Khan v. U.S.

• Decision Date: 24 January 2000
• Citation: 201 F.3d 1375
• Parties: (Fed. Cir. 2000) IQBAL M. KHAN, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee. 99-5041 DECIDED:
• Court: U.S. Court of Appeals — Federal Circuit

Page 1375

201 F.3d 1375 (Fed. Cir. 2000)

IQBAL M. KHAN, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.

99-5041

United States Court of Appeals for the Federal Circuit

DECIDED: January 24, 2000

Appealed from: United States Court of Federal Claims Senior Judge James F. Merow

Larry J. McGlothlin, of Fayetteville, North Carolina, argued for plaintiff-appellant.

Reginald T. Blades, Jr., Senior Trial Counsel, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for defendant-appellee. With him on the brief were David W. Ogden, Acting Assistant Attorney General and David M. Cohen, Director.

Before CLEVENGER, SCHALL, and BRYSON, Circuit Judges.

CLEVENGER, Circuit Judge.

Dr. Iqbal M. Khan appeals from the decision of the Court of Federal Claims, dismissing his claim for money damages for lack of jurisdiction or, alternatively, for failure to state a claim upon which relief may be granted. See Khan v. United States, No. 98-98C, slip op. at 15-16 (Fed. Cl. Nov. 19, 1998). We affirm.

I

Dr. Khan was employed by the Veterans Health Administration (VHA) from 1974 to 1996. In 1994, Dr. Khan requested and received from the VHA an estimate of his retirement benefits under an early retirement incentive program. His employer provided written confirmation that his base pay, for purposes of calculating annual retirement benefits, would total $123,124. This estimate was based on a calculation of his highest three annual salaries, including 100 percent of "special pay" received pursuant to 38 U.S.C. § 7431 (1994). In 1996, Dr. Khan elected early retirement from the VHA, allegedly based on the agency's estimate of his base pay. After he retired, however, Dr. Khan learned that his actual base pay would be only $114,443 per year, $8,681 less than that predicted by the agency, thereby reducing his anticipated annual retirement benefits.

The discrepancy between the VHA's estimate and Dr. Khan's actual base pay derived from the special pay portion of the calculus. Under 38 U.S.C. § 7438(b)(2)(B) (1994), any special pay received by a retiring physician pursuant to 38 U.S.C. § 7431 is included in his or her retirement calculation on an incremental, pro rata basis, with 25 percent accruing for each two-year period served after 1991. Since Dr. Khan retired in 1996, he was only entitled to include 50 percent of his section 7431 special pay in the retirement calculation, contrary to the 100 percent predicted by the agency.

Dr. Khan asserts that the misrepresentations of the VHA regarding his retirement benefits induced him to choose early retirement in 1995, rather than waiting until 1997 or 1999 when he would have been entitled to a greater percentage of his special pay. He filed a complaint with the Court of Federal Claims, requesting either (1) the balance of the pay he would have received had he not retired, or (2) that he be restored to his former position with service credit from the date of retirement. The Court of Federal Claims dismissed Dr. Khan's complaint for lack of jurisdiction or, alternatively, for failure to state a claim upon which relief could be granted. See Khan, slip op. at 15-16. Dr. Khan appeals to this court. We have jurisdiction under 28 U.S.C. § 1295(a)(3) (1994).

II

A trial court's ruling on its own jurisdiction is a question of law that we review de novo. See Moyer v. United States, 190 F.3d 1314, 1317 (Fed. Cir. 1999); James M. Ellett Constr. Co. v. United States, 93 F.3d 1537, 1541 (Fed. Cir. 1996).

Properly construed, Dr. Khan's complaint states two separate grounds for relief. In his first claim, Dr. Khan seeks damages, as a retiree, for the alleged misrepresentations of the VHA regarding the amount of his retirement pay. In his second claim, he seeks reinstatement to his former position as a VHA doctor, with service credit from the date of his retirement. We construe his second claim to be a claim for reinstatement and back pay based on involuntary retirement. See Fed. R. Civ. P. 8(f) ("All pleadings shall be so construed as to do substantial justice."). The issue on appeal is whether the Court of Federal Claims has jurisdiction over either of Dr. Khan's claims for monetary damages.

The Court of Federal Claims cited two grounds for its lack of jurisdiction. First, it held that Dr. Khan's claims are not cognizable under the Tucker Act because they are not based on a money-mandating statute. While we agree with this conclusion as to Dr. Khan's first claim, we disagree that it bars Dr. Khan's second claim of involuntary retirement. As an alternate ground, the trial court held that, because the Civil Service Reform Act (CSRA), Pub. L. No. 94-454, 92 Stat. 1138 (1978) (codified in various sections of title 5), provides an exclusive remedy for Dr. Khan's claims, jurisdiction cannot lie in the Court of Federal Claims. We hold that the CSRA does not provide a remedy for Dr. Khan's involuntary retirement claim. Rather, 38 U.S.C. § 7463 (1994) provides the correct avenue of relief. Nevertheless, because involuntary retirement is an adverse action specifically envisioned by the CSRA, and because 38 U.S.C. § 7463 provides an exclusive administrative remedy, we hold that the Court of Federal Claims did not err in concluding that it lacked jurisdiction to hear Dr. Khan's involuntary retirement claim.

A

In his first prayer for relief, Dr. Khan seeks "all pay and allowances which he would have received had he continued in full time employment in his prior position from the date of retirement to the present, minus such retirement pay as he has presently received." Pl.'s Compl. at 3, Khan v. United States, No. 98-98C (Fed. Cl. filed Feb. 6, 1998) ("Complaint"). The Court of Federal Claims held that it lacked jurisdiction to hear this claim under the Tucker Act. We agree.

The Court of Federal Claims derives its jurisdiction from the Tucker Act, which gives the court "jurisdiction to render judgment upon any claim against the United States 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) (1994). The Tucker Act does not, by itself, create any causes of action against the United States for money damages. See United States v. Testan, 424 U.S. 392, 398 (1976). Instead, to invoke jurisdiction under the Tucker Act, a plaintiff must identify a contractual relationship, constitutional provision, statute, or regulation that provides a substantive right to money damages. See Hamlet v. United States, 63 F.3d 1097, 1101 (Fed. Cir. 1995). In other words, the plaintiff "must assert a claim under a separate money-mandating constitutional provision, statute, or regulation, the violation of which supports a claim for damages against the United States." James v. Caldera, 159 F.3d 573, 580 (Fed. Cir. 1998).

In his brief, Dr. Khan claims entitlement to monetary relief under 38 U.S.C. §§ 7401, 7431-33 (1994). We conclude that none of these provisions can be interpreted as mandating the compensation that Dr. Khan requests in his first claim, namely the difference between his current retirement benefits and what he would have received had he not retired.

Section 7401 of title 38 authorizes the Secretary to appoint medical personnel as necessary to provide medical care to veterans. It does not mention pay, nor does it create a cause of action for monetary damages. Thus, it cannot be construed as a money-mandating statute. See Testan, 424 U.S. at 400 (defining a money-mandating statute as one that "can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained").

Sections 7431-33 govern the payment of "special pay" to qualified physicians and dentists in the VHA. Although these provisions mandate the payment of money to qualified employees, such payments are limited to currently employed physicians and dentists. For instance, section 7431(f) states that "[s]pecial pay may not be paid . . . to a physician or dentist who (1) is employed on less than a quarter-time basis." Likewise, section 7433 specifically applies to "eligible physicians employed on a full-time basis." These sections preclude payment of special pay to a retiree. Similarly, section 7431(b) states that "[s]pecial pay may be paid to a physician or dentist . . . only upon the execution of, and for the duration of, a written agreement . . . in accordance with section 7432 of this title." Section 7432 requires that such agreements cover at least one year of service in the VHA. Again, this would preclude payment of special pay to retirees.

In his first claim, Dr. Khan does not assert that he is a current employee of the VHA, nor does he claim back pay for a prior period of employment. Instead, he claims an entitlement to special pay under 38 U.S.C. §§ 7431-33 as a retiree, because of alleged misrepresentations made to him by his employer regarding his retirement benefits. As discussed above, the statutory provisions cited by Dr. Khan do not apply to retirees. We conclude, therefore, that Dr. Khan's first claim is not based on a money-mandating statute and that the Court of Federal Claims did not err in holding that it lacked jurisdiction over this claim.

B

In his second prayer for relief, Dr. Khan asked "[t]hat he be restored to active service with the [VHA] in the prior position and that his service credit be amended to accurately reflect full service [from date of retirement] to the present." Complaint at 3. We construe this to be a claim for reinstatement and back pay based on involuntary retirement. See Staats v. United States Postal Serv., 99 F.3d 1120, 1124 (Fed. Cir. 1996) (misinformation or deception by an agency may provide basis for involuntary retirement claim); Covington v. Department of Health & Human Servs., 750 F.2d 937, 942 (Fed. Cir. 1984) (...