Terryl Schwalier v. Chuck Hagel , 734 F.3d 1218 ( 2013 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 16, 2013 Decided November 15, 2013
No. 12-5153
TERRYL J. SCHWALIER, UNITED STATES AIR FORCE RETIRED
BRIGADIER GENERAL,
APPELLANT
v.
CHUCK HAGEL, SECRETARY OF DEFENSE, AND
ERIC FANNING, ACTING SECRETARY OF THE AIR FORCE,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:11-cv-00126)
David P. Sheldon argued the cause for appellant. With
him on the briefs were Brian D. Schenk and Edward F.
Rodriguez Jr.
John F. Cooney and Rebecca E. Pearson were on the
brief for amicus curiae Air Force Association in support of
appellant.
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Jane M. Lyons, Assistant U.S. Attorney, argued the cause
for appellees. On the brief were Ronald C. Machen Jr., U.S.
Attorney, R. Craig Lawrence, Assistant U.S. Attorney, and
Jenny Knopinski, Special Assistant U.S. Attorney. John G.
Lennon, Special Assistant U.S. Attorney, entered an
appearance.
Before: ROGERS and TATEL, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
SENTELLE.
SENTELLE, Senior Circuit Judge: Retired Brigadier
General Terryl Schwalier brought this action in the district
court seeking, inter alia, “correction” of his military records
to reflect promotion to major general, along with active duty
back pay and retired pay. The district court entered summary
judgment in favor of the Secretary of the Air Force and the
Secretary of Defense. Schwalier appeals. Because the
jurisdiction of the district court was based, at least in part, on
the Little Tucker Act, we conclude that the Federal Circuit
possesses exclusive jurisdiction over this appeal, and we
therefore transfer Schwalier’s appeal to that court.
I. BACKGROUND
The published opinion of the district court sets forth the
procedural and factual background of this litigation in some
detail. See Schwalier v. Panetta, 839 F. Supp. 2d 75 (D.D.C.
2012). We will therefore provide only the details pertinent to
our jurisdictional analysis.
In 1995, then President Clinton nominated Brigadier
General Terryl J. Schwalier for promotion to major general,
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and the Senate confirmed his nomination in 1996. Id. at 77.
President Clinton subsequently removed Schwalier’s name
from the promotion list, and in 1997 Schwalier retired in the
grade of brigadier general.
Schwalier petitioned the Air Force Board for the
Correction of Military Records (“Board”) in 2003. He
requested a correction of his records to reflect promotion to
major general, effective January 1, 1997; retirement, as a
major general; and receipt of appropriate back pay. In 2004,
the Board recommended granting Schwalier’s request,
concluding that he had been promoted by operation of law
before the President removed his name from the list in 1997.
The Department of Defense (“DOD”) rejected the Board’s
decision and determined that the action of the Board was ultra
vires and without legal effect. Based on the DOD analysis,
the Board notified Schwalier that he was not promoted “by
authority of the President or otherwise, prior to the President
taking personal action to remove [his] name from the
promotion list.”
Schwalier petitioned the Board for reconsideration in
2007. The Board again recommended correction, the Air
Force adopted the recommendation, and the DOD intervened,
directing the DOD Comptroller not to pay Schwalier as
directed by the Air Force. In response, the Air Force again
rescinded the “corrections” of Schwalier’s records.
On January 20, 2011, Schwalier filed suit against the
Secretary of the Air Force and the Secretary of Defense.
Schwalier alleged that the DOD had unlawfully interfered
with the records corrections favorable to Schwalier, and that
the Air Force had acted arbitrarily and capriciously in
acquiescing to that interference. According to Schwalier,
neither the Secretary of Defense nor the Secretary of the Air
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Force could legally reverse relief once granted, because
records corrections issued by the Air Force are “final and
conclusive on all officers of the United States.” 10 U.S.C.
§ 1552(a)(4).
In his complaint, Schwalier sought equitable and
declaratory relief reinstating the Board’s favorable decisions,
as well as an order enjoining the DOD from interfering with
further correction actions. Schwalier “expressly waive[d] any
right or entitlement to recover monetary damages greater than
$10,000 in this action,” as a consequence of filing his
“complaint in this Honorable Court.” And in the final
paragraph of his prayer for relief, Schwalier requested “any
other relief, including active duty pay and retired pay, as this
Honorable Court deems just and proper to provide complete
and full relief to Plaintiff.” (Emphasis added.) On cross-
motions for summary judgment, the district court ruled in
favor of the Secretaries. Schwalier, 839 F. Supp. 2d at 86.
Because the jurisdiction of the court below was based in part
on the Little Tucker Act, we transfer this appeal to the Federal
Circuit.
II. ANALYSIS
The Tucker Act, 28 U.S.C. § 1491, vests exclusive
jurisdiction in the Court of Federal Claims over claims against
the United States for “liquidated or unliquidated damages in
cases not sounding in tort.” 28 U.S.C. § 1491(a)(1); Smalls v.
United States, 471 F.3d 186, 189 (D.C. Cir. 2006). The Little
Tucker Act, 28 U.S.C. § 1346, provides an exception, vesting
district courts with concurrent jurisdiction for “civil action[s]
or claim[s] against the United States, not exceeding $10,000
in amount, founded either upon the Constitution, or any Act
of Congress . . . .” 28 U.S.C. § 1346(a)(2). In 28 U.S.C.
§ 1295(a)(2), the statute grants “exclusive jurisdiction” to the
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Court of Appeals for the Federal Circuit over appeals from
decisions of the district courts when “the jurisdiction of that
court was based, in whole or in part,” on the Little Tucker
Act. By granting exclusive jurisdiction over such cases to the
Federal Circuit, the Act divests us of appellate jurisdiction
over claims that “(1) seek money (2) not exceeding $10,000
(3) from the United States and (4) [are] founded” upon an
“Act of Congress . . . that can fairly be interpreted as
mandating compensation by the Federal Government for the
damages sustained.” Van Drasek v. Lehman, 762 F.2d 1065,
1068 (D.C. Cir. 1985) (internal quotations omitted).
On the face of the complaint, it would appear that these
four criteria are met: Schwalier seeks back pay and
retirement pay; he expressly waives an amount exceeding
$10,000; the action is brought against the Secretaries in their
official capacity as Officers of the United States; and the
claim/action finally rests upon the statutory structure for
payment of military personnel and correction of relevant
records. Before this court, Schwalier does not contest the last
three of the criteria, but asserts that his complaint does not
“seek money . . . for damages” within the meaning of the Act.
It is on this element that the parties have joined issue, and it is
solely this issue which we must determine in order to answer
the jurisdictional question.
Schwalier asserts that the Little Tucker Act cannot apply
because his “complaint does not contain any request for
money damages.” He forwards two related arguments for
why his claim is not monetary in nature. First Schwalier
focuses on the structure of his complaint, and argues that
neither his request for back pay nor his waiver of damages
over $10,000 sufficiently raises a monetary claim requiring a
transfer. Schwalier’s only monetary reference appears in the
final paragraph of his prayer for relief, in which he requests
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“any other relief, including active duty back pay and retired
pay, as this Honorable Court deems just and proper to provide
complete and full relief to Plaintiff.” Compl. Prayer for
Relief ¶ (M). This Court is duty-bound to “grant the relief to
which each party is entitled, even if the party has not
demanded that relief in its pleadings.” Fed. R. Civ. P. 54(c).
Schwalier characterizes the last paragraph of his complaint as
an invocation of this duty, and notes that we have held such
invocations to be surplusage, and thus of no consequence to
our jurisdictional analysis. Sharp v. Weinberger, 798 F.2d
1521, 1524 (D.C. Cir. 1986); see also Viet. Veterans of Am. v.
Sec’y of the Navy, 843 F.2d 528, 534 (D.C. Cir. 1988).
Schwalier reasons that his reference to back pay is likewise
surplusage, and therefore, it too has no bearing on this court’s
jurisdiction.
It does not appear to us that our decision in Sharp solves
Schwalier’s problem. The plaintiff in Sharp did not seek
money damages in any direct form. The language of the
complaint discussed in the Sharp decision sought “all other
relief deemed just and proper.” It was that language that we
deemed surplusage. Schwalier, on the other hand, explicitly
seeks relief that “include[s] active duty back pay and retired
pay.” It cannot be gainsaid that had the plaintiff himself
calculated the back pay and retired pay and sought the explicit
amount, that would create a monetary claim, and, all other
requirements being met, place this appeal in the jurisdiction of
the Federal Circuit under the Little Tucker Act. We do not
know whether the use of words rather than numbers
represents intentionally artful pleading or simply a stylistic
choice, but we cannot allow it to control. To permit plaintiffs
to evade the strictures of the Tucker Act by setting forth the
formula for their monetary relief rather than asking for a
specified amount of “damages” in so many words would undo
the carefully erected structure that Congress set forth. We
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further note that by explicitly waiving damages over $10,000,
Schwalier has apparently deliberately brought himself within
the terms of the Little Tucker Act but for the disputed
question of a monetary claim which, as we describe above, he
has made without calculating its total.
Schwalier’s second argument goes more broadly to the
nature or “core” of his action. He sought equitable and
declaratory relief. Any monetary recovery would come from
a favorable decision by the Board, not the court. Schwalier
likens his case to Smalls, in which the plaintiff sought “in
essence . . . declaratory or injunctive relief that is not
negligible in comparison with the potential monetary
recovery.” Smalls, 471 F.3d at 190 (internal quotations
omitted). As in Smalls, Schwalier challenges the denial of
relief from a records-correction board. See id. And as in
Smalls, Schwalier filed his suit “primarily to correct his
military records.” See id. (emphasis in the original). As
counsel described it at oral argument, Schwalier’s is not a
“back pay” action or a “money case,” but an APA action, and
this is how the district court treated it.
The Secretaries argue in response that neither the intent
of the litigant nor the treatment of the district court governs
our analysis. The question of jurisdiction is answered by the
language of the complaint, and in his complaint Schwalier
explicitly requested monetary relief. It is immaterial that
Schwalier’s complaint included an APA claim; his action
need only be based “in part” on the Little Tucker Act to divest
us of appellate jurisdiction, even if it was also based in part on
the APA. The Secretaries have the better argument.
We only look to the essence of a complaint in the
absence of an explicit request for monetary relief. See, e.g.,
Kidwell v. Dep’t of the Army, 56 F.3d 279, 285 (D.C. Cir.
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1995) (“[P]laintiff here has not explicitly requested monetary
relief . . . .”); Tootle v. Sec’y of the Navy, 446 F.3d at 167, 169
(D.C. Cir. 2006) (“Tootle’s complaint does not explicitly
request money damages.”). Because Schwalier has included
such a request on the face of the complaint, there is no need to
peer deeper into its substance, essence, or “core.” See
Kidwell, 56 F.3d at 284. Even in Smalls, our decision hinged
on ambiguity in the language of the complaint. There we
found a reference to “retirement benefits” insufficient to
create a monetary claim because “the phrase ‘retirement
benefits’ connotes a host of benefits to which no monetary
value can be attached,” and any disability pay the plaintiff
could have received “would come as a result of administrative
proceedings . . . and not as a result of the adjudication of the
claims in” the plaintiff’s complaint. Smalls, 471 F.3d at 190–
91. Schwalier’s request for back pay, on the other hand, is
unambiguously monetary in nature, and he requested it
directly from the court. In light of this explicit request, we
need not examine the complaint in greater detail.
In sum, Schwalier sought back pay, and the explicit
nature of his request obviates the need to examine his claim’s
essence. Moreover, the location of the monetary request in
his complaint is immaterial to our jurisdictional analysis.
Ultimately, Schwalier requested (1) back pay (2) not
exceeding $10,000 that, if granted, would (3) come from the
Federal Government, and (4) his substantive claim was
founded upon 10 U.S.C. § 1552, an Act of Congress we have
held can “fairly be interpreted as mandating compensation by
the Federal Government.” Van Drasek, 762 F.2d at 1068,
1071 (back pay request). Accordingly, Schwalier’s action
below was based “in part” on the Little Tucker Act, and we
lack jurisdiction over this appeal. See id. at 1072.
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III. CONCLUSION
For the foregoing reasons, we transfer this appeal to the
Federal Circuit.
So ordered.