Com. of Mass. by Dept. of Public Welfare v. Departmental Grant Appeals Bd. of U.S. Dept. of Health and Human Services

• Decision Date: 30 March 1987
• Docket Number: Nos. 82-1403,86-1064,s. 82-1403
• Citation: 815 F.2d 778
• Parties: , 17 Soc.Sec.Rep.Ser. 323, Medicare&Medicaid Gu 36,229 COMMONWEALTH OF MASSACHUSETTS, By its DEPARTMENT OF PUBLIC WELFARE, Petitioner, v. DEPARTMENTAL GRANT APPEALS BOARD OF the UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Respondents. COMMONWEALTH OF MASSACHUSETTS, By its DEPARTMENT OF PUBLIC WELFARE, Plaintiff, Appellant, v. DEPARTMENTAL GRANT APPEALS BOARD OF the UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 778

815 F.2d 778

55 USLW 2559, 17 Soc.Sec.Rep.Ser. 323,

Medicare&Medicaid Gu 36,229

COMMONWEALTH OF MASSACHUSETTS, By its DEPARTMENT OF PUBLIC

WELFARE, Petitioner, v. DEPARTMENTAL GRANT APPEALS BOARD OF the UNITED STATES

DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al.,

Respondents.

COMMONWEALTH OF MASSACHUSETTS, By its DEPARTMENT OF PUBLIC

WELFARE, Plaintiff, Appellant, v. DEPARTMENTAL GRANT APPEALS BOARD OF the UNITED STATES

DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al.,

Defendants, Appellees.

Nos. 82-1403, 86-1064.

United States Court of Appeals First Circuit.

Argued June 2, 1986.

Decided March 30, 1987.

Stephen S. Ostrach, Asst. Atty. Gen., with whom Francis X. Bellotti, Atty. Gen., Boston, Mass., was on brief, for Com. of Mass.

Elizabeth A. Pugh, Dept. of Justice, Civ. Div., with whom Richard K. Willard, Asst. Atty. Gen., Washington, D.C., William F. Weld, U.S. Atty., Boston, Mass., and Anthony Steinmeyer, Dept. of Justice, Civ. Div., Washington, D.C., were on brief, for Departmental Grant Appeals Bd.

Before COFFIN, Circuit Judge, BROWN, ^* Senior Circuit Judge, and BOWNES, Circuit Judge.

BOWNES, Circuit Judge.

In this case, the Commonwealth of Massachusetts seeks reimbursement from the United States Department of Health and Human Services (HHS) for the expense of providing Medicaid abortions admittedly falling within the proscription of the Hyde Amendment, but which this court had ordered the Commonwealth to provide during the pendency of earlier litigation sparked by the Hyde Amendment. The district court granted HHS's motion for summary judgment. The Commonwealth bases its appeal of this decision on contractual, statutory, equitable and procedural grounds. HHS has also chosen to attack the district court judgment, arguing that the district court was without jurisdiction to consider a case seeking monetary relief against the United States since such cases are within the exclusive jurisdiction of the United States Claims Court. ¹

I. PRIOR HISTORY

The factual background for this case can be found in the proceedings culminating in Preterm, Inc. v. Dukakis, 591 F.2d 121 (1st Cir.), cert. denied, 441 U.S. 952, 99 S.Ct. 2181, 2182, 60 L.Ed.2d 1057 (1979). In that case, a clinic which provided Medicaid abortion services challenged a provision in the fiscal 1979 Massachusetts budget which restricted the Commonwealth's payment of Medicaid abortions to cases of rape or incest or where the abortion was necessary to prevent the death of the mother. At that time and for several previous years, federal law prohibited the use of any appropriated funds to perform abortions except where necessary to protect the health of the mother and, in different years, in certain other circumstances. This restriction was contained in annual appropriations to the Department of Health, Education and Welfare (now HHS) and is generally referred to as the Hyde Amendment. At the time of the Preterm suit, the Hyde Amendment was less restrictive than the similar state provision. In the district court, Preterm obtained an order requiring the Commonwealth to fund Medicaid abortions to the full extent of federal funding, thus limiting the state provision to the extent it was more restrictive than the Hyde Amendment. Preterm, however, had also argued in the district court that the Medicaid statute prohibited the state from refusing to fund other medically necessary abortions, even though Congress had, through the Hyde Amendment, prohibited the use of federal funds for such purposes. This argument was rejected by the district court and Preterm appealed.

While the appeal was pending, we issued an injunction ordering the Commonwealth to fund all medically necessary abortions for Medicaid-eligible women. Subsequently, we issued our opinion finding that the Medicaid Act as amended by the Hyde Amendment did not require states to provide all medically necessary abortions and bear the entire financial burden for such services. 591 F.2d at 132-34. Nonetheless, we allowed the previously issued injunction to remain in effect pending disposition of Preterm's petition for certiorari. Approximately fourteen months later, Preterm's petitions for certiorari and rehearing had been denied and the injunction was lifted.

After some preliminary skirmishing which we need not recount here, the Commonwealth applied to HHS for reimbursement for the abortions provided under the court order. Reimbursement was disallowed by both HHS and the Departmental Grant Appeals Board. The Commonwealth then filed two separate actions seeking review of this disallowance, one in this court and one in the United States District Court for the District of Massachusetts, because it was not clear at that time which was the proper forum for review of such disallowances. We stayed the action filed in this court until the action filed in the district court came up for review. The district court granted HHS' motion for summary judgment, finding no financial liability on the part of HHS for costs incurred by the Commonwealth under this court's order. The two appeals are now consolidated before us.

We decide this case largely, though not exclusively, on the issues of jurisdiction and sovereign immunity. HHS' failure to raise these issues before the district court is not fatal to its challenge here. Both issues may be litigated at any time before a case is finally decided. See People of California v. Quechan Tribe of Indians, 595 F.2d 1153, 1154 n. 1 (9th Cir.1979) (citing 14 C. Wright, A. Miller, E. Cooper, Federal Practice and Procedure 156-58 (1976) (sovereign immunity); Eisler v. Stritzler, 535 F.2d 148, 151 (1st Cir.1976) (subject matter jurisdiction). The Commonwealth had invoked federal question jurisdiction under 28 U.S.C. Sec. 1331. ² It relied on the waiver of sovereign immunity found in the Administrative Procedure Act (APA), 5 U.S.C. Sec. 702 (1982), to allow it to sue a government agency in the district court. HHS argues that the waiver of sovereign immunity contained in the APA does not extend to actions of this kind, which it claims are within the exclusive jurisdiction of the Claims Court under the Tucker Act, 28 U.S.C. Sec. 1491 (1982), and the APA itself. We will discuss separately the related questions of district court and Claims Court jurisdiction.

II. DISTRICT COURT JURISDICTION

A. 5 U.S.C. Sec. 702

In order to establish the jurisdiction of a court over a suit against the United States, it must be shown that the court has subject matter jurisdiction of the issues raised by the suit, that the United States has waived its immunity for suits of that kind, and that the United States has consented to be sued in the particular court. "The United States, as sovereign, is immune from suit save as it consents to be sued ... and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941).

Subject matter jurisdiction and waiver of sovereign immunity were granted to claims for nonmonetary relief for unlawful actions of federal agencies, or their officers or employees, by the 1976 amendments to 5 U.S.C. Sec. 702 and 28 U.S.C. Sec. 1331. Section 1331, as amended, abolished the amount-in-controversy requirement for claims against the United States. Section 702, not itself an independent source of jurisdiction, waived the defense of sovereign immunity for claims arising under Sec. 1331 not involving monetary relief. 5 U.S.C. Sec. 702 provides:

A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States: Provided, That any mandatory or injunctive decree shall specify the Federal officer or officers (by name or by title), and their successors in office, personally responsible for compliance. Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.

(Emphasis added.) Congress intended by the combination of the "1976 amendments to Sec. 702 of the APA and 28 U.S.C. Sec. 1331 to make Sec. 1331 the vehicle for actions 'seeking relief other than money damages....' " B.K. Instrument Inc. v. United States, 715 F.2d 713, 727 (2d Cir.1983); See also H.R.Rep. No. 94-1656, 94th Cong., 2d Sess., reprinted in 1976 U.S.Code Cong. & Ad.News, 6121, 6123-24.

We must first determine which claims are not covered by district court jurisdiction under Sec. 702 due to the qualification "other than money damages." The D.C. Circuit, in Maryland Department of Human Resources v. Department of Health and Human Services, 763 F.2d 1441, 1447 (D.C.Cir.1985), held that "money damages" should be understood in line with the common law understanding of such damages as distinct from all forms of specific relief, including monetary relief. The court admitted that "it is possible" that the terms "other than money damages" might be understood to exclude those cases which come under the Tucker Act, an Act which "seems to have drawn a line between monetary relief (whether awarded as damages or not) and nonmonetary relief." Id. Yet, it found nothing in the...