691 F.2d 837 (7th Cir. 1982), 82-1239, Clark v. United States

Docket Nº:82-1239.
Citation:691 F.2d 837
Party Name:Emmett M. CLARK, Richard Cubbage, James A. Dorsey, A. D. McLane, and John G. Terhune, Plaintiffs-Appellants, v. UNITED STATES of America; Donald J. Devine, Director, Office of Personnel Management; and Donald T. Regan, Secretary of the Treasury, Defendants-Appellees.
Case Date:October 27, 1982
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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691 F.2d 837 (7th Cir. 1982)

Emmett M. CLARK, Richard Cubbage, James A. Dorsey, A. D.

McLane, and John G. Terhune, Plaintiffs-Appellants,


UNITED STATES of America; Donald J. Devine, Director, Office

of Personnel Management; and Donald T. Regan,

Secretary of the Treasury, Defendants-Appellees.

No. 82-1239.

United States Court of Appeals, Seventh Circuit

October 27, 1982

        Argued Sept. 17, 1982.

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        Richard T. Cubbage, Evanston, Ill., for plaintiffs-appellants.

        Daniel C. Murray, Asst. U. S. Atty., Dan K. Webb, U. S. Atty., Chicago, Ill., for defendants-appellees.

        Before CUMMINGS, Chief Judge, PELL, Circuit Judge, and DUMBAULD, Senior District Judge. [*]

        CUMMINGS, Chief Judge.

        Plaintiffs-appellants appeal from the district court's order granting defendants' motion to dismiss for lack of jurisdiction under the doctrine of sovereign immunity. We find jurisdiction under 28 U.S.C. § 1331(a) to hear the declaratory judgment claim and hold against plaintiffs on the merits.

        Plaintiffs are pensioners under various state and private pension plans. They challenge the constitutionality of 5 U.S.C. § 8340, which provides for cost-of-living adjustments of annuities payable from the Civil Service Retirement and Disability Fund to pensioners who once worked for the federal government. They claim that the statute violates the equal protection clause embodied in the due process clause of the Fifth Amendment because it mandates cost-of-living adjustments for federal, but not state or private pensioners.

        Plaintiffs' original complaint named only the United States as defendant and primarily sought monetary relief. The case was heard by Judge Will, who ruled that jurisdiction existed under 28 U.S.C. § 1331(a), but that the cause of action was barred by the doctrine of sovereign immunity. 447 F.Supp. 172 (N.D.Ill.1978). On appeal, this Court held in a per curiam opinion that Section 1331(a) did not provide jurisdiction, vacated the district court's decision, and directed it to transfer the case to the Court of Claims because plaintiffs' suit for "retroactive and future additions to their pensions from the United States * * * is subject to

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the defense of sovereign immunity unless brought in the Court of Claims * * *." 596 F.2d 252, 253 (7th Cir. 1979). In an unreported opinion authored by the late Judge Kunzig, the Court of Claims subsequently dismissed the case for lack of subject-matter jurisdiction because plaintiffs' constitutional claim does not itself obligate the federal government to pay money damages as required for Tucker Act jurisdiction (28 U.S.C. §§ 1346, 1491). 652 F.2d 69 (Ct.Cl.1981). The correctness of that decision is not before us.

        Plaintiffs then realleged the substance of their original complaint, adding the Director of the Office of Personnel Management and the Secretary of the Treasury as defendants, and seeking declaratory, injunctive, and monetary relief. Judge Aspen, in his memorandum opinion, concluded that this Court's first Clark opinion was determinative of the case. "Plaintiffs' original effort to obtain compensation from the federal treasury was, in fact, the basic reason why the Seventh Circuit concluded that the district court had no jurisdiction over this matter. * * * To permit plaintiffs to invoke federal jurisdiction merely by naming two individual defendants and describing this action as declaratory or mandatory would elevate form over substance." App. 31.

        The issues on this appeal are (1) whether this Court's prior decision requires dismissal of the case, (2) if not, whether sovereign immunity precludes jurisdiction over the case in its present posture, and (3) if not, whether 5 U.S.C. § 8340 is unconstitutional.


        This Court first considered plaintiffs' claim in 1979. At that time, we characterized the original complaint against the United States as one seeking primarily money damages in excess of $10,000. 1 We held that the sovereign immunity of the United States precluded district court jurisdiction over such a claim for damages under 28 U.S.C. § 1331(a), and that the Tucker Act, 28 U.S.C. § 1346, did not waive sovereign immunity for claims over $10,000 in the district court. 596 F.2d at 253. Jurisdiction was thus thought to be proper in the Court of Claims, in which plaintiffs could have been awarded the monetary relief they sought. Id. at 253-254.

        As seen, plaintiffs have since filed a new complaint, adding individual defendants and praying for declaratory, injunctive and monetary relief. Thus our prior characterization for purposes of determining whether jurisdiction existed in the district court or the Court of Claims is not necessarily binding on us while we consider the case in its present posture. We reaffirm that plaintiffs' request for damages against the United States in excess of $10,000 is barred in the district courts by the Tucker Act and doctrine of sovereign immunity. However, sovereign immunity does not preclude a determination of the merits of plaintiffs' prayer for declaratory relief.


        It is a well established rule that the United States cannot be sued without its consent. United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114; United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058. However, "(t)he extent to which sovereign immunity may bar an action against a federal officer for acts done in his or her official capacity is an extraordinarily difficult question that Supreme Court decisions have failed to clarify adequately." C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3655, at 177 (1976). Regardless of whether or not the United States is a named defendant, a suit is considered to be against the sovereign if "the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration." Land

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v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209. Plaintiffs' second complaint seeks damages in the form of retroactive cost-of-living adjustments, a mandatory injunction ordering future cost-of-living adjustments, and a declaratory judgment that 5 U.S.C. § 8340 is unconstitutional. Plaintiffs' damage claim for retroactive additions to their pensions "mandates compensation" from the United States' treasury, 596 F.2d 252, 253 (7th Cir. 1979), and is therefore in substance a suit against the United States. 2 Without a statutory waiver, the district courts have no jurisdiction over a claim for damages against the United States, 1 Moore's Federal Practice, P 0.65(2.-1), at 700.92 (2d ed. 1976), and the Tucker Act bars their jurisdiction over claims like these in excess of $10,000. 3

        The prayers for declaratory and injunctive relief pose a different problem. In deciding whether a suit against an officer for non-monetary relief is in essence a suit against the United States, this Court must consider Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628, and its progeny. In Larson, the Supreme Court applied the general rule of Land v. Dollar, supra, holding that a suit against the War Assets Administrator was in reality a suit against the United States, because the relief sought involved disposition of the property of the United States. The Court announced however that in a suit for specific relief, it would engage in the legal fiction that a suit against a government officer in his official capacity is not a suit against the sovereign if (1) the officer's powers are limited by statute and his actions were ultra vires, or (2) the officer was acting unconstitutionally or pursuant to an unconstitutional grant of power from the sovereign. Larson, supra, at 689-690, 69 S.Ct. at 1461; see also Dugan v. Rank, 372 U.S....

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