Karlin v. Clayton, Civ. A. No. 79-2175.

Decision Date06 February 1981
Docket NumberCiv. A. No. 79-2175.
Citation506 F. Supp. 642
PartiesCharles A. KARLIN v. W. Graham CLAYTON, Jr., Secretary of the Navy, and Vice Adm. W. P. Arentzen, M.D., U.S.N., Surgeon General, Bureau of Medicine of the Navy.
CourtU.S. District Court — District of Kansas

Thomas A. Hamill, Hamill, Lentz, Neill & Dwyer, Shawnee Mission, Kan., for plaintiff.

James P. Buchele, U. S. Atty., Douglas B. Comer, Asst. U. S. Atty., D. Kansas, Kansas City, Kan., for defendant.


SAFFELS, District Judge.

This case comes before the Court for determination of defendants' motion to dismiss plaintiff's complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted.

On December 1, 1972, plaintiff agreed to participate in the Armed Forces Health Professions Scholarship Program. This program, which was created by Congress at 10 U.S.C. § 2120 et seq., provides for scholarship assistance for medical students in exchange for one year of active duty for each year that student received scholarship assistance. Plaintiff and Navy recruiters, on behalf of the United States, entered into a written agreement pursuant to the Health Professions Scholarship Program. In the agreement, plaintiff, among other things, certified that he had read the agreement and understood it, and that no other oral or written promises were made to him in connection with his application for the program. At some point after he signed the agreement, plaintiff accepted a commission in the United States Naval Reserves. Upon his completion of medical school at the University of Kansas, plaintiff obtained yearly deferments of his active duty obligation in order to complete his residency training in radiology, for a total of four years deferment.

Beginning in 1974, plaintiff corresponded with the Department of the Navy about alleged misrepresentations made to him by Navy recruiters, and on September 2, 1974, he stated that he wished to resign his commission "because of the misunderstandings," and that he was "ready to remit all costs in total the Navy incurred for his education thus far." (Exhibit D attached to plaintiff's complaint.) The Surgeon General of the Navy replied to plaintiff that, although he may have been misled, the Bureau of Medicine and Surgery could not support his withdrawal from the scholarship program. (Exhibit E attached to plaintiff's complaint.)

On June 24, 1976, plaintiff, through his attorney, declared the original agreement with the Navy null and void as a consequence of the Navy's alleged breach of the agreement. Plaintiff continued applying for and receiving deferments to pursue his residency training at a civilian institution while still maintaining that he had validly rescinded the agreement upon learning of defendants' breach.

On September 16, 1978, plaintiff filed his application for correction of records with the Board for Correction of Naval Records, under the provisions of 10 U.S.C. § 1552. On June 1, 1979, the Department of the Navy ordered plaintiff to active duty. Plaintiff filed this lawsuit on June 25, 1979. Plaintiff was granted a preliminary injunction, restraining defendants from ordering plaintiff to active duty pending the determination of plaintiff's administrative application to the Board and pending the determination of this action. The administrative record is not before this Court, but according to defendants' answer the Board denied plaintiff's application on July 9, 1979.

Movants argue that plaintiff's complaint fails to state a claim upon which relief may be granted and should be dismissed because this Court lacks jurisdiction for a de novo review of plaintiff's claims, which have already been denied by the Board for Correction of Naval Records. Movants assert that the denial by the Board constitutes "action taken by an administrative body upon a matter which is so far committed to its jurisdiction and the exercise of its discretion by the provisions of 10 U.S.C. § 1552 so as to preclude de novo consideration of plaintiff's claims in this court...." In addition, movants argue that plaintiff has not shown a waiver of sovereign immunity.

In his complaint, plaintiff alleges that this Court has jurisdiction of this action pursuant to 28 U.S.C. § 2201 and § 2202, Rule 57, F.R.Civ.P., 28 U.S.C. § 1361, 28 U.S.C. § 1346, 28 U.S.C. § 1331, and 28 U.S.C. § 1343. Although not listing it in the complaint, plaintiff does argue in two out of three briefs opposing defendants' motion to dismiss that the Court has habeas corpus jurisdiction pursuant to 28 U.S.C. § 2241. Briefs for both parties also discuss the Administrative Procedure Act, 5 U.S.C. § 701 et seq., as a possible basis for federal court jurisdiction.

There is a presumption against federal jurisdiction because the federal courts are courts of limited jurisdiction dependent on the Constitution or a specific statute. Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374, 98 S.Ct. 2396, 2403, 57 L.Ed.2d 274 (1978). Because of the presumption against federal court jurisdiction, the existence of such jurisdiction must be affirmatively shown by the party invoking the jurisdiction of the federal court. Basso v. Utah Power & Light Co., 495 F.2d 906 (10th Cir. 1974).

28 U.S.C. § 2201 and § 2202

The Declaratory Judgments Act, 28 U.S.C. § 2201 and § 2202, confers only a remedy; an independent basis for federal court jurisdiction must be established. Fry Brothers Corp. v. Department of Housing and Urban Development, 614 F.2d 732, 733 (10th Cir. 1980). Rule 57, F.R.Civ.P., merely states the procedure for obtaining a declaratory judgment and provides that the existence of another adequate remedy does not preclude declaratory relief. There is nothing in Rule 57 which would confer jurisdiction on this Court.

28 U.S.C. § 1361

The Mandamus Act, 28 U.S.C. § 1361, cannot be relied on as an independent basis of federal court jurisdiction. The Honorable Richard D. Rogers of this Court has stated, in Craig v. Colburn, 414 F.Supp. 185, 193 (D.Kan.1976):

"... 28 U.S.C. § 1361 merely broadens the venue in which actions against a United States officer can be properly brought. It does not waive the sovereign immunity of the United States in mandamus actions. It does not confer an independent basis of jurisdiction but rather merely supplies a permissible remedy in actions otherwise properly brought on independent jurisdictional grounds...." Citations omitted.

28 U.S.C. § 1346

The Tucker Act, 28 U.S.C. § 1346(a)(2), provides in 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, ..."

Plaintiff's complaint alleges that plaintiff "will suffer and is presently suffering irreparable injury in excess of $10,000.00...." Congress has waived its sovereign immunity and has consented to suits against the United States in contract actions. Under the Tucker Act, the district courts have jurisdiction only for those claims under $10,000. Under 28 U.S.C. § 1491, the Court of Claims has exclusive jurisdiction of claims exceeding $10,000. See United States v. Adams, 634 F.2d 1261, 1266 (10th Cir. Nov. 10, 1980).

Furthermore, although plaintiff's complaint alleges injury in excess of $10,000, plaintiff is seeking only declaratory and injunctive relief, and not money damages. The United States Supreme Court has held that "the Tucker Act empowers district courts to award damages, but not to grant injunctive or declaratory relief." Lee v. Thornton, 420 U.S. 139, 140, 95 S.Ct. 853, 854, 43 L.Ed.2d 85 (1975).

5 U.S.C. § 701 et seq.

The Administrative Procedure Act in 5 U.S.C. §§ 702-703 waives sovereign immunity against the United States in federal court for specific relief arising out of federal agency action. However, the APA does not create independent subject matter jurisdiction permitting judicial review of agency action. Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). Counsel for plaintiff has failed to establish an independent jurisdictional basis for review of the decision by the Board for Correction of Naval Records, except habeas corpus jurisdiction, which is discussed below.

28 U.S.C. § 1331

28 U.S.C. § 1331(a) provides:

"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."

Plaintiff asserts in his complaint that his cause of action arises under the Constitution of the United States in that defendants have violated plaintiff's right to due process under the Fifth Amendment, as well as his right to freedom from involuntary servitude under the Thirteenth Amendment. In plaintiff's third brief he maintains that a federal question exists by virtue of the statute which created the Armed Forces Health Professions Scholarship Program, 10 U.S.C. § 2120 et seq. Plaintiff claims defendants have acted beyond their statutory authority in misrepresenting certain aspects of the scholarship program.

To bring a case under 28 U.S.C. § 1331, a plaintiff must have a substantial claim founded directly on federal law. Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936). The Supreme Court described the conditions of a suit which may be said to "arise under" the laws of the United States. The Court said that the required federal right or immunity must be an essential element of the...

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    ...the success or failure of the claim hinge on a particular construction or effect judicially accorded these laws. See Karlin v. Clayton, 506 F.Supp. 642, 646 (D.Kan.1981). Similarly, the claimed breach of an agreement concerning plaintiff's active duty assignment sounds in contract. Question......
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