Shaw v. Gwatney

• Decision Date: 16 January 1985
• Docket Number: No. LR-C-82-416.,LR-C-82-416.
• Citation: 604 F. Supp. 880
• Parties: Wallace B. SHAW, Plaintiff, v. Harold GWATNEY and John O. Marsh, Jr., Defendants.
• Court: U.S. District Court — Eastern District of Arkansas

604 F. Supp. 880

Wallace B. SHAW, Plaintiff, v. Harold GWATNEY and John O. Marsh, Jr., Defendants.

No. LR-C-82-416.

United States District Court, E.D. Arkansas, E.D.

January 16, 1985.

James L. Sloan, Little Rock, Ark., for plaintiff.

A. Doug Chavis, Asst. U.S. Atty., Curtis L. Nebben, Asst. Atty. Gen., Kathryn McGovern, Asst. U.S. Atty., Little Rock, Ark., for defendants.

MEMORANDUM OPINION

EISELE, Chief Judge.

I. INTRODUCTION

The plaintiff, Col. Wallace B. Shaw, is a commissioned officer in the Arkansas Army National Guard. Since his appointment to the National Guard in 1957, he has held a variety of assignments. Col. Shaw had never served on extended active duty in the United States Army, however, until 1980 when, pursuant to 32 U.S.C. § 708(a),¹ Governor Bill Clinton nominated him to serve as USPFO² for Arkansas. On May 4, 1980, Lt. General LaVern E. Weber, Chief of the National Guard Bureau (CNGB) of the Department of the Army, approved the nomination of the plaintiff in accordance with section 708 and certain military regulations. The plaintiff was then ordered to active duty to commence serving as USPFO under the supervision of CNGB Lt. General Weber. Col. Shaw's tenure as USPFO became imperiled, and then ultimately terminated, over a three-month span in the spring of 1982. It is the manner in which Col. Shaw's termination was carried out that forms the basis of this suit. Col. Shaw contends that applicable regulations and the due process clause of the United States Constitution entitle him to pre-termination proceedings. Defendants disagree, believing that Col. Shaw is not entitled to any pre-termination proceedings.

On June 8, 1982, before his termination, Col. Shaw filed a complaint in this Court seeking an injunction to prohibit defendants from removing him without any procedural protection. No motion for a temporary restraining order was made at that time because Col. Shaw understood from defendants that he would not be terminated until this lawsuit had been resolved. Apparently, Col. Shaw's understanding was incorrect, for on June 11, Col. Shaw was terminated. That day, Col. Shaw filed a motion for a temporary restraining order. A hearing was held on the motion for a restraining order on June 15, 1982. At the hearing, this Court found that "if the plaintiff prevails, the Court has the power to reinstate and to set aside the defendants' actions if they are not in accordance with the law." Tr. p. 28. On that basis, the Court denied the motion for a restraining order.

Defendants then filed motions to dismiss or, in the alternative, for summary judgment. After extensive briefing, in a lengthy opinion entered on March 30, 1984, this Court denied defendants' motions. 584 F.Supp. 1357. The Court first found this case one of the exceptional cases where federal review of a military decision was appropriate. The Court then went on to the merits and found that Col. Shaw was entitled to certain pre-termination procedural guarantees. Thus, it was determined that Col. Shaw, not the defendants, was entitled to summary judgment. The Court ordered that the parties attempt to come up with a mutually agreeable remedy. If an agreement was not reached, defendants were directed to show cause why the plaintiff should not be reinstated to his former position.

Defendants then filed another motion to dismiss, raising for the first time the question of this Court's jurisdiction. Plaintiff responded to this motion, and also filed a motion for partial summary judgment.³ Both motions are now before the Court and will be treated in turn.

II. JURISDICTION

In their present motion to dismiss, defendants argue that this action is primarily a claim for back pay exceeding $10,000, and therefore within the exclusive jurisdiction of the Court of Claims. The Court of Claims has exclusive jurisdiction over all claims for back pay in excess of $10,000. 28 U.S.C. § 1491; Graham v. Henegar, 640 F.2d 732 (5th Cir.1981). The Court of Claims and the district courts have concurrent jurisdiction over monetary claims equal to, or less than, $10,000. 28 U.S.C. § 1346(a)(2). The district courts have exclusive jurisdiction over actions where only injunctive or declaratory relief, but no damages, are sought. Berdick v. United States, 612 F.2d 533, 222 Ct.Cl. 94 (1979).

At issue in the instant case is the relevant time period which should be used to determine the amount of the claim. At the institution of this action, this Court clearly had jurisdiction. Indeed, at that time, no back pay was sought, so that the Court had exclusive jurisdiction. Id. A few days after institution of the action, plaintiff was terminated and a back pay claim arose. Over time, the claim has grown and is now approximately $50,000. Defendants contend that this Court lost jurisdiction at the moment the claim grew to exceed $10,000.

The Court has found no case exactly on point, and only a few that even touch upon the issue. In the first, Giordano v. Roudebush, a doctor was discharged from his position at a veterans' hospital. 617 F.2d 511 (8th Cir.1980). He filed suit in federal court, alleging denial of due process. At the time he filed suit, his back pay claim amounted to only $6,000. By the time the district court entered judgment in favor of the plaintiff, the back pay claim was over $70,000. Plaintiff was awarded that $70,000 and reinstatement. After judgment, defendant filed a motion to vacate, asserting that the court had no jurisdiction to award back pay in excess of $10,000. The district court agreed, and ordered that the damage claim be transferred to the Court of Claims. The plaintiff "acquiesced" in that transfer. Id. at 515. The district court maintained jurisdiction over the equitable claim, and again ordered reinstatement. Defendant appealed the order of reinstatement, arguing that the district court had lost jurisdiction of the entire subject matter and that the entire case should have been transferred to the Court of claims. On appeal, the Eighth Circuit rejected that argument and affirmed the district court. The Eighth Circuit determined that plaintiff's claims were primarily non-monetary, so the district court could retain jurisdiction over the equitable claim for reinstatement.

The plaintiff in Giordano had not appealed the correctness of the district court's transfer of the monetary claim. Thus, the Eighth Circuit never expressly addressed the issue of whether, given that jurisdiction was proper at the time the suit was filed, the district court could have maintained jurisdiction over the monetary claim. It could be argued that the fact that the Eighth Circuit nowhere questioned the transfer of the monetary claim, but instead assumed it correct, is implicit affirmation of the correctness of the transfer. But because the Eighth Circuit was not presented with the question and the relevant arguments, this Court does not believe that the issue was resolved by the Eighth Circuit Court.

In another case, Keller v. Merit Systems Protection Board, the Eleventh Circuit expressly addressed the issue of when a district court's jurisdiction over monetary claims is established, but did so only in dicta. 679 F.2d 220 (1982). In Keller, the circuit court affirmed the district court's finding that it did not have jurisdiction over a back pay and reinstatement action brought by a government employee. In deciding whether the district court had jurisdiction, the Eleventh Circuit looked at the amount of the claim at the time the suit was filed. The court stated:

Because appellee's back pay claim exceeded $10,000 at the time he initiated this action, see note 4 supra, the district court was without jurisdiction to adjudicate that claim.

Id. at 222. Footnote 4, expanding on this point, states:

When appellee filed this action in 1975, three years had passed from the date of his termination. Although appellee's pro se complaint did not specifically state the amount of the back pay sought, simple division indicates that an award based on three years of back pay would have exceeded $10,000. Hence, as of the date of the initial complaint, which is the relevant document for determining subject matter jurisdiction, appellee's back pay claim against the Commission exceeded $10,000.

Id. (emphasis added) (citations omitted).

The final relevant case, Goble v. Marsh, is a recent case from the Court of Appeals for the District of Columbia. 684 F.2d 12 (1982). In Goble, Army Reserve officers contended that they were improperly released from active duty. At the time the suit was filed, the back pay claims exceeded $19,000. To come within the district court's jurisdiction, the officers waived all sums in excess of $10,000 which had accrued at the time the suit was filed. The officers expressly did not waive those sums in excess of $10,000 which would accrue after the suit was instituted. In other words, the officers did not waive those sums which would accrue between the date of filing and the date of judgment. The appellate court affirmed the trial court's decision that this waiver was insufficient to establish jurisdiction. The court stated:

In our view, appellants' position would circumvent congressional intent in limiting the Tucker Act jurisdiction of the District Courts to claims not exceeding $10,000. When an individual's back pay claim already exceeds $10,000 and a waiver is necessary to establish subject matter jurisdiction in the District Court, a partial waiver limited to pre-filing claims is not enough. By its very nature a back pay claim continues to accrue between filing of the complaint and entry of final judgment. Therefore, if a plaintiff waives only pre-filing claims in excess of $10,000, it is certain that if he prevails additional accruals in the intervening period will result in an aggregate claim of more than $10,000. In this situation the partial waiver does not reduce the back pay claim to a `civil action or claim against the United States, not

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