 33(b)(3), 34(b). This deadline, however, passed without compliance. The Magistrate Judge ordered the plaintiff “by 4:00 p.m. on July 12, 1996 to make full and complete responses” to defendants’ requests for interrogatories and documents and further ordered that four witnesses — Rex Smith, Roxanne Dieffenbach, and two individual defendants — be deposed on July 25, 1996. Starcher v. Correctional Medical Systems, Inc., No. C1-95-815 (SD Ohio, July 11, 1996), p. 2.

Petitioner failed to heed the Magistrate Judge’s commands. She did not produce the requested documents, gave incomplete responses to several of the interrogatories, and objected to several others. Flouting the Magistrate Judge’s order, she noticed the deposition of Rex Smith on July 22, 1996, not July 25, and then refused to withdraw this notice despite reminders from defendants’ counsel. And even though the Magistrate Judge had specified that the individual defendants were to be deposed only if plaintiff had complied with his order to produce “full and complete” responses, she filed a motion to compel their appearance. Respondent and other defendants then filed motions for sanctions against petitioner.

At a July 19 hearing, the Magistrate Judge granted the defendants’ motions for sanctions. In a subsequent order, he found that petitioner had violated the discovery order and described her conduct as “egregious.” App. to Pet. for Cert. 9a. Relying on Federal Rule of Civil Procedure 37(a)(4), the Magistrate Judge ordered petitioner to pay the Hamilton County treasurer $1,494, representing costs and fees incurred by the Hamilton County prosecuting attorney as counsel for respondent and one individual defendant. He took care to specify, however, that he had not held a contempt hearing and that petitioner was never found to be in contempt of court.

The District Court affirmed the Magistrate Judge’s sanctions order. The court noted that the matter “ha[d] already consumed an inordinate amount of the Court’s time” and described the Magistrate’s job of overseeing discovery as a “task assuming] the qualities of a full time occupation.” App. to Pet. for Cert. 10a. It found that “[t]he Magistrate Judge did not err in concluding that sanctions were appropriate” and that “the amount of the Magistrate Judge’s award was not contrary to law.” Id., at 11a. The District Court also granted several defendants’ motions to disqualify petitioner as counsel for plaintiff due to the fact that she was a material witness in the ease.

Although proceedings in the District Court were ongoing, petitioner immediately appealed the District Court’s order affirming the Magistrate Judge’s sanctions award to the United States Court of Appeals for the Sixth Circuit. The Court of Appeals, over a dissent, dismissed the appeal for lack of jurisdiction. Starcher v. Correctional Medical Systems, Inc., 144 F. 3d 418 (1998). It considered whether the sanctions order was immediately appealable under the collateral order doctrine, which provides that certain orders may be appealed, notwithstanding the absence of final judgment, but only when they “are conclusive, . . . resolve important questions separate from the merits, and . .. are effectively unreviewable on appeal from the final judgment in the underlying action.” Swint v. Chambers County Comm’n, 514 U. S. 35, 42 (1995) (citing Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, 546 (1949)). In the Sixth Circuit’s view, these conditions were not satisfied because the issues involved in petitioner’s appeal were not “completely separate” from the merits. 144 F. 3d, at 424. As for the fact that petitioner had been disqualified as counsel, the court held that “a non-participating attorney, like a participating attorney, ordinarily must wait until final disposition of the underlying ease before filing an appeal.” Id., at 425. It avoided deciding whether the order was effectively unre-viewable absent an immediate appeal but saw “no reason why, after final resolution of the underlying ease ... a sanctioned attorney should be unable to appeal the order imposing sanctions.” Ibid.

The Federal Courts of Appeals disagree over whether an order of Rule 37(a) sanctions against an attorney is immediately appealable under §1291. Compare, e.g., Eastern Maico Distributors, Inc. v. Maico-Fahrzeugfabrik, G.m.b.h., 658 F. 2d 944, 946-951 (CA3 1981) (order not immediately appealable), with Telluride Management Solutions, Inc. v. Telluride Investment Group, 55 F. 3d 463, 465 (CA9 1995) (order immediately appealable). We granted a writ of cer-tiorari, limited to this question, 525 U. S. 1098 (1999), and now affirm.

II

Section 1291 of the Judicial Code generally vests courts of appeals with jurisdiction over appeals from “final decisions” of the district courts. It descends from the Judiciary Act of 1789, where “the First Congress established the principle that only ‘final judgments and decrees’ of the federal district courts may be reviewed on appeal.” Midland Asphalt Corp. v. United States, 489 U. S. 794, 798 (1989) (quoting 1 Stat. 84); see generally Crick, The Final Judgment as a Basis for Appeal, 41 Yale L. J. 589, 548-551 (1932) (discussing history of final judgment rule in the United States). In accord with this historical understanding, we have repeatedly interpreted § 1291 to mean that an appeal ordinarily will not lie until after final judgment has been entered in a case. See, e. g., Quackenbush v. Allstate Ins. Co., 517 U. S. 706, 712 (1996); Digital Equipment Corp. v. Desktop Direct, Inc., 511 U. S. 863, 867 (1994); Richardson-Merrell Inc. v. Roller, 472 U. S. 424, 430 (1985). As we explained in Firestone Tire & Rubber Co. v. Risjord, 449 U. S. 368 (1981), the final judgment rule serves several salutary purposes:

“It emphasizes the deference that appellate courts owe to the trial judge as the individual initially called upon to decide the many questions of law and fact that occur in the course of a trial. Permitting piecemeal appeals would undermine the independence of the district judge, as well as the special role that individual plays in our judicial system. In addition, the rule is in accordance with the sensible policy of avoid[ing] the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise, from its initiation to entry of judgment. The rule also serves the important purpose of promoting efficient judicial administration.” Id., at 374 (citations and internal quotation marks omitted).

Consistent with these purposes, we have held that a decision is not final, ordinarily, unless it “ ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” Van Cauwenberghe v. Biard, 486 U. S. 517, 521-522 (1988) (quoting Catlin v. United States, 324 U. S. 229, 233 (1945)).

The Rule 37 sanction imposed on petitioner neither ended the litigation nor left the court only to execute its judgment. Thus, it ordinarily would not be considered a final decision under § 1291. See, e. g., Midland Asphalt Corp., supra, at 798; Richardson-Merrell, supra, at 430. However, we have interpreted the term “final decision” in § 1291 to permit jurisdiction over appeals from a small category of orders that do not terminate the litigation. E. g., Quackenbush, supra, at 711-715; Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U. S. 139, 142-147 (1993); Mitchell v. Forsyth, 472 U. S. 511, 524-530 (1985); Cohen, supra, at 545-547. “That small category includes only decisions that are conclusive, that resolve important questions separate from the merits, and that are effectively unreviewable on appeal from the final judgment in the underlying action.” Swint, supra, at 42.

Respondent conceded that the sanctions order was conclusive, Brief in Opposition 11, so at least one of the collateral order doctrine’s conditions is presumed to have been satisfied. We do not think, however, that appellate review of a sanctions order can remain completely separate from the merits. See Van Cauwenberghe, supra, at 527-530; Coopers & Lybrand v. Livesay, 437 U. S. 463, 469 (1978). In Van Cauwenberghe, for example, we held that the denial of a motion to dismiss on the ground of forum non conveniens was not a final decision. We reasoned that consideration of the factors underlying that decision such as “the relative ease of access to sources of proof” and “the availability of witnesses” required trial courts to “scrutinize the substance of the dispute between the parties to evaluate what proof is required, and determine whether the pieces of evidence cited by the parties are critical, or even relevant, to the plaintiff’s cause of action and to any potential defenses to the action.” 486 U. S., at 528. Similarly, in Coopers & Lybrand, we held that a determination that an action may not be maintained as a class action also was not a final decision, noting that such a determination was enmeshed in the legal and factual aspects of the ease. 437 U. S., at 469.

Much like the orders at issue in Van Cauwenberghe and Coopers & Lybrand, a Rule 37(a) sanctions order often will be inextricably intertwined with the merits of the action. An evaluation of the appropriateness of sanctions may require the reviewing court to inquire into the importance of the information sought or the adequacy or truthfulness of a response. See, e. g., Thomas E. Hoar, Inc. v. Sara Lee Corp., 882 F. 2d 682, 687 (CA2 1989) (adequacy of responses); Outley v. New York, 837 F. 2d 587, 590-591 (CA2 1988) (importance of incomplete answers to interrogatories); Evanson v. Union Oil Company of Cal., 619 F. 2d 72, 74 (Temp. Emerg. Ct. App. 1980) (truthfulness of responses). Some of the sanctions in this case were based on the fact that petitioner provided partial responses and objections to some of the defendants’ discovery requests. To evaluate whether those sanctions were appropriate, an appellate court would have to assess the completeness of petitioner’s responses. See Fed. Rule Civ. Proc. 37(a)(3) (“For purposes of this subdivision an evasive or incomplete disclosure, answer, or response is to be treated as a failure to disclose, answer, or respond”). Such an inquiry would differ only marginally from an inquiry into the merits and counsels against application of the collateral order doctrine. Perhaps not every discovery sanction will be inextricably intertwined with the merits, but we have consistently eschewed a case-by-case approach to deciding whether an order is sufficiently collateral. See, e. g., Digital Equipment Corp., 511 U. S., at 868; Richardson-Merrell, 472 U. S., at 439.

Even if the merits were completely divorced from the sanctions issue, the collateral order doctrine requires that the order be effectively unreviewable on appeal from a final judgment. Petitioner claims that this is the ease. In support, she relies on a line of decisions holding that one who is not a party to a judgment generally may not appeal from it. See, e. g., Karcher v. May, 484 U. S. 72, 77 (1987). She also posits that contempt orders imposed on witnesses who disobey discovery orders are immediately appealable and argues that the sanctions order in this ease should be treated no differently.

Petitioner’s argument suffers from at least two flaws. It ignores the identity of interests between the attorney and client. Unlike witnesses, whose interests may differ substantially from the parties’, attorneys assume an ethical obligation to serve their clients’ interests. Evans v. Jeff D., 475 U. S. 717, 728 (1986). This obligation remains even where the attorney might have a personal interest in seeking vindication from the sanctions order. See Richardson-Merrell, supra, at 434-435. In Richardson-Merrell, we held that an order disqualifying an attorney was not an immediately appealable final decision. 472 U. S., at 429-440; see also Flanagan v. United States, 465 U. S. 259, 263-269 (1984) (order disqualifying attorney in criminal case not a “final decision” under § 1291). We explained that “[a]n attorney who is disqualified for misconduct may well have a personal interest in pursuing an immediate appeal, an interest which need not coincide with the interests of the client. As a matter of professional ethics, however, the decision to appeal should turn entirely on the client's interest.” Richardson-Merrell, supra, at 435 (citing ABA Model Rules of Professional Conduct 1.7(b), 2.1 (1985)). This principle has the same force when an order of discovery sanctions is imposed on the attorney alone. See In re Coordinated Pretrial Proceedings in Petroleum Products Antitrust Litigation, 747 F. 2d 1303, 1305 (CA9 1984) (Kennedy, J.). The effective congruence of interests between clients and attorneys counsels against treating attorneys like other nonparties for purposes of appeal. Cf. United States Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U. S. 72, 78 (1988).

Petitioner's argument also overlooks the significant differences between a finding of contempt and a Rule 37(a) sanctions order. “Civil contempt is designed to force the con-temnor to comply with an order of the court.” Willy v. Coastal Corp., 503 U. S. 131, 139 (1992). In contrast, a Rule 37(a) sanctions order lacks any prospective effect and is not designed to compel compliance. Judge Adams captured the essential distinction between the two types of orders when he noted that an order such as civil contempt

“is not simply to deter harassment and delay, but to effect some discovery conduct. A non-party’s interest in resisting a discovery order is immediate and usually separate from the parties’ interests in delay. Before final judgment is reached, the non-party either will have surrendered the materials sought or will have suffered incarceration or steadily mounting fines imposed to compel the discovery. If the discovery is held unwarranted on appeal only after the case is resolved, the non-party’s injury may not be possible to repair. Under Rule 37(a), no similar situation exists. The objective of the Rule is the prevention of delay and costs to other litigants caused by the filing of groundless motions. An attorney sanctioned for such conduct by and large suffers no inordinate injury from a deferral of appellate consideration of the sanction. He need not in the meantime surrender any rights or suffer undue coercion.” Eastern Maico Distributors, 658 F. 2d, at 949-950 (citation and footnote omitted).

To permit an immediate appeal from such a sanctions order would undermine the very purposes of Rule 87(a), which was designed to protect courts and opposing parties from delaying or harassing tactics during the discovery process. Immediate appeals of such orders would undermine trial judges’ discretion to structure a sanction in the most effective manner. They might choose not to sanction an attorney, despite abusive conduct, in order to avoid further delays in their proceedings. Not only would such an approach ignore the deference owed by appellate courts to trial judges charged with managing the discovery process, see Firestone Tire & Rubber Co., 449 U. S., at 374, it also could forestall resolution of the case as each new sanction would give rise to a new appeal. The result might well be the very sorts of piecemeal appeals and concomitant delays that the final judgment rule was designed to prevent.

Petitioner finally argues that, even if an attorney ordinarily may not immediately appeal a sanction order, special considerations apply when the attorney no longer represents a party in the case. Like the Sixth Circuit, we do not think that the appealability of a Rule 37 sanction imposed on an attorney should turn on the attorney’s continued participation. Such a rule could not be easily administered. For example, it may be unclear precisely when representation terminates, and questions likely would arise over when the 30-day period for appeal would begin to run under Federal Rule of Appellate Procedure 4. The rule also could be subject to abuse if attorneys and clients strategically terminated their representation in order to trigger a right to appeal with a view to delaying the proceedings in the underlying ease. While we recognize that our application of the final judgment rule in this setting may require nonparticipating attorneys to monitor the progress of the litigation after their work has ended, the efficiency interests served by limiting immediate appeals far outweigh any nominal monitoring costs borne by attorneys. For these reasons, an attorney’s continued participation in a case does not affect whether a sanctions order is "final” for purposes of § 1291.

We candidly recognize the hardship that a sanctions order may sometimes impose on an attorney. Should these hardships be deemed to outweigh the desirability of restricting appeals to “final decisions,” solutions other than an expansive interpretation of § 1291’s “final decision” requirement remain available. Congress may amend the Judicial Code to provide explicitly for immediate appellate review of such orders. See, e. g., 28 U. S. C. §§ 1292(a)(1)-(3). Recent amendments to the Judicial Code also have authorized this Court to prescribe rules providing for the immediate appeal of certain orders, see §§ 1292(e), 2072(c), and “Congress’ designation of the rulemaking process as the way to define or refine when a district court ruling is ‘final’ and when an interlocutory order is appealable warrants the Judiciary’s full respect.” Swint, 514 U. S., at 48 (footnote omitted). Finally, in a particular case, a district court can reduce any hardship by reserving until the end of the trial decisions such as whether to impose the sanction, how great a sanction to impose, or when to order collection.

* * *

For the foregoing reasons, we conclude that a sanctions order imposed on an attorney is not a “final decision” under § 1291 and, therefore, affirm the judgment of the Court of Appeals.

It is so ordered.

Justice Kennedy,

concurring.

This case comes to our argument docket, of course, so that we may resolve a split of authority in the Circuits on a jurisdictional issue, not because there is any division of opinion over the propriety of the underlying conduct. Cases involving sanctions against attorneys all too often implicate allegations that, when true, bring the law into great disrepute. Delays and abuses in discovery are the source of widespread injustice; and were we to hold sanctions orders against attorneys to be appealable as collateral orders, we would risk compounding the problem for the reasons suggested by Justice Thomas in his opinion for the Court. Trial courts must have the capacity to ensure prompt compliance with their orders, especially when attorneys attempt to abuse the discovery process to gain a tactical advantage.

It should be noted, however, that an attorney ordered to pay sanctions is not without a remedy in every ease. If the trial court declines to stay enforcement of the order and the result is an exceptional hardship itself likely to cause an injustice, a petition for writ of mandamus might bring the issue before the Court of Appeals to determine if the trial court abused its discretion in issuing the order or denying the stay. See Richardson-Merrell Inc. v. Koller, 472 U. S. 424, 435 (1985). In addition, if a contempt order is entered and there is no congruence of interests between the person subject to the order and a party to the underlying litigation, the order may be appealable. See In re Coordinated Pretrial Proceedings in Petroleum Products Antitrust Litigation, 747 F. 2d 1308, 1305-1306 (CA9 1984). In United States Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U. S. 72, 76 (1988), a ease involving a nonparty witness, we said: “The right of a nonparty to appeal an adjudication of contempt cannot be questioned. The order finding a non-party witness in contempt is appealable notwithstanding the absence of a final judgment in the underlying action.”

The case before us, however, involves an order for sanctions and nothing more. I join the opinion of the Court and its holding that the order is not appealable under the collateral order doctrine.

       Starcher died sometime after he initiated the suit, and Casey’s sister became the new administrator of Casey’s estate.

       He also ordered petitioner to pay $2,432 as costs and fees incurred by other defendants in the case. Those sanctions were later satisfied pursuant to a settlement agreement and are not at issue in this appeal.

       Petitioner also sought review of the Sixth Circuit’s decision to apply its appealability ruling to petitioner rather than to apply that ruling only prospectively. We declined to review this question.

       Most of our collateral order decisions have considered whether an order directed at a party to the litigation is immediately appealable. E. g., Coopers & Lybrand v. Livesay, 437 U. S. 463, 468-469 (1978). Petitioner, of course, was an attorney representing the plaintiff in the case. It is nevertheless clear that a decision does not automatically become final merely because it is directed at someone other than a plaintiff or defendant. See Richardson-Merrell Inc. v. Koller, 472 U. S. 424, 434-435 (1985) (rejecting, as outside collateral order doctrine, immediate appeal of order disqualiiying counsel). For example, we have repeatedly held that a witness subject to a discovery order, but not held in contempt, generally may not appeal the order. See, e. g., United States Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 76 (1988); United States v. Ryan, 402 U. S. 530, 533-534 (1971); Cobbledick v. United States, 309 U. S. 323, 327-330 (1940); Webster Coal & Coke Co. v. Cassatt, 207 U. S. 181, 186-187 (1907); Alexander v. United States, 201 U. S. 117, 121 (1906).

       In 1970, the prerequisites for imposing sanctions were redesigned “to encourage judges to be more alert to abuses occurring in the discovery process.” Advisory Committee’s Notes on Fed. Rule Civ. Proc. 37(a)(4), 28 U. S. C., p. 748. Before 1970, the Rule required a court, after granting a motion to compel discovery but before imposing sanctions, to find the losing party to have acted without substantial justification. At that time, courts rarely exercised this authority to impose sanctions. See W. Glaser, Pretrial Discovery and the Adversary System 154 (1968). While the amended Rule retained the substantial justification requirement, the placement of the requirement was changed so that the Rule provided that the district court, upon granting the motion to compel, “shall” impose the sanction unless it found that the losing party’s conduct was “substantially justified.” The change in placement signaled a shift in presumption about the appropriateness of sanctions for discovery abuses. See Federal Discovery Rules: Effects of the 1970 Amendments, 8 Colum. J. L. & Soc. Probs. 623, 642 (1972) (“The Advisory Committee reversed the presumption in Rule 37(a)(4) in order to encourage the awarding of expenses and fees wherever applicable”).


source: Caselaw Access Project

author:
Justice Breyer
      Justice Kennedy,

license: Public Domain

text:
    WEST, SECRETARY OF VETERANS AFFAIRS v. GIBSON
    No. 98-238.

    Argued April 26, 1999 —
    Decided June 14, 1999

      Breyer, J., delivered the opinion of the Court, in which Stevens, O’Connor, Souter, and Ginsburg, JJ., joined. Kennedy, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scaiia and Thomas, JJ., joined, post, p. 224.

      Barbara McDowell argued the cause for petitioner. With her on the briefs were Solicitor General Waxman, Acting

      Assistant Attorney General Ogden, Deputy Solicitor General Underwood, Marleigh D. Dover, and Steven I. Frank.

      Timothy M. Kelly argued the cause and filed a brief for respondent.

        Mark D. Roth and Joseph F. Henderson filed a brief for the American Federation of Government Employees, AFL-GIO, as amicus curiae urging reversal.

        Edward H. Passman and Paula A. Brantmr filed a brief for the National Employment Lawyers Association as amicus curiae.

   Justice Breyer

delivered the opinion of the Court.

The question in this ease is whether the Equal Employment Opportunity Commission (EEOC) possesses the legal authority to require federal agencies to pay compensatory damages when they discriminate in employment in violation of Title VII of the Civil Rights Act of 1964, 84 Stat. 121, 42 U. S. C. § 2000e et seq. We conclude that the EEOC does have that authority.

I

A

Title VII of the Civil Rights Act of 1964 forbids employment discrimination. In 1972 Congress extended Title VII so that it applies not only to employment in the private sector, but to employment in the Federal Government as well. See Equal Employment Opportunity Act of 1972, 86 Stat. Ill, 42 U. S. C. §2000e-16. This 1972 Title VII extension, found in §717 of Title VII, has three relevant subsections.

The first subsection, § 717(a), sets forth the basic Federal Government employment antidiscrimination standard. It says that

“[a]ll personnel actions affecting employees or applicants for employment [of specified Government agencies and departments] shall be made free from any discrimination based on race, color, religion, sex, or national origin.” 42 U. S. C. § 2000e-16(a).

The second subsection, § 717(b), provides the EEOC with the power to enforce the standard. It says (among other things) that

“the Equal Employment Opportunity Commission shall have authority to enforce the provisions of subsection (a) .. . through appropriate remedies, including reinstatement or hiring of employees with or without back pay, as will effectuate the policies of this section ....” 42 U. S. C. § 2000e-16(b) (emphasis added).

The third subsection, § 717(c), concerns a court’s authority to enforce the standard. It says that, after an agency or the EEOC takes final action on a complaint (or fails to take action within a certain time),

“an employee or applicant [who is still] aggrieved . . . may file a civil action as provided in section [706, dealing with discrimination by private employers], in which civil action the head of the department, agency, or unit, as appropriate, shall be the defendant.” 42 U. S. C. § 2000e-16(e).

In 1991 Congress again amended Title VIL The amendment relevant here permits victims of intentional employment discrimination (whether within the private sector or the Federal Government) to recover compensatory damages. See Civil Rights Act of 1991, 105 Stat. 1072, 42 U. S. C. § 1981a(a)(1). The relevant portion of that amendment, which we shall call the Compensatory Damages Amendment (CDA), says:

“In an action brought by a complaining party under section 706 [dealing with discrimination by private employers] or 717 [dealing with discrimination by the Federal Government] against a respondent who engaged in unlawful intentional discrimination ... , the complaining party may recover compensatory... damages-” 42 U.S. C. § 1981a(a)(1).

The CDA also sets forth certain conditions and exceptions. It imposes, for example, a cap on compensatory damages (of up to $300,000 for large employers, § 1981a(b)(3)(D)). And it adds: “If a complaining party seeks compensatory .. . damages under this section ... any party may demand a trial by jury . . . §1981a(c). Once the CDA became law, the EEOC began to grant compensatory damages awards in Federal Government employment discrimination cases. Compare 29 CFR pt. 1613, App. A (1990) (no reference to compensatory damages in preamendment list of EEOC remedies), with, e. g., Jackson v. Runyon, EEOC Appeal No. 01923399, p. 3 (Nov. 12, 1992) (“[T]he Civil Rights Act of 1991... makes compensatory damages available to federal sector complainants in the administrative process”).

B

Respondent, Michael Gibson, filed a complaint with the Department of Veterans Affairs charging that the Department had discriminated against him by denying him a promotion on the basis of his gender. The Department found against Gibson. The EEOC, however, subsequently found in Gibson’s favor and awarded the promotion plus backpay. Three months later Gibson filed a complaint in Federal District Court, asking the court to order the Department to comply immediately with the EEOC’s order and also to pay compensatory damages. Complaint ¶ 17 (App. 28). The Department then voluntarily complied with the EEOC’s order, but it continued to oppose Gibson’s claim for compensatory damages.

Eventually, the District Court dismissed Gibson’s compensatory damages claim. On appeal, the Department supported the District Court’s dismissal with the argument that Gibson had failed to exhaust his administrative remedies in respect to his compensatory damages claim; hence, he could not bring that claim in court. Gibson v. Brown, 137 F. 3d 992, 994 (CA7 1998). The Seventh Circuit, however, reversed the District Court’s dismissal. It rejected the Department’s argument because, in its view, the EEOC lacked the legal power to award compensatory damages; consequently there was no administrative remedy to exhaust. Id., at 995-998.

Because the Circuits have disagreed about whether the EEOC has the power to award compensatory damages, compare Fitzgerald v. Secretary, Dept. of Veterans Affairs, 121 F. 3d 203, 207 (CA5 1997) (EEOC may award compensatory damages), with Crawford v. Babbitt, 148 F. 3d 1318, 1326 (CA11 1998) (EEOC cannot award compensatory damages), and 137 F. 3d, at 996-998 (same), we granted certiorari in order to decide that question.

II

The language, purposes, and history of the 1972 Title VII extension and the 1991 CDA convince us that Congress has authorized the EEOC to award compensatory damages in Federal Government employment discrimination cases. Read literally, the language of the statutes is consistent with a grant of that authority. The relevant portion of the Title VII extension, namely, § 717(b), says that the EEOC “shall have authority” to enforce § 717(a) “through appropriate remedies, including reinstatement or hiring of employees with or without back pay.” 42 U. S. C. § 2000e-16(b). After enactment of the 1991 CDA, an award of compensatory damages is a “remedy” that is “appropriate.”

We recognize that § 717(b) explicitly mentions certain equitable remedies, namely, reinstatement, hiring, and back-pay, and it does not explicitly refer to compensatory damages. But the preceding word “including” makes clear that the authorization is not limited to the specified remedies there mentioned; and the 1972 Title VII extension’s choice of examples is not surprising, for in 1972 (and until 1991) Title VII itself authorized only equitable remedies. See Civil Rights Act of 1964, 78 Stat. 261, 42 U. S. C. § 2000e-5(g) (private sector discrimination); Equal Employment Opportunity Act of 1972, 86 Stat. 111, 42 U. S. C. §2000e-16 (federal sector discrimination).

Section 717’s language, however, does not freeze the scope of the word “appropriate” as of 1972. Words in statutes can enlarge or contract their scope as other changes, in law or in the world, require their application to new instances or make old applications anachronistic. See, e. g., Browder v. United States, 312 U. S. 335, 339-340 (1941) (new, unforeseen “use” of passport); see also United States v. Southwestern Cable Co., 392 U. S. 157, 172-173 (1968) (cable television as “communications”); Fortnightly Corp. v. United Artists Television, Inc., 392 U. S. 390, 395-396 (1968) (old statutory language read to reflect technological change).

The meaning of the word “appropriate” permits its scope to expand to include Title VII remedies that were not appropriate before 1991, but in light of legal change are appropriate now. The word “including” makes clear that “appropriate remedies” are not limited to the examples that follow that word. See Phelps Dodge Corp. v. NLRB, 313 U. S. 177, 189 (1941). And in context the word “appropriate” most naturally refers to forms of relief that Title VII itself authorizes — at least where that relief is of a kind that agencies typically can provide. Thus, Congress’ decision in the 1991 CDA to permit a “complaining party” to “recover compensatory damages” in “an action brought under section ... 717,” by adding compensatory damages to Title VII’s arsenal of remedies, could make that form of relief “appropriate” under § 717(b) as well.

An examination of the purposes of the 1972 Title VII extension shows that this permissible reading of the language is also the correct reading. Section 717’s general purpose is to remedy discrimination in federal employment. It does so in part by creating a dispute resolution system that requires a complaining party to pursue administrative relief prior to court action, thereby encouraging quicker, less formal, and less expensive resolution of disputes within the Federal Government and outside of court. See 42 U. S. C. §2000e-16(c) (court action permitted only where complainant disagrees with final agency disposition or, if complainant pursued discretionary appeal to EEOC, with EEOC disposition; or if either agency or EEOC disposition is delayed); Brown v. GSA, 425 U. S. 820, 833 (1976) (discussing § 717’s “rigorous administrative exhaustion requirements”); see also 29 CFR § 1614.105(a) (1998) (requiring complainant initially to notify agency and make effort to resolve matter informally); § 1614.106(d)(2) (requiring agency investigation prior to EEOC consideration).

To deny that an EEOC compensatory damages award is, statutorily speaking, “appropriate” would undermine this remedial scheme. It would force into court matters that the EEOC might otherwise have resolved. And by preventing earlier resolution of a dispute, it would increase the burdens of both time and expense that accompany efforts to resolve hundreds, if not thousands, of such disputes each year. See Equal Employment Opportunity Commission, Federal Sector Report on EEC Complaints Processing and Appeals by Federal Agencies for Fiscal Year 1997, pp. 19, 61 (1998) (28,947 Federal Government employment discrimination claims filed in 1997; 7,112 claims appealed to EEOC); Reply Brief for Petitioner 12-13, n. 9 (estimating “hundreds” of cases each year that involve claims for compensatory damages).

The history of the CDA reinforces this point. The CDA’s sponsors and supporters spoke frequently of the need to create a new remedy in order, for example, to “help make victims whole.” H. R. Rep. No. 102-40, pt. 1, pp. 64-65 (1991); see also Civil Rights Act of 1991, §2, 105 Stat. 1071, 42 U. S. C. §1981 note (congressional finding that “additional remedies under Federal law are needed to deter . . . intentional discrimination in the workplace”); id., §3 (one purpose of Act is “to provide appropriate remedies for intentional discrimination ... in the workplace”); 137 Cong. Rec. 28636-28638, 28663-28667, 28676-28680 (1991) (introduction and discussion of Danforth/Kennedy Amendment No. 1274, in relevant part permitting recovery of compensatory damages); id., at 28880-28881 (statements of Sen. Warner and Sen. Kennedy) (clarifying that Danforth/Kennedy amendment covers federal employees and suggesting amendment to this effect). But the CDA’s sponsors and supporters said nothing about limiting the EEOC’s ability to use the new Title VII remedy or suggesting that it would be desirable to distinguish the new Title VII remedy from old Title VII remedies in that respect. This total silence is not surprising. What reason could there be for Congress, anxious to have the EEOC consider as a preliminary matter every other possible remedy, not to want the EEOC similarly to consider compensatory damages as well?

Respondent makes three important arguments in favor of a more limited interpretation of the statutes — an interpretation that would deprive the EEOC of the power to award compensatory damages. First, respondent points out that the CDA says nothing about the EEOC, or EEOC proceedings, but rather states only that a complaining party may recover compensatory damages “in an action brought under section ... 717.” 42 U. S. C. § 1981a(a)(1) (emphasis added). And the word “action” often refers to judicial cases, not to administrative “proceedings.” See New York Gaslight Club, Inc. v. Carey, 447 U. S. 54,60-62 (1980) (distinguishing civil “actions” from administrative “proceedings”).

Had Congress thought it important so to limit the scope of the CDA, however, it could easily have cross-referenced § 717(c), the civil action subsection itself, rather than cross-referencing the whole of § 717, which includes authorization for the EEOC to enforce the section through “appropriate remedies.” Regardless, the question, as we see it, is whether, by using the word “action,” Congress intended to deny that compensatory damages is “appropriate” administrative relief within the terms of § 717(b). In light of the previous discussion, see supra, at 217-220, we do not believe the simple use of the word “action” in the context of a cross-reference to the whole of §717 indicates an intent to deprive the EEOC of that authority.

Second, in an effort to explain why Congress might have wanted to impose a special EEOC-related limitation in respect to compensatory damages, respondent points to the language in the CDA that says: “If a complaining party seeks compensatory ... damages under this section ... any party may demand a trial by jury.” 42 U. S. C. § 1981a(c) (emphasis added). Respondent notes that an EEOC compensatory damages award would not involve a jury. And an agency cannot proceed to court under § 717(c) because that subsection makes a court action available only to an aggrieved complaining party, not to the agency. §2000e-16(e). Thus, respondent concludes that the CDA must implicitly forbid any such EEOC award, for that award would take place without the jury trial that § 1981a(c) guarantees.

This argument, however, draws too much from too little. One easily can read the jury trial provision in § 1981a(c) as simply guaranteeing either party a jury trial in respect to compensatory damages if a complaining party proceeds to court under § 717(c). The words “under this section” in § 1981a(c) support that interpretation, for “this section,” § 1981a, refers primarily to court proceedings. And there is no reason to believe Congress intended more. The history of the jury trial provision suggests that Congress saw the provision primarily as a benefit to complaining parties, not to the Government. See, e. g., 137 Cong. Rec., at 29051-29052 (statement of Sen. Leahy) (for “the first time, women and the disabled could recover damages and have jury trials for claims of intentional discrimination”); id., at 30668 (statement of Rep. Ford) (provision will “provid[e] all victims of intentional discrimination a right to trial by jury”); see also, e. g., id., at 29053-29054 (statement of Sen. Wallop) (discussing “economically devastating lawsuits”); id., at 29041 (statement of Sen. Bumpers) (relating fears about “runaway juries]”). The fact that Congress permits an employee to file a complaint in court, but forbids the agency to challenge an adverse EEOC decision in court, also suggests that Congress was not inordinately and unusually concerned -with invoking special judicial safeguards to protect the Government.

Finally, respondent argues that insofar as the law permits the EEOC to award compensatory damages, it waives the Government’s sovereign immunity, and we must construe any such waiver narrowly. See Lane v. Peña, 518 U. S. 187, 192 (1996); Lehman v. Nakshian, 458 U. S. 156, 160-161 (1981). There is no dispute, however, that the CDA waives sovereign immunity in respect to an award of compensatory damages. Whether, in light of that waiver, the CDA permits the EEOC to consider the same matter at an earlier phase of the employment discrimination claim is a distinct question concerning how the waived damages remedy is to be administered. Because the relationship of this kind of administrative question to the goals and purposes of the doctrine of sovereign immunity may be unclear, ordinary sovereign immunity presumptions may not apply. In the Secretary’s view here, for example, the EEOC’s preliminary consideration, by lowering the costs of resolving disputes, does not threaten, but helps to protect, the public fisc. Regardless, if we must apply a specially strict standard in such a case, which question we need not decide, that standard is met here. We believe that the statutory language, taken together with statutory purposes, history, and the absence of any convincing reason for denying the EEOC the relevant power, produce evidence of a waiver that satisfies the stricter standard.

For these reasons, we conclude that the EEOC possesses the legal authority to enforce § 717 through an award of compensatory damages.

III

Respondent asks us to affirm on alternative grounds the Seventh Circuit’s judgment permitting his case to proceed in the District Court. The Seventh Circuit considered whether Gibson had “asked the EEOC for compensatory damages.” 137 F. 3d, at 994. It added that if “he did, then the government’s failure-to-exhaust argument obviously is a non-starter.” Ibid. But the Court of Appeals concluded that Gibson did not “put the EEOC on notice that he was seeking compensatory damages.” Ibid. Respondent claims that he can proceed in District Court because he did satisfy the law’s exhaustion requirements, even if the EEOC has the legal power to award compensatory damages and even if he did not give notice to the EEOC that he sought compensatory damages. He argues that is so because (1) the requirement of notice for exhaustion purposes is unusually weak in respect to compensatory damages, (2) he did request a “monetary cash award,” and (3) special circumstances estop the Government from asserting a “no exhaustion” claim in this case.

These matters fall outside the scope of the question presented in the Government’s petition for certiorari. See Roberts v. Galen of Va., Inc., 525 U. S. 249, 253-254 (1999) (per curiam). We remand the case so that the Court of Appeals can determine whether these questions have been properly raised and, if so, decide them.

The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Kennedy,

with whom The Chief Justice, Justice Scalia, and Justice Thomas join, dissenting.

The rules governing this ease are clear and well established, or at least had been before the majority’s unsettling opinion today. Relief may not be awarded against the United States unless it has waived its sovereign immunity. See Department of Army v. Blue Fox, Inc., 525 U. S. 255 (1999). The waiver must be expressed in unequivocal statutory text and cannot be implied. Id., at 261; Lane v. Peña, 518 U. S. 187, 192 (1996). Even when the United States has waived its immunity, the waiver must be “strictly construed, in terms of its scope, in favor of the sovereign,” Blue Fox, supra, at 261; accord, Lane, supra, at 192, for “ This Court has long decided that limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied,’ ” Lehman v. Nakshian, 453 U. S. 156, 161 (1981), quoting Soriano v. United States, 352 U. S. 270, 276 (1957). Not only do these rules reserve authority over the public fisc to the branch of Government with which the Constitution has placed it, they also form an important part of the background of settled legal principles upon which Congress relied in enacting various statutes authorizing suits against the United States, such as the Tucker Act, 28 U. S. C. § 1491; § 10(a) of the Administrative Procedure Act, 5 U. S. C. § 702; and the Federal Tort Claims Act, 28 U. S. C. § 2671 et seq. The rules governing waivers of sovereign immunity make clear that the Equal Employment Opportunity Commission (EEOC) may not award or authorize compensatory damages against the United States unless it is permitted to do so by a statutory provision which waives the United States’ immunity to the awards in clear and unambiguous terms.

Section 717(b) of Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e-16(b), which authorizes the EEOC to enforce federal compliance with Title VII “through appropriate remedies, including reinstatement or hiring of employees with or without back pay,” effects a waiver of the United States’ sovereign immunity for some purposes. Unlike other similar statutes, however, the provision does not mention awards of compensatory damages. Compare § 717(b) with 2 U. S. C. §§ 1311(b)(1)(B), 1405(g) (1994 ed., Supp. III). A waiver of immunity to other types of relief does not provide the unequivocal statement required to establish a waiver of immunity to damages awards. See United States v. Nordic Village, Inc., 503 U. S. 30, 34 (1992) (“Though [11 U. S. C. § 106(c)], too, waives sovereign immunity, it fails to establish unambiguously that the waiver extends to monetary claims”); Lane, supra, at 192.

Nor does the statutory grant of authority to the EEOC to enforce Title VII through appropriate remedies include, in unequivocal terms or even by necessary implication, the power to award or authorize compensatory damages. Even if the phrase “appropriate remedies” had been intended, as the majority maintains, to incorporate relief authorized for violations of Title VII under other statutory provisions, it is not obvious that the phrase’s meaning would have been intended also to “expand” to include remedies that were not available at the time § 717 was adopted. Ante, at 218.

It is far from clear, moreover, that the phrase was intended to incorporate other statutory provisions at all. Unlike other subsections of §717, see § 717(d) (incorporating various provisions relating to judicial actions), § 717(b) does not make an explicit reference to other statutory provisions. In addition, the specific examples given by the statute of appropriate remedies — reinstatement or hiring of employees with or without backpay — are equitable in nature. See United States v. Burke, 504 U. S. 229,238 (1992). The interpretive canons of noscitur a sociis and ejusdem generis suggest the appropriate remedies authorized by § 717(b) are remedies of the same nature as reinstatement, hiring, and backpay — i. e., equitable remedies. The phrase “appropriate remedies,” furthermore, connotes the remedial diseretion which is the hallmark of equity. A plausible, and perhaps even the best, interpretation of § 717(b), then, is that it grants administrative authority to determine which of the traditional forms of equitable relief are appropriate in any given case of discrimination. Whether or not this is the better reading, it should suffice to establish beyond dispute that the statute does not authorize awards of compensatory damages in express and unequivocal terms. As a consequence, § 717(b) cannot provide the required waiver of the United States’ sovereign immunity.

Unlike § 717(b), 42 U. S. C. § 1981a does authorize awards of compensatory damages against the United States. Although it is clear the statute authorizes courts to award damages, however, § 1981a does not so mueh as mention the EEOC, mueh less empower it to award or authorize money damages. It is settled law that a waiver of sovereign immunity in one forum does not effect a waiver in other forums. See, e. g., McElrath v. United States, 102 U. S. 426, 440 (1880) (“[The Government] can declare in what court it may be sued, and prescribe the forms of pleading and the rules of practice to be observed in such suits”); Great Northern Life Ins. Co. v. Read, 322 U. S. 47, 54, n. 6 (1944) (“The Federal Government’s consent to suit against itself, without more, in a field of federal power does not authorize a suit in a state court”); Case v. Terrell, 11 Wall. 199, 201 (1871) (The United States’ consent to suit in the Court of Claims does not extend to other federal courts).

The majority’s attempt to read 42 U. S. C. § 1981a(a)(1) to authorize administrative awards of compensatory damages is not persuasive. Section 1981a(a)(1) provides:

“In an action brought by a complaining party under section 706 or 717 of the Civil Rights Act of 1964 . . . the complaining party may recover compensatory and punitive damages as allowed in subsection (b) of this section, in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964 ....”

The provision authorizes an award of compensatory damages in an “action” brought under §717; the word “action” is often used to distinguish judicial cases from administrative “proceedings.” See New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 60-62 (1980). Unlike § 717(b), which authorizes administrative proceedings, § 717(c) authorizes “civil actionfs]” in court. It is most natural, therefore, to understand the phrase “an action brought by a complaining party under section ... 717” as a reference to a judicial action under § 717(e) but not to an administrative proceeding under § 717(b). Compensatory awards are authorized under § 1981a(a)(1), moreover, “in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964.” Section 706(g) authorizes a “court” to grant equitable relief for violations of Title VII. This provision, as incorporated through § 717(d), applies only in “civil actions” brought under § 717(c); it does not apply in proceedings before the EEOC or any other agency. Section 1981a(a)(1)’s express reference to § 706(g) confirms that compensatory damages are available only in judicial actions.

Other provisions of § 1981a also make clear that the statute authorizes compensatory damages only in judicial actions. Section 1981a(e) provides that “[i]f a complaining party seeks compensatory... damages under this section — (1) any party may demand a trial by jury; and (2) the court shall not inform the jury of the limitations [on damages awards] described in subsection (b)(3) of this section.” It cannot be disputed that this provision contemplates a jury trial overseen by a court. With due respect to the majority, the provision does not guarantee a jury trial to either party “if a complaining party proceeds to court under § 717(e),” ante, at 221; it provides that either party may obtain a jury trial “[i]f a complaining party seeks compensatory ... damages,” § 1981a(c).

While falling short of embracing the argument as its own, the majority flirts with the contention that allowing agencies rather than juries to award compensatory damages lowers the costs of resolving employment disputes and protects the public fisc. It is not clear to me that juries would be less protective of the fisc than would one group of Government employees who deem themselves empowered by agency interpretation to award Government funds to fellow employees. When a Government employee seels damages from the Government itself, there may be advantages in insisting upon the expertise of a trial court with experience in awarding damages in all types of cases, with the additional safeguards of trial in a forum of high visibility, trial by jury if either party chooses to ask for it, and appellate review. These factors are disregarded by the majority, which seems instead to suggest that the nature and convenience of administrative proceedings will by necessity provide a financial advantage to the Government.

In all events, speculation does not suffice to overcome the rule that waivers of sovereign immunity must be clear and express. An unequivocal waiver of the United States’ sovereign immunity to administrative awards of compensatory damages cannot be found in the relevant statutory provisions. To the extent the majority relies on textual analysis, it establishes at most (if at all) that the statutes might be read to authorize such awards, not that the statutes must be so read. To the extent the majority relies on legislative history and other extratextual sources, it contradicts our precedents and sets us on a new course, for before today it was well settled that “[a] statute’s legislative history cannot supply a waiver that does not appear clearly in any statutory text.” Lane, 518 U. S., at 192; accord, Nordic Village, 503 U. S., at 37 (“[T]he ‘unequivocal expression’ of elimination of sovereign immunity that we insist upon is an expression in statutory text. If clarity does not exist there, it cannot be supplied by a committee report”). With respect, I dissent.