Van Drasek v. Lehman

• Decision Date: 31 May 1985
• Docket Number: No. 83-2343,83-2343
• Citation: 762 F.2d 1065
• Parties: , 53 USLW 2615 John R. VAN DRASEK, Captain, Appellant, v. John LEHMAN, Secretary of the Navy, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1065

762 F.2d 1065

246 U.S.App.D.C. 86, 53 USLW 2615

John R. VAN DRASEK, Captain, Appellant, v. John LEHMAN, Secretary of the Navy, et al.

No. 83-2343.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 16, 1984.

Decided May 31, 1985.

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 83-1761).

Stuart Steinberg, with whom Stephen G. Milliken, Washington, D.C., was on the brief, for appellant.

Michael J. Ryan, Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova, U.S. Atty., R. Craig Lawrence, William J. Birney, Royce C. Lamberth, Asst. U.S. Attys., and Charles R. Gross, Captain, Office of the Judge Advocate Gen., Dept. of the Navy, Washington, D.C., were on the brief, for appellees.

Before TAMM, MIKVA and EDWARDS, Circuit Judges.

Opinion for the court filed by Circuit Judge TAMM.

TAMM, Circuit Judge:

The Federal Courts Improvement Act, 28 U.S.C. Sec. 1295(a)(2) (1982), provides that the United States Court of Appeals for the Federal Circuit shall have exclusive jurisdiction over appeals from final decisions of a district court if the jurisdiction of that court was based "in whole or in part" on the Tucker Act, 28 U.S.C. Sec. 1346(a)(2) (1982). Although neither party in this case raised the issue of this court's appellate jurisdiction, we find that appellant's action against the United States was based in part on the Tucker Act and that jurisdiction over the appeal therefore lies in the Federal Circuit. Accordingly, we transfer the case pursuant to 28 U.S.C. Sec. 1631 (1982).

I. BACKGROUND

John Van Drasek enlisted in the United States Marine Corps in 1965 and progressed steadily to the rank of captain. In April 1982 and March 1983, the Marine Selection Board passed over Captain Van Drasek for promotion to major, subjecting him to mandatory dismissal from the military pursuant to 10 U.S.C. Sec. 632 (1982). Because he believed the decisions denying him promotion were unfairly and unlawfully based on evaluations from a superior officer with whom he had several conflicts, Van Drasek petitioned the Board for the Correction of Naval Records (BCNR) to void his superior's evaluation and order the Selection Board to reconsider his promotion to major.

After exhausting his administrative remedies without success, Van Drasek sued in the district court, claiming that his constitutional and statutory rights had been violated and that the BCNR had arbitrarily refused to order his reconsideration. Van Drasek also sought $9,999 in back pay. The district court denied all relief, and this appeal followed.

II. DISCUSSION

A.

The Federal Courts Improvement Act, 28 U.S.C. Sec. 1295(a)(2), provides that the United States Court of Appeals for the Federal Circuit shall have exclusive jurisdiction of appeals from final decisions of district courts "if the jurisdiction of that court was based, in whole or in part," on 28 U.S.C. Sec. 1346(a)(2), the Tucker Act. ¹ Section 1346(a)(2) gives district courts concurrent jurisdiction with the Claims Court over "[a]ny ... civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department...."

Captain Van Drasek's original complaint requested, inter alia, "a Writ of Mandamus ordering the Defendants to award all back pay and other benefits to which Plaintiff would be entitled had he been promoted when originally considered, if Plaintiff is found qualified and is, in fact, promoted to the rank of Major." Complaint at 42-43 (filed November 1, 1983). Recognizing a possible problem with jurisdiction over the back pay claim, United States District Judge Charles R. Richey asked the parties whether Van Drasek's claims for monetary relief should be heard by the Claims Court. In response, Van Drasek amended his complaint to waive all back pay in excess of $9,999.99. Amended Complaint at 50-51 (filed November 10, 1983). In a footnote to this claim for back pay, Van Drasek cited VanderMolen v. Stetson, 571 F.2d 617 (D.C.Cir.1977), a case which held that by waiving recovery in excess of $10,000, a plaintiff could bring suit in the district court under the Tucker Act, 28 U.S.C. Sec. 1346(a)(2). Judge Richey rejected Van Drasek's claim on the merits, finding that the BCNR acted reasonably in denying his reconsideration for promotion to major.

B.

The plain language of the Federal Courts Improvement Act directs our attention not to the claims advanced on appeal but to the basis of the district court's original subject matter jurisdiction. ² If the plaintiff makes any claim that invokes the jurisdiction of the district court under the Tucker Act, the entire case must be appealed to the Federal Circuit. See 28 U.S.C. Sec. 1295(a)(2) (Federal Circuit has exclusive appellate jurisdiction if jurisdiction of the district court "was based, in whole or in part," on the Tucker Act (emphasis added)). As explained in greater detail below, for a claim in the district court to be based on the Tucker Act, it must (1) seek money (2) not exceeding $10,000 (3) from the United States and (4) be founded either upon a contract or upon a provision of "the Constitution, or any Act of Congress, or any regulation of an executive department," 28 U.S.C. Sec. 1346(a)(2), that "can fairly be interpreted as mandating compensation by the Federal Government for the damages sustained." United States v. Mitchell, 463 U.S. 206, 103 S.Ct. 2961, 2968, 77 L.Ed.2d 580 (1983). If any of these requirements are not met, the claim falls outside the scope of the Tucker Act, and this court would retain appellate jurisdiction over the entire case.

1. Money Claim.

For reasons not germane to this appeal, the Supreme Court has limited the scope of the Tucker Act to claims for money. See United States v. King, 395 U.S. 1, 2-3, 89 S.Ct. 1501, 1502, 23 L.Ed.2d 52 (1969). Although consent to suit is necessary for monetary and non-monetary claims alike, the Tucker Act is not implicated when the plaintiff seeks only declaratory and injunctive relief. In Dronenburg v. Zech, 741 F.2d 1388 (D.C.Cir.1984), for example, this court heard an appeal of an officer who alleged that the Navy had unconstitutionally discharged him for engaging in homosexual conduct. Dronenburg, like Van Drasek, originally sought reinstatement and money damages. Dronenburg, however, amended his complaint to eliminate any claim for money, leaving only claims for injunctive and declaratory relief. Id. at 1390 n. 2. This court found that 5 U.S.C. Sec. 702 (1982) waived sovereign immunity for Dronenburg's non-monetary claims, ³ thereby permitting suit against the United States in the district court under the general federal question statute, 28 U.S.C. Sec. 1331 (1982). ⁴ Since Dronenburg made no claim for money damages, the jurisdiction of the district court could not have been based on the Tucker Act. This court's appellate jurisdiction was thus unaffected by the Federal Courts Improvement Act. ⁵ See Jones v. Alexander, 609 F.2d 778 (5th Cir.) (Tucker Act irrelevant where plaintiff waived all actual damages and sought mandamus to prevent his release from active duty and for correction of his military records), cert. denied, 449 U.S. 832, 101 S.Ct. 100, 66 L.Ed.2d 37 (1980). See also Blevins v. Orr, 721 F.2d 1419 (D.C.Cir.1983) (affirming dismissal on the merits of claim by former Air Force officer for retroactive promotion but no back pay); Matlovich v. Secretary of the Air Force, 591 F.2d 852 (D.C.Cir.1978) (vacating and remanding dismissal of claims by former airman for declaratory and injunctive relief).

2. Not in Excess of $10,000.

The district court's jurisdiction under the Tucker Act is limited to claims not exceeding $10,000. 28 U.S.C. Sec. 1346(a)(2). In Doe v. United States Department of Justice, 753 F.2d 1092 (D.C.Cir.1985), for example, this court considered and rejected the argument that the Federal Circuit had exclusive jurisdiction over an appeal from the district court. Doe, formerly an attorney for the Department of Justice, filed suit against the United States and individual defendants seeking reinstatement and back pay. On appeal, this court concluded that, although Doe did not specify the amount of the back pay sought, it must have been in excess of $10,000. Since the Tucker Act grants concurrent jurisdiction to the district court only in claims for less than $10,000, we concluded that the district court had no jurisdiction to adjudicate the back pay claim. Because it did not have jurisdiction to hear the back pay claim, the jurisdiction of the district court could not have been based, even in part, on the Tucker Act. We therefore properly exercised appellate jurisdiction over the case. Id. at 1101-02. See also Hahn v. United States, 757 F.2d 581, 587 n. 3 (3d Cir.1985). ⁶

3. Against the United States.

The Tucker Act by its terms is limited to suits against the United States. Even if the United States is not a named defendant, however, "if 'the judgment sought would expend itself on the public treasury,' " the suit will be construed as one against the United States requiring a waiver of sovereign immunity. Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963) (citations omitted). See also Hill v. United States, 571 F.2d 1098, 1101 n. 5 (9th Cir.1978) (since the back pay airman demanded would come from the federal treasury, suit must be construed as one against the United States). Cf. Industrial Indemnity, Inc. v. Landrieu, 615 F.2d 644 (5th Cir.1980) (district court had jurisdiction over suit to recover construction retainages withheld because judgment would be satisfied from a specific fund within the control of HUD and not from the federal treasury). On the other hand, suits brought against a federal official in his individual capacity for violations of a plaintiff's constitutional rights are not suits that require the consent...