United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 10, 2006 Decided May 5, 2006
No. 04-5409
SAMUEL E. TOOTLE, II ,
APPELLANT/PETITIONER
V.
SECRETARY OF THE NAVY,
APPELLEE/RESPONDENT
On Petition for Writ of Mandamus and
Appeal from the United States District Court
for the District of Columbia
(No. 02cv02508)
Alex Little, Student Counsel, argued the cause as amicus
curiae in support of appellant/petitioner. With him on the briefs
were Steven H. Goldblatt, appointed by the court, David J.
Arkush, Supervising Attorney, and Jonathan J. Li, Student
Counsel.
Samuel E. Tootle, II, pro se, filed appellant/petitioner’s
brief.
Kevin K. Robitaille, Special Assistant U.S. Attorney, argued
the cause for appellee/respondent. With him on the brief were
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Kenneth L. Wainstein, U.S. Attorney, and Michael J. Ryan,
Assistant U.S. Attorney. R. Craig Lawrence, Assistant U.S.
Attorney, entered an appearance.
Before: HENDERSON and GARLAND, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
EDWARDS, Senior Circuit Judge: Appellant Samuel E.
Tootle, II, an enlisted member of the United States Navy, filed
suit in the District Court invoking the Administrative Procedure
Act (“APA”), 5 U.S.C. §§ 551 et seq. (2000). His pro se
petition seeks judicial review of a determination, made by a
Navy physical evaluation board in 1997, that he was “fit for
duty,” and, thus, not eligible for medical retirement. Upon a
motion from the Secretary of the Navy (the “Government”), the
District Court dismissed the case for lack of subject matter
jurisdiction, ruling that the cause was properly within the
exclusive jurisdiction of the Court of Federal Claims. The
District Court also purported to transfer the case to the Court of
Federal Claims.
Under the Tucker Act, the Court of Federal Claims is vested
with exclusive jurisdiction over cases involving non-tort money
damages in excess of $10,000. 28 U.S.C. §§ 1491(a)(1),
1346(a)(2) (2000). “Absent other grounds for district court
jurisdiction, a claim is subject to the Tucker Act and its
jurisdictional consequences if, in whole or in part, it explicitly
or ‘in essence’ seeks more than $10,000 in monetary relief from
the federal government.” Kidwell v. Dep’t of the Army, 56 F.3d
279, 284 (D.C. Cir. 1995). The question before this court is
whether Tootle’s complaint is “in essence” one for money
damages and, thus, subject to the exclusive jurisdiction of the
Court of Federal Claims.
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In Kidwell, we explained that a complaint is not “in
essence” one for money damages “as long as the sole remedy
requested is declaratory or injunctive relief that is not ‘negligible
in comparison’ with the potential monetary recovery.” Id.
(citation omitted). Tootle’s complaint does not explicitly
request money damages. Rather, Tootle seeks declaratory relief
invalidating the board’s determination and correcting his
military records. And, the parties agree that, even if Tootle
prevails on these claims, there is no guarantee that he ever will
be entitled to any money from the federal government.
Furthermore, there is nothing in this record to suggest that
Tootle has engaged in artful pleading in an effort to circumvent
the jurisdiction of the Court of Federal Claims. Indeed, that
court was his forum of first choice. It was only after the
Government moved to have Tootle’s complaint dismissed by the
Court of Federal Claims – contending, in part, that Tootle’s
claim was “equitable” – that he sought relief in the District
Court. Once the case was in District Court, the Government
argued again that Tootle’s complaint should be dismissed for
want of subject matter jurisdiction. Before this court, the
Government initially maintained that Tootle could obtain
jurisdiction in neither the District Court nor the Court of Federal
Claims, a position from which the Government now retreats, and
that we categorically reject.
On the record at hand, it is clear that Tootle’s complaint is
not “in essence” one for money damages. We, therefore, hold
that the District Court erred in dismissing the complaint for want
of subject matter jurisdiction. We reverse the judgment of the
District Court and remand the case so that the merits of Tootle’s
claims can be heard and resolved. We also grant Tootle’s
petition for a writ of mandamus to prevent any further purported
transfer of this case from the District Court.
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I. BACKGROUND
A. The Facts
Tootle enlisted in the Navy in 1979. Compl. ¶ 5, Tootle v.
Sec’y of the Navy, CA No. 02-2508 (D.D.C. Sept. 15, 2004)
(“Compl.”), reprinted in App. to Br. of Appointed Amicus
Curiae (“App.”) 6, 7. In 1987, while serving on active duty, he
was diagnosed with human immunodeficiency virus (“HIV”).
Id. ¶ 6, reprinted in App. 7. Thereafter, he was required to
undergo annual physical evaluations. During his 1995
evaluation, he was diagnosed with idiopathic thrombocytopenia
purpura (“ITP”), a blood disorder that impedes clotting. Id. ¶ 8,
reprinted in App. 8. The doctors determined that the ITP was
caused by the HIV.
In January 1997, “as a result of his deteriorating medical
condition,” Tootle appeared for an evaluation by the local
Medical Evaluation Board (“MEB”) at Portsmouth Naval
Hospital in Virginia. Id. ¶ 10, reprinted in App. 8. The
evaluation took place between January 13 and 17. Id. The HIV
team noted that Tootle showed a “markedly decreased platelet
count of nine predispos[ing] this patient to bleeding with
minimal trauma,” and concluded that “[s]ince this could easily
be life threatening, it is felt that this patient is unfit for duty.”
MEB Report, HIV Evaluation Unit (Jan. 23, 1997) at 3
(emphasis added), reprinted in App. 46, 48.
Following Navy procedure, Tootle’s case was submitted to
the Navy Disability Evaluation System. Compl. ¶ 29, reprinted
in App. 12. On March 13, 1997, the MEB Report was reviewed
by a Physical Evaluation Board (“PEB”) comprised of one
medical officer and two nonmedical officers. Id. ¶ 13, reprinted
in App. 9. The PEB reached the preliminary conclusion that
Tootle was fit, recommending a disposition of “Fit to Continue
on Active Duty.” Prelim. Findings of the PEB Proceedings
(Mar. 13, 1997), reprinted in App. 34. The PEB gave no clear
5
explanation for its determination. There are, however,
handwritten notations on the PEB’s “Disposition Work Card”
that say:
(1) The patient is on [illegible]; (2) Does not rise to the
30%; (3) ITP has never bled.
See JDETS Findings & Recommended Disposition Work Card
(Mar. 12, 1997), reprinted in App. 32.
On August 15, 1997, Tootle was notified by telephone of
the PEB’s preliminary finding. Compl. ¶ 20, reprinted in App.
11. Tootle asserts that, “[d]uring this hurried telephonic
counseling,” he “was not advised of his rights to appeal or to
request a personal hearing.” Id. The Navy allegedly attempted
to contact Tootle after August 15, but with no success. On
September 3, when Tootle had neither accepted nor challenged
the PEB’s finding, the Navy presumed his acceptance. See
Presumed Acceptance of Findings (Sept. 3, 1997), reprinted in
App. 36. On September 10, 1997, the PEB’s preliminary
determination became final. PEB’s Notification of Decision
(Sept. 10, 1997), reprinted in App. 41.
In November 1997, Tootle was charged with various
offenses under the Uniform Code of Military Justice. He was
subsequently convicted by a general court-martial on March 27,
1998, and sentenced to approximately eight years of
confinement and a dishonorable discharge. Compl. ¶¶ 21-23,
reprinted in App. 11; see also Report of Results of Trial (Mar.
27, 1998), reprinted in App. 60. Tootle has since been released
from prison, and he is currently on active duty pending
exhaustion of his criminal appeals.
B. Procedural Background
On January 7, 2002, Tootle filed a complaint in the Court of
Federal Claims alleging that
6
he [was] statutorily entitled to Permanent Disability
Retirement Pay, back pays and allowances, and retainer
pays due to the Executive Agency arbitrarily denying the
Plaintiff medical retirement and failing to comply with their
own statutorily mandated rules, regulations, and policies.
Compl. ¶ 12, Tootle v. United States, No. 02-17C (filed Fed. Cl.
Jan. 7, 2002), reprinted in App. 108, 109. The complaint
asserted that the question before the court was “simple” –
namely, whether Tootle met the service requirements for a
medical retirement in January 1997. Id. ¶ 44, reprinted in App.
119. Tootle sought correction of his military records “to reflect
that he was placed on [the] Physical Disability Retirement List
[in] January 1997,” and reimbursement of “all pays and
allowances, in the amount of $110,457.60.” Id. ¶¶ 1, 45,
reprinted in App. 108, 119.
On April 19, 2002, the Government filed a motion with the
Court of Federal Claims seeking dismissal of Tootle’s complaint
for, inter alia, want of subject matter jurisdiction. Def.’s Mot.
to Dismiss at 1, Tootle v. United States, No. 02-17C (filed Fed.
Cl. Apr. 19, 2002), reprinted in App. 187. The Government
argued that the Tucker Act confers jurisdiction upon the Court
of Federal Claims only when a claimant has an existing
substantive right to money currently due and owing, and,
because Tootle could not point to a statute under which money
was presently due to him, the court had no jurisdiction under the
Tucker Act. See id. at 7, reprinted in App. 193. Tootle had
invoked 10 U.S.C. § 1201 (2000) as the basis of his entitlement
for disability retirement pay, but the Government insisted that he
could not meet two of the prerequisites for benefits under
§ 1201: first, due to his incarceration, he could not show that he
was entitled to basic pay, id. at 8-9, reprinted in App. 194-95;
and, second, he could not “establish that the Secretary found him
‘unfit to perform the duties of his office, grade, rank, or rating,’”
id. at 11, reprinted in App. 197.
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In seeking dismissal of Tootle’s complaint before the Court
of Federal Claims, the Government argued that the court lacked
the jurisdiction to address Tootle’s essentially equitable claims.
Id. at 12, reprinted in App. 198. The Government pointedly
argued that:
Mr. Tootle’s request for disability pay under 10 U.S.C.
§ 1201 amounts to a claim primarily for equitable relief
because, in order to receive such pay, this Court would first
be required to find him unfit for duty and retroactively
retire Mr. Tootle from the Navy. . . . Mr. Tootle’s claim
amounts to a request primarily for equitable relief over
which this Court lacks jurisdiction.
Id. at 14-15, reprinted in App. 200-01 (emphasis added). On
May 10, 2002, Tootle moved for a voluntary dismissal, and on
May 13, 2002, the Court of Federal Claims dismissed his
complaint without prejudice.
Tootle then filed the present action in the District Court for
the District of Columbia. His complaint, resting on a cause of
action under the APA, alleges that the PEB’s finding that he was
fit for duty was arbitrary and capricious and inadequately
explained, and that the PEB disregarded the Navy’s regulations
by, among other things, failing to provide adequate notice of the
decision and counseling regarding its consequences. See Compl.
¶¶ 13, 20, 29, 32-33, reprinted in App. 9, 11-14a. The
complaint seeks no monetary relief. Rather, it asks the court for
a “declaration that the results of the 13 March 1997, Physical
Evaluation Board are invalid,” and for an order reinstating the
findings of the 1997 MEB and correcting Tootle’s “service
record . . . to show that he was transferred to the Permanent
Disability Retirement List on 27 January 1997.” Id. at 9,
reprinted in App. 14(a).
A year after Tootle filed suit in District Court, the
Government again moved to dismiss, arguing, inter alia, that the
8
District Court lacked subject matter jurisdiction. Def.’s Mot. to
Dismiss, Tootle v. Sec’y of the Navy, CA No. 02-2508 (D.D.C.
Sept. 15, 2004), reprinted in App. 82. The Government argued
that, although the complaint did not include an express demand
for monetary relief, the essence of Tootle’s claim was a demand
for disability retirement pay under 10 U.S.C. § 1201. Mem. of
P. & A. in Supp. of Def.’s Mot. to Dismiss at 10, Tootle v. Sec’y
of the Navy, CA No. 02-2508 (D.D.C. Sept. 15, 2004), reprinted
in App. 84, 93. The Government thus contended that the
District Court “lack[ed] subject matter jurisdiction over
Plaintiff’s claim, which ‘in essence’ is for non-tort money
damages in excess of $10,000, and consequently falls within the
exclusive jurisdiction of the Court of Federal Claims.” Id. at 12,
reprinted in App. 95.
On September 15, 2004, the District Court granted the
Government’s motion to dismiss. Tootle v. Sec’y of the Navy,
CA No. 02-2508, Mem. Op. (D.D.C. Sept. 15, 2004), reprinted
in App. 170. The trial court found that, while Tootle “ostensibly
seeks injunctive relief pursuant to the [APA] as well as a
mandamus remedy,” and although “[h]e makes no specific
demand for monetary damages[,] . . . [i]n substance . . . plaintiff
demands monetary relief from the federal government in the
form of disability retirement benefits pursuant to 10 U.S.C.
§ 1201.” Id. at 5 (citations omitted), reprinted in App. 174. The
District Court surmised that Tootle’s “challenge is not to the
PEB’s ‘fit for duty’ determination as much as it is to an
immediate consequence of that determination: the denial of
disability retirement benefits.” Id. at 6, reprinted in App. 175.
The District Court further assumed that “there is no significant
value in the relief plaintiff requests apart from the benefits he
would receive if a ruling in his favor results in disability
retirement,” and thus concluded that the “complaint raises a
claim for monetary damages over which the Court of Federal
Claims has exclusive jurisdiction.” Id. In addition to granting
the Government’s motion to dismiss, the District Court, sua
9
sponte, purported to transfer Tootle’s action to the Court of
Federal Claims pursuant to 28 U.S.C. § 1631 (2000). Tootle v.
Sec’y of the Navy, CA No. 02-2508, Transfer Order (D.D.C.
Sept. 15, 2004), reprinted in App. 177. The District Court’s
order made it clear, however, that its judgment was final and
appealable. Id.
Tootle filed a timely Notice of Appeal, which was initially
docketed as a petition for a writ of mandamus. The docketing
was subsequently changed so that the appeal has been correctly
denominated “On Petition for Writ of Mandamus and Appeal
from the United States District Court for the District of
Columbia.” In re Tootle, No. 04-5409, Order (D.C. Cir. Apr.
12, 2006). On September 1, 2005, the court appointed Professor
Steven H. Goldblatt as amicus curiae to present written and oral
arguments on behalf of Tootle.
II. ANALYSIS
A. Appellate Jurisdiction
In granting the Government’s motion to dismiss, the District
Court issued a final appealable order, which this court has
jurisdiction to review pursuant to 28 U.S.C. § 1291 (2000). See
Brown v. Turner, 659 F.2d 1199, 1200 (D.C. Cir. 1981)
(jurisdiction to review is under 28 U.S.C. § 1291 where a district
court grants a motion to dismiss for lack of subject matter
jurisdiction); Rogers v. United States, 902 F.2d 1268, 1269 (7th
Cir. 1990) (holding dismissal for lack of subject matter
jurisdiction is a final judgment).
The District Court’s purported transfer of the case to the
Court of Federal Claims after dismissing Tootle’s complaint for
want of subject matter jurisdiction does not affect the
jurisdiction of this court to entertain Tootle’s appeal. A district
court must dismiss an action where, as here, it concludes that it
lacks subject matter jurisdiction. FED. R. CIV. P. 12(h)(3)
(“Whenever it appears by suggestion of the parties or otherwise
10
that the court lacks jurisdiction of the subject matter, the court
shall dismiss the action.”). A federal court “shall, if it is in the
interest of justice, transfer” a case over which it lacks
jurisdiction to a court of competent jurisdiction. See 28 U.S.C.
§ 1631. However, § 1631 “confers on [a federal court] authority
to make a single decision upon concluding that it lacks
jurisdiction – whether to dismiss the case or, ‘in the interest of
justice,’ to transfer it to a court . . . that has jurisdiction.”
Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 818
(1988) (quoting 28 U.S.C. § 1631). There is no dispute here that
the District Court clearly intended to grant the Government’s
motion to dismiss for want of subject matter jurisdiction.
Having taken this action, the trial court was without authority to
transfer the case.
The Government does not contest that, under § 1631, a
district court must dismiss or transfer upon concluding that it
lacks jurisdiction. And the Government does not question that
this court has jurisdiction pursuant to 28 U.S.C. § 1291 to
review the District Court’s final and appealable decision to
dismiss Tootle’s complaint for want of subject matter
jurisdiction. Amicus, on behalf of Tootle, argues explicitly that
this court has jurisdiction to review the District Court’s order as
an ordinary appeal under 28 U.S.C. § 1291, even though the
court initially ordered Tootle’s appeal to be filed as a petition for
a writ of mandamus. Br. of Amicus Curiae at 17. We agree.
This court probably would have been without jurisdiction
to entertain Tootle’s appeal if the District Court had effected a
transfer. See In re Briscoe, 976 F.2d 1425, 1426 (D.C. Cir.
1992) (per curiam) (“The basic rule in civil practice is that if a
case is physically transferred before an appeal or a petition for
mandamus has been filed, the court of appeals in the transferor
circuit has no jurisdiction to review the transfer.”) (citing
Starnes v. McGuire, 512 F.2d 918, 924 (D.C. Cir. 1974) (en
banc)); see also Ukiah Adventist Hosp. v. FTC, 981 F.2d 543,
11
546 (D.C. Cir. 1992) (holding that as a general rule no appeal
lies from a transfer order issued pursuant to § 1631 because it is
interlocutory). That, however, is not the situation here. In this
case, the only order the District Court actually effected was the
dismissal. That disposition is final, appealable, and subject to de
novo review. E.g., Ctr. for Law & Educ. v. Dep’t of Educ., 396
F.3d 1152, 1156 (D.C. Cir. 2005) (“A dismissal for lack of
subject matter jurisdiction is . . . reviewed de novo.”).
B. The District Court’s Jurisdiction
Our disposition of this appeal is largely controlled by
Kidwell v. Department of the Army, 56 F.3d 279 (D.C. Cir.
1995). Kidwell brought an action under the APA challenging a
refusal of the Army Board for Correction of Military Records
“to change his military files to indicate a ‘medical’ discharge.”
Id. at 281. As here, “Kidwell’s complaint did not seek any
monetary relief.” Id. at 283. The Government, nonetheless,
“claimed that a district court order requiring the Board to change
Kidwell’s records . . . would entitle Kidwell to retroactive
disability benefits that could exceed $50,000,” and argued that
the District Court, thus, lacked subject matter jurisdiction
“[b]ecause the practical effect of Kidwell’s request would be an
award of money damages.” Id. The district court agreed with
the Government and dismissed Kidwell’s lawsuit. Id. at 281,
283.
This court reversed the District Court’s determination that
it lacked jurisdiction, holding that Kidwell’s claim was neither
explicitly nor “in essence” one for money damages. Id. at 281.
The court gave four justifications for its holding that the District
Court had jurisdiction over Kidwell’s complaint. First, “the
plaintiff . . . [had] not explicitly requested monetary relief.” Id.
at 285. Second, “granting the relief requested would offer a
direct non-monetary benefit to the plaintiff because resting
Kidwell’s discharge on medical grounds would lift some of the
shame associated with failing to receive an honorable
12
discharge.” Id. Third, “any monetary benefits that [might] flow
from Kidwell’s victory would not come from the district court’s
exercise of jurisdiction, but from the structure of statutory and
regulatory requirements governing compensation when a
servicemember’s files change.” Id. at 285-86. And, finally, the
court noted that it
could refuse jurisdiction only by going outside the record to
review the process by which Kidwell might receive past
disability payments, a process that is apparently far from
automatic, since Kidwell would have to file a separate
claim with the Secretary for the benefits and since the
amount due him would be reduced by the
yet-to-be-determined amount of any VA benefits that he
receives.
Id. at 285-86 (citation omitted). The court declined to look
“outside the record” and speculate about monetary relief that
might later flow to Kidwell if he prevailed on his non-monetary
claims. See id.
Tootle’s claim is materially indistinguishable from
Kidwell’s and is, therefore, not “in essence” a claim for
monetary relief. First, as the District Court acknowledged, and
the Government concedes, Tootle’s complaint does not
explicitly request money damages. The requested relief is
limited to a “declaration that the results of the 13 March 1997,
Physical Evaluation Board are invalid,” and an order reinstating
“the results of the 13-17 January 1997, MEB board” and
correcting Tootle’s “service record . . . to show that he was
transferred to the Permanent Disability Retirement List on 27
January 1997.” Compl. at 9, reprinted in App. 14(a). Nowhere
in the complaint does Tootle request money.
It does not matter, as the Government contends, that
Tootle’s subsequent filings, in particular the legal memoranda
he submitted to the District Court, indicate that he seeks money.
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A court may look beyond the pleadings to resolve disputed
jurisdictional facts when considering a motion to dismiss under
FED. R. CIV. P. 12(b)(1), e.g., Phoenix Consulting, Inc. v.
Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000); this line
of precedent, however, does not overcome the rule that where
the jurisdiction of the court turns on whether the complaint seeks
monetary relief, the court must generally limit itself to the four
corners of the complaint. Wolfe v. Marsh, 846 F.2d 782 (D.C.
Cir. 1988) (per curiam); accord Kidwell, 56 F.3d at 285
(reaffirming that the court has adopted “a ‘strict pleading
requirement’” in Tucker Act cases). In Wolfe, the plaintiff’s
complaint sought only equitable relief. Wolfe, 846 F.2d at 783.
“Subsequent memoranda contain[ed] hints that Wolfe may have
intended to assert a claim for money damages, however.” Id.
We held that, in determining whether a complaint seeks
monetary relief, a “bright line rule is especially appropriate.” Id.
at 785. As such, the court should consider only the complaint
itself in determining whether money damages have been
requested. We explained:
Given the need for certainty as to jurisdiction, we cannot
allow plaintiff’s subjective intent, ambiguously expressed,
to control the issue. There is no reason why trial courts (or
appellate courts) should have to resort to close scrutiny of
ambiguous memoranda to glean an intent to set forth a
monetary claim. In a matter as basic as whether the
plaintiff is asking the trial court to award monetary relief,
the trial court must be able to answer that question from the
plain terms of the complaint.
Id. (emphasis added).
Second, and most importantly, the equitable relief sought by
Tootle has significant value. Tootle, a service member who
according to undisputed records suffers from deteriorating
health, seeks a determination that he is “unfit for duty” and
14
eligible for retirement. Should he succeed, he undeniably will
obtain a win of significant non-monetary value.
The Government asserts that, unlike the “less than
honorable” discharge that was challenged by the plaintiff in
Kidwell, there is no stigma attached to the PEB’s declaration
that Tootle is “fit for duty.” The Government points out that
Kidwell requested a change to his records from an
administrative discharge based on misconduct to a medical
retirement based on a specific disability rating, whereas Tootle
seeks a downgrade in the determination that he is “fit for duty.”
The Government thus contends that Tootle seeks only a status
to which greater stigma is attached. This is a specious
argument. The test here is not whether Tootle will be more or
less stigmatized in metaphysical terms by being classified “unfit
for duty” as opposed to “fit for duty,” but whether there is value
to the equitable relief that he seeks. Given Tootle’s serious
health issues, there can be no doubt that retroactive disability
retirement, i.e., placement on the Permanent Disability
Retirement List, would give him significant value apart from
any potential for future monetary benefits. In other words,
retirement itself has non-negligible value, especially for an ill
serviceman.
Third, as in Kidwell, any monetary benefits that might flow
if Tootle prevails on his non-monetary claims will not come
from the District Court’s exercise of jurisdiction, “but from the
structure of statutory and regulatory requirements governing
compensation when a servicemember’s files change.” Kidwell,
56 F.3d at 285-86. Indeed, we have no way of knowing whether
Tootle ever will be entitled to any monies if he succeeds before
the District Court. As counsel for the Government conceded at
oral argument, reinstating the MEB’s finding that Tootle was
“unfit for duty” would have no immediate monetary
consequences. Oral Arg. Tape at 21:30-22:12. And, given the
yet to be finalized court-martial, the monetary implications of
15
any change in Tootle’s retirement status are, at best, unclear.
See id. at 22:15-26:40.
Finally, as in Kidwell, any monetary recovery Tootle might
be entitled to in the future would be entirely separate from the
District Court’s decision regarding whether the Government
acted arbitrarily and capriciously or neglected to follow Navy
regulations and procedures when it adopted the PEB’s finding.
We will not go outside the record to speculate over what Tootle
might secure in the way of monetary benefits should he prevail
in District Court. Nor need the District Court engage in any
such speculation. The issue before the District Court will be the
propriety of the Navy’s administrative process, and there is no
scenario under which it could award Tootle money damages. At
most, a District Court decision in Tootle’s favor would enable
him to avail himself of statutory and regulatory provisions and
procedures that may, or may not, entitle him to a monetary
recovery. See Kidwell, 56 F.3d at 285-86; Vietnam Veterans v.
Sec’y of the Navy, 843 F.2d 528, 534 (D.C. Cir 1988) (“[A]
claim is not for money merely because its success may lead to
pecuniary costs for the government or benefits for the
plaintiff.”).
In granting the Government’s motion to dismiss, the District
Court used the wrong test to determine whether Tootle’s
complaint is “in essence” a claim for monetary relief. Relying
on Bliss v. England, 208 F. Supp. 2d 2 (D.D.C. 2002), the trial
court held that Tootle’s complaint was “in essence” a request for
monetary relief because “the plain effect of a judgment in
plaintiff’s favor would be a significant financial gain for
plaintiff.” Tootle v. Sec’y of the Navy, CA No. 02-2508, Mem.
Op. at 5 (D.D.C. Sept. 15, 2004), reprinted in App. 170, 174.
This is not the law of the circuit. As noted above, whether
Tootle’s claim is “in essence” one for money damages is
controlled by Kidwell. And Kidwell makes it perfectly clear that
“[a] plaintiff does not ‘in essence’ seek monetary relief . . .
16
merely because he or she hints at some interest in a monetary
reward from the federal government or because success on the
merits may obligate the United States to pay the complainant.”
56 F.3d at 284 (emphasis added). “[E]ven if [a] plaintiff file[s]
[a] complaint with an eye to future monetary awards, a district
court with otherwise appropriate jurisdiction may hear the claim
and grant the proper equitable relief.” Id.
[A]s long as the plaintiff’s complaint only requests non-
monetary relief that has “considerable value” independent
of any future potential for monetary relief – that is, as long
as the sole remedy requested is declaratory or injunctive
relief that is not “negligible in comparison” with the
potential monetary recovery – we respect the plaintiff’s
choice of remedies and treat the complaint as something
more than an artfully drafted effort to circumvent the
jurisdiction of the Court of Federal Claims.
Id. (citations omitted).
We hold that the District Court had jurisdiction in this case,
because “the sole remedy requested is declaratory or injunctive
relief that is not ‘negligible in comparison’ with the potential
monetary recovery.” Id. Tootle’s challenge to the Navy’s
administrative process is nothing more than a routine APA case
– a challenge to the reasonableness of governmental action on
the grounds that it was arbitrary, capricious, inadequately
explained, and in violation of agency regulations. The District
Court had jurisdiction over this claim under 28 U.S.C. § 1331
(2000), and the complaint states a cause of action under 5 U.S.C.
§§ 704 and 706.
The Government’s position in this case is, to say the least,
troublesome. In its brief submitted to this court and during oral
argument, the Government pressed the claim that neither the
Court of Federal Claims nor the District Court has jurisdiction
to address Tootle’s complaint. Counsel conceded during
17
argument that he could point to no authority to support this
proposition. Oral Arg. Tape at 15:29-16:05, 31:00-32:22.
The Government has since modified its position. In a post-
argument submission, the Government states that, given the
Federal Circuit’s recent decision in Fisher v. United States, 402
F.3d 1167, 1174-75 (Fed. Cir. 2005) (en banc in relevant part),
holding that 10 U.S.C. § 1201 is a money-mandating statute,
“the government now likely would seek dismissal for failure to
state a claim on which relief could be granted, rather than a
dismissal for lack of jurisdiction if the case returned to the Court
of Federal Claims.” Resp. of the Sec’y of the Navy to Question
Raised by the Panel at Oral Arg. at 3 n.1 (emphasis added).
Notably, this post-argument submission does not disavow the
Government’s earlier stance that a district court can be stripped
of jurisdiction by the Tucker Act even when there is no
jurisdiction in the Court of Federal Claims. Rather, the
Government now contends only that the position they espouse
may be foreclosed in this case.
We categorically reject the suggestion that a federal district
court can be deprived of jurisdiction by the Tucker Act when no
jurisdiction lies in the Court of Federal Claims. Put plainly, the
Court of Federal Claims can have exclusive jurisdiction only
with respect to matters that Congress has proclaimed are within
its jurisdictional compass. The Government argues that Tootle’s
complaint is outside of the jurisdiction of the District Court
because it is within the exclusive jurisdiction of the Court of
Federal Claims. This makes no sense, however, if, as is the case
here, Tootle’s complaint is not subject to the jurisdiction of the
Court of Federal Claims. There cannot be exclusive jurisdiction
under the Tucker Act if there is no jurisdiction under the Tucker
Act. See Randall v. United States, 95 F.3d 339, 346 (4th Cir.
1996) (“[T]o determine whether Plaintiff’s suit is cognizable
under the APA, the court must first examine whether he has an
available remedy under the Tucker Act.”). If the Court of
18
Federal Claims lacks jurisdiction, the only question is whether
there is an affirmative congressional grant of jurisdiction to the
federal district courts.
We need not tarry further over this issue, because it is clear
in this case that the District Court was not divested of its
jurisdiction by the Tucker Act. As noted above, our decision in
Kidwell controls the disposition of this case. The District Court
has subject matter jurisdiction under 28 U.S.C. § 1331 to
entertain Tootle’s APA claims.
III. CONCLUSION
The judgment of the District Court dismissing the complaint
for lack of subject matter jurisdiction is hereby reversed, and the
case is remanded so that the merits of Tootle’s claims can be
heard and resolved. We also grant Tootle’s petition for a writ of
mandamus “in aid of [our] . . . jurisdiction[ ],” pursuant to 28
U.S.C. § 1651(a) (2000), to prevent any further purported
transfer of this case from the District Court. In re Sealed Case,
141 F.3d 337, 340 (D.C. Cir. 1998) (“This circuit has frequently
exercised its mandamus jurisdiction to vacate transfer orders,
especially where the transfer was beyond the district court’s
power . . . .”); see In re Chatman-Bey, 718 F.2d 484, 486 (D.C.
Cir. 1983) (per curiam).
So ordered.