Floyd v. District of Columbia

• Decision Date: 07 November 1997
• Docket Number: No. 96-5340,96-5340
• Citation: 129 F.3d 152
• Parties: J.B. FLOYD, et al., Plaintiffs/Appellees, v. DISTRICT OF COLUMBIA, Defendant. United States of America, Defendant/Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 152

129 F.3d 152

327 U.S.App.D.C. 69

J.B. FLOYD, et al., Plaintiffs/Appellees, v. DISTRICT OF COLUMBIA, Defendant United States of America, Defendant/Appellant

No. 96-5340.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 8, 1997.

Decided Nov. 7, 1997.

Appeal from the United States District Court for the District of Columbia (No. 95cv02345).

William Kanter, Deputy Director, U.S. Department of Justice, Washington, DC, argued the cause for appellant. With him on the briefs were Frank W. Hunger, Assistant Attorney General, Eric H. Holder, Jr., U.S. Attorney at the time the briefs were filed, and Robert D. Kamenshine, Attorney, U.S. Department of Justice. R. Craig Lawrence, Assistant U.S. Attorney, and Charles L. Reischel, Deputy Corporation Counsel, entered appearances.

Robert E. Deso, Jr., Washington, DC, argued the cause and filed the brief for appellees.

Donald B. Ayer and James E. Gauch, Washington, DC, were on a brief for amici curiae D. Paul Sweeney and Douglas Buchholz.

John M. Ferren, Corporation Counsel, Charles L. Reischel, Deputy Corporation Counsel and Lutz Alexander Prager, Asst. Deputy Corporation Counsel, filed a post-argument statement for the District of Columbia.

Before: SILBERMAN, ROGERS and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge:

Retired U.S. Secret Service agents sued the District of Columbia and the United States, claiming entitlement to increased retirement benefits administered by the District of Columbia but funded by the federal government. The district court entered summary judgment for the retirees. Finding that the district court lacked jurisdiction over the United States, we vacate the entire judgment.

I

To combat rampant counterfeiting during the Civil War, the Department of the Treasury created the U.S. Secret Service in 1865. Not until after the assassination of President William McKinley in 1901 was the Secret Service officially assigned the task of protecting the President. Over the next seventy years, the Service's protective authority expanded as it took over various tasks from the local police. In 1930, for example, the Secret Service began protecting the White House and its grounds, a function once performed by a small force of military and District of Columbia Metropolitan Police Department officers. Congress later transferred responsibility for protecting foreign diplomatic missions from the District police to the Secret Service. See UNITED STATES SECRET SERVICE, DEPARTMENT OF THE TREASURY, MOMENTS IN HISTORY: 1865-1990, 4-15 (1990).

As its history suggests, the Secret Service has close ties to the D.C. police, with overlapping powers, duties, memberships, and employment benefits. See 3 U.S.C. § 202 (1994) ("[Secret Service] members [ ] shall possess privileges and powers similar to those of the members of the Metropolitan Police of the District of Columbia."); 3 U.S.C. § 203(b) (1994) (Secret Service Uniformed Division members may be appointed from District police ranks); 3 U.S.C. §§ 204, 206 (1994) (Secret Service members to receive the same salary, benefits, and privileges as District police officers at the same grade). Because of these historical ties, two very different pension plans cover Secret Service employees. Some agents participate in the Federal Employee Retirement System. 5 U.S.C. § 8401 et seq. (1994). Agents who actively perform nonclerical duties directly related to the protection of the President for more than ten years may opt into the plan governed by the District of Columbia Police and Firefighters Retirement and Disability Act ("DCRA"), 49 Stat. 358 (1935) (codified as amended at D.C.CODE ANN. § 4-601 et seq. (1994)). See D.C.CODE ANN. § 4-609. Under the DCRA, agents pay pension contributions directly into the D.C. treasury, and every month the United States reimburses the District for any shortfall between total agent contributions and total pension costs. D.C.CODE ANN. § 4-632.

The DCRA offers higher benefits than the federal system. For example, the DCRA pays benefits based on retirees' highest annual salary for any single year, while the federal program pays based on retirees' highest average salary over three consecutive years. Compare Letter from United States Secret Service to Thomas Farrell (Apr. 26, 1996), with 5 U.S.C. §§ 8401(3), 8415(a). The DCRA also contains an "equalization clause"--the subject of this litigation--that automatically increases retired agents' pensions each time active agents receive salary increases. D.C.CODE ANN.s 4-605(a). Not only does the equalization clause assure DCRA participants the equivalent of a cost of living adjustment, but courts have interpreted the clause to trigger pension increases based on locality pay increases and collectively bargained bonuses. See Lanier v. District of Columbia, 871 F.Supp. 20, 22 (D.D.C.1994); District of Columbia v. Tarlosky, 675 A.2d 77, 80-81 (D.C.1996). The federal retirement program contains a specific COLA provision, see 5 U.S.C. § 8462, but no equalization clause.

Responding to the fact that criminal investigators throughout the federal government were routinely receiving overtime pay because they routinely worked more than eight hours each day, Congress passed the Law Enforcement Availability Pay Act of 1994 ("LEAP"), Pub.L. No. 103-329, 108 Stat. 2425 (1994) (codified at 5 U.S.C. § 5545a (1994 & Supp.1996)). LEAP increased the work day of federal criminal investigators by two hours and awarded all investigators "availability pay" at the rate of 25 percent of their basic pay, thereby eliminating so-called "administratively uncontrollable overtime." See 5 U.S.C. §§ 5545a(c), (d). In effect, LEAP requires criminal investigators to be available for two more hours each day, in return for which they automatically receive an additional 25 percent of basic pay instead of the overtime pay they used to get.

Appellees are Secret Service criminal investigators who retired before the passage of LEAP. They contend that LEAP amounts to a 25 percent salary increase which triggers the DCRA equalization clause, entitling them to a 25 percent increase in pension benefits. When the D.C. Office of Personnel did not increase their pension benefits, the retirees sued both the District and the United States in the U.S. District Court for the District of Columbia.

Agreeing that LEAP constitutes a salary increase under the DCRA equalization clause, the district court entered summary judgment for the retirees and ordered the District and the United States to increase pension benefits by 25 percent. The United States appealed; the District of Columbia did not.

II

The United States argued before the district court--although inexplicably, not before us--that the retired agents failed to identify a cause of action or waiver of sovereign immunity permitting the district court to exercise its jurisdiction over the United States. Disagreeing, the district court held that the Administrative Procedure Act, 5 U.S.C. § 702 (1994), waived sovereign immunity, treating as "final agency action" the United States' failure to grant the requested pension increase. Under the DCRA, however, it was the District of Columbia, not the United States, that did not increase appellees' pensions. See D.C.CODE ANN. § 4-603 (authorizing Mayor to determine pension benefits); D.C.CODE ANN. § 4-605(a) (notwithstanding § 4-603, when active members receive a salary increase, retirees are entitled to a commensurate pension increase "without making application therefor"). Because nothing in the record indicates that the Treasury Department, the Office of Personnel Management, or any other federal agency did or decided anything pertaining to the impact of LEAP on appellees' pensions, we asked counsel for the United States to furnish information about any and all agency actions taken in this matter. Unable to point to any such action, the United States nevertheless maintains that the district court had jurisdiction. But jurisdiction cannot be waived and we have an independent obligation to assure ourselves of jurisdiction, even where the parties fail to challenge it. See Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 2104, 72 L.Ed.2d 492 (1982) (basis for jurisdiction must "affirmatively appear in the record").

Our jurisdictional inquiry requires that we answer two questions: Did the district court have subject matter jurisdiction over the case; and does federal law authorize a cause of action against the United States, the only appellant in this appeal? Because federal removal jurisdiction would have been available under 28 U.S.C. § 1442(a)(1) had this case been filed in the Superior Court of the District of Columbia, we have no doubt that the district court had subject matter jurisdiction. See District of Columbia v. Merit Systems Protection Board, 762 F.2d 129, 132 (D.C.Cir.1985) ("When federal parties remove an action under section 1442(a)(1), the federal court assumes jurisdiction over all the claims and parties in the case regardless of whether the federal court could have assumed original jurisdiction over the suit."). The district court also had federal question jurisdiction under 28 U.S.C. § 1331 because the case " 'necessarily turn[s] on some construction of federal law.' " Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 808, 106 S.Ct. 3229, 3232, 92 L.Ed.2d 650 (1986) (quoting Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 9, 103 S.Ct. 2841, 2846, 77 L.Ed.2d 420 (1983)); see Diven v. Amalgamated Transit Union Int'l and Local 689, 38 F.3d 598, 600 (D.C.Cir.1994) (Congress's failure to include a certain group under a statute does not constitute an affirmative congressional decision to deny federal jurisdiction) (citing Rogers v. Platt, 814 F.2d 683, 688 (D.C.Cir.1987)).

Where the United States is the defendant,...