Cook v. Arentzen, 76-1359

• Decision Date: 19 September 1978
• Docket Number: No. 76-1359,76-1359
• Citation: 582 F.2d 870
• Parties: 18 Fair Empl.Prac.Cas. 1005, 17 Empl. Prac. Dec. P 8623 Lieutenant Alice C. COOK, Appellant, v. Rear Admiral Williard P. ARENTZEN, as Director/Commanding Officer, James Schlessinger, Secretary of Defense, John W. Warner, Secretary of the Navy, United States Navy, and United States of America, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 870

582 F.2d 870

18 Fair Empl.Prac.Cas. 1005, 17 Empl. Prac.

Dec. P 8623

Lieutenant Alice C. COOK, Appellant, v. Rear Admiral Williard P. ARENTZEN, as Director/Commanding Officer, James Schlessinger, Secretary of Defense, John W Warner, Secretary of the Navy, United States Navy, and United States of America, Appellees.

No. 76-1359.

United States Court of Appeals Fourth Circuit.

Argued on Rehearing Oct. 4, 1977.

Decided Sept. 19, 1978.

C. T. Neale, III, Newport News, Va. (Hudgins & Neale, Newport News, Va., on brief), for appellant.

Arthur P. Leary, III, Dept. of the Navy, Washington, D. C. (Roger T. Williams, Asst. U. S. Atty., Norfolk, Va., and John D. Faught, Dept. of the Navy, Reston, Va., on brief), for appellees.

Before RUSSELL, WIDENER and HALL, Circuit Judges.

WIDENER, Circuit Judge:

This case involves the jurisdiction of the United States District Court in a suit which is against the United States Navy and the United States Government.

At the time of her separation from the Regular Navy in 1967, the plaintiff, Lt. Alice Cook, was a lieutenant commander in the Nurse Corps, in which she had served over 13 years. After discovering in December 1966 that she was pregnant, she notified her superior officer that her baby was due in late July 1967. The captain instructed her to resign her commission immediately and to request removal from active duty due to pregnancy. Upon further inquiry, she was told by the personnel officer that if she did not resign, her commission would be involuntarily terminated. She accordingly submitted her resignation on December 29, 1966, and was separated from the Navy on January 30, 1967.

Following the birth of her child, Lt. Cook explored the possibility of getting her commission reinstated. While she was pursuing her administrative remedies, she was advised there was another way, although not as good. On August 31, 1971, she was appointed a lieutenant in the Naval Reserve (Nurse Corps) and was called to active duty on September 10th of that year. She apparently yet serves in that rank.

Lt. Cook exhausted her administrative remedies and then brought this suit, seeking reinstatement in the Regular Navy at the rank of commander, backpay, damages, and a declaration that the regulation subjecting her to termination for pregnancy, and under which she was separated, was unconstitutional.

The district court decided the case for the defendants on the merits, and the plaintiff appealed. A panel of this court reversed the district court, again on the merits, but later set a petition for rehearing for oral argument.

On rehearing, issues were raised regarding the jurisdiction of the court. We are of opinion the district court lacked jurisdiction to consider Lt. Cook's claim. ¹ We now withdraw our previous opinion, expressing no opinion on the question there decided, and remand the case to the district court with directions that it be transferred to the Court of Claims.

In her complaint, Lt. Cook requests compensation for pay she did not receive in the sum of $84,444.00 and compensation in the sum of $100,000.00 as damages for deprivation of her civil rights, reinstatement in the Regular Navy with the rank of Commander, with pay and retirement status that she would have achieved had she been allowed to advance, reestablishment of her precedence in line with her contemporaries, and a declaratory judgment that the regulation involved is unconstitutional.

Although not until the petition for rehearing were the issues regarding jurisdiction brought to our attention, the jurisdiction of the district court was challenged there. The court held it had jurisdiction. We should consider the question. See F.R.C.P. 12(h)(3).

In her complaint, Lt. Cook relies upon 28 U.S.C. § 1331 (the general federal question statute); 28 U.S.C. § 1346(a)(2) (the Tucker Act); 28 U.S.C. § 1361 (the mandamus statute); and 5 U.S.C. §§ 702, 703, and 704 (the Administrative Procedure Act) as bases for jurisdiction. She also asked for a declaratory judgment. The district court expressly found it had jurisdiction under 28 U.S.C. § 1361 (mandamus); 28 U.S.C. § 2201 (the declaratory judgment act); and 5 U.S.C. §§ 701, et seq. (the Administrative Procedure Act). It expressed no opinion on whether it had jurisdiction under § 1331 or the Tucker Act, § 1346(a)(2), but recited more than $10,000.00 was involved.

I.

Insofar as plaintiff's claim for monetary recovery is based upon 28 U.S.C. § 1346(a)(2) (the Tucker Act), it is clear that the district court had no jurisdiction because the amount of the claim exceeded $10,000.00 and the Court of Claims had exclusive jurisdiction. Section 1346 provides, in pertinent part:

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

"(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. . . ." (Emphasis added).

A most recent case holding that the jurisdiction of United States District Courts is limited to $10,000.00 in cases brought under the Tucker Act is Polos v. United States, 556 F.2d 903 (8th Cir. 1977). In that case, a former technician employed by the National Guard, who was denied reinstatement after his discharge from the National Guard after active service, sued for reinstatement and back pay. The district court had founded jurisdiction upon the Administrative Procedure Act. That basis was rejected by the court upon the authority of Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). Although the claimant in Polos formally insisted that he was entitled to reinstatement, he conceded, for reasons not here pertinent, that he could not retain his position if reappointed. Thus, his claim was regarded as substantially one for back pay. In holding that jurisdiction was lacking, the court stated:

"Polos' claim, then, is essentially one against the United States for the payment of damages. Such a claim, when in excess of $10,000, is within the exclusive jurisdiction of the Court of Claims . . .

"The District Court was therefore without jurisdiction to enter the judgment complained of." 556 F.2d at 905.

The authority most relied upon in Polos v. United States is Carter v. Seamans, as Secretary of the Air Force, 411 F.2d 767 (5th Cir. 1969). That claimant was an officer who had been dismissed from the Air Force. He filed suit in the district court "for a declaratory judgment that the discharge is a nullity and to order the Secretary of the Air Force to reinstate him and to award him all of the back pay, incentive pay, allowances, and other benefits accruing from the date of discharge." 411 F.2d at 768. He also requested certain corrections in his military records. Prior to his then current action, Carter had instituted an action in the Court of Claims seeking the same relief. ² The court reasoned ³ that since plaintiff's theory was that his discharge was invalid, his suit was in essence one for money, i. e., the pay he would have received had he not been discharged. Viewed as a claim for money, the court held that it had no jurisdiction under the Tucker Act. The court's theory and conclusion is seen from the following quotation from its opinion:

"Under the circumstances the court must conclude that the claim for back pay and allowances constitutes the keystone of this entire law suit. That the complaint is cast in terms of a declaratory judgment action cannot alter the fact that what in substance is sought is a money judgment against the United States for back pay in excess of $10,000.

Simply stated the issue now becomes whether this court has jurisdiction of such a cause of action.

If, as the defendant contends, jurisdiction of the case sub judice is available only under the aegis of Section 1346, Title 28 U.S.C., there can be no doubt that this court is without power to resolve the controversy. . . . The present status of the law is that the district courts have concurrent jurisdiction with the Court of Claims over such cases, Provided that the amount of the claim does not exceed $10,000. Since both parties admit that the claim in the instant case does exceed $10,000, it would seem that the Court of Claims is the only forum having jurisdiction unless there is some jurisdictional fount other than Section 1346." 411 F.2d at 771-72.

For further cases to the effect, or holding, that the district courts do not have jurisdiction over cases under the Tucker Act (28 U.S.C. § 1346(a)(2)) involving more than $10,000.00, see Crawford v. Cushman, 531 F.2d 1114, 1126, n. 17 (2d Cir. 1976); Clark v. Goode, 499 F.2d 130, 134 (4th Cir. 1974); Warner v. Cox, 487 F.2d 1301 (5th Cir. 1974); Mathis v. Laird, 483 F.2d 943 (9th Cir. 1973); Putnam Mills Corp. v. United States, 432 F.2d 553, 554 (2d Cir. 1970); Parrish v. Seamans, 343 F.Supp. 1087, 1092-93 (D.S.C.1972), aff'd, 485 F.2d 571 (4th Cir. 1973).

Nor does the 1976 amendment to the general federal question statute, 28 U.S.C. § 1331, avail the plaintiff. The pertinent language follows:

"(a) The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States Except that no such sum or value shall be required in any such action brought against the United States, any agency thereof, or any officer or employee thereof in his official capacity." (Emphasis supplied).

The emphasized language above was added by the 1976 amendment. It is highly significant in that it changes the defense of sovereign immunity so far as suits against the United States under 28 U.S.C. § 1331 are concerned. It is clear, however,...