Graham v. Henegar

Citation640 F.2d 732
Decision Date26 March 1981
Docket NumberNo. 79-2177,79-2177
Parties24 Wage & Hour Cas. (BN 1294, 90 Lab.Cas. P 33,987 Robert GRAHAM, on behalf of himself and others similarly situated, Plaintiffs-Appellants, v. Walter E. HENEGAR, individually and as Chief of the Fire Prevention& Protection Div., Ft. Bliss; MG John J. Koehler, individually and as Commander of Ft. Bliss and Clifford L. Alexander, Jr., individually and as Secretary of the Army, Defendants-Appellees. . Unit A
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Michael T. Milligan, El Paso, Tex., for plaintiffs-appellants.

Janet Ruesch, Asst. U. S. Atty., El Paso, Tex., Robert A. DeMetz, Litigation Div., Dept. of the Army, Washington, D. C., for defendants-appellees.

Appeal from the United States District Court for the Western District of Texas.

Before COLEMAN, RUBIN and WILLIAMS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

The ultimate issue in this Fair Labor Standards Act case is whether the amount of attorney's fees requested by a plaintiff should be included in calculating the amount of the plaintiff's claim for purposes of jurisdiction under the Tucker Act. Because we hold that attorney's fees provided for by statute should be included in determining the amount of a Tucker Act claim, and because addition of the amount of the requested attorney's fees to the basic amount of the claim in this case results in a claim exceeding $10,000, we transfer the case to the Court of Claims, the only proper forum for the suit.

In November, 1977 the appellants, a group of firefighters employed by the United States at Ft. Bliss, Texas (the firefighters), filed suit in federal district court against the United States 1 to recover unpaid overtime compensation, liquidated damages, attorney's fees and costs under the provisions of the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (FLSA). Though the suit clearly involved a claim against the United States founded upon an act of Congress, the firefighters did not cite the Tucker Act, 28 U.S.C. §§ 1346(a)(2), 2 1491 3 as the source of federal jurisdiction. Rather, in their original and first amended complaint, the firefighters relied solely on 29 U.S.C. § 216(b) and 28 U.S.C. § 1337 (commerce clause) as jurisdictional foundations for their suit.

On February 6, 1979, the district court ordered the firefighters to cite an appropriate statute waiving the United States' sovereign immunity and conferring jurisdiction over the United States. The firefighters then filed a second amended complaint citing 29 U.S.C. §§ 216(b) and 203(e)(2)(A) as jurisdictional statutes. The district court concluded that 29 U.S.C. § 216(b) created a cause of action for unpaid overtime compensation and that it constituted a waiver of sovereign immunity, but it rejected the firefighters' claim that 29 U.S.C. § 216(b), standing alone, conferred subject matter jurisdiction. It held that jurisdiction of the case would lie under 28 U.S.C. §§ 1337 and 1346(a)(2). Nevertheless, it dismissed the case for lack of subject matter jurisdiction on the basis that the firefighters "failed to properly invoke" an appropriate jurisdictional statute.

In addition, before the district court dismissed the suit for lack of subject matter jurisdiction, it denied the firefighters' untimely, January, 1979, motion for a jury trial. The court ruled that the firefighters had waived their right to a jury trial by failing to make a timely request for jury trial and, noting the crowded condition of its civil docket, refused to exercise its discretion to grant the motion.

On appeal, the firefighters contend that the district court erred in dismissing their suit and in denying their untimely request for jury trial. Recognizing that 28 U.S.C. § 2402 bars jury trials in Tucker Act cases, the firefighters attempt to avoid that statutory restriction by invoking alternative jurisdictional bases for the suit, including 28 U.S.C. §§ 1331 (federal question) and 1337 (commerce clause). They maintain that the FLSA and the Seventh Amendment entitle them to a jury trial, and that the district court erred in denying their motion for a jury trial absent compelling reasons to support the denial. The Government, on the other hand, argues that the firefighters are not entitled to trial by jury because the Tucker Act is the sole basis of jurisdiction, and that even if some statute other than the Tucker Act confers jurisdiction on the district court, no right to jury trial in a suit against the United States exists under the FLSA or the Seventh Amendment. In the alternative, the Government maintains that even if the firefighters were entitled to a jury trial, the district court did not abuse its discretion in denying the firefighters' untimely request for a trial by jury.

The arguments raised on appeal by the firefighters and the Government's response to those arguments operate on the assumption that the firefighters' claim against the United States does not exceed $10,000, for district court jurisdiction over Tucker Act cases is limited to claims "not exceeding $10,000 in amount." 28 U.S.C. § 1346(a)(2). We find, contrary to the assumption of the litigants and the court below, 4 that the firefighters' claim against the United States is for more than $10,000, and settled law requires such a suit to be brought solely in the Court of Claims. Resolution of the issues on appeal as framed by the firefighters is unnecessary because, regardless of the merits of those particular issues, the district court lacked jurisdiction over this lawsuit.

The Tucker Act grants concurrent jurisdiction to the district courts and the Court of Claims over non-tort claims for money damages against the United States "not exceeding $10,000 in amount." 28 U.S.C. § 1346(a)(2). By virtue of the fact that district court jurisdiction over such suits is limited to claims not exceeding $10,000, and that 28 U.S.C. § 1491 grants the Court of Claims jurisdiction over all such suits regardless of the amount of the claim, the Court of Claims has exclusive jurisdiction over all non-tort claims for money damages against the United States for over $10,000. 5 Because adjudication in a federal district court of a lawsuit that falls within the exclusive jurisdiction of the Court of Claims would seriously undermine the purposes of the Tucker Act, courts confronting the issue have consistently held that the Court of Claims is the sole forum for the adjudication of such a claim, even though the claim would otherwise fall within the coverage of some other statute conferring jurisdiction on the district court. 6 Since the instant suit plainly falls within the coverage of the Tucker Act, the Court of Claims is the sole forum for adjudication of this lawsuit if the firefighters' claim exceeds $10,000 in amount, even though other jurisdictional statutes such as 28 U.S.C. §§ 1331 and 1337 would otherwise allow the suit to be tried in district court.

To determine whether this suit involves a claim for over $10,000, we must look to the relief requested in the firefighters' complaint. Pursuant to the provisions of 29 U.S.C. § 216(b), the firefighters' complaint asks for statutory damages of no more than $10,000 for each firefighter plus attorneys' fees. 7 Therefore, the question whether the firefighters' claim is for over $10,000 turns on whether a request for attorney's fees provided for by statute should be included in determining the amount of a Tucker Act claim. Though the precise question whether attorney's fees should be included in calculating the amount of a claim for Tucker Act jurisdictional purposes is one of first impression, the answer is not a difficult one. In our view, two major reasons compel the conclusion that attorney's fees, when provided for by statute, must be included in determining the amount of a Tucker Act claim the structure of the Tucker Act, and the federal courts' treatment of attorney's fees under other jurisdictional statutes (such as 28 U.S.C. §§ 1331 and 1332) which require calculation of the amount of the "matter in controversy."

The Tucker Act provides that a "civil action or claim ... not exceeding $10,000" may be brought in the district court or the Court of Claims, but it supplies no definition of the scope of the terms "civil action or claim." This is so because the Tucker Act "is itself only a jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages." United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976). Rather, the Tucker Act "merely confers jurisdiction ... whenever the substantive right exists." Id. Therefore, the scope of a Tucker Act claim must be determined by looking to the source of the substantive right upon which the claim is based. Only when the source of the substantive right for which the Tucker Act supplies jurisdiction provides for attorney's fees over and above the amount of damages should attorney's fees be added to the amount of damages claimed in calculating the amount in controversy. In this case, the source of the firefighters' cause of action, 28 U.S.C. § 216(b), specifically provides for an award of attorney's fees to a prevailing plaintiff in addition to recovery of unpaid overtime compensation and liquidated damages. 8 Since the source of the firefighters' substantive rights grants a substantive right to recover attorney's fees in addition to the basic amount of the claim for damages, we conclude that attorney's fees must be included in calculating the amount of the firefighters' claim.

This result is strongly supported by the rules developed by federal courts in dealing with other jurisdictional statutes which require calculation of the amount in controversy but which do not themselves define the scope of the "matter in controversy." In determining whether attorney's fees should be included in calculating the amount in controversy for purposes of 28 U.S.C. §§ 1331 and 1332, co...

To continue reading

Request your trial
95 cases
  • Birbeck v. Southern New England Production Credit
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • 29 March 1985
    ...against the United States for money damages. United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976); Graham v. Henegar, 640 F.2d 732 (5th Cir.), reh'g denied, 646 F.2d 566 (5th Plaintiffs' reliance on the Tucker Act as a basis for jurisdiction in this case must fail on s......
  • Poole v. Rourke
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • 23 December 1991
    ...EAJA's specific requirement, as basis for award of fees, that action be brought before "court having jurisdiction"); Graham v. Henegar, 640 F.2d 732, 735-36 (5th Cir.1981) ("attorney fees, when provided for by statute, must be included in determining the amount of a Tucker Act claim"); Polo......
  • Zumerling v. Marsh, Civ. A. No. 81-963.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 30 July 1984
    ...fees are provided for in 29 U.S.C. § 216(b), the request for attorneys' fees is to be included in the computation. Graham v. Henegar, 640 F.2d 732 (5th Cir.1981). Therefore, in the instant action, in order for this Court to have subject matter jurisdiction, the Plaintiffs' claims, including......
  • Fleischer v. U.S. Dept. of Veterans Affairs
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • 25 February 1997
    ...(1995); Army & Air Force Exch. Serv. v. Sheehan, 456 U.S. 728, 734 n. 5, 102 S.Ct. 2118, 2122, 72 L.Ed.2d 520 (1982); Graham v. Henegar, 640 F.2d 732, 734-35 (5th Cir.1981); A.L. Rowan & Son Gen. Contractors, Inc. v. Department of Hous. & Urban Dev., 611 F.2d 997, 999 (5th Cir.1980); Carter......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT