Smith v. Secretary of Army, 03-1623.

• Decision Date: 17 September 2004
• Docket Number: No. 03-1623.,03-1623.
• Citation: 384 F.3d 1288
• Parties: Robert G. SMITH, Plaintiff-Appellant, v. SECRETARY OF THE ARMY, and Army Board for Correction of Military Records, Defendants-Appellees.
• Court: U.S. Court of Appeals — Federal Circuit

384 F.3d 1288

Robert G. SMITH, Plaintiff-Appellant, v. SECRETARY OF THE ARMY, and Army Board for Correction of Military Records, Defendants-Appellees.

No. 03-1623.

United States Court of Appeals, Federal Circuit.

DECIDED: September 17, 2004.

Appeal from the United States District Court for the Western District of Wisconsin, John C. Shabaz, J Victoria J. Franklin-Sisson, Emond, Vines, Gorham & Waldrep, P.C., of Birmingham, AL, argued for plaintiff-appellant. On the brief was Victor Kelley.

Robert E. Kirschman, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendants-appellees. With him on the brief were Peter D. Keisler, Assistant Attorney General and David M. Cohen, Director. Of counsel on the brief were Lieutenant Colonel Vanessa Crockford and Major Gary P. Corn, Attorneys, United States Army, Army Litigation Division, of Arlington, VA.

Before LOURIE, RADER, and BRYSON, Circuit Judges.

BRYSON, Circuit Judge.

Robert G. Smith, a former officer in the United States Army, filed this action in the United States District Court for the Western District of Wisconsin, challenging the Army's decision not to promote him to the rank of colonel. The district court ruled that it lacked jurisdiction over Dr. Smith's claim under the Administrative Procedure Act and that Dr. Smith could have brought his action in the United States Court of Federal Claims under the Tucker Act. Accordingly, the district court transferred the case to the Court of Federal Claims pursuant to the federal transfer statute. Because we conclude that it is unclear from the record whether this action could have been brought in the Court of Federal Claims under the Tucker Act, we remand this case to the district court for further factual development.

I

Dr. Smith is an ophthalmologist who served for more than 20 years in the United States Army. In 1972, he accepted a commission in the Army's Medical Corps and began attending graduate school, where he studied anatomy. He earned a masters degree in anatomy in 1976. In 1974, two years after beginning his graduate program in anatomy, he entered medical school. Following graduation from medical school in 1978, he was awarded the rank of captain in the Army Reserve based on the four years of constructive credit he received for medical school. He continued to be a member of the Army Reserve until 1982 when he became an officer in the regular Army.

Dr. Smith was promoted to the rank of major in 1983 and to the rank of lieutenant colonel in 1990. Beginning in 1995 he was considered for promotion to colonel. The colonel selection board declined to promote him at that time, and he failed selection before each succeeding board until his retirement in 1999.

In 1992, Dr. Smith concluded that the Army had failed to award him constructive service credit for his post-graduate studies. As a result, he petitioned the Total Army Personnel Command to grant him additional constructive credit. Subsequently, in 1993, Dr. Smith's record was amended to adjust the date of his promotion to captain from 1978 to 1976. A constructive 1982 board then considered whether to constructively promote him to major as of 1982, but the board declined to do so. As a result, Dr. Smith's date of promotion to lieutenant colonel was also not adjusted. Dr. Smith sought review of that decision through the Army Board for the Correction of Military Records ("ABCMR"). The ABCMR denied his request for relief. In addition, the ABCMR determined that he had improperly been granted constructive credit for his post-graduate studies and revised his captain date of rank to the original date in 1978.

Dr. Smith retired from the Army in 1999. In April 2003, he filed an action in the United States District Court for the Western District of Wisconsin, in which he named the ABCMR and the Secretary of the Army as defendants. In his complaint, Dr. Smith alleged that the Army and the ABCMR had acted arbitrarily and capriciously in refusing to correct his military records. If he had been given timely and proper credit for his masters degree studies he claimed, he would have been promoted to major and lieutenant colonel in 1980 and 1987, respectively. In that event, Dr. Smith alleged, he would have been considered for promotion to colonel in 1992, three years before his first actual consideration. He argued that the delay prejudiced his chances for promotion to colonel because in 1992 the selection rate for colonel was much higher than it was in 1995.

As a remedy, Dr. Smith asked the court to order that he be promoted to the rank of colonel, that the date of rank for his promotions to major and lieutenant colonel be corrected, that he be granted back pay and allowances as appropriate, and that he be transferred to the retired list at the rank of colonel. In the alternative, he asked the court to order that he be retroactively considered for promotion to colonel by a remedial selection board, that upon selection he be given back pay and allowances as appropriate, and that his transfer to the retired list be at the rank of colonel.

The government moved to dismiss the complaint for lack of subject matter jurisdiction on the ground that, in light of Dr. Smith's request for monetary damages, the Court of Federal Claims had exclusive jurisdiction over the case. The government also contended that the Administrative Procedure Act ("APA") did not waive sovereign immunity because Dr. Smith was seeking back pay, for which the Court of Federal Claims could provide an adequate remedy.

The district court agreed with the government that it lacked jurisdiction over the case, but instead of dismissing, the court transferred the case to the Court of Federal Claims pursuant to 28 U.S.C. § 1631. Smith v. Sec'y of the Army, No. 03-C-200-S (W.D.Wis. Aug. 7, 2003). The court ruled that "monetary relief is [Dr. Smith's] sole object," because in his retired status, "the only benefit a retroactive promotion offers him is an opportunity to claim back pay." Because the district court concluded that the amount of back pay at issue was approximately $140,000, the court held that the case could be brought only in the Court of Federal Claims under the Tucker Act, 28 U.S.C. § 1491, and not in the district court under the APA, 5 U.S.C. § 702.

II

A

The federal transfer statute, 28 U.S.C. § 1631, permits a court to transfer an action to another court if the transferor court lacks jurisdiction to hear the case and the transferee court would have jurisdiction over the action. Dr. Smith contends that neither requirement of the transfer statute is met in this case. He argues that the relief he was seeking was primarily equitable in nature, and that for that reason the district court had jurisdiction over his action and the Court of Federal Claims did not. We have jurisdiction to review a district court's decision to transfer a case to the Court of Federal Claims pursuant to 28 U.S.C. § 1292(d)(4)(A).

Section 10(a) of the APA, 5 U.S.C. § 702, provides that a person "suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute" is entitled to judicial review of such a claim. The statute also waives sovereign immunity for an action "seeking relief other than money damages." In the absence of special statutory review proceedings, see 5 U.S.C. § 703, the general federal question statute, 28 U.S.C. § 1331, gives district courts jurisdiction to conduct the judicial review described in section 10(a) of the APA. See Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). The APA's waiver of sovereign immunity is limited, however, by section 10(c) of the APA, 5 U.S.C. § 704, which provides that judicial review is available only in the case of "[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court." See Mitchell v. United States, 930 F.2d 893, 895 (Fed.Cir.1991).

The Tucker Act, 28 U.S.C. § 1491, grants the Court of Federal Claims jurisdiction to render judgment against the United States for damages on various types of claims, including any non-tort claim founded on the Constitution, a statute, or an executive department regulation. Id. § 1491(a)(1). That portion of the Tucker Act has been construed to require that the source of substantive law on which the plaintiff relies be money-mandating, i.e., it must "fairly be interpreted as mandating compensation by the Federal Government for the damage sustained." United States v. White Mountain Apache Tribe, 537 U.S. 465, 472, 123 S.Ct. 1126, 155 L.Ed.2d 40 (2003), quoting United States v. Testan, 424 U.S. 392, 400, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). The Tucker Act further states that in order to provide "an entire remedy and to complete the relief afforded by the judgment, the court may, as incident of and collateral to any such judgment, issue orders directing restoration to office or position, placement in appropriate duty or retirement status, and correction of applicable records." 28 U.S.C. § 1491(a)(2). The Act gives the district courts and the Court of Federal Claims concurrent jurisdiction over any action falling within its terms in which the claim does not exceed $10,000 in amount; claims in excess of $10,000 may be brought only in the Court of Federal Claims. 28 U.S.C. § 1346(a)(2).

B

Dr. Smith contends that the APA entitles him to judicial review in the district court because his action arises under the laws of the United States; because he is seeking "relief other than money damages," namely, a promotion or consideration for a promotion; and because no other court can provide an adequate remedy for the claims set forth in his complaint. The government responds that the APA does not entitle Dr. Smith to judicial review in the district court because his complaint seeks money damages and...