National Center for Mfg. Sciences v. U.S., 96-1423

Decision Date15 May 1997
Docket NumberNo. 96-1423,96-1423
Citation114 F.3d 196
PartiesThe NATIONAL CENTER FOR MANUFACTURING SCIENCES, Plaintiff-Appellant, v. The UNITED STATES of America, William S. Cohen, Secretary of Defense and Sheila E. Widnall, Secretary of the Air Force, Defendants-Appellees.
CourtU.S. Court of Appeals — Federal Circuit

Stanley Yorsz, Buchanan Ingersoll Professional Corporation, Pittsburgh, PA, argued, for appellant. With him on the brief was Jeffrey J. Bresch. Also with him on the brief was Dan R. Mastromarco, The Argus Group, Washington, DC.

John C. Erickson, III, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, Washington, DC, argued, for appellee. With him on the brief were Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director, and Anthony H. Anikeeff, Assistant Director.

Before MAYER, SCHALL, and BRYSON, Circuit Judges.

BRYSON, Circuit Judge.

This appeal requires us to engage in the wasteful exercise of deciding not how a dispute should be resolved, but what court should be responsible for resolving it. As Justice Scalia has pointed out in a similar setting, "[n]othing is more wasteful than litigation about where to litigate, especially when all the options are courts within the same legal system that will apply the same law." Bowen v. Massachusetts, 487 U.S. 879, 930, 108 S.Ct. 2722, 2750, 101 L.Ed.2d 749 (1988) (Scalia, J., dissenting).

It is often difficult to determine whether an action is properly before the district court or should have been brought in the Court of Federal Claims. That task is made harder in this case by the inartful drafting of the amended complaint. At the end of the day, however, we are persuaded that this case was properly brought in the United States district court and should not have been transferred to the Court of Federal Claims. We therefore reverse the transfer order of the district court.

I

The National Center for Manufacturing Sciences ("NCMS") is a not-for-profit research and development consortium comprising more than 200 member companies. Its principal objective is to identify and solve common manufacturing problems, and to perform research and development activities that private firms might not undertake. A portion of NCMS's funding is derived from congressional appropriations. In November of 1993, Congress passed the Department of Defense Appropriations Act for Fiscal Year 1994 ("the Appropriations Act"), which provided, in pertinent part:

RESEARCH, DEVELOPMENT, TEST AND EVALUATION, AIR FORCE

For expenses necessary for basic and applied scientific research, development, test and evaluation, including maintenance, rehabilitation, lease, and operation of facilities and equipment, as authorized by law, $12,314,362,000, to remain available for obligation until September 30, 1995: ... Provided further, That not less than $40,000,000 of the funds appropriated in this paragraph shall be made available only for the National Center for Manufacturing Sciences (NCMS).

Pub.L. No. 103-139, 107 Stat. 1418, 1433 (1993).

In September 1994, the Air Force and NCMS executed a "Cooperative Agreement," which laid out the terms under which NCMS was to proceed with respect to the appropriated funds. The Agreement noted that the government's "share for full performance" of the award was estimated at a maximum of $40,000,000, but that only $24,125,000 was "currently available and allotted at the time of the award." The Air Force has not distributed the remaining $15,875,000 of the $40,000,000 referred to in the Appropriations Act and in the Cooperative Agreement.

NCMS filed suit in the United States District Court for the District of Columbia seeking an order directing the Air Force to release the remaining funds appropriated for fiscal year 1994. NCMS's four-count amended complaint sought relief by way of mandamus, 28 U.S.C. § 1361; under the Declaratory Judgment Act, 28 U.S.C. § 2201; under the judicial review provisions of the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706; and through specific performance of the Cooperative Agreement. The Air Force moved to dismiss the complaint or, in the alternative, to transfer the case to the United States Court of Federal Claims.

The district court found that NCMS's claim was "a contract claim against the government in excess of $10,000, for which there is no District Court jurisdiction." Pursuant to 28 U.S.C. § 1631, the district court therefore ordered the case transferred to the Court of Federal Claims. NCMS appeals the district court's transfer order. This court has exclusive jurisdiction to hear the appeal under 28 U.S.C. § 1292(d)(4)(A).

II

The federal transfer statute, 28 U.S.C. § 1631, provides that a court may transfer an action to another court if the transferor court lacks jurisdiction to hear the action and the transferee court would have jurisdiction. As is frequently true in cases such as this one, the propriety of the transfer turns on whether this case properly belongs before the district court under the APA, or before the Court of Federal Claims under the Tucker Act, 28 U.S.C. § 1491.

A

The district court ruled that this case should be transferred to the Court of Federal Claims because the court viewed it as "a contract claim against the government." NCMS argues that the claims in this case are premised on rights stemming from the Appropriations Act, not on rights stemming from a contract between NCMS and the government. The first three counts of the amended complaint are plainly based on the Appropriations Act and therefore do not state a contract-based claim. The fourth count requests specific performance of the Cooperative Agreement between NCMS and the Air Force, a remedy the Court of Federal Claims is not empowered to grant. See Kanemoto v. Reno, 41 F.3d 641, 644-45 (Fed.Cir.1994); see generally United States v. Jones, 131 U.S. 1, 17-19, 9 S.Ct. 669, 671-72, 33 L.Ed. 90 (1889). While a request for specific performance of a contract might in some cases be construed as an action for the payment of money, that is not the case here. NCMS argued in the district court and reiterated in oral argument before us that it is not seeking an unconditional payment of $15,875,000, but recognizes that any additional funds released under the Appropriations Act would be subject to restrictions and constraints reflected either in a supplement to the Cooperative Agreement or in a new agreement between NCMS and the Air Force. An order directing the Air Force to supplement the Cooperative Agreement or engage in a new agreement with NCMS would be equitable in nature and thus would not be within the jurisdiction of the Court of Federal Claims. Accordingly, we conclude that the transfer order cannot be sustained on the ground that the amended complaint states a "contract claim against the government" for which the Court of Federal Claims could grant relief.

B

In the district court, the government argued in favor of transfer on the theory that NCMS's case was in essence a breach of contract claim. In this court, however, the government defends the transfer order on a different ground--that the complaint seeks monetary relief under a money-mandating statute. The government is careful to note, however, that while it reads the complaint as alleging that the Appropriations Act is a money-mandating statute, it does not believe that the Act is such a statute. Nonetheless, because the government reads the complaint as alleging claims based on a money-mandating statute, it argues that the proper disposition of this case is to affirm the transfer order and let the case proceed in the Court of Federal Claims.

At oral argument, counsel for the government made clear that if this court affirms the transfer to the Court of Federal Claims, the government will seek dismissal of the complaint on the ground that the Appropriations Act is not a money-mandating statute. If the Court of Federal Claims were to dismiss the complaint on that ground, NCMS would have to return to the district court and start all over (the statute of limitations permitting) by filing a new complaint, this time avoiding any suggestion in its complaint that the Appropriations Act is a money-mandating statute.

This proposed scenario threatens to turn this case into a jurisprudential Flying Dutchman, casting about in search of a court that can reach the merits of NCMS's claims. It would be pointless, or worse, to engage in such an exercise if it is reasonably clear at this point where this case should ultimately come to rest. Notwithstanding the imprecision of the complaint, we therefore "look to the true nature of the action in determining the existence or not of jurisdiction." Katz v. Cisneros, 16 F.3d 1204, 1207 (Fed.Cir.1994). Upon so doing, we are convinced that the case should be before the district court and not the Court of Federal Claims.

C

The parties to this case focus on two potential impediments to district court review that the APA erects in cases in which monetary relief is sought against the United States. First, the APA waives the sovereign immunity of the United States only for "[a]n action in a court of the United States seeking relief other than money damages." 5 U.S.C. § 702. In an action for "money damages," a plaintiff must seek a waiver of sovereign immunity elsewhere, such as in the Tucker Act. Second, the APA provides that nonstatutory APA review of agency action is available only "if there is no other adequate remedy in a court." 5 U.S.C. § 704. Thus, if a Tucker Act suit in the Court of Federal Claims provides an adequate remedy, APA review in the district court is not available.

The Supreme Court addressed the scope of the APA's waiver of sovereign immunity in Bowen v. Massachusetts, 487 U.S. 879, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988). Based on the Court's analysis of section 10(a) of the APA (5 U.S.C. § 702), we conclude that the waiver of sovereign immunity in the APA applies to the claims in ...

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