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KIZAS v. WEBSTER

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


April 25, 1980

ADOLPH KIZAS, et al ., Plaintiff,
v.
WILLIAM H. WEBSTER, et al ., Defendants.

The opinion of the court was delivered by: OBERDORFER

MEMORANDUM

I.

 This case is before the Court on several motions filed by both parties following the Court's memorandum and Order of February 15, 1980. Plaintiffs have moved (a) pursuant to Rule 59(e), Fed. R. Civ. P., to amend the judgment to retain jurisdiction over the Title VII claims asserted in Count II of the amended complaint; and (b) pursuant to Rule 15(b) and (c), Fed. R. Civ. P., to amend the complaint by adding the United States as a defendant and alleging jurisdiction under the Tucker Act, 28 U.S.C. § 1346(a)(2) (1976). Defendants oppose any exercise of jurisdiction over Count II, and have renewed their motion to dismiss the Title VII claims for lack of exhaustion of administrative remedies. In addition, defendants have moved to dismiss the remaining elements of Count I or to transfer the money claims to the Court of Claims.

 Having carefully reviewed the arguments of both sides, the Court has determined (1) that the dismissal of Count II should not be disturbed; (2) that plaintiffs should be permitted to add the United States as a party defendant; and (3) that exclusive jurisdiction over the damage claims of those class members alleging damages in excess of $10,000 lies in the Court of Claims. By accompanying Order, the Court will offer plaintiffs the opportunity to choose between transferring the damage claims of all class members to the Court of Claims pursuant to 28 U.S.C. § 1406 or bifurcating the class into two groups: those with damage claims not in excess of $10,000 and those with claims in excess of $10,000. This Court would retain jurisdiction over the claims of the former class pursuant to 28 U.S.C. § 1346(a)(2).

 II. Count II

 By Memorandum and Order of February 15, 1980, the Court dismissed Count II of the amended complaint, which charged that the minority and female qualifying programs of the New Special Agent Selection System ("NSASS") discriminated against plaintiffs in violation of Title VII and the fifth amendment. The Court determined that the plaintiffs could obtain complete relief from adjudication of Count I and dismissed Count II rather than rach the difficult factual and constitutional issues it raised.

 By their motion to alter or amend the judgment, plaintiffs seek reconsideration of this action. Plaintiffs maintain that relief under Count II would not be co-extensive with that contemplated by Count I for violation of an implied contract. In particular, plaintiffs note that the NSASS followed the abrogation of their contractual preference that was the subject of Count I, and thus covered a different time period, and that Title VII permits the award of attorney's fees, which might not be available for Count I.

 Assuming arguendo that the relief for the two counts is not substantially the same, Count II must nevertheless be dismissed on the grounds that plaintiffs failed to exhaust their administrative remedies. It is clear initially that Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16 (1976), constitutes the exclusive remedy for claims of employment discrimination by federal employees subject to its protection. Davis v. Passman, 442 U.S. 228 (1979); Brown v. GSA, 425 U.S. 820 (1976). It is equally clear that claims under Title VII may not be brought in federal court where the plaintiffs have failed properly to raise their contentions at the administrative level. Brown v. GSA, 425 U.S. at 832; Hackley v. Roudebush, 171 U.S. App. D.C. 376, 520 F.2d 108 (1975).

 Plaintiffs claim that on several occasions they complained informally about the effects of the NSASS and that defendants have refused to provide any relief. Plaintiffs do not seriously suggest that such complaints are an acceptable substitute for the formal procedures provided in Title VII. Nor can plaintiff maintain that such inquiries demonstrate the "futility" of administrative recourse so as to justify their failure to exhaust. The law in our circuit is clear that the mere assertion that the administrative recourse is futile will not relieve a plaintiff of the duty to exhaust, particularly where the defendant is a federal agency and there exist formal avenues for administrative redress. League of United Latin American Citizens v. Hampton, 163 U.S. App. D.C. 283, 501 F.2d 843 (1974).

 Plaintiffs suggest that this Court exercise ancillary jurisdiction over the Title VII claims. Such an exercise of jurisdiction would be inappropriate, even if feasible. Adjudication of Count II would involve substantial factfinding and would require the commitment of substantial resources by the Court and the parties. Moreover, as plaintiffs now maintain, the facts surrounding Count II arise later than and are not integrally related to those in Count I, which has already been adjudicated. Finally, in view of the Court's disposition of Count I, adjudication of Count II is not necessary to protect the integrity of the main proceeding. Under these circumstances, the exercise of ancillary jurisdiction would be improper. See Morrow v. District of Columbia, 135 U.S. App. D.C. 160, 417 F.2d 728, 740 (1969).

 In view of the foregoing, the Court need not address and does not decide the question it raised in oral argument that the issues in Count II have not been raised in sufficient adversarial context to permit a decision.

 III. Count I: Jurisdiction

 A.

 With the entry of the declaratory judgment and the denial of injunctive relief on February 15, 1980, this action became one essentially for money damages against the United States. Accordingly, it is necessary to address the issues posed by the overlap of jurisdiction between this Court and the Court of Claims under the Tucker Act, 28 U.S.C. § 1346(a)(2) and 1491, which both parties agree is the sole independent basis for jurisdiction over the remaining claims.

 The Tucker Act provides for concurrent jurisdiction in the District Court and the Court of Claims for actions in which the amount claimed is not in excess of $10,000. *fn1" / Where the claim exceeds $10,000, exclusive jurisdiction lies in the Court of Claims. *fn2"

 Plaintiffs have sought leave to file a Second Amended Complaint alleging jurisdiction pursuant to section 1346, but not specifying any amount claimed. They assert that it is now impossible to evaluate each plaintiff's claim because the Court has yet to determine the manner of valuation. However, plaintiffs represent that at least some members of the class have suffered damages of less than $10,000. See Plaintiff's Reply to Defendants' Supplemental Memorandum of Points and Authorities in Support of Motion to Dismiss or, in the Alternative, for Transfer to the Court of Claims, April 17, 1980, at 3-4. Plaintiffs suggest, see id. at 4-5, that this Court retain jurisdiction of all claims under any one of three theories: first, that because there exist some class members for whom there is jurisdiction in this Court, the Court may retain jurisdiction over the entire class; second, that because jurisdiction over all the claims of the class was initially proper under 28 U.S.C. § 1331 without regard to the amount claimed, all the damage claims under the Tucker Act may be adjudicated as pendent or ancillary to the original claim. Finally, plaintiffs urge that they not be required to allege an amount claimed until all matters relating to valuation have been adjudicated. Then, only those claims valued in excess of $10,000 would be transferred to the Court of Claims for entry of judgment.

 Defendants argue that since damage claims may be substantial, plaintiffs should be required either to waive all claims for damages in excess of $10,000, see VanderMolen v. Stetson, 187 U.S. App. D.C. 133, 571 F.2d 617, 619 n. 1 (1977), or transfer this action to the Court of Claims pursuant to 28 U.S.C. § 1406. Defendants rely on a number of cases involving military officers in which claims for mandamus or declaratory relief were joined with claims for back pay. In each, the courts held that since the claims were essentially actions for money against the United States (and the amount sought exceeded $10,000), jurisdiction lay in the Court of Claims. See Denton v. Schlesinger, 605 F.2d 484 (9th Cir. 1979); Cook v. Arentzen, 582 F.2d 870 (4th Cir. 1978); Polos v. United States, 556 F.2d 903 (8th Cir. 1977); Carter v. Seamans, 411 F.2d 767 (5th Cir. 1969), cert. denied, 397 U.S. 941 (1970).

 Upon reflection, the Court has determined that if plaintiffs desire to continue this action in District Court, the proper course is to bifurcate the class to retain only those claims of class members seeking damages not in excess of $10,000. The various alternatives proposed by plaintiffs to retain jurisdiction over all the claims would do violence to the careful division of jurisdiction mandated by Congress and would frustrate the intent of Congress that the expertise of the Court of Claims be employed in all cases in which the damages sought against the United States exceed $10,000.

 Plaintiffs can offer no authority to support either of their theories of ancillary jurisdiction. Jurisdiction over the claims of class members depends upon the amount claimed individually by class members. March v. United States, 165 U.S. App. D.C. 267, 506 F.2d 1036, 1309 n.1 (1974); Fox v. City of Chicago, 401 F. Supp. 515 (N.D. Ill. 1975).It is well-established that in class actions, the Court must have jurisdiction over each plaintiff; claims of class members over whom the court lacks jurisdiction cannot be adjudicated as ancillary or pendent to the claims of those class members for whom jurisdiction lies. Zahn v. International Paper Co., 414 U.S. 291 (1974); C. Wright, Law of Federal Courts 355-56 (1976); see also March v. United States, 506 F.2d at 1309 n.1; Fox v. City of Chicago, 401 F. Supp. at 518.

 Plaintiff's reliance on Commonwealth of Pennsylvania v. National Association of Flood Insurers, 420 F.2d 11, 25 (3rd Cir. 1975) is misplaced. There, the Court of Appeals merely noted that the District Court erred in aggregating the claims of class members in determining jurisdiction under the Tucker Act. The Court additionally noted that dismissal of all claims was proper since no individual class members' claim met the jurisdictional limits of section 1343(a)(2)j Nowhere does the Court suggest that the District might have retained jurisdiction over the entire class if there were jurisdiction over some individual claims. See 520 F.2d at 25.

 Neither would it be proper for the Court to retain jurisdiction over all the damage claims as pendent to the original constitutional claim under 27 U.S.C. § 1331. Plaintiff offers no authority for the proposition that damage claims against the United States can be adjudicated as ancillary to claims for which there is federal question or mandamus jurisdiction. Indeed, the Courts that have considered this argument have rejected it. Denton v. Schlesinger, 605 F.2d at 486 n.4; Glines v. Wade, 586 F.2d 675, 681-82 (9th Cir. 1978), rev'd on other grounds sub nom. Brown v. Glines, 48 U.S.L.W. 4095 (January 22, 1980).

 Plaintiffs nevertheless raise a difficult question. Where a claim for declaratory or injunctive relief raising a clear federal question is coupled with or may result in a claim against the United States for money damages, there is a potential for conflict between the Court of Claims, which has exclusive jurisdiction over money claims in excess of $10,000, and the District Court, whose jurisdiction under sections 1331, 1361 and 2201 of Title 28 is exclusive. Defendants would have the District Court defer in all cases, and imply that this Court was without authority to issue a declaratory judgment with binding collateral effect. Plaintiffs would have the District Court retain jurisdiction up to the point at which a money judgment literally must be entered, only then transferring claims in excess of $10,000 to the Court of Claims for entry of final judgment. The authorities cited for both parties are not particularly helpful. Defendants draw the Court's attention to a number of cases involving the military in which claims for declaratory relief were coupled with claims for back pay in excess of $10,000. In each case, the Court of Appeals found that the money claims were the essence or keystone of the plaintiffs' claims; they held that for the District Court to adjudicate the declaratory aspects of the case would usurp the jurisdiction of the Court of Claims by deciding the principal legal issue in the case. In each, the Courts of Appeals approved or ordered the District Court to defer to the Court of Claims. See e.g., Denton v. Schlesinger, 605 F.2d at 486-88; Cook v. Arentzen, 582 F.2d at 878; Carter v. Seamans, 411 F.2d at 776 (District Court opinion incorporated by reference); see also Larsen v. Hoffman, 444 F. Supp. 245 (D.D.C. 1977).

 These cases offer little guidance here, however, for two reasons: first, in those cases it was clear at the outset that money was the essence of the plaintiff's suit. By contrast, the plaintiffs here raised difficult and novel constitutional questions that they hoped to resolve by a declaratory judgment in a court with jurisdiction pursuant to 28 U.S.C. §§ 1331 and 2201 and thereby become entitled to injunctive relief. The possibility of money damages became central at a late stage of the proceedings only after the Court declined to award injunctive relief and after the principal legal issue had been adjudicated. Second, in the military cases cited by defendant, the Court of Claims had been awarded special statutory authority to award equitable relief, so that by sending the plaintiffs to the Court of Claims, the Courts of Appeal were not forcing them to litigate in two forums. See, e.g., Cook v. Arentzen, 582 F.2d at 877; Carter v. Seamans, 411 F.2d at 773-74.

 Plaintiffs rely exclusively on Melvin v. Laird, 365 F. Supp. 511 (E.D.N.Y. 1973). There, the District Court refused to dismiss an action for declaratory relief but not for damages simply becuase the ultimate effect of a declaration of rights might be a damage claim in excess of $10,000. The Court concluded that where substantial rights were involved in addition to a potential money claim, the jurisdiction of the District Court under 28 U.S.C. §§ 1331 or 1361 was not eliminated by a potential and speculative monetary recovery in the Court of Claims under the Tucker Act. 365 F. Supp. at 519; see also Glines v. Wade, 586 F.2d at 681.

 In Melvin, the District Court was faced with a decision at the outset of the suit whether to defer to the Court of Claims. It was not faced, as the Court is here, with the problem of how to proceed after the legal issues had been resolved and only a damage claim remained. Indeed, in Melvin the District Court specifically reserved the question of how its jurisdiction might be affected if the plaintiff ultimately sought money damages. 365 F. Supp. at 520.

 The problem faced by the District Court in Melvin is far more like that addressed by this Court at the outset of this action. The Court agrees that like the plaintiffs in Melvin, the potential of a monetary recovery did not deprive the court of jurisdiction to consider whether the plaintiffs were entitled to declaratory or injunctive relief pursuant to sections 1331, 1361 or 2201 of Title 28. Having resolved that issue, however, the Court cannot escape the conclusion that whatever else this action might have been, it is now in essence an action for money damages. If the claims exceed $10,000, jurisdiction lies exclusively in the Court of Claims. 28 U.S.C. § 1491. See Larsen v. Hoffman, 444 F. Supp. at 255. As the Court of Appeals notes in Glines v. Wade, "[the] government, of course, could not relitigage in that forum any issues which have been decided against it here." 586 F.2d at 682.

 This result, which will occasion either the transfer of all claims to the Court of Claims or a bifurcation of the class and a transfer of some claims, will result in some hardship to the plaintiffs. Nevertheless, it is consistent with the statutory division of responsibility between the District Court and the Court of Claims. The cases are clear that the extension of jurisdiction to the District Court to adjudicate money claims of $10,000 or less was not intended to restrict the exclusive jurisdiction of the Court of Claims for amounts over $10,000. Melvin v. Laird, 365 F. Supp. at 517; Carter v. Seamans, 411 F.2d at 771-72. Respect for this principle requires deference to the Court of Claims for actions essentially for money in excess of $10,000 even where jurisdiction over part of the action may lie under another provision. See Carter v. Seamans, 411 F.2d at 775. The division of responsibility between the District Court and the Court of Claims has traditionally entailed separate suits for equitable relief and money damages, see Melvin v. Laird, 365 F. Supp. at 516-18; this division, and its consequent imposition on plaintiffs, has only partially been alleviated by amendment to the Tucker Act. It reflects the fundamental Congressional purpose to employ the expertise of the Court of Claims in all cases in which the damages sought against the United States exceed $10,000. See Glidden v. Zdanok, 370 U.S. 530 (1962).

 Plaintiffs' suggestion that they not allege any jurisdictional amount until after the Court has valued all the claims would frustrate the Congressional purpose of limiting the jurisdiction of the District Court. The court has faced a similar suggestion in Larsen v. Hoffman, supra, in which plaintiffs sought to deduct potential setoffs and counterclaims from the amount they were claiming in order to remain within the jurisdictional limits of the District Court. In a careful and substantial opinion, Judge Corcoran held that the traditional rules for pleading of jurisdictional amounts in controversy applied to actions under the Tucker Act. 444 F. Supp. at 254. Larsen is controlling here. Like the situation faced by Judge Corcoran, the plaintiffs' proposal here would require jurisdictional determinations to await the outcome of the trial on the merits. This result is plainly not contemplated by the statute, which refers to the amounts of "claims" against the United States. 28 U.S.C.§ 1346(a)(2).

 In order to permit the plaintiffs the widest latitide in deciding how to proceed, the Court will delay entry of any final order transferring any claims for a period of 60 days. During this time, plaintiffs may elect either to have the entire action transferred to the Court of Claims pursuant to 28 U.S.C. § 1406, or to bifurcate the class, with this Court retaining jurisdiction over only those claims not greater than $10,000. Plaintiffs may, of course, elect to pursue the entire action in this Court by waiving all claims in excess of $10,000. See VanderMolen v. Stetson, 571 F.2d at 619 n.2. If the plaintiffs elect to pursue all or some of their claims in this Court under the foregoing conditions, the Court will grant leave for plaintiffs to file a Second Amended Complaint alleging jurisdiction under the Tucker Act and pleading an amount claimed. See Rule 8(a), Fed. R. Civ. P. Without objection from the government, which has acknowledged that this is an action essentially against the United States, see Dugan v. Rank, 372 U.S. 609 (1963), the Court will also grant leave to add the United States as a party defendant.

 An appropriate order accompanies this Memorandum.

 ORDER

 The Court has considered plaintiffs' motions to alter or amend the judgment and to amend the complaint, and defendants' opposition thereto; and defendants' motion to dismiss or, in the alternative, for transfer to the Court of Claims, and plaintiffs' opposition thereto. For the reasons set forth in the accompanying memorandum, it is this 25th day of April, 1980, hereby

 ORDERED: That plaintiffs' motion to alter or amend the judgment is DENIED; and it is

 FURTHER ORDERED: That the plaintiffs shall have 60 days from the date of this Order in which the elect whether to proceed in this Court with those claims against the United States not in excess of $10,000 or to transfer all claims to the Court of Claims; and it is

 FURTHER ORDERED: That plaintiffs shall file no later than 60 days from the date of this Order a notice setting forth the manner in which they elect to proceed; and it is

 FURTHER ORDERED: That if plaintiffs elect to proceed in this Court leave is GRANTED to amend the Amended Complaint to add the United States as a defendant and to allege jurisdiction pursuant to 28 U.S.C. § 1346(a)(2), provided that plaintiffs also allege an amount claimed by each individual from the United States. Nothing in this Order shall be construed as limiting the jurisdiction of this Court to effectuate the Declaratory Judgment entered February 15, 1980, or otherwise to protect its jurisdiction; and it is

 FURTHER ORDERED: That defendants' motion to dismiss or, in the alternative, to transfer to the Court of Claims is DENIED without prejudice.

19800425

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