Charles v. Rice, Secretary USAF

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 92-2338

OSCAR CHARLES,

Plaintiff, Appellant,

v.

HONORABLE DONALD RICE, SECRETARY OF THE
UNITED STATES AIR FORCE, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen C. Cerezo, U.S. District Judge]

Before

Cyr, Circuit Judge,

Bownes, Senior Circuit Judge,

and Stahl, Circuit Judge.

William Ramirez-Hernandez, with whom Paula Sciabarrasi, Vargas &

Ramirez Law Office, and Charles S. Hey-Maestre, Sabana Education and

Civil Rights Project, were on brief for appellant.
Michael S. Raab, Attorney, Civil Division, Department of Justice,

with whom Guillermo Gil, United States Attorney, Frank W. Hunger,

Assistant Attorney General, Anthony J. Steinmeyer, Attorney, Civil

Division, Department of Justice, and Col. Raul F. Barbara, Lt. Col.

Conrad Von Wald, Major Carla S. Walgenbach, and Major Patricia A.

Kerns, Of Counsel, Department of the Air Force, General Litigation

Division, were on brief for appellees Honorable Donald Rice, Secretary
of the

United States Air Force, and Lt. General Conaway, Chief, National
Guard Bureau.
Carlos Lugo-Fiol, Deputy Solicitor General for the Commonwealth

of Puerto Rico, with whom Pedro A. Delgado-Hernandez, Solicitor

General, was on brief for appellees William Miranda-Marin, the
Adjutant General of the Commonwealth of Puerto Rico, Colonel Manuel A.
Guzman, of the Puerto Rico Air National Guard, and Colonel Gilberto
Colon, Personnel Officer, Puerto Rico Air National Guard.

July 14, 1994

BOWNES, Senior Circuit Judge. After more than
BOWNES, Senior Circuit Judge.

twenty years of service in the Puerto Rico Air National Guard

(PRANG) and employment as a National Guard technician,

plaintiff-appellant, Oscar Charles, tested positive for the

Human Immunodeficiency Virus (HIV) and was discharged from

PRANG and from his technician job. Plaintiff filed an action

under 42 U.S.C. 1983 seeking declaratory relief,

reinstatement, and back pay from defendants-appellees, the

Secretary of the United States Air Force, the Chief of the

United States National Guard Bureau, PRANG, the Adjutant

General of Puerto Rico, and two PRANG officers. The district

court reached the merits and ruled in favor of defendants.

See Doe v. Rice, 800 F. Supp. 1041 (D.P.R. 1992). We vacate

the decision with respect to plaintiff's claim for back pay

for his technician job, but affirm the decision on the merits

in all other respects.

I.

BACKGROUND

National Guard

Before stating the facts immediately relevant to

plaintiff's case, we provide the following description of the

National Guard. The Guard is a hybrid state and federal

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organization.1 While a part of the Armed Forces of the

United States, the Guard

occupies a distinct role in the federal
structure that does not fit neatly within
the scope of either state or national
concerns. In each state the National
Guard is a state agency, under state
authority and control. At the same time,
federal law accounts, to a significant
extent, for the composition and function
of the Guard. Accordingly, the Guard may
serve the state in times of civil strife
within its borders while also being
available for federal service during
national emergencies.

Knutson v. Wisconsin Air Nat'l Guard, 995 F.2d 765, 767 (7th

Cir.), cert. denied, 114 S. Ct. 347 (1993).

The governor and his or her appointee, the Adjutant

General, command the Guard in each state. See, e.g., P.R.

Laws Ann. tit. 25, 2058-2059; see also 32 U.S.C. 314.

The Defense Department, the Secretaries of the Army and Air

Force, and the National Guard Bureau prescribe regulations

and issue orders to organize, discipline, and govern the

Guard. 32 U.S.C. 110. States that fail to comply with

federal regulations risk forfeiture of federal funds

1. National Guard units may be established in the states,
territories, Puerto Rico, and the District of Columbia. 32
U.S.C. 101(6). For the sake of convenience, we refer to
all these entities as states. The differences between Puerto
Rico and a state are immaterial in this context.
Penagaricano v. Llenza, 747 F.2d 55, 56 n.1 (1st Cir. 1984),

overruled on other grounds by Wright v. Park, 5 F.3d 586, 591

(1st Cir. 1993).

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allocated to organize, equip, and arm state Guards. Id.

101, 107, 108, 501; Knutson, 995 F.2d at 767.

Every member of the state Air National Guard is

also enlisted in a federal organization known as the Air

National Guard of the United States (ANGUS), a component of

the Ready Reserves of the Armed Forces, which is activated

when the Guard is called into federal service. 10 U.S.C.

261, 269, 8079, 8261; 32 U.S.C. 101, 301; Perpich v.

Department of Defense, 496 U.S. 334, 345-46 (1990).

Many Guard members, so-called "weekenders," serve

only part-time, by participating in drills and maneuvers on

weekends and in the summer. National Guard technicians

participate in those activities, but also hold full-time

civilian jobs with their units. Guard technicians are

federal civil servants, hired and supervised by the state

Adjutant General. 32 U.S.C. 709. Technicians must

maintain membership in the state Guard to remain qualified

for federal employment. Id.

Plaintiff's Separation from Service

Plaintiff enlisted in PRANG in 1967 and was hired

as a Guard technician two years later. From 1969 until he

was discharged, he drew two salaries: one from PRANG, and

the other from the federal government for his services as an

aircraft maintenance technician. In June 1990, he tested

positive for HIV in a routine screening of military

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personnel. That result was confirmed by a second test in

June or early July 1990.

Plaintiff received an order on September 21, 1990,

stating that he had been honorably discharged from PRANG on

September 17, 1990, and transferred from the Ready Reserve to

the Standby Reserve. That order was based on Air National

Guard Regulation (ANGR) 39-10, which states that members of

the Guard testing positive for HIV shall be transferred to

the Standby Reserve unless a "nondeployable position" is

available. ANGR 39-10 8-25. "Deployability," according to

the record, refers to the ability to be sent anywhere in the

world for duty. The district court heard testimony that most

Guard positions are classified as deployable.

On October 16, 1990, plaintiff was notified that

his eligibility for employment as a technician ended when he

was discharged from the Guard. Plaintiff was advised that he

would be separated from federal employment after November 19,

1990.

Plaintiff's requests for revocation of these orders

were unavailing. In addition, his application for disability

benefits was denied because he was not physically disabled.

Thereafter, plaintiff filed suit in the United

States District Court for the District of Puerto Rico,

alleging that ANGR 39-10 was invalid, and that his discharge

from PRANG and from his technician job violated National

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Guard regulations, Defense Department policy, and the

principles of due process and equal protection. Plaintiff

sought reinstatement and back pay for his military and

civilian jobs, as well as a declaratory judgment that ANGR

39-10 was invalid. After prevailing in several pretrial

skirmishes,2 plaintiff was ultimately unsuccessful when the

court decided his case on the merits. Plaintiff remained

asymptomatic at the time of trial.

Issues

The issues on appeal arise from the trial court's

decision that ANGR 39-10 was valid, and that plaintiff's

separation from PRANG and from his federal position did not

violate due process and equal protection principles. In

addition to assailing several of the court's factual

findings, plaintiff raises the following legal issues: [1]

whether the lack of a hearing upon his discharge violated

ANGR 39-10 and his right to procedural due process; [2]

whether ANGR 39-10 conflicted with Defense Department policy;

[3] whether ANGR 39-10 violated his right to equal

2. The district court issued interlocutory orders that
plaintiff's case was justiciable, and that plaintiff was not
required to seek relief from the Air Force Board for the
Correction of Military Records prior to filing his civil
suit. Those issues have not been briefed by the parties on
appeal, and we do not address them in this case. For the
same reason, we do not address whether defendants can be said
to have acted under color of state law in discharging
plaintiff.

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protection; and [4] whether he was entitled to a hearing

before a medical board.

II.

MERITS

Regulations

Plaintiff argues that PRANG failed to follow ANGR

39-10 in discharging him. At the time of the discharge, that

regulation provided in pertinent part:

Members [of the Air National Guard] not
entitled to military medical health care
who display serologic evidence [of HIV
infection] will be transferred to the
Standby Reserves if they cannot be used
in a non-deployable position. These
members will be referred to their private
physicians for medical care and
counseling.

ANGR 39-10 8-25(b). Plaintiff does not argue that PRANG

lacked the authority to discharge him once he was transferred

to the Standby Reserve. Rather, plaintiff's argument is that

PRANG did not follow the procedures required by ANGR 39-10

when he was transferred to the Standby Reserve.

The court found that plaintiff was discharged from

PRANG and transferred to the Standby Reserve after PRANG

conducted an unsuccessful search for a nondeployable position

compatible with plaintiff's civil technician job. We review

the findings for clear error, Fed. R. Civ. P. 52(a), paying

heed to the district court's superior position to gauge the

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credibility of witnesses. Dedham Water Co. v. Cumberland

Farms Dairy, Inc., 972 F.2d 453, 457 (1st Cir. 1992).

In this case, we find no error in the determination

that a PRANG personnel officer, Major Urutia, had conducted

an adequate--but ultimately fruitless--search from July or

August of 1990 into 1991 for a vacant, nondeployable position

for plaintiff. Urutia testified that the search for a vacant

position extended beyond plaintiff's own unit into other

units and took into consideration plaintiff's tactical,

environmental, and electrical systems expertise. Urutia

testified that she was unable to find a vacant nondeployable

military position compatible with plaintiff's qualifications.

A unit manning document compiled in August 1990, as well as

the testimony of Julio Godreau Marrero, an officer in

plaintiff's squadron, corroborated Urutia's testimony.

The record contains two statements regarding vacant

nondeployable positions: one witness stated that he had

heard--but was unable to verify--that a cook's position was

available, and another witness testified that he had heard

that a switchboard operator position was vacant in late

December 1991. Even if we were to assume that these hearsay

statements were reliable, but cf. Doe, 800 F. Supp. at 1047

n.7 (describing one of the statements as "vague hearsay"),

there is nothing in the record indicating that either job was

compatible with plaintiff's position as an aircraft

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maintenance technician. Plaintiff has not challenged the

district court's finding that the Air Force considers

compatibility between a Guard member's military and civilian

technician positions necessary. Id. at 1047 & n.6. We find

ample support in the record for the district court's finding

that no suitable, nondeployable positions were available.

Consequently, we conclude that plaintiff's discharge from

PRANG and transfer to the Standby Reserve did not violate

ANGR 39-10 8-25.

Plaintiff next attacks the absence of a hearing

accompanying his discharge as violative of ANGR 39-10.

According to plaintiff, paragraph 1-23 of ANGR 39-10

guaranteed him a hearing. That paragraph provided:

Unless otherwise indicated, airman [sic]
recommended for discharge under [ANGR 39-
10] will be offered an opportunity for
administrative discharge board
[procedures] . . . .

ANGR 39-10 1-23. Prior to plaintiff's discharge, however,

ANGR 39-10 was amended as follows:

Effective immediately [August 10, 1990,]

members processed [in accordance with]

ANGR 39-10, para 8-25 will not be

notified nor offered an opportunity for

administrative discharge board

procedures. The upcoming revision of

ANGR 39-10 will indicate these cases will
be administered through appropriate
medical channels.

(Emphasis added.)

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Citing Nicholson v. Brown, 599 F.2d 639, 648 (5th

Cir. 1979), for the proposition that an agency's "application

to a case of new principles announced in the course of

deciding that case may be so tinged with unfairness as to

amount to an abuse" of discretion, plaintiff argues that the

amendment was invalid as to him. While we agree that the

amendment became effective after he tested positive for HIV,

we disagree that it constituted a new rule developed in the

course of a proceeding affecting plaintiff. Rather, the

amendment to ANGR 39-10 was procedural, not substantive, and

became effective before plaintiff's discharge was processed.

"The [procedural] regulations in force at the time

administrative proceedings take place govern, not those in

effect at some earlier time when the events giving rise to

the action occurred." Chilcott v. Orr, 747 F.2d 29, 34 (1st

Cir. 1984); accord Alberico v. United States, 783 F.2d 1024,

1028 (Fed. Cir. 1986). Accordingly, the amendment to ANGR

39-10 deleting the right to an administrative hearing applied

to plaintiff's case.

Plaintiff attempts to impugn the amendment by

arguing that it is analogous to a bill of attainder, and that

it was never formally adopted. A bill of attainder is a law

that inflicts punishment upon identifiable members of a class

without providing a judicial trial. Nixon v. Administrator

of Gen. Servs., 433 U.S. 425, 468-69 (1977).

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Plaintiff's allegations are unsupported by the

record. Captain Robinson, the National Guard Bureau officer

responsible for the amendment to ANGR 39-10, testified that

he proposed it in 1989 to eliminate unnecessary procedures

where the individual's HIV status was undisputed, and where

there were no nondeployable positions available. According

to Robinson, only if a nondeployable position were available

would further procedures be warranted to make a medical

determination of whether the HIV infection would interfere

with the duties of that position. An administrative board,

however, could not make such an evaluation because it lacks a

medical faculty. And because Guard members are generally not

entitled to military medical health care, the infected

individual would have to pay for any additional medical

tests. It is undisputed that plaintiff's status in the Guard

did not entitle him to military health care. Robinson

testified that his superiors approved the amendment and that

it became effective on August 10, 1990. The uncontradicted

evidence thus indicates that the amendment was a duly-

approved, general policy change, designed to effect the

nonpunitive purpose of eliminating unnecessary, costly

procedures. See Alberico, 783 F.2d at 1028 (rejecting

argument that generally-applicable amendment of regulation

affecting plaintiff's service record constituted bill of

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attainder, even though amendment was "certainly inspired by

his case").

HIV Policy
HIV Policy

Plaintiff's next argument is that his discharge

violated Defense Department policy. There are two prongs to

plaintiff's argument. First, plaintiff quotes the following

policy statement from the Defense Department and the Air

Force, regarding active duty personnel infected with HIV, in

an effort to prove that ANGR 39-10 conflicted with Department

policy:

Individuals with serologic evidence of
HIV infection and who show no evidence of
clinical illness or other indication of
immunologic or neurologic impairment
related to HIV infection, shall not be

separated solely on the basis of

serologic evidence of HIV infection.

(Emphasis added.) Plaintiff's attempt to use that policy

statement to undermine ANGR 39-10 is unavailing, however,

because he was a reservist, not on active duty.

There is a provision regarding reservists with HIV

in each of the memoranda containing that policy statement.

The Defense Department policy states that "the Secretaries of

the Military Departments may restrict individuals [in the

Reserves] with serologic evidence of HIV infection to

nondeployable units or positions for purposes of force

readiness." Air Force policy, in turn, states that

reservists "shall be transferred to the Standby Reserve, only

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if they cannot be utilized in the Selected [i.e., Ready]

Reserve," and that the decision regarding fitness for the

Selected Reserve must take into account that "military

personnel [with HIV] shall only be assigned to nondeployable

units and positions." In this case, plaintiff was not

separated solely because of his HIV condition. He was

transferred to the Standby Reserve and discharged from PRANG

because he tested positive for HIV and there were no

compatible, nondeployable positions available.

The second prong of plaintiff's argument is that

the Secretary of the Air Force allegedly abused his

discretion in restricting reservists with HIV to

nondeployable positions. A Defense Department policy

provided the Secretary with the authority to make such a

restriction "for purposes of force readiness." According to

plaintiff, the restriction is groundless because persons with

HIV can lead normal lives.

Our standard of review of decisions committed to an

agency's discretion is invariably deferential. See New

England Legal Found. v. Massachusetts Port Auth., 883 F.2d

157, 169 (1st Cir. 1989). And in the context of a decision

such as the Secretary's, in which "force readiness" is at

issue, courts must be especially circumspect. The Supreme

Court has stated that "it is difficult to conceive of an area

of governmental activity in which the courts have less

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competence." Gilligan v. Morgan, 413 U.S. 1, 10 (1973); see

also Chilcott, 747 F.2d at 32 ("Interference by the judiciary

with the administration of the military would undermine this

nation's ability to maintain a disciplined and ready fighting

force.").

The record provides ample support for our finding

that the Secretary did not abuse his discretion in adopting

the policy underlying ANGR 39-10. The Air Force Ready

Reserve (including the National Guard) makes demands of its

members that civilians might not normally face, and these

demands bear on "force readiness." The National Guard's

"whole reason for being is to be ready to be deployed,

generally outside of the United States." Doe, 800 F. Supp.

at 1045. There is ample support for the finding that persons

with HIV who are asymptomatic are not deployable because of

their restricted capacity to be immunized, their inability to

donate blood, and the unpredictability of the onset of

symptoms. Id. It follows that force readiness is affected

when nondeployable persons staff deployable positions. No

further criticism of the Secretary's decision is warranted

under the circumstances.

Equal Protection

Plaintiff's next argument is that ANGR 39-10 on its

face and as applied violated his right to equal protection.

Plaintiff argues in his brief that policies of the Department

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of Defense and Air Force draw an invalid distinction between

reservists and active duty personnel by permitting the former

to be discharged solely because of their HIV status, while

guaranteeing to the latter the right not to be discharged on

the basis of HIV infection alone.

The district court declined to reach a similar

issue in its order because plaintiff did not adequately raise

it in his complaint or at trial. See Doe, 800 F. Supp. at

1044 n.1. Our review of the record substantiates that

finding. While plaintiff flagged the issue in his posttrial

brief and in his memorandum supporting his motion for an

injunction, his complaint alleged that he suffered a

violation of equal protection because of his HIV status, not

because of his status as a reservist.

Even if the issue were preserved, we would find it

groundless. The policies and regulations at issue in this

case do not mandate that reservists be separated solely on

the basis of HIV infection. Rather, a reservist with HIV is

transferred to the Standby Reserve only if there are no

nondeployable positions available.

To the extent plaintiff seeks appellate review of

the equal protection issue alleged in his complaint, i.e.,

discrimination based on his HIV condition, we deem the matter

waived because plaintiff has not argued it on appeal in more

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than a perfunctory manner. See Gamma Audio & Video, Inc. v.

Ean-Chea, 11 F.3d 1106, 1113 (1st Cir. 1993).

Due Process

Plaintiff's argument on appeal relating to the

constitutional right to due process is also deficient.

Although his brief refers to the right to due process, he

made no explicit argument that the Due Process Clause by

itself required PRANG to provide notice and a hearing. The

essence of his argument on appeal is captured in the

following quotation: "Certainly, at a minimum, due process

of law, as guaranteed by the Fifth and Fourteenth Amendments

to the United States Constitution, requires that the Air

Force follow its own regulations in discharging an airman

from the Air Force, providing the procedural right to the

affected person set forth by applicable law and regulations."

Br. for Appellant, 18-19. Plaintiff did not assert in his

brief that he suffered a deprivation of any protected liberty

or property interest. Moreover, he cited no statute,

regulation, rule, or other basis for establishing a property

interest in his position in the Guard. Accordingly, we

conclude that plaintiff waived the issue. Playboy Enters. v.

Public Serv. Comm'n, 906 F.2d 25, 40 (1st Cir.), cert.

denied, 498 U.S. 959 (1990) ("An appellant waives any issue

which it does not adequately raise in its initial brief,

because `in preparing briefs and arguments, an appellee is

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entitled to rely on the content of an appellant's brief for

the scope of the issues appealed.'" (quoting Pignons S.A. de

Mecanique v. Polaroid Corp., 701 F.2d 1, 3 (1st Cir.

1983))).3

Where the issue is not one easily resolved in the

appellant's favor, full briefing is especially important.

Puerto Rico law and federal law are similar in stating that

National Guard members may be discharged or transferred in

accordance with regulations, with the approval of an

appropriate authority. Compare P.R. Laws Ann. tit. 25,

2072 with 10 U.S.C. 269(e), 1001(b). Courts have

generally held that there is no property interest in

continuing employment in the military under such

circumstances. See, e.g., Rich v. Secretary of the Army, 735

F.2d 1220, 1226 (10th Cir. 1984) (enlistee discharged

according to regulations lacked property interest in

remainder of enlistment term); accord Guerra v. Scruggs, 942

3. Plaintiff stated at oral argument that the record
contained evidence that he held a property right in his
military position in the form of a "retention letter." While
that letter, dated June 20, 1990, informed plaintiff that he
had been selected "for continued retention" in ANGUS through
1992, it also contained the following caveat: "Selection for
continued retention . . . does not preclude applicable
military authority from separating you for other reasons [in
accordance with] applicable ANG or USAF regulations . . . ."
We need not decide whether plaintiff had a "legitimate claim
of entitlement" to continued employment, or whether the
letter's caveat and the existence of ANGR 39-10 rendered any
putative interest at most a "unilateral expectation," Board

of Regents v. Roth, 408 U.S. 564, 577 (1972), because

plaintiff waived the issue.

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F.2d 270, 278 (4th Cir. 1991); see also Beller v. Middendorf,

632 F.2d 788, 805 (9th Cir. 1980) (enlistee held no property

interest in remainder of enlistment term because no

reasonable expectation of continued employment existed once

enlistee was found to be within regulatory class of

dischargeable persons), cert. denied, 452 U.S. 905 (1981);

cf. Navas v. Gonzalez Vales, 752 F.2d 765, 768 (1st Cir.

1985) (officer lacks property interest in military

employment); Fredericks v. Vartanian, 694 F.2d 891, 893-94

(1st Cir. 1982) (member of state Guard did not hold property

interest in his rank, where state law did not place any

relevant restrictions on commanding officer's authority to

demote him). Because of plaintiff's failure to develop the

argument on appeal, we decline to consider whether the

constitution required PRANG to provide notice and a hearing.

Entitlement to Medical Board Review

Finally, plaintiff assails the district court's

conclusion that he was not entitled to a medical board

hearing because he suffered "the sui generis situation of an

administrative discharge based upon medical considerations."

Doe, 800 F. Supp. at 1048. A medical board is responsible

for determining an individual's entitlement to disability

benefits. Plaintiff argues that he has a right to a medical

board review under 10 U.S.C. 1214-1215 because he was

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discharged as a result of his medical condition. Under

1214, "[n]o member of the armed forces may be retired or

separated for physical disability without a full and fair

hearing if he demands it."

The problem with plaintiff's argument is that he

produced no evidence which would have entitled him to medical

board review. It is undisputed that plaintiff is not

medically disabled. A "physical disability" must be the

reason for discharge before a board is convened. See 10

U.S.C. 1214.

Furthermore, even if we were to conclude that an

HIV infection is a "physical disability" because it is a

medical condition rendering plaintiff unfit for worldwide

duty, we would not conclude that plaintiff is entitled to a

medical board hearing. It is a sufficient bar to such a

claim that plaintiff offered no proof that he would be

entitled to disability benefits. See Candelaria v. United

States, 5 Cl. Ct. 266, 273 (1984); see also Abatemarco v.

United States, 226 Ct. Cl. 708, 710-11 (1981). A reservist

in plaintiff's position with more than twenty years of

service is entitled to disability benefits only if he or she

shows that the disability "result[ed] from an injury" and

"[wa]s the proximate result of performing active duty or

inactive-duty training." 10 U.S.C. 1204. The record in

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this case is devoid of proof that plaintiff acquired HIV as a

result of performing duties in the Guard.

III.

JURISDICTION

Before drawing this opinion to a close, we address

a jurisdictional issue. Defendants Secretary of the Air

Force and Chief of the National Guard Bureau (hereinafter the

federal defendants) argue that we do not have appellate

jurisdiction because plaintiff's request for back pay brings

this case within the Tucker Act. See 32 U.S.C. 709 (Guard

technicians are federal employees). Analyzing this issue

requires an understanding of the Tucker Act and an

appreciation of the two types of claims at issue: [1] the

1983 claims for back pay and injunctive relief against the

Puerto Rico defendants in their official capacities (e.g.,

the Adjutant General) based on plaintiff's discharge from

PRANG; and [2] the claim for back pay against the federal

defendants based on the termination of plaintiff's technician

position.

Under the Tucker Act, 28 U.S.C. 1491, the United

States waived its sovereign immunity from nontort claims for

money damages and specified which courts could hear such

claims. See United States v. Testan, 424 U.S. 392, 398

(1976). Claims against the United States exceeding $10,000

("Big" Tucker Act claims), founded upon the Constitution, a

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federal statute, a regulation, or contract, are in the

jurisdiction of the Court of Federal Claims. 28 U.S.C.

1491. The district courts and the Court of Federal Claims

have concurrent jurisdiction over "Little" Tucker Act claims,

i.e., for money damages up to $10,000. 28 U.S.C.

1346(a)(2) (Little Tucker Act); Sibley v. Ball, 924 F.2d 25,

28-29 (1st Cir. 1991). The Federal Circuit Court of Appeals

has exclusive appellate jurisdiction over appeals from the

Court of Federal Claims and over Little Tucker Act cases

unrelated to federal taxes. 28 U.S.C. 1295; United States

v. Hohri, 482 U.S. 64, 68, 72-73 (1987); Sibley, 924 F.2d at

29.

In Sibley v. Ball, 924 F.2d at 29, we considered

whether we had jurisdiction over an action brought against

the Secretary of the Navy for back pay, where the complaint

sought back pay "within the jurisdiction" of the district

court. We held that the case arose under the Little Tucker

Act, even though the plaintiff did not cite that Act in his

jurisdictional statement. Id. Consequently, we found that

the Federal Circuit had exclusive appellate jurisdiction.

Id. In this case, plaintiff cited only 28 U.S.C. 1331, the

statute providing federal question jurisdiction, as the basis

for filing his 1983 claims in the district court. But see

Sibley, 924 F.2d at 28 (Section "1331 does not by its own

terms waive sovereign immunity and vest in district courts

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plenary jurisdiction over all, or any, suits which--by

seeking a money judgment . . .--are in substance suits

against the United States.").

The district court clearly had federal question

jurisdiction over the Civil Rights Act claims for injunctive

relief asserted against the Puerto Rico defendants based on

plaintiff's discharge from PRANG.4 28 U.S.C. 1331; 42

U.S.C. 1988. Moreover, we are convinced that the Federal

Circuit does not have exclusive appellate jurisdiction here,

as it did in Sibley, 924 F.2d at 29, because plaintiff's back

pay claim here exceeds the jurisdictional limit for the

Little Tucker Act. For the purposes of the Tucker Act, "the

amount of a claim against the United States for back pay is

the total amount of back pay the plaintiff stands ultimately

to recover in the suit and is not the amount of back pay

accrued at the time the claim is filed." Smith v. Orr, 855

F.2d 1544, 1553 (Fed. Cir. 1988) (citing cases). At trial,

plaintiff did not waive any claim against the United States

4. Although the parties have not asked us to examine the
effect of the Eleventh Amendment in this context, we note
that a district court is not divested of jurisdiction over a
case involving a request for reinstatement and back pay
simply because the Eleventh Amendment precludes an award of
back pay. See Will v. Michigan Dept. of State Police, 491

U.S. 58, 71 n.10 (1989); Barreto-Fred v. Aponte-Roque, 916

F.2d 37, 39 (1st Cir. 1990); Melo v. Hafer, 912 F.2d 628, 635

(3d Cir. 1990), aff'd, 112 S. Ct. 358 (1991); see also

Echevarria-Gonzalez v. Gonzalez-Chapel, 849 F.2d 24, 32 (1st

Cir. 1988) (stating that reinstatement is prospective
relief).

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for back pay in excess of $10,000. The record indicates that

the amount of back pay allegedly due plaintiff is more than

$10,000. Consequently, we have jurisdiction over the

injunctive-relief issues on appeal as to the Puerto Rico

defendants.

But we can identify no basis for district court

jurisdiction over the back pay claim against the federal

defendants. Neither the Little Tucker Act, nor 28 U.S.C.

1331 provides such authority. Accordingly, we vacate the

district court's order with respect to the back pay claim

asserted against the federal defendants.

We have authority to transfer to another court with

jurisdiction any action over which we lack jurisdiction, if

such a transfer is in the interests of justice. 28 U.S.C.

1631. Arguably, the Court of Federal Claims has jurisdiction

over plaintiff's claim for overdue Guard technician's pay

under the Tucker Act and the Back Pay Act, 5 U.S.C. 5596.

In Gnagy v. United States, 634 F.2d 574, 580 (Ct. Cl. 1980),

and in Christoffersen v. United States, 230 Ct. Cl. 998,

1003-04 (1982), however, the Court of Claims, predecessor to

the Court of Federal Claims, held that the Back Pay Act did

not provide a basis for a Guard technician, validly

discharged from his or her unit, to recover damages against

the United States. The court in Gnagy, 634 F.2d at 579,

stated:

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An essential element of the right to
recover under the Back Pay Act is that
the personnel action which has resulted
in loss of pay be "unjustified or
unwarranted." This element is absent in
the instant case. A prerequisite to
plaintiff's former employment as a
civilian technician for the National
Guard was that he be a member of the
National Guard. When he was discharged
from [his Guard unit], . . . section
709(e)(1) of 32 U.S.C. (1976) required
that his civilian technician employment
be terminated. Hence, the termination of
this employment was not unjustified or
unwarranted. Rather, it was mandated by
federal statutory law. The sum effect of
this is that the claim in question must
be dismissed.

Id. (footnotes omitted); accord Christoffersen, 230 Ct. Cl.

at 1001-04; see also Christoffersen, 230 Ct. Cl. at 1005

(ruling on motion for reconsideration) (panel "denied

plaintiffs' claims as not within its jurisdiction"). Gnagy

and Christoffersen effectively removed such back pay claims

from the jurisdiction of the Court of Federal Claims because

the Tucker Act invests that court with the power to grant

relief only when a substantive right to monetary relief

exists. See Testan, 424 U.S. at 398, 400; Eastport Steamship

Corp. v. United States, 372 F.2d 1002, 1007-08 (Ct. Cl.

1967). We can educe from plaintiff's arguments no other

basis for federal jurisdiction over the back pay claim

relating to his civilian technician job. See Martinez v.

United States, 26 Cl. Ct. 1471, 1476 (1992) (court lacks

jurisdiction over due process and equal protection claims

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based on 42 U.S.C. 1983), aff'd, 11 F.3d 1069 (Fed. Cir.

1993); Montoya v. United States, 22 Cl. Ct. 568, 570 (1991)

(similar); Anderson v. United States, 22 Cl. Ct. 178, 179 n.2

(1990) ("While this court has jurisdiction in military pay

cases seeking reinstatement, back pay and allowances

generally, under 28 U.S.C. 1491, it has no jurisdiction

over cases arising under the Civil Rights Act."), aff'd, 937

F.2d 623 (Fed. Cir. 1991); Montalvo v. United States, 231 Ct.

Cl. 980, 982-83 (1982) (court lacks jurisdiction over claims

based on violations of due process); cf. Dehne v. United

States, 970 F.2d 890, 892 (Fed. Cir. 1992) (Court of Federal

Claims has jurisdiction over Guard member's claim for overdue

military pay, based on statutes stipulating military pay rate

and authorizing correction of military records).

Because the district court lacked subject matter

jurisdiction to entertain plaintiff's back pay claim, we

vacate that aspect of the district court's opinion.

Moreover, because the Court of Federal Claims, the only

tribunal arguably possessed of jurisdiction over such claims

against the United States, has expressly held that it lacks

subject matter jurisdiction where a civilian technician has

been duly discharged from his state Guard unit, a transfer of

the claim pursuant to 28 U.S.C. 1631 would be to no avail.

The claim is therefore dismissed for want of jurisdiction.

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In all other respects, we affirm the district court decision

on the merits.

It is so ordered.

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