Doe v. U.S.

• Citation: 372 F.3d 1308
• Decision Date: 24 June 2004
• Docket Number: No. 03-1350.,03-1350.
• Parties: Jane DOE, Plaintiff-Appellee, v. UNITED STATES, Donald H. Rumsfeld, Secretary of Defense, and Tricare Management Activity (formerly known as Office of Civilian Health and Medical Programs of the Uniformed Services), Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

372 F.3d 1308

Jane DOE, Plaintiff-Appellee, v. UNITED STATES, Donald H. Rumsfeld, Secretary of Defense, and Tricare Management Activity (formerly known as Office of Civilian Health and Medical Programs of the Uniformed Services), Defendants-Appellants.

No. 03-1350.

United States Court of Appeals, Federal Circuit.

DECIDED: June 24, 2004.

Rita V. Latsinova, Stoel Rives LLP, of Seattle, WA, argued for plaintiff-appellee. With her on the brief was Vanessa Soriano Power.

August E. Flentje, Attorney, Appellate Staff, Civil Division, United States Department of Justice, of Washington, DC, argued for defendants-appellants. With him on the brief were Peter D. Keisler, Assistant Attorney General; Gregory G. Katsas, Deputy Assistant Attorney General; and Robert M. Loeb, Attorney.

Before MICHEL, BRYSON, and PROST, Circuit Judges.

BRYSON, Circuit Judge.

Although the underlying question presented by this case is whether the government's ban on paying for certain kinds of abortions is unconstitutional, we do not reach the merits of that issue. Instead, we hold that we lack jurisdiction over the appeal from the district court's judgment, and we therefore transfer the case to the court with jurisdiction over the appeal, the United States Court of Appeals for the Ninth Circuit.

I

Plaintiff Jane Doe, the wife of a member of the armed services, became pregnant in early 2002. In July 2002, she received a diagnosis that her fetus suffered from anencephaly, an abnormality that is invariably fatal, usually resulting in the death of the fetus either before or shortly after birth. After consulting with her physicians, Doe decided to terminate her pregnancy through abortion. She requested that TRICARE, the military health care program, fund the procedure through one of its contract health care providers.¹ When the health care provider requested authorization from TRICARE to perform the procedure, however, TRICARE declined to authorize payment, based on the statutory and regulatory prohibitions against paying for abortions unless the life of the mother is at risk, 10 U.S.C. § 1093(a) and 32 C.F.R. § 199.4(e)(2).

Shortly thereafter, Doe filed this action in the United States District Court for the Western District of Washington. In her complaint, she cited as the basis for the district court's jurisdiction both the general federal question statute, 28 U.S.C. § 1331, and the Little Tucker Act, 28 U.S.C. § 1346(a)(2). She alleged that she had the "right to bring this action" pursuant to the Administrative Procedure Act, 5 U.S.C. § 701-06 ("APA"). On the merits, she alleged that the government's refusal to pay for her abortion violated the equal protection component of the due process clause of the Fifth Amendment and that it was arbitrary and capricious, in violation of the due process clause and section 10(e) of the APA, 5 U.S.C. § 706. For relief, she sought a declaration that the government's action was not in accordance with law and an order compelling the defendants to "cease withholding payment for [the] medical procedure and related charges."

The day the complaint was filed, the district court issued a temporary restraining order enjoining the defendants "from withholding payment for the procedure necessary for the termination of Plaintiff's pregnancy." By way of background, the court described anencephaly as a neural tube defect that causes a fetus to develop without a forebrain, cerebellum, or cranium. The district court explained that the condition is invariably fatal, that two-thirds of all anencephalic fetuses that are carried to term are born without a heartbeat, and that fewer than two percent survive for more than seven days. The lack of a cerebrum means that an anencephalic fetus will never attain consciousness.

Based largely on a decision of a different district court in a similar case, Britell v. United States, 204 F.Supp.2d 182 (D.Mass.2002), rev'd, 372 F.3d 1370, No. 03-128, 2004 WL 1403559 (Fed.Cir. June 24, 2004), the court concluded that Doe had made a showing of a strong likelihood of success on the merits of her claim. With respect to the issue of irreparable injury, the court noted that Doe had alleged that she could not afford to pay for the procedure to terminate her pregnancy and that she would be required to carry the fetus to term if injunctive relief were denied. Finding that Doe would be exposed to risks of physical and psychological injury from carrying an anencephalic fetus to term, the court concluded that she would suffer irreparable harm if she were denied injunctive relief.

The court converted its restraining order into a preliminary injunction to allow the government to take an immediate appeal. The government appealed to the Ninth Circuit, which denied the government's request for a stay pending disposition of the appeal. Accordingly, Doe obtained an abortion and the government paid for the procedure pursuant to the directive in the preliminary injunction.

Following the abortion, the government dismissed its appeal from the preliminary injunction and moved in the district court to dismiss the complaint.² In turn, Doe sought judgment in her favor on the pleadings. The district court denied the motion to dismiss and entered final judgment in Doe's favor, consisting of a declaratory judgment that "there is no rational justification for defendants' refusal to fund plaintiff's abortion of her anencephalic fetus," and that the statute and regulation that barred the government from funding the abortion violated Doe's rights under the Fifth Amendment and the APA. Doe v. United States, No. C02-1657Z (Feb. 20, 2003). From that final judgment, the government appealed to this court. Doe subsequently moved that the appeal be transferred to the Ninth Circuit on the ground that this court lacks appellate jurisdiction over the case. The government has opposed the motion to transfer, contending that this court has appellate jurisdiction because the jurisdiction of the district court was based in part on the Little Tucker Act, 28 U.S.C. § 1346(a)(2).

II

This court's jurisdictional statute provides, in pertinent part, that the court "shall have exclusive jurisdiction ... of an appeal from a final decision of a district court of the United States ... if the jurisdiction of that court was based, in whole or in part, on section 1346 of this title [the Little Tucker Act]." 28 U.S.C. § 1295(a). The question whether we have jurisdiction in this case therefore depends on whether the jurisdiction of the district court in this case was based, at least in part, on the Little Tucker Act. See United States v. Hohri, 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987).

In both the Tucker Act, 28 U.S.C. § 1491, and the Little Tucker Act, 28 U.S.C. § 1346(a)(2), Congress has waived sovereign immunity for certain actions for monetary relief against the United States. United States v. Mitchell, 463 U.S. 206, 212-18, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). The pertinent portions of the Tucker Act and the Little Tucker Act waive sovereign immunity for claims "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." 28 U.S.C. § 1491(a)(1); id. § 1346(a)(2). The Little Tucker Act permits an action to be brought in a district court, but only if a claim does not exceed $10,000 in amount; the Tucker Act contains no such monetary restriction but authorizes actions to be brought only in the Court of Federal Claims.

Congress has also waived sovereign immunity for cases encompassed within the judicial review provisions of the APA, 5 U.S.C. §§ 701-06. See Bowen v. Massachusetts, 487 U.S. 879, 891-92, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988). In order for a district court to have jurisdiction under the APA in a nonstatutory review action, however, the claim must be for "relief other than money damages," id. § 702, and there must be "no other adequate remedy in a court," id. § 704. Appeals from actions in which the district court's jurisdiction is based entirely on the APA are taken to the pertinent regional circuit, not to this court. The issue of appellate jurisdiction in this case therefore turns on whether the jurisdiction of the trial court is based, in whole or in part, on the Little Tucker Act, or whether the trial court's jurisdiction is based entirely on the APA.

In a case not involving the enforcement of contract rights or an unlawful exaction, the district court has jurisdiction under the Little Tucker Act only if the plaintiff's claim is for monetary relief, in an amount less than $10,000, attributable to a violation of the plaintiff's rights not sounding in tort. That is, the action must be to obtain "compensation by the Federal Government for the damage sustained." Eastport S.S. Corp. v. United States, 178 Ct.Cl. 599, 372 F.2d 1002, 1010 (1967). See Bowen, 487 U.S. at 906 n. 42, 108 S.Ct. 2722 (laws creating rights enforceable under the Tucker Act "attempt to compensate a particular class of persons for past injuries or labors"). The remedy that Doe sought from the district court, however, was injunctive and declaratory relief, not the payment of liquidated or unliquidated damages. In particular, she sought an injunction requiring TRICARE to authorize payment for the abortion and related services, and a declaration that the statutory and regulatory prohibition on paying for aborting anencephalic pregnancies was unlawful.

The Little Tucker Act does not authorize a court to grant prospective equitable relief, except in very narrow circumstances not at issue here. Lee v. Thornton, 420 U.S. 139, 140, 95 S.Ct. 853, 43 L.Ed.2d 85 (1975) ("The Tucker Act empowers district courts to award damages but not to grant injunctive or declaratory relief."); Richardson v. Morris, 409 U.S. 464, 465-66, 93 S.Ct. 629, 34 L.Ed.2d 647 (1973); Bobula v....