Sibley v. Ball, 90-1792

• Decision Date: 07 January 1991
• Docket Number: No. 90-1792,90-1792
• Parties: Edward N. SIBLEY, Plaintiff, Appellant, v. William L. BALL, III, etc., Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 25

924 F.2d 25

Edward N. SIBLEY, Plaintiff, Appellant, v. William L. BALL, III, etc., Defendant, Appellee.

No. 90-1792.

United States Court of Appeals First Circuit.

Heard Jan. 7, 1991.

Decided Jan. 30, 1991.

Peter F. Staiti, New Bedford, Mass., for plaintiff, appellant.

Gary S. Katzmann, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., and Captain R.C. Barber, USMC, Dept. of the Navy, Boston, Mass., were on brief, for defendant, appellee.

Before CAMPBELL and CYR, Circuit Judges, and POLLAK, ^* Senior District Judge.

LOUIS H. POLLAK, Senior District Judge.

This case grows out of the 1985 discharge from military service, "under other than honorable conditions," of a career officer, Major Edward N. Sibley of the Marine Corps. The discharge was recommended in September of 1984 by a Board of Inquiry which found that Major Sibley had committed acts that were sexually abusive of his three children. The Board of Inquiry's recommendation was approved, on behalf of the Secretary of the Navy, by the Secretary's designee, the Assistant Secretary for Manpower and Reserve Affairs. The discharge took effect on February 25, 1985. In 1987, Sibley petitioned the Board for Correction of Naval Records to vacate his discharge and restore him to duty status. Sibley contended that the Navy had disregarded a binding instruction of the Secretary of the Navy (SECNAVINST 1752.3) by discharging him rather than enrolling him, for treatment of his emotional problems, in a military Family Advocacy Program designed to address stressful family situations. Sibley further contended that the Navy's discharge procedures had in various ways violated his procedural due process rights. In November of 1988 the Board for Correction of Naval Records denied Sibley's petition.

In December of 1989, Sibley brought suit against Secretary of the Navy William L. Ball, III, in the District Court for the District of Massachusetts. Renewing the challenges to Sibley's discharge rejected by the Board for Correction of Naval Records, the complaint petitioned the court:

1. For a judgment of this court declaring that plaintiff's administrative discharge is void and that he has never been legally separated from military service or legally deprived of his commission.

2. For an order compelling the Secretary of the navy [sic] to formally vacate plaintiff's administrative discharge and to provide for the restroation [sic] to plaintiff of his commission and the emoluments of his military office as of the date of his unlawful discharge and back pay within the jurisdiction of this court as of the date of his unlawful discharge.

3. For such other relief as this court may deem meet and proper.

The complaint invoked the district court's jurisdiction in the following terms:

3. This is a complaint for a declaratory judgment pursuant to the Declaratory Judgment Act, Title 28, United States Code, Sections 2201, 2202, and for ancillary injunctive relief. Jurisdiction is invoked under Title 28, Section 1331(a) of the United States Code, and alternatively under 5 U S [sic] Code Section 701 et seq.

Secretary Ball filed an answer in March of 1990 and soon thereafter moved for summary judgment. Sibley, in May of 1990, filed a cross-motion for summary judgment. After considering the joined motions for summary judgment and the record of the proceedings before the Navy which led up to, and subsequently reaffirmed, Sibley's discharge, the district court, in July of 1990, filed a memorandum and accompanying order granting the Secretary's motion and denying Sibley's. 739 F.Supp. 705. The district court concluded that there were no due process flaws in the challenged agency action and that the Secretary had not breached any pertinent Navy regulations. Sibley then filed a timely appeal.

Secretary Ball defends the district court's decision on the merits. But the Secretary interposes, as his first argument, that this appeal has been misdirected--that appellant Sibley should have gone to the Court of Appeals for the Federal Circuit and, hence, that this court is without jurisdiction.

In arguing that we lack jurisdiction, the Secretary focuses on the fact that the complaint not only asks that Sibley's commission be restored but that Sibley be awarded "back pay within the jurisdiction of this [the district] court as of the date of his unlawful discharge." The Secretary contends that the presence of the prayer for back pay signifies that this law suit is cognizable by a district court only pursuant to the so-called "Little Tucker Act," 28 U.S.C. Sec. 1346(a)(2), which provides, in pertinent part:

(a) The district courts shall have original jurisdiction, concurrent with the United States Claims Court, of:

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(2) Any other 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, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort, except that the district courts shall not have jurisdiction of any civil action or claim against the United States founded upon any express or implied contract with the United States or for liquidated or unliquidated damages in cases not sounding in tort which are subject to sections 8(g)(1) or 10(a)(1) of the Contract Disputes Act of 1978.

If this is a Little Tucker Act suit, it then follows, according to the Secretary, that Sibley's appeal should have gone to the Federal Circuit, for Congress has vested in that court exclusive jurisdiction to review district court decisions in Little Tucker Act cases. The appellate authority of the Federal Circuit in such cases is embodied in 28 U.S.C. Sec. 1295(a)(2):

(a) The United States Court of Appeals for the Federal Circuit shall have exclusive jurisdiction--

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(2) of an appeal from a final decision of a district court of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, the District Court of the Virgin Islands, or the District Court for the Northern Mariana Islands, if the jurisdiction of that court was based, in whole or in part, on section 1346 of this title [with specified exceptions not here pertinent].

In pressing his argument that this court is without jurisdiction to consider Sibley's appeal, Secretary Ball places strong reliance on Wronke v. Marsh, 767 F.2d 354 (7th Cir.1985), a case whose procedural elements closely parallel those presented here. Wronke, a major in the Army Reserve, was dismissed from the service in 1982. He brought suit in a federal district court in Illinois seeking rescission of the discharge and back pay in the sum of $9,999.99 (the district court jurisdictional-amount ceiling under the Little Tucker Act is $10,000). Wronke prevailed in the district court. The Secretary of the Army filed his appeal in the Court of Appeals for the Seventh Circuit. But then, belatedly concluding that the Federal Circuit was the proper appellate venue, the Secretary of the Army asked the Seventh Circuit to transfer the case to the Federal Circuit. Transfer was sought pursuant to 28 U.S.C. Sec. 1631, a statute authorizing a federal court which finds a "want of jurisdiction" over a civil case to transfer that case to another federal court that would have had jurisdiction as of the date of the filing, provided that transferring the case "is in the interest of justice." Determining that the case arose under the Tucker Act, and hence that the Federal Circuit had exclusive jurisdiction over the appeal, the Seventh Circuit transferred the case.

The crucial question, then, is whether it is correct to characterize a suit such as Wronke's--or Sibley's functionally identical claim--as a suit arising under the Little Tucker Act.

In addressing this question, we take as our starting point the proposition that, when a suit against the Secretary of the Army, or the Navy, seeks a money judgment, it is in substance a suit against the United States which can be maintained...