Augustin S. JAMES, Plaintiff-Appellant, v. Louis CALDERA, Secretary of the Army and Philip J. Schrock, Defendants-Appellees.
No. 97-1436
United States Court of Appeals, Federal Circuit
Oct. 27, 1998.
159 F.3d 573
I do not slight the problem that the IRS has in obtaining accurate data on tip income of employees in the restaurant industry. See Tip Income Study: A Study of Tipping Practices in the Food Industry for 1984, I.R.S. Pub. No. 1530 (1990). The IRS has put in place new programs, in cooperation with the restaurant industry, to increase the accuracy of employee reporting of tip income. See Jody L. Spencer, Bubble Room, Inc. v. United States: The Court of Federal Claims Says No To Aggregate Income Estimates for Employer-Only FICA Taxes, 31 Ga. L.Rev. 1259, 1285 (1997).
Perhaps in the Treasury‘s view for fiscal reasons and in order to maintain the overall health of the Social Security system it is necessary for the Government to increase overall assets attributed to the Social Security system. Whether that should be done by imposing a generic additional liability on employers in the manner here done, or by a more broadly based tax is a matter of basic fiscal policy, to be decided by Congressional enactment. In the absence of such Congressional enactment, however, it is not for this court to grant such authority in contravention of existing law. The Court of Federal Claims correctly determined that the Government‘s assessment of additional FICA taxes from Bubble Room, in the manner undertaken here, was not authorized by law. The summary judgment in plaintiff‘s favor should be affirmed.
Mark W. Pennak, Attorney, Appellate Staff, Civil Division, U.S. Department of Justice, Washington, DC, argued for defendants-appellees. With him on the brief were Frank W. Hunger, Assistant Attorney General, U.S. Department of Justice, Washington, DC; Michael Joseph Yamaguchi, United States Attorney for the Northern District of California, San Francisco, California and Barbara C. Biddle, Attorney, Appellate Staff, Civil Division, U.S. Department of Justice, Washington, DC.
Before MAYER, Chief Judge, MICHEL, and SCHALL, Circuit Judges.
Opinion for the court filed by Circuit Judge SCHALL. Dissenting opinion filed by Circuit Judge MICHEL.
SCHALL, Circuit Judge.
Augustin S. James appeals the order of the United States District Court for the Northern District of California that transferred his case to the United States Court of Federal Claims pursuant to
James, a former non-commissioned officer in the United States Army, filed suit in the district court seeking mandamus relief under the Administrative Procedure Act (APA),
The district court granted the government‘s motion to transfer the case to the Court of Federal Claims because it concluded that it lacked jurisdiction. Noting that the APA waives sovereign immunity only with respect to claims other than for money damages and that it excludes a waiver of sovereign immunity when adequate relief is available in another court, the court held that transfer was necessary because James asserted claims for money damages which could be heard in the Court of Federal Claims. We hold, however, that the claims asserted by James with respect to the bar to reenlistment are not for money damages and that the Court of Federal Claims lacks jurisdiction to adjudicate them. As far as the extension of enlistment claim is concerned, in view of the allegations in the complaint, the record before us, and the way in which the appeal has been argued, we are not in a position to decide whether the district court had jurisdiction to adjudicate the claim. Accordingly, we reverse the transfer order in-part, vacate it in-part, and remand the case to the district court for further proceedings.
BACKGROUND
I.
Insofar as they relate to the issues before us, the facts are not in dispute. At the time of the events giving rise to this litigation, James had served in the Army as an enlisted man for almost twenty years and held the rank of Sergeant First Class. He was stationed at Schofield Barracks in Hawaii.
In April of 1989, administrative discharge proceedings were commenced against James. Accordingly, a Board of Officers hearing was convened pursuant to Army Regulation (AR) 15-6 and AR 635-200 to determine whether James should be discharged for having committed an offense in violation of Army drug abuse regulations.1 In due course, the Board determined that James was innocent of knowingly ingesting cocaine and recommended that he be retained in the Army.
On April 18, 1989, James’ company commander initiated bar to reenlistment proceedings against James under AR 601-280.2 The basis for the proceedings was the non-judicial punishment that had been levied against James and his positive drug test. At the same time, James submitted a request to have his current enlistment extended by five months so that, for retirement purposes, he could leave the Army with twenty years of service. See
On August 1, 1989, James was informed that the bar to his reenlistment had been approved and that he would not be permitted to extend his enlistment for an additional five months. Two days later, on August 3, the end of his current term of enlistment, James was honorably discharged from the Army.
On February 13, 1992, James applied to the Army Board for Correction of Military Records (ABCMR) for correction of his service record. Specifically, he asked that the bar to reenlistment be removed from his record and that he be allowed to serve in the Army for an additional five months so that he could attain twenty years of service for retirement purposes. On November 24, 1993, the ABCMR denied the request.
II.
On May 13, 1996, James filed suit in the district court, naming as defendants his former base commander, Col. Philip J. Schrock, and Togo D. West, Jr., then-Secretary of the Army. In the first paragraph of his complaint, James summarized his action as follows:
This is a complaint for Mandamus relief and for relief under the Administrative Procedure[] Act (
5 U.S.C. § 701 et. seq. ) seeking an order compelling the Army to correct plaintiff‘s military records and restore plaintiff‘s reputation by deleting from those records a Bar to Reenlistment improperly imposed 5 months before plaintiff would have attained 20 years in service and retirement eligibility. Plaintiff further asks that his military record be corrected to reflect that he had 20 years of activeduty service and that he be granted retirement pay and benefits accordingly.
In the very next paragraph of the complaint, under the heading “JURISDICTION,” James asserted that his action arose under “the due process clause of the Fifth Amendment to the U.S. Constitution, the laws of the United States, including the Administrative Procedure[] Act (
In the body of his complaint, James asserted that the actions of the Army in discharging him, in refusing to permit him to extend his enlistment for five months, and in imposing the bar to reenlistment deprived him of the right to due process guaranteed by the Fifth Amendment to the Constitution. He also asserted that the denial of his request to extend his enlistment and the imposition of the bar to reenlistment constituted punishment and violated the Fifth Amendment‘s Double Jeopardy Clause, because the Army previously had unsuccessfully sought to achieve the same results through the administrative discharge proceedings.
Specifically, in paragraph 19 of his complaint, James stated that, under Army Regulations, authority to give final approval to his request to extend his enlistment rested with Lt. Ledouceur, his immediate commander. Accordingly, he asserted in paragraph 23 of the complaint:
Plaintiff‘s request for extension of enlistment was already approved and in effect as of April 24, 1989. The Bar to Reenlistment imposed upon plaintiff was not finally approved until July 20, 1989. The Bar to Reenlistment should therefore not have operated to prevent plaintiff from serving out the 5 months remaining to obtain retirement eligibility.
James further asserted, in paragraph 25 of his complaint, that Army Regulations then in effect provided no standards governing when an extension of enlistment for purposes of attaining retirement should be granted or denied in the context of a bar to reenlistment. “By granting Army officials total discretion to determine whether or not to allow extensions of enlistment in these circumstances, the regulations violate U.S. Constitutional Due Process requirements,” James alleged.
As far as the bar to reenlistment itself was concerned, James alleged that, at the time of his discharge, he asked about his right to appeal but was told that he had no such right. James asserted that the denial of his right to appeal “violated AR 601-280 6-5e, which provides that soldiers desiring to submit an appeal to a Bar to Reenlistment will not be involuntarily separated while an appeal is pending, and that from the time he is informed that the Bar has been approved, the soldier shall be allowed seven days in which to submit an appeal.”
James concluded his complaint with the following prayer for relief:
WHEREFORE, plaintiff prays that the Court make the following orders and judgments:
a. Issue an order directing the defendants to correct plaintiff‘s Army personnel record as follows:
(1) to reflect 20 years active duty service and eligibility for retirement retroactive to the date that plaintiff would have attained 20 years service had his request for extension of enlistment been properly granted;
(2) to remove the Bar to Reenlistment and the statements thereupon suggesting that plaintiff engaged in illegal drug use.
b. Award plaintiff reasonable attorney‘s fees and the costs of this action, and;
c. Grant such other and further relief as the Court deems just and proper.
In due course, the government moved to dismiss the complaint on the ground that the district court lacked jurisdiction because the United States had not waived sovereign immunity with respect to the various claims asserted by James. In its motion, the government contended that court lacked jurisdiction under the APA for two separate reasons. First, the government argued that James’ suit was one for damages rather than
As noted above, on January 15, 1997, the district court held that it lacked jurisdiction over the claims asserted by James and ordered the case transferred to the Court of Federal Claims. See James, 1997 WL 26303, *4. In so doing, the court rejected James’ arguments concerning the nature of his action. “First,” the court stated, “plaintiff‘s claim may properly be viewed as one for damages as well as injunctive relief.” Id., 1997 WL 26303, *2. The district court reasoned that, if James were granted the relief he was requesting (correction of his records to show twenty years of active duty), the Army would owe him five months active duty pay (because his attaining twenty years of active duty would depend upon his final enlistment being extended for five months) and approximately six years of pension payments. See id. Next, the district court rejected James’ argument that the Court of Federal Claims lacked jurisdiction because only injunctive relief was being sought. The court stated that “[t]he flaw in this logic” was that James could easily have overcome the jurisdictional hurdle in the Court of Federal Claims “by adding a claim for the back pay and retirement benefits that would necessarily follow from a grant of injunctive relief.” Id., 1997 WL 26303, *3. The court observed that “[s]uits seeking correction of military records and back pay and retirement benefits are a normal part of the [Court of Federal Claims‘] jurisdiction.” Id. Finally, the district court turned aside James’ argument that, even if the complaint did assert claims not within the scope of the APA, he still was entitled to mandamus relief under
On March 24, 1997, the district court denied James’ motion pursuant to Fed.R.Civ.P. 59(e) to amend his complaint to cure the jurisdictional defect. James timely appealed the transfer order on May 22, 1997. We have jurisdiction pursuant to
DISCUSSION
I.
The federal transfer statute,
II.
The district court ordered James’ suit transferred because it concluded that it did not have jurisdiction to hear the case under the APA, the statute which James invoked when he filed his action. 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.”
A.
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). In Bowen, the Commonwealth of Massachusetts challenged a final order of the Secretary of Health and Human Services refusing to reimburse Massachusetts through the Medicaid program for services related to intermediate care facilities for the mentally retarded. Massachusetts filed a complaint in district court alleging jurisdiction pursuant to
In Katz v. Cisneros, 16 F.3d 1204 (Fed.Cir.1994), this court was faced with a jurisdictional issue similar to that presented in Bowen. In Katz, a housing developer sought payments from the Department of Housing and Urban Development under the Housing Act of 1937. The court analyzed the case under Bowen and held that the developer‘s suit had been properly brought in district court, rather than in the Court of Federal Claims. The court did so because it concluded that the plaintiff was seeking “payments to which it alleges it is entitled pursuant to federal statute[s] and regulations; it does not seek money as compensation for a loss suffered.” Id. at 1208. With this background before us, we turn to the contentions of the parties in this case.
In his complaint, James states that his action is for mandamus relief under the APA, and he asserts that jurisdiction lies in the district court under six separate statutes,
James is seeking to have his records corrected to reflect twenty years active duty service and, therefore, eligibility for retirement, and to have the bar to reenlistment removed. He contends that he is entitled to the record correction relating to retirement because he should have been allowed to ex-
As far as the matter of the bar to reenlistment is concerned, James clearly is not seeking money damages. Rather, he is asserting entitlement to two specific things: removal of the bar and the right to appeal the imposition of the bar. Thus, these claims come within the scope of the waiver of sovereign immunity in
James’ challenge to the Army‘s denial of his request to extend his enlistment presents a more difficult question. In part B below, we discuss this issue at length in addressing whether the Court of Federal Claims would have jurisdiction over James’ action. As we explain in part B, viewed one way, James’ claim relating to the extension of his enlistment presents a claim for money damages which would place the claim outside of
B.
We turn now to the question of whether James’ complaint runs afoul of the requirement in
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.
The Tucker Act, however, “is itself only a jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages.” United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). Thus, “in order to invoke jurisdiction under the Tucker Act, a plaintiff must point to a substantive right to money damages against the United States.” Hamlet v. United States, 63 F.3d 1097, 1101 (Fed.Cir.1995). What this means is that a Tucker Act 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. See Holley v. United States, 124 F.3d 1462, 1465 (Fed.Cir.1997); Adkins v. United States, 68 F.3d 1317, 1321 (Fed.Cir.1995).
We address first James’ allegations concerning the bar to reenlistment and the alleged denial of his right to appeal the bar. Plainly, these are not money claims. Rather, they are claims for equitable relief. It is true that limited equitable relief sometimes is available in Tucker Act suits. However, that equitable relief must be “an incident of and collateral to” a money judgment.
As noted above, James broadly bases his causes of action on alleged violations of the Due Process Clause and the Double Jeopardy Clause of the Fifth Amendment. However, it is well established that the Court of Federal Claims lacks jurisdiction over such claims because neither of the two clauses is a money-mandating provision. See LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed.Cir.1995) (due process); Deggins v. United States, 39 Fed. Cl. 617, 621 (1997) (double jeopardy), appeal dismissed, No. 98-5057, 1998 WL 216992, 152 F.3d 949 (Fed. Cir. Apr.24, 1998).
We next consider whether any statutory provision would enable James to establish jurisdiction in the Court of Federal Claims. As far as military personnel are concerned,
James was discharged on August 3, 1989, upon the completion of his then-current term of enlistment. He does not claim that the Army failed to pay him through the end of the term. Rather, his contention is that he should have been allowed to extend the term of his enlistment for five months, which would have given him twenty years of active service, thereby making him eligible for retirement benefits.
Once James’ term of enlistment ended, he no longer was entitled to pay under
We also must consider, however, whether James could have relied upon his claim that the Army wrongfully denied his request to extend his enlistment to support Tucker Act jurisdiction. Such an extension would have given him the twenty years of active duty service he needed in order to be eligible for retirement. Extensions of enlistments are governed by
The Army‘s regulations governing extensions of enlistments are found at AR 601-280, § 3 (1990). As noted above, in his complaint, James makes two claims concerning the regulations. On the one hand, in paragraph 23 he asserts that Lt. Ledouceur had authority to give final approval to his request to extend his enlistment. Thus, he contends that the extension of his enlistment was “in effect as of April 24, 1989.” On the other hand, apparently recognizing the complicating factor of the bar to reenlistment, James states in paragraph 25 that the regulations governing extensions of enlistments violate Constitutional requirements of due process because they “grant ... Army officials total discretion to determine whether or not to allow extensions of enlistment in these circumstances.”
To the extent that James argues, see paragraph 23 of the complaint, that Lt. Ledouceur‘s action extended his enlistment, he has asserted a claim within the jurisdiction of the Court of Federal Claims. The reason is that the extension would have continued him in active duty status for five months. Accordingly, he would have been entitled to the basic pay of his grade pursuant to
We face two problems, however, in addressing the matter of the extension of the enlistment. The first is that the complaint that was filed in the district court presents alternative contentions. As just seen, one of these contentions points in the direction of Tucker Act jurisdiction; the other contention points away from it. The second is that, on appeal, neither James nor the government has briefed or argued the issue of exactly what the Army‘s extension-of-enlistment regulations require. Put another way, the parties have offered us no insight as to whether, insofar as they relate to this case, the regulations are of the “firm right” kind, so as to confer Tucker Act jurisdiction, or whether they are discretionary, so as to defeat such jurisdiction. Thus, as far as the issue of the extension of James’ enlistment is concerned, we cannot say whether, under
In sum, the Court of Federal Claims would not have jurisdiction to adjudicate two of the claims in James’ complaint, the challenge to the bar to reenlistment and the contention that the Army denied James his right to
The dissent takes the position that this case is indistinguishable from Mitchell v. United States, 930 F.2d 893 (Fed.Cir.1991), and that therefore our decision today conflicts with Mitchell. We disagree.
The question before us in Mitchell was whether jurisdiction over the claims at issue was proper in district court under the APA or in what was then the United States Claims Court under the Tucker Act. After conducting a Bowen-type analysis, we determined that
CONCLUSION
For the foregoing reasons, the order transferring this case to the Court of Federal Claims is reversed-in-part and vacated-in-part. The case is remanded to the district court so that, consistent with this opinion, the court may address the merits of the two claims relating to the bar to reenlistment and may determine whether it has jurisdiction
COSTS
Each party shall bear its own costs.
REVERSED-IN-PART, VACATED-IN-PART, and REMANDED.
MICHEL, Circuit Judge, dissenting.
I write in dissent for two reasons. First, I believe that the majority‘s analysis is in direct conflict with the precedent of this court and the Supreme Court. Second, I view the majority‘s holding as frustrating the legislative purpose of the Tucker Act as amended and likely to create unnecessary confusion, unpredictability, expense, and delay in the litigation of claims for military pay and benefits.
Section 702 of the APA permits district court review of agency actions provided that the suit is “seeking relief other than money damages.” Even then, however, section 704 prohibits APA review if there is an “adequate remedy” in another court. The majority concludes that relief may be sought in federal district court pursuant to section 702 of the APA with regard to James‘s challenge to the imposition of the bar to reenlistment and his request that the bar be removed, but is uncertain as to whether there may be APA relief for James‘s claim to extend his last reenlistment. Thus, for those claims that the majority regards as subject to district court jurisdiction, it does not consider that the Court of Federal Claims offers an “adequate remedy” under the Tucker Act.
The majority sets forth its analysis in light of the “background” of Bowen v. Massachusetts, 487 U.S. 879, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988). Bowen, however, creates only a limited exception to Tucker Act jurisdiction. This case falls within the general rule.
In Bowen the Supreme Court held that a state‘s suit seeking reimbursement for certain medical and rehabilitative expenses pursuant to the federal Medicaid scheme was a suit over which only a federal district court, not the United States Claims Court, the predecessor court to the United States Court of Federal Claims, had jurisdiction. As the majority notes, the Supreme Court quoted approvingly the D.C. Circuit‘s interpretation of the term “money damages” as used in the APA,
The term “money damages,” we think, normally refers to a sum of money used as compensatory relief. Damages are given to the plaintiff to substitute for a suffered loss, whereas specific remedies are not substitute remedies at all, but attempt to give the plaintiff the very thing to which he was entitled. Thus, while in many instances an award of money is an award of damages, [o]ccasionally a money award is also a specie remedy. Courts frequently describe equitable actions for monetary relief under a contract in exactly those terms.
Bowen, 487 U.S. at 895, 108 S.Ct. 2722, quoting Maryland Dep‘t of Human Resources v. Department of Health & Human Servs., 763 F.2d 1441, 1446 (D.C.Cir.1985) (citations and internal quotation marks omitted). In this context, the Supreme Court concluded that “[t]he fact that a judicial remedy may require one party to pay money to another is not a sufficient reason to characterize the relief as ‘money damages.‘” Id. at 893, 108 S.Ct. 2722. However, this conclusion should not be read to suggest that claims for money may be heard under the APA, other than in the most unusual circumstances. Indeed, the Court took particular note of the “complex questions of federal-state interaction” raised in Medicaid disallowance decisions. Id. at 908, 108 S.Ct. 2722. Thus, as the Court explained:
There are, of course, many statutory actions over which the Claims Court has jurisdiction that enforce a statutory mandate for the payment of money rather than obtain compensation for the Government‘s failure to so pay. The jurisdiction of the Claims Court, however, is not expressly limited to actions for money damages, whereas that term does define the limits of the exception to § 702. Moreover, such statutes, unlike a complex scheme such as
the Medicaid Act that governs a set of intricate, ongoing relationships between the States and the Federal Government, are all statutes that provide compensation for specific instances of past injuries or labors; suits brought under these statutes do not require the type of injunctive and declaratory powers that the district courts can bring to bear in suits under the Medicaid Act. Thus, to the extent that suits to enforce these statutes can be considered suits for specific relief, suits under the Tucker Act in the Claims Court offer precisely the sort of “special and adequate review procedures” that § 704 requires to direct litigation away from the district courts.
Id. at 900 n. 31, 108 S.Ct. 2722 (citations omitted and emphasis added).
Under this Bowen analysis, it seems plain that James‘s suit is precisely the type of suit that should be heard in the Court of Federal Claims rather than federal district court. “Complex questions of federal-state interaction” have not been raised. Id. at 908, 108 S.Ct. 2722. This is not the type of dispute “that a district court would be in a better position to understand and evaluate than a single tribunal headquartered in Washington.” Id. The dispute does not “involve the construction of state law.” Id. Moreover, there is no “complex ongoing relationship between the parties” to monitor and referee. Id. at 905, 108 S.Ct. 2722. There is no need for “prospective relief.” Id. Nor is it necessary to “oust a district court of its normal jurisdiction under the APA.” Id. at 904, 108 S.Ct. 2722. In short, James is seeking money damages from the federal government, the touchstone of Tucker Act jurisdiction. The Court of Federal Claims offers James a wholly adequate remedy. See
The majority is troubled by the form of James‘s complaint and has subdivided it into several claims, some of which, after a careful parsing, it considers should be heard in district court pursuant to the APA and others perhaps in the Court of Federal Claims but only after additional jurisdictional fact-finding. I do not read James‘s complaint in so formalistic a manner, but instead read it as simply requesting retirement pay and benefits, the payment of which necessitates a correction of military records. This reading is based upon clear precedent that “[s]ubstance, not form, is controlling.... It is well-settled that a plaintiff ... should not be allowed to avoid the jurisdictional (and hence remedial) restrictions of the Tucker Act by casting its pleadings in terms that would enable a district court to exercise jurisdiction under a separate statute.” Williams v. Secretary of the Navy, 787 F.2d 552, 557 (Fed.Cir.1986) (internal quotation marks omitted). See also Brazos Elec. Power Coop. v. United States, 144 F.3d 784, 787 (Fed.Cir.1998) (“Court of Federal Claims jurisdiction cannot be circumvented by such artful pleading and, accordingly, we customarily look to the substance of the pleadings rather than their form.“); National Ctr. for Mfg. Sciences v. United States, 114 F.3d 196, 199 (Fed.Cir.1997) (“Notwithstanding the imprecision of the complaint, we therefore look to the true nature of the action in determining the existence or not of jurisdiction.” (internal quotation marks omitted)); Katz v. Cisneros, 16 F.3d 1204, 1207 (Fed.Cir.1994) (“Regardless of the characterization of the case ascribed by Hollywood Associates in its complaint, we look to the true nature of the action in determining the existence or not of jurisdiction.“); Maier v. Orr, 754 F.2d 973, 982 (Fed.Cir.1985) (“We look to the true nature of the action in the district court in determining jurisdiction of an appeal. A civil action for recovery of money from the United States cannot be disguised by couching it in mandamus terms.” (citation omitted)).1
A fair reading of James‘s complaint indicates that he is, at bottom, seeking only retirement pay and benefits. The preamble to the complaint requests that James‘s “military record be corrected to reflect that he had 20 years of active duty service and that he be granted retirement pay and benefits accordingly.” (emphasis added). James‘s non-eligibility for retirement benefits is then mentioned in nine of the forty-seven paragraphs of the complaint (thirty-six of these forty-seven paragraphs simply allege the “facts“). Following this, two of James‘s four claims mention James‘s non-eligibility for retirement benefits. Finally, James‘s prayer for relief requests that his records be amended “to reflect 20 years active duty service and eligibility for retirement retroactive to the date that plaintiff would have attained 20 years service had his request for extension of enlistment been properly granted” (emphasis added). Consequently, I cannot agree with the majority‘s conclusion that “on its face, James’ complaint does not suggest a claim for money damages.” Rather, I read this complaint as signaling that the nature of this action is a request for retirement pay and benefits.
It is true that James has also requested certain types of injunctive relief—he has asked that his records be corrected to reflect twenty years active duty service and that the Bar to Reenlistment be removed. However, this injunctive relief is simply the formality that must be completed before the money payment can be made. Such injunctive relief is entirely within Congress‘s contemplation that, under the Tucker Act, the Court of Federal Claims “may, as an 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, and such orders may be issued to any appropriate official of the United States.”
The majority holds that James‘s challenge to the bar to reenlistment and his demand that the bar be removed should be heard in federal district court under the APA. I am not persuaded by the reasoning behind this conclusion. As an initial matter, as explained above, I believe that this is the type of incidental or collateral relief that Congress intended would be granted pursuant to
Furthermore, viewing the dispute over the bar to reenlistment as a dispute involving injunctive relief ignores the reality of the situation. Despite the statements to the contrary in his brief, it is surely inconceivable that, almost ten years after his discharge, James truly wants to reenlist and once again become a First Sergeant in the Army. Indeed, even if James were permitted to reenlist, he would have to go on full-time active duty for an obligatory five years. While James in his brief offers to “serve out the five months remaining to obtain retirement eligibility,” Appellant‘s Reply Br. at 3 n.1, he, not surprisingly, makes no offer to serve for five years. Thus, James‘s request that the bar to reenlistment be removed is not in his complaint because he wants to reenlist in the Army, rather, James simply wants five months of credit to qualify for his retirement benefits. Treating his references to the bar to reenlistment as constituting a separate, equitable action ignores the context of the complaint and the realities of the situation.
The majority‘s decision to permit James to attempt to seek relief in federal district court under the APA also ignores the Court of Federal Claims‘s “extensive experience reviewing decisions of corrections boards in military pay cases.” Mitchell v. United States, 930 F.2d 893, 896 (Fed.Cir.1991). As we have noted:
the experience of the [Court of Federal Claims and its predecessor courts] in military pay cases extends back to the nineteenth century origins of the court. See, e.g., Straughan v. United States, 1 Ct.Cl. 324 (1865); Conrad v. United States, 32 Ct.Cl. 139 (1897); Walsh v. United States, 43 Ct.Cl. 225 (1908).
Id. The decision of the court today gives no credence to this lengthy gathering of institutional expertise, but instead permits suits that are essentially military pay cases to be litigated in any one of ninety-four federal judicial districts before federal district court judges who will likely have little or no experience in the arcane law of military pay entitlement and record correction.
I do not believe that James should be permitted to evade the Tucker Act and its cautious waiver of sovereign immunity by merely couching his prayer for relief in partly equitable terms. Moreover, I believe that our precedents have uniformly rejected similar such attempts. In particular, I find Mitchell to be indistinguishable from this case. Mitchell, a reservist, was discharged from the Air Force pursuant to statutory authority some two years before he was eligible for retirement with twenty years service under
Mitchell‘s complaint requests back pay, reinstatement, and correction of records. By statute, the Claims Court may, in appropriate military back pay cases, “provide an entire remedy,” including “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 Claims Court has, in fact, ordered back pay (Skinner v. United States, 594 F.2d 824, 219 Ct.Cl. 322 (1979); Sanders v. United States, 594 F.2d 804, 219 Ct.Cl. 285 (1979); Burd v. United States, 19 Cl.Ct. 515 (1990); Casey v. United States, 8 Cl.Ct. 234 (1985)), restorationto military office, (Skinner, Sanders, Yee v. United States, 512 F.2d 1383, 206 Ct.Cl. 388 (1975); Murphy v. United States, 16 Cl.Ct. 385 (1989)), placement in correct retirement status, (Gant v. United States, 18 Cl.Ct. 442 (1989); Casey) and correction of military records, (Skinner, Sanders, Yee, Burd, Gant, Murphy, Casey). In sum, the Claims Court has explicit statutory authority, which it has exercised, to provide all relief Mitchell requests.
Mitchell, 930 F.2d at 896. Accordingly, because the Claims Court offered an “adequate remedy,” this court concluded that section 704 of the APA mandated that Mitchell‘s claim be heard in the Claims Court.
I find James‘s claim to be materially indistinguishable from that presented in Mitchell. Both servicemen sought to have their records amended to reflect an extended period of service in order that they would be placed in a different retirement status and receive the attendant retirement pay and benefits. James attempts to distinguish his claim from Mitchell on the grounds that the Mitchell claimant was an officer, whereas he was an enlisted man. Accordingly, because he, as an enlisted man, had no statutory right to reenlist, James contends that he had no right to back pay and that the Court of Federal Claims therefore lacks jurisdiction. I do not find this distinction compelling. James‘s claim here, properly read, is for an extension of his enlistment, not to re-enlist. Such a claim for extension of enlistment arises under
My concern with today‘s decision is not simply that it conflicts with precedent, but also that it adds unnecessary complexity and unpredictability to an area of the law that has been and should continue to be relatively simple and stable.3 This appeal, after all, merely concerns the question of in which courthouse James will have his claim heard. The process of finding the correct courthouse ought to be swift and uncomplicated, especially when the claimants are service members seeking pay and benefits. I find it difficult to accept that Congress intended that the members of our armed forces, simply to receive their due and owing pay and benefits, be required to negotiate such labyrinthine jurisdictional rules. Thus, I disagree with the very approach of the majority. We should not be dissecting complaints so that some parts may end up in a California courthouse and others in Washington, D.C. Not least, when the substance of that complaint has one underlying goal: money. Consequently, I fear that our decision today will not only embolden those who care to forum-shop and evade the Tucker Act‘s prudent waiver of sovereign immunity, but also will cause confusion, uncertainty, delay, expense, and inconsistency of results for litigants and their attorneys, not to mention government attorneys paid with tax revenues.
Finally, the most worrisome effect of today‘s decision is that it creates a new, easily-utilized escape route from Tucker Act jurisdiction in the Court of Federal Claims for military pay and benefits cases. Plaintiffs from today forward can simply phrase their complaints to seek only the equitable relief of military record correction, when their true goal is to obtain the monetary relief of back pay and benefits. By phrasing their complaints in this pseudo-equitable form, plaintiffs will avoid what to them may seem the less palatable aspects of the Tucker Act‘s waiver of sovereign immunity: the relatively short statute of limitations, the nonexistence
As to the APA, I find it inconceivable that the Congress intended that act to negate the historic centralization of military pay cases in an expert court and to be the vehicle for diverting such cases to ninety-four inexpert district courts around the nation. This newly-fashioned and improvident loophole will surely lead to much lawyerly wordplay and judicial handwringing as litigants attempt to formulate James-type complaints to avoid entirely Tucker Act jurisdiction. It may also promote splitting one lawsuit into two: the first in the district court to “correct” records and the second in the Court of Federal Claims for back pay, which the district court cannot order. Because the Court of Federal Claims offers an entirely “adequate remedy” for James and similarly situated litigants the APA does not apply and thus I dissent.