Hurick v. Lehman

Decision Date23 January 1986
Docket NumberNo. 85-2305,85-2305
PartiesMichael G. HURICK, Appellant, v. The Honorable John LEHMAN, Secretary of the U.S. Navy, Appellee. Appeal
CourtU.S. Court of Appeals — Federal Circuit

Richard P. Fox, argued, Los Angeles, Cal., for appellant.

John S. Groat, argued, Commercial Litigation Branch, Dept. of Justice, of Washington, D.C., for appellee. With him on brief were Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director and M. Susan Burnett. Lieutenant Mark Williams, JAGC, USN, Dept. of the Navy, of counsel.

Before FRIEDMAN, BENNETT, and BISSELL, Circuit Judges.

FRIEDMAN, Circuit Judge.

This is an appeal from the judgment of the United States District Court for the Eastern District of California granting summary judgment dismissing the appellant's claim challenging his discharge from the U.S. Navy as barred by the statute of limitations. We affirm.

I

The Navy honorably discharged the petitioner in February 1976 for "unsuitability." The petitioner twice sought relief from the Board for the Correction of Naval Records (Correction Board), which twice denied him relief. Before denying his second application for relief, the Board referred the petitioner to a physical evaluation board, which found that at the time of his discharge the petitioner was suffering from a schizoid personality that had existed prior to his entry into the service.

In June 1983, more than seven years after his discharge, the petitioner filed suit in the district court challenging his discharge as arbitrary, capricious, and contrary to applicable law and regulations. He sought a mandatory injunction, a writ of mandamus, and a declaratory judgment.

The district court held that the six-year statute of limitations, 28 U.S.C. Sec. 2401 (1982), barred the complaint. The court held (1) that its jurisdiction over the case was based in part upon 28 U.S.C. Sec. 1346(a)(2) (1982), (2) that under the Federal Courts Improvement Act of 1982, 28 U.S.C. Sec. 1295(a)(2) (1982), this court would have exclusive jurisdiction over any appeal in the case, (3) that this court had adopted the decisions of the Court of Claims as binding precedent, and (4) that under those decisions the filing of an application with the Correction Board did not toll the statute of limitations during the pendency of the application. The court accordingly granted the government's motion for summary judgment dismissing the complaint.

The petitioner appealed the dismissal to the Court of Appeals for the Ninth Circuit. On the government's motion, that court transferred the case to this court, which it ruled had exclusive jurisdiction over the appeal.

II

Although the government had moved to transfer the case from the Ninth Circuit to this court, approximately two months before oral argument and six weeks after it had filed its brief on the merits urging us to affirm, the government moved to retransfer the case to the Ninth Circuit (or to dismiss the appeal). It argued that the Ninth Circuit and not this court has jurisdiction. At oral argument, however, the government again reversed its position and informed us that, after further extensive study and consideration, it had concluded that we have jurisdiction.

The government's action in dealing with the jurisdictional issue bordered on the irresponsible. We assume and expect that before moving to transfer, let alone retransfer, a case on jurisdictional grounds, the moving party will have fully studied and considered the jurisdictional issue and reached a considered and firm judgment on the correct position. The government's double shift of position on this issue betokens a casual approach to this important question that we cannot and do not condone.

At oral argument the appellant moved that we retransfer the case, arguing that the Ninth Circuit has exclusive jurisdiction.

We hold that we have jurisdiction of this appeal.

Under 28 U.S.C. Sec. 1295(a)(2), this court has exclusive jurisdiction over an appeal from a district court where the jurisdiction of that court "was based, in whole or in part," upon 28 U.S.C. Sec. 1346(a)(2). The latter section gives the district courts jurisdiction (concurrent with the United States Claims Court) over any "civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon ... any Act of Congress, or any regulation of an executive department...." We agree with the Ninth Circuit and the district court that the jurisdiction of the latter was based in part on section 1346(a)(2).

Although the appellant's complaint did not explicitly request money damages or cite that section as a jurisdictional basis, the complaint implicitly sought such relief. Cf. Maier v. Orr, 754 F.2d 973, 982 (Fed.Cir.1985). The complaint stated that in his second application to the Correction Board the petitioner requested "reinstatement in the Navy on grounds of wrongful discharge" and "an award of all emoluments which he had been denied, based upon wrongful discharge." The complaint asserted that the decision of the Correction Board "was arbitrary, capricious, and contrary to law." The complaint also stated that the petitioner "specifically waives the right to any claim to damages in excess of Nine Thousand Nine Hundred and Ninety-nine and 99/100 ($9,999.99) Dollars." Cf. Maier, 754 F.2d at 981.

The relief the petitioner sought included the reversal of his discharge from the Navy and an award of "all emoluments" he lost as a result of his discharge. Among the emoluments would have been backpay to the date of discharge. This was a claim for money damages against the United States, over which section 1346(a)(2) gave the district court jurisdiction. As the district court noted, the conclusion that the petitioner was seeking money damages against the United States was "reinforced by the waiver of damages in excess of...

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