Smith v. Orr

• Decision Date: 25 August 1988
• Docket Number: No. 87-1384,87-1384
• Citation: 855 F.2d 1544
• Parties: Captain James H. SMITH, Plaintiff-Appellant, v. Secretary of the Air Force, Verne ORR, Defendant-Appellee. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 1544

855 F.2d 1544

Captain James H. SMITH, Plaintiff-Appellant, v. Secretary of the Air Force, Verne ORR, Defendant-Appellee.

Appeal No. 87-1384.

United States Court of Appeals Federal Circuit.

Aug. 25, 1988.

James H. Smith, Gulfport, Miss., argued pro se.

John S. Groat, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued for defendant-appellee. With him on the brief were Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director and Thomas W. Petersen, Asst. Director. Also on the brief was Major James Kinsella, Dept. of the Air Force, of counsel.

Gregory C. Sisk, Appellate Staff, Civ. Div., Dept. of Justice, Washington, D.C., argued for the amicus curiae Otis R. Bowen, M.D., Secretary of the U.S. Dept. of Health and Human Services, et al. With him on the brief were Richard K. Willard, Asst. Atty. Gen., Civ. Div., and William Kanter, Appellate Staff, Civ. Div.

John Davidson, Deputy Atty. Gen., State of Cal., San Francisco, Cal., argued for the amicus curiae Linda McMahon, Director, State Dept. of Social Services, et al. With him on the brief were John K. Van De Kamp, Atty. Gen., and John J. Klee, Jr., Deputy Atty. Gen.

Mark Howard Greenberg, Western Center of Law and Poverty, of Los Angeles, Cal., argued for the amicus curiae Victoria Grimesy, et al. With him on the brief were Robert Newman and Richard Rothschild. Also on the brief, as of counsel, were Peter Reid and Tricia Berke Vinson, Legal Aid Society of San Mateo County, Redwood City, Cal., Charles Greenfield and Brenton Rogozen, Legal Aid Society of Santa Clara County, San Jose, Cal., Evelyn R. Frank, Legal Aid Society of Alameda County, Oakland, Cal., and Anson Levitan, Legal Aid Society of San Diego County, San Diego, Cal.

Before SMITH, NEWMAN, and BISSELL, Circuit Judges.

EDWARD S. SMITH, Circuit Judge.

In this military separation/discharge case, the United States District Court for the Southern District of Mississippi, in an order dated February 19, 1987, granted the Secretary of the Air Force's (Government) motion to dismiss and/or for summary judgment and dismissed with prejudice Capt. James H. Smith's (Captain Smith) complaint seeking both reinstatement and back pay as a result of his alleged illegal separation from active duty in the United States Air Force. We vacate the district court's order and remand this case to that court with instructions to transfer the case in its entirety to the United States Claims Court.

I. Issues

In reviewing the order of the district court, dismissing with prejudice Captain Smith's complaint, we address the following two issues.

1. Whether this court has exclusive jurisdiction to make final decision for appellate review purposes whether a district court's jurisdiction was based on a nontax Tucker Act claim.

2. Whether, under the Tucker Act, the district court loses jurisdiction over a nontax Little Tucker Act claim if the claim, when first filed, did not exceed $10,000, but over the course of the litigation accrued to exceed this amount.

II. Background

Captain Smith, on January 31, 1984, involuntarily received an honorable discharge from the United States Air Force on grounds that he twice had been nonselected for promotion and retention on active duty. ¹ Prior to his discharge, Captain Smith determined that his military records were incomplete as a result of the entrance of a wrong social security number with his name in the Air Force's Automated Personnel System. Consequently, Captain Smith's records not only failed to contain all of his data but included erroneous data.

On April 7, 1981, Captain Smith applied to the Air Force Board for Correction of Military Records (AFBCMR) for correction of his military records and for supplemental consideration for promotion based upon the erroneous personal records. On February 23, 1982, the AFBCMR directed the correction of Captain Smith's military records. The case then was referred to a special review board. On April 29, 1982, the special review board met and issued a recommendation stating that despite the corrections to Captain Smith's record, Captain Smith would not have been recommended for promotion. Upon consideration of the recommendation of the Special Review Board, the AFBCMR concluded that Captain Smith's nonselection was not caused by the deficiencies in his military record. On October 4, 1982, the AFBCMR issued its decision regarding the correction of Captain Smith's record and additional consideration of his promotion.

In an attempt to prevent his discharge, Captain Smith, on October 25, 1983, filed an action in the United States District Court for the Southern District of Mississippi. On January 24, 1984, Captain Smith's motion for preliminary relief precluding his separation was denied. The district court directed Captain Smith to exhaust his administrative remedies. Accordingly, on January 31, 1984, Captain Smith filed a second application with the AFBCMR contending that his separation was erroneous because he was given a special review board rather than a special selection board. The AFBCMR determined that the relief requested by Captain Smith was not warranted because Captain Smith's record would not have met the criteria for promotion regardless of the type of board which considered it. Thereafter, however, the AFBCMR granted partial relief to Captain Smith by recommending that his records show separation on May 15, 1984, rather than January 31, 1984. Captain Smith was notified of these actions of the AFBCMR on April 17, 1985.

As well as pursuing his administrative remedies, Captain Smith sought relief in the district court seeking both reinstatement and back pay. Captain Smith's claim for back pay began to accrue on his separation from the Air Force. At the time Captain Smith filed in the district court his claim for back pay, the accrued amount of his back pay did not exceed $10,000. Once the accrued amount exceeded $10,000, the Government moved to dismiss Captain Smith's complaint on the ground that the district court no longer had jurisdiction under the Little Tucker Act. ² The district court denied that motion holding that it had jurisdiction.

On February 19, 1987, the district court reached the merits of Captain Smith's case and granted the Government's motion to dismiss and/or for summary judgment. Captain Smith's complaint was dismissed with prejudice. The district court held that Captain Smith's claims were not subject to judicial review by that court and, even if they were, that Captain Smith's discharge was lawful. Subsequently, Captain Smith appealed that judgment to the United States Court of Appeals for the Fifth Circuit. The Fifth Circuit, without explanation, transferred the case to this court.

III. Analysis

A. Inherent Jurisdiction To Determine Jurisdiction

At the threshold of reaching the issue whether the district court properly exercised jurisdiction over Captain Smith's complaint, we address the Government's contention that this court has exclusive jurisdiction to determine for appellate review purposes whether a district court had jurisdiction over a nontax Little Tucker Act claim. The Government contends that the principles underlying the Federal Courts Improvement Act of 1982, ³ as well as the case law, necessarily lead to the conclusion that only this court has the jurisdictional authority to make final decision whether a district court's jurisdiction was based upon the Little Tucker Act. We disagree.

Congress, pursuant to 28 U.S.C. Sec. 1295, did not remove the power from all other circuits to decide for themselves whether jurisdiction of the district courts in given cases was based on the Little Tucker Act. The Government's position, if adopted by this court, would usurp the well-established jurisdictional power of the regional circuit courts to determine for themselves, within the bounds of the law-of-the-case doctrine, ⁴ whether they have subject matter jurisdiction over an appeal before them. ⁵ Congress, pursuant to section 1295, expressly granted this court exclusive jurisdiction over the merits of appeals from federal district courts if the jurisdiction of those courts was based on subject matter falling under section 1295. It does not necessarily follow that Congress also granted us exclusive appellate jurisdiction to determine whether a district court's jurisdiction was based on subject matter falling under section 1295.

Implicit in the Government's position that this court has exclusive appellate jurisdiction to determine whether a district court's jurisdiction is based on the Little Tucker Act is the creation of a two-tiered system for appellate review of the issue whether a district court's jurisdiction is based on the Little Tucker Act. Under the Government's putative system, the regional circuits' inherent jurisdictional authority to determine for themselves whether they have jurisdiction over the merits of any appeal before them is restricted by section 1295 to making a mere threshold determination whether the Little Tucker Act was fairly at issue in the district court. According to the Government, if a regional circuit determines that the Little Tucker Act was fairly at issue in the district court, the regional circuit is required to transfer the case to this court so that we can finally decide whether the district court's jurisdiction was based on the Little Tucker Act.

Pursuant to the Government's construction of section 1295, only this court has the authority to decide whether the district courts actually had jurisdiction under the Little Tucker Act. Because the regional circuits, under that interpretation, would be powerless to make such a determination for themselves, our sister circuits would be relegated to slavishly transferring to the Federal Circuit every appeal brought before them wherein either the litigants before the regional circuit argue, or the regional circuit itself perceives, the possibility that the district court's jurisdiction...