582 F.

2d 870

18 Fair Empl.Prac.Cas. 1005, 17 Empl. Prac.

Dec. P 8623
Lieutenant Alice C. COOK, Appellant,
v.
Rear Admiral Williard P. ARENTZEN, as
Director/Commanding
Officer, James Schlessinger, Secretary of Defense, John W.
Warner, Secretary of the Navy, United States Navy, and
United States of America, Appellees.
No. 76-1359.

United States Court of Appeals,

Fourth Circuit.
Argued on Rehearing Oct. 4, 1977.
Decided Sept. 19, 1978.

C. T. Neale, III, Newport News, Va. (Hudgins & Neale, Newport News,
Va., on brief), for appellant.
Arthur P. Leary, III, Dept. of the Navy, Washington, D. C. (Roger T.
Williams, Asst. U. S. Atty., Norfolk, Va., and John D. Faught, Dept. of
the Navy, Reston, Va., on brief), for appellees.
Before RUSSELL, WIDENER and HALL, Circuit Judges.
WIDENER, Circuit Judge:

This case involves the jurisdiction of the United States District Court in a suit
which is against the United States Navy and the United States Government.

At the time of her separation from the Regular Navy in 1967, the plaintiff, Lt.
Alice Cook, was a lieutenant commander in the Nurse Corps, in which she had
served over 13 years. After discovering in December 1966 that she was
pregnant, she notified her superior officer that her baby was due in late July

1967. The captain instructed her to resign her commission immediately and to
request removal from active duty due to pregnancy. Upon further inquiry, she
was told by the personnel officer that if she did not resign, her commission
would be involuntarily terminated. She accordingly submitted her resignation
on December 29, 1966, and was separated from the Navy on January 30, 1967.
3

Following the birth of her child, Lt. Cook explored the possibility of getting her
commission reinstated. While she was pursuing her administrative remedies,
she was advised there was another way, although not as good. On August 31,
1971, she was appointed a lieutenant in the Naval Reserve (Nurse Corps) and
was called to active duty on September 10th of that year. She apparently yet
serves in that rank.

Lt. Cook exhausted her administrative remedies and then brought this suit,
seeking reinstatement in the Regular Navy at the rank of commander, backpay,
damages, and a declaration that the regulation subjecting her to termination for
pregnancy, and under which she was separated, was unconstitutional.

The district court decided the case for the defendants on the merits, and the
plaintiff appealed. A panel of this court reversed the district court, again on the
merits, but later set a petition for rehearing for oral argument.

On rehearing, issues were raised regarding the jurisdiction of the court. We are
of opinion the district court lacked jurisdiction to consider Lt. Cook's claim.1
We now withdraw our previous opinion, expressing no opinion on the question
there decided, and remand the case to the district court with directions that it be
transferred to the Court of Claims.

In her complaint, Lt. Cook requests compensation for pay she did not receive in
the sum of $84,444.00 and compensation in the sum of $100,000.00 as
damages for deprivation of her civil rights, reinstatement in the Regular Navy
with the rank of Commander, with pay and retirement status that she would
have achieved had she been allowed to advance, reestablishment of her
precedence in line with her contemporaries, and a declaratory judgment that the
regulation involved is unconstitutional.

Although not until the petition for rehearing were the issues regarding
jurisdiction brought to our attention, the jurisdiction of the district court was
challenged there. The court held it had jurisdiction. We should consider the
question. See F.R.C.P. 12(h)(3).

In her complaint, Lt. Cook relies upon 28 U.S.C. 1331 (the general federal
question statute); 28 U.S.C. 1346(a)(2) (the Tucker Act); 28 U.S.C. 1361
(the mandamus statute); and 5 U.S.C. 702, 703, and 704 (the Administrative
Procedure Act) as bases for jurisdiction. She also asked for a declaratory
judgment. The district court expressly found it had jurisdiction under 28 U.S.C.
1361 (mandamus); 28 U.S.C. 2201 (the declaratory judgment act); and 5
U.S.C. 701, et seq. (the Administrative Procedure Act). It expressed no
opinion on whether it had jurisdiction under 1331 or the Tucker Act,
1346(a)(2), but recited more than $10,000.00 was involved.

I.
10

Insofar as plaintiff's claim for monetary recovery is based upon 28 U.S.C.

1346(a)(2) (the Tucker Act), it is clear that the district court had no jurisdiction
because the amount of the claim exceeded $10,000.00 and the Court of Claims
had exclusive jurisdiction. Section 1346 provides, in pertinent part:

11 The district courts shall have original jurisdiction, concurrent with the Court of
"(a)
Claims, of:
12 Any other civil action or claim against the United States, Not exceeding
"(2)
$10,000 in amount, 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. . . ." (Emphasis added).
13

A most recent case holding that the jurisdiction of United States District Courts
is limited to $10,000.00 in cases brought under the Tucker Act is Polos v.
United States, 556 F.2d 903 (8th Cir. 1977). In that case, a former technician
employed by the National Guard, who was denied reinstatement after his
discharge from the National Guard after active service, sued for reinstatement
and back pay. The district court had founded jurisdiction upon the
Administrative Procedure Act. That basis was rejected by the court upon the
authority of Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192
(1977). Although the claimant in Polos formally insisted that he was entitled to
reinstatement, he conceded, for reasons not here pertinent, that he could not
retain his position if reappointed. Thus, his claim was regarded as substantially
one for back pay. In holding that jurisdiction was lacking, the court stated:

14
"Polos'
claim, then, is essentially one against the United States for the payment of
damages. Such a claim, when in excess of $10,000, is within the exclusive
jurisdiction of the Court of Claims . . .

15 District Court was therefore without jurisdiction to enter the judgment

"The
complained of." 556 F.2d at 905.
16

The authority most relied upon in Polos v. United States is Carter v. Seamans,
as Secretary of the Air Force, 411 F.2d 767 (5th Cir. 1969). That claimant was
an officer who had been dismissed from the Air Force. He filed suit in the
district court "for a declaratory judgment that the discharge is a nullity and to
order the Secretary of the Air Force to reinstate him and to award him all of the
back pay, incentive pay, allowances, and other benefits accruing from the date
of discharge." 411 F.2d at 768. He also requested certain corrections in his
military records. Prior to his then current action, Carter had instituted an action
in the Court of Claims seeking the same relief.2 The court reasoned 3 that, since
plaintiff's theory was that his discharge was invalid, his suit was in essence one
for money, i. e., the pay he would have received had he not been discharged.
Viewed as a claim for money, the court held that it had no jurisdiction under
the Tucker Act. The court's theory and conclusion is seen from the following
quotation from its opinion:

17
"Under
the circumstances the court must conclude that the claim for back pay and
allowances constitutes the keystone of this entire law suit. That the complaint is cast
in terms of a declaratory judgment action cannot alter the fact that what in substance
is sought is a money judgment against the United States for back pay in excess of
$10,000.
18
Simply
stated the issue now becomes whether this court has jurisdiction of such a
cause of action.
19 as the defendant contends, jurisdiction of the case sub judice is available only
If,
under the aegis of Section 1346, Title 28 U.S.C., there can be no doubt that this court
is without power to resolve the controversy. . . . The present status of the law is that
the district courts have concurrent jurisdiction with the Court of Claims over such
cases, Provided that the amount of the claim does not exceed $10,000. Since both
parties admit that the claim in the instant case does exceed $10,000, it would seem
that the Court of Claims is the only forum having jurisdiction unless there is some
jurisdictional fount other than Section 1346." 411 F.2d at 771-72.
20

For further cases to the effect, or holding, that the district courts do not have
jurisdiction over cases under the Tucker Act (28 U.S.C. 1346(a)(2)) involving
more than $10,000.00, see Crawford v. Cushman, 531 F.2d 1114, 1126, n. 17
(2d Cir. 1976); Clark v. Goode, 499 F.2d 130, 134 (4th Cir. 1974); Warner v.
Cox, 487 F.2d 1301 (5th Cir. 1974); Mathis v. Laird, 483 F.2d 943 (9th Cir.
1973); Putnam Mills Corp. v. United States, 432 F.2d 553, 554 (2d Cir. 1970);
Parrish v. Seamans, 343 F.Supp. 1087, 1092-93 (D.S.C.1972), aff'd, 485 F.2d

571 (4th Cir. 1973).

21

Nor does the 1976 amendment to the general federal question statute, 28 U.S.C.
1331, avail the plaintiff. The pertinent language follows:

22 The district courts shall have original jurisdiction of all civil actions wherein the
"(a)
matter in controversy exceeds the sum or value of $10,000, exclusive of interest and
costs, and arises under the Constitution, laws, or treaties of the United States Except
that no such sum or value shall be required in any such action brought against the
United States, any agency thereof, or any officer or employee thereof in his official
capacity." (Emphasis supplied).
23

The emphasized language above was added by the 1976 amendment. It is

highly significant in that it changes the defense of sovereign immunity so far as
suits against the United States under 28 U.S.C. 1331 are concerned. It is
clear, however, that Congress did not intend to change the jurisdiction of
United States District Courts so far as money judgments are concerned. The
report of the House Judiciary Committee states:

24
"Congress
has made great strides toward establishing monetary liability on the part
of the Government for wrongs committed against its citizens by passing the Tucker
Act of 1875, 28 U.S.C. sections 1346, 1491, and the Federal Tort Claims Act of
1946, 28 U.S.C. section 1346(b). S. 800 would strengthen this accountability by
withdrawing the defense of sovereign immunity in actions seeking relief Other than
money damages, such as an injunction, declaratory judgment, or writ of mandamus.
Since S. 800 would be limited only to actions of this type for specific relief, The
recovery of money damages contained in the Federal Tort Claims Act and the
Tucker Act governing contract actions Would be unaffected." 1976 U.S.Code
Congressional and Administrative News, 94th Congress, 2d Session, Vol. 5, p.
6124-25. (Leg.Hist.)
25

And again, in its conclusion, the House Report states, at p. 6140:

26 partial elimination of sovereign immunity will facilitate non-statutory judicial

"The
review of Federal administrative action without affecting the existing pattern of
statutory remedies, without disturbing the established law of judicial review,
Without exposing the Government to new liability for money damages, and without
upsetting Congressional judgments that a particular remedy in a given situation
should be the exclusive remedy." (Emphasis supplied).
II.
27

As we have recited, the district court found it had jurisdiction under mandamus

27

As we have recited, the district court found it had jurisdiction under mandamus
(28 U.S.C. 1361), the Declaratory Judgment Act (28 U.S.C. 2201), and the
Administrative Procedure Act (5 U.S.C. 701, et seq.). Plaintiff relies upon
those and also upon general federal question jurisdiction (28 U.S.C. 1331).

28

In several of the authorities previously referred to, it was contended that

alternate bases of jurisdiction existed. See, for example, Polos v. United States,
556 F.2d 903 (8th Cir. 1977), Carter v. Seamans, 411 F.2d 767 (5th Cir. 1969),
Cert. den., 397 U.S. 941, 90 S.Ct. 953, 25 L.Ed.2d 121 (1970), and Mathis v.
Laird, 483 F.2d 943 (9th Cir. 1973). But in each of them it was held that the
suit for reinstatement was essentially a suit for back pay and thus subject to the
defense of sovereign immunity unless brought under the Tucker Act. Typical is
footnote 5 of the Polos opinion:

29
"Polos
advances several alternate bases for jurisdiction: the mandamus statute (28
U.S.C. 1361); the federal question statute (28 U.S.C. 1331); the insurance
statutes (5 U.S.C. 8715); and the Selective Service Act (50 U.S.C.App. 459(d))
(now 38 U.S.C. 2022). There are serious problems with each of these as a source
of jurisdiction to enter the judgment below. It is sufficient for our purposes that use
of any of these statutes to entertain a claim and to grant a judgment for damages
greater than $10,000 would infringe on the exclusive jurisdiction of the Court of
Claims."
30

It is troublesome that in the three cases just cited the claim for back pay was
the clear aim of the plaintiff. Demands for reinstatement were pertinent
principally to furnish a basis for the demand for back pay. Such here is not the
case. Lt. Cook insists upon reinstatement under her earlier commission and
back pay.4 We therefore consider the other asserted grounds for jurisdiction.

III.
31

The Administrative Procedure Act (5 U.S.C. 701, et seq.) and the

Declaratory Judgment Act (28 U.S.C. 2201), should not have been relied upon
by the district court, for neither act is a basis for jurisdiction.

32

The Supreme Court has, since the decision of the district court, decided that the
Administrative Procedure Act does not provide a basis for jurisdiction in the
United States District Courts in Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980,
51 L.Ed.2d 192 (1977). Prior to Califano, courts of appeals and commentators
were divided upon the issue. 5

33

That the Declaratory Judgment Act (28 U.S.C. 2201) is not a basis for

jurisdiction in the district courts is at once apparent from the wording of the Act
itself:
34 a case of actual controversy Within its jurisdiction . . . any court of the United
"In
States, upon the filing of an appropriate pleading, may declare the rights and other
legal relations of any interested party seeking such declaration, whether or not
further relief is or could be sought. Any such declaration shall have the force and
effect of a final judgment or decree and shall be reviewable as such." (Emphasis
supplied).
35

A literal reading of the statute has been decided by the United States Supreme
Court in Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 70 S.Ct. 876,
94 L.Ed. 1194 (1950), in which the Court states:

"36'(T)he operation of the Declaratory Judgment Act is procedural only.' Aetna Life
Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 240 (57 S.Ct. 461, 463, 81
L.Ed. 617). Congress enlarged the range of remedies available in the federal courts
but did not extend their jurisdiction. . . ." 339 U.S. at 671, 70 S.Ct. at 879.
IV.
37

Plaintiff also contends that jurisdiction for her claims may be founded on the
mandamus statute, 28 U.S.C. 1361. We believe, however, that the district
court's conclusion that there was mandamus jurisdiction is not well taken.

38

Historically, as well as under 1361, the writ of mandamus had been

considered an extraordinary remedy, to be issued only under extraordinary
circumstances. Thus, in order to demonstrate a right to the issuance of the writ,
the plaintiff must show: (1) that a public official has a plain duty to perform
certain acts; (2) that the plaintiff has a plain right to have those acts performed;
and (3) that there exists no other adequate remedy by which the plaintiff's rights
can be vindicated. Moore's Federal Practice P 0.62(17), p. 700.51.

39

In our opinion, mandamus relief for Lt. Cook is foreclosed by our opinion in
Parrish v. Seamans, 485 F.2d 571 (4th Cir. 1973). The facts of our case do not
differ from Parrish in any significant way. The plaintiff in Parrish had been
court-martialed and separated from the Air Force, which later administratively
found his discharge to be honorable. He sued in federal district court to have his
military trial and court-martial declared void and for a writ of mandamus to
compel the Air Force to restore all forfeited rank, pay, entitlements, and
privileges. We held that, because the plaintiff could receive a full remedy in the
Court of Claims, mandamus relief was not available. As we discuss below, Lt.

Cook, like Parrish, can obtain in the Court of Claims all of the relief she prays
for; thus, she has an adequate remedy outside of mandamus, and this
extraordinary relief is foreclosed.
40

Under 1361, there is a similarity in the statement of the jurisdictional basis of

the claim and the statement of the elements of a cause of action for mandamus.
City of Milwaukee v. Saxbe, 546 F.2d 693 (7th Cir. 1976). If, because of the
absence of any of the three prerequisites to the issuance of a writ of mandamus,
mandamus relief is not available to the plaintiff, the court has no jurisdiction
under 1361. McGaw v. Farrow, 472 F.2d 952, 956 (4th Cir. 1973); National
Treasury Employees Union v. Nixon, 160 U.S.App.D.C. 321, 326, 492 F.2d
587, 592 (1974); Billiteri v. United States Board of Parole, 541 F.2d 938, 946947 (2d Cir. 1976); City of Milwaukee v. Saxbe, supra. See also Kahane v.
Carlson, 527 F.2d 492 (2d Cir. 1975) (Judge Friendly concurring). We should
add that we think the jurisdiction spoken of in these cases refers to the power of
any court to grant the relief prayed for, see In re Sawyer, 124 U.S. 200, 8 S.Ct.
482, 31 L.Ed. 402 (1888), rather than that of a federal court to entertain a
question authorized by statute. Cf. Osborn v. Bank of the United States, 22 U.S.
(9 Wheat.) 738, 6 L.Ed. 204 (1824); Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773,
90 L.Ed. 939 (1946).

41

The argument of the plaintiff that the Court of Claims cannot give her the relief
which she seeks because of its claimed inability to issue injunctions is without
merit. In 1972, Congress amended 28 U.S.C. 1491 to include the following
provision:

42. . To provide an entire remedy and to complete the relief afforded by the
".
judgment, the court 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. In any case within its
jurisdiction, the court shall have the power to remand appropriate matters to any
administrative or executive body or official with such direction as it may deem
proper and just."
43

This court relied on the 1972 amendment in Parrish v. Seamans, 485 F.2d 571,
572 (4th Cir. 1973), to hold that a plaintiff not dissimilarly situated to Lt. Cook
had an adequate remedy in the Court of Claims, describing the plaintiff's claim
as follows:

44
"Parrish
alleges that the Court of Claims cannot provide an available adequate
remedy, that he 'can receive a money judgment only' from that court, and that he is

'entitled to have his conviction declared unconstitutional and null and void, to be
restored to his former rank of Colonel, to have his records cleansed of a criminal
conviction, to be awarded retirement pay which he shall receive until his death.'
45 August 29, 1972, the jurisdiction of the Court of Claims was amended to include
On
in part:" (The court then quotes the same statutory passage as is quoted above).
46

See also Polos v. United States, 556 F.2d 903 (8th Cir. 1977).

47

Nevertheless, the plaintiff relies upon the following cases for the proposition
that the Court of Claims cannot restore Lt. Cook to her former commission and
give her otherwise the relief she seeks: Lee v. Thornton, 420 U.S. 139, 95 S.Ct.
853, 43 L.Ed.2d 85 (1975); Richardson v. Morris, 409 U.S. 464, 93 S.Ct. 629,
34 L.Ed.2d 647 (1973); United States v. King, 395 U.S. 1, 89 S.Ct. 1501, 23
L.Ed.2d 52 (1969); Glidden Company v. Zdanok, 370 U.S. 530, 557, 82 S.Ct.
1459, 8 L.Ed.2d 671 (1961); United States v. Sherwood, 312 U.S. 584, 61 S.Ct.
767, 85 L.Ed. 1058 (1941), and United States v. Jones, 131 U.S. 1, 9 S.Ct. 669,
33 L.Ed. 90 (1889). Only the first two of these cases were decided after the
1972 amendment. Those decided prior to the amendment would obviously not
be in point.

48

The 1972 amendment refers in plain terms to discharged employees, such as Lt.
Cook. It authorizes specific equitable type relief to the extent of "directing
restoration to office or position, placement in appropriate duty or retirement
status, and correction of applicable records." Neither Lee nor Richardson
involved such relief. Lee involved the constitutionality of certain provisions of
customs laws which mandate procedures to effect forfeitures. There the Court
held that a three judge district court could not, under the Tucker Act, 28 U.S.C.
1346(a)(2), enjoin the appropriate federal officials from applying the customs
laws except as construed by the district court. Richardson involved an action by
illegitimate children to enjoin enforcement of provisions of the Social Security
Act disadvantageous to them. The Supreme Court held that such action could
not be taken by the district court under 28 U.S.C. 1346(a)(2). Obviously,
neither case is in point because the 1972 amendment could not be applied in
them. But the 1972 amendment is clearly applicable in the case now before us,
and we think it points the way to the relief Lt. Cook should have sought.VI.

49

Assuming that Lt. Cook might have sought injunctive or declaratory relief
under 1331 in the district court if not coupled with a claim for damages in
excess of $10,000.00, we are of opinion that when she insists on coupling her
claim for injunctive or declaratory relief with her claim for damages, her proper
jurisdictional base is 28 U.S.C. 1491 (in the Court of Claims) and not 1331

or the other statutes we have discussed.6 Section 1491 provides in terms a

forum in which Lt. Cook may try her case on the merits and, if meritorious,
receive the relief she requests. To hold as she asks, that the joining of
declaratory or injunctive relief with her damage claim is sustainable on the
jurisdictional base of 1331, would expand the jurisdiction of the district courts
beyond that which we think Congress intended. Indeed, in such a case as Lt.
Cook's, to hold for her would make the jurisdiction of the district court
coextensive with the Court of Claims. The Tucker Act, 28 U.S.C. 1346(a)(2),
again in terms, limits the jurisdiction of the district courts on account of such
claims to the maximum amount of $10,000.00, which we are without power to
extend. F.R.C.P. 82.
VII.
50

We are empowered to, and should, transfer this case to the Court of Claims. 28
U.S.C. 1406(c) provides:

51 If a case within the exclusive jurisdiction of the Court of Claims is filed in a

"(c)
district court, the district court shall, if it be in the interest of justice, transfer such
case to the Court of Claims, where the case shall proceed as if it had been filed in the
Court of Claims on the date it was filed in the district court."
52

We think it to be "in the interest of justice" that this case be transferred to the
Court of Claims. If it decides in her favor on the merits, that court can give Lt.
Cook the relief which she requests, which the district court cannot do. The
district court cannot give her a money judgment in excess of $10,000.00 against
the United States even under the 1976 amendment to 28 U.S.C. 1331. It is
also persuasive that, because only the Court of Claims may award the damages
claimed by the plaintiff, if any are to be awarded, that court should be
permitted to decide the basic questions of law upon which relief must be
predicated.

53

The judgment appealed from is vacated and the case is remanded to the district
court with directions to transfer the case to the Court of Claims.

54

VACATED AND REMANDED WITH DIRECTIONS.

Although it denied Lt. Cook's claim for relief on the merits, the district court
held that it had jurisdiction to consider the case. All defendants are either
officers of the United States sued in their official capacities, or an agency of the

United States. No damages are sought against the officers in their individual
capacities. The suit is in fact a case against the United States. Dugan v. Rank,
372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963). We do not mean to imply
that the court lacked jurisdiction to entertain a suit against such an officer for
injunctive relief for violating the Constitution, but we do not think the Tucker
Act may be circumvented by asking for damages against an officer in his
official capacity
2

That court held the case in abeyance. 28 U.S.C. 1500 precludes the Court of
Claims from adjudicating a case which is pending in another court

The actual opinion was by the District Court for the Southern District of Texas.
The decision of the district court was affirmed in a short per curiam opinion.
The Court of Appeals regarded the opinion by the district court to be "carefully
reasoned and well-written" and attached it as an appendix. See footnote 6, infra

The following quotation is from plaintiff's Supplemental Brief on Petition to

Rehear, page 1:
". . . Appellant asserts that if the Court takes the position that it cannot award
back pay in this case, then it inevitably takes the position that it has no
meaningful power to issue a writ of mandamus or to order an injunction in
cases involving wrongful termination by the United States. It is not disputed
that this Court can enjoin the government from firing a person or order the
government to rehire a person Nunc pro tunc. To say that such injunction or
such order to rehire cannot be coupled with an order to pay the person's salary
makes the relief meaningless. . . . This is the logical conclusion of the position
advanced by the Appellees that there is no jurisdiction to award the back pay.
Back pay is a necessary and inevitable part of an injunction or an order in the
nature of mandamus. . . ."
Thus it appears that plaintiff may be agreeing with the Court's reasoning in
Polos v. United States, Carter v. Seamans, and Mathis v. Laird, but using it to
reach the opposite conclusion.

The conflicting authorities are collected in footnotes 4 and 5, 430 U.S. at page
104, 97 S.Ct. 980. We state in candor the holding of the district court was not
out of line with circuit precedent as listed in footnote 4. See Deering Milliken,
Inc. v. Johnston, 295 F.2d 856 (4th Cir. 1961)

We do not imply that the Court of Claims may enter a declaratory judgment.
United States v. King, 395 U.S. 1, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969). But if
the action of the Navy was invalid, Lt. Cook may obtain an adjudication of its
invalidity in the Court of Claims as a prerequisite to injunctive and money relief