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DAVILA v. WEINBERGER

January 3, 1985

A. NICHOLAS DAVILA, et al., Plaintiffs
v.
CASPAR W. WEINBERGER, et al., Defendants



The opinion of the court was delivered by: HOGAN

 The plaintiffs in this case are, or were at all times pertinent to this action, employed as firefighters by the federal government. Originally, this action was brought by only eight federal firefighters, none of whom reside in the District of Columbia. Since the filing of the complaint, over 2500 other federal firefighters, including individuals from almost every state as well as three firefighters from the District of Columbia, have submitted written consents to become party plaintiffs pursuant to Section 16(b) of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 216(b). The plaintiffs seek declaratory, injunctive and monetary relief, as well as an order in the nature of mandamus, for alleged violations of the FLSA, 29 U.S.C. § 201, et seq. Plaintiffs allege that they were wrongfully denied overtime pay under the FLSA for overtime hours that they were normally and regularly scheduled to work when they were absent due to jury duty, military duty, sick leave, or annual leave.

 Presently, this case is before the Court on defendants' motion to dismiss for improper venue under Rule 12(b)(3) of the Federal Rules of Civil Procedure. Upon consideration of defendant's motion, plaintiffs' opposition, and the applicable statutory provisions, this Court concludes that this action should be transferred to the United States Claims Court.

 Background

 The Tucker Act, as amended by the Federal Courts Improvement Act of 1982, Pub. L. No. 97-164, 96 Stat. 25, grants concurrent jurisdiction to the district courts and the Claims Court over non-tort claims for money damages brought against the United States "not exceeding $10,000 in amount." 28 U.S.C. § 1346(a)(2). *fn1" With respect to venue, the Tucker Act provides that when an action is brought in a federal district court as opposed to the Claims Court, venue is proper only in the district "where the plaintiff resides." 28 U.S.C. § 1402(a)(1).

 Defendants' motion to dismiss contends that the venue provision of the Tucker Act is the only venue statute applicable in this case. Defendants assert that although plaintiffs also bring claims for declaratory and equitable relief, the true nature of the claims is for money damages, with the Tucker Act controlling. Defendants further argue that the filing of consents by three residents of the District of Columbia to become party plaintiffs is insufficient to bring the claims of the District of Columbia residents themselves before this Court, and in any event does not establish venue in this district with respect to the claims of the other firefighters.

 Plaintiffs oppose defendants' motion to dismiss on several grounds. Plaintiffs assert that their claims are not purely claims for money damages and should therefore not be controlled by the venue provisions of the Tucker Act. Instead, plaintiffs contend that the general venue provision for claims against the United States, 28 U.S.C. § 1391(e), should be applied in this case. Plaintiffs further argue that even if the venue provisions of the Tucker Act are found controlling, venue should nevertheless be found proper in this Court. Plaintiffs urge this Court to interpret § 1402(a)(1) to place venue under the Tucker Act where any plaintiff resides. Accordingly, plaintiffs assert that the District of Columbia residents have properly joined as plaintiffs in this action by filing consent forms sufficient under section 16(b) of the FLSA, 29 U.S.C. § 216(b), and that venue in this district should therefore be found proper as to all non-resident plaintiffs as well. Plaintiffs suggest that such an interpretation of the Tucker Act would comport with judicial interpretation of another similarly worded venue provision, avoid the waste of judicial resources that would be created by the multiplicity of actions in different districts throughout the country, and allow the plaintiffs to pursue forms of relief unavailable in the Claims Court.

 Applicability of the Tucker Act's Venue Provisions

 The initial issue that must be addressed by this Court is whether the venue provision of the Tucker Act, 28 U.S.C. § 1402(a)(1), controls the determination of proper venue in this case. Resisting the defendants' attempt to characterize this action as one arising exclusively under the Tucker Act, plaintiffs note that the Complaint also seeks declaratory and injunctive relief, as well as relief in the nature of a writ of mandamus. Plaintiffs proffer that as the result of their seeking remedies other than monetary damages, the general venue provision allowing actions against the United States, its agencies or its officials to be brought in this district, 28 U.S.C. § 1391(e), should prevail over the venue provision of the Tucker Act.

 This Court might well suffice to hold that the venue provision of the Tucker Act controls this case simply by virtue of the axiom that specific venue provisions take precedence over general venue provisions. See Bruns, Nordeman & Co. v. National Bank & Trust Co., 394 F.2d 300 (2d Cir.), cert. denied, 393 U.S. 855, 21 L. Ed. 2d 125, 89 S. Ct. 97 (1968). Nevertheless, this Court finds that an examination of the nature of plaintiffs' claims also clearly warrants applicability of the Tucker Act despite plaintiffs' attempt to carve an exception to this axiom.

 Courts construing the jurisdictional provisions of the Tucker Act that grant the district courts and the Claims Court concurrent jurisdiction over most non-tort monetary claims against the United States under $10,000, while reserving for the Claims Court alone actions for $10,000 or more, have firmly established that the exclusive jurisdiction of the Claims Court cannot be evaded by filing a complaint in district court which seeks to couple injunctive, mandatory, or declaratory relief against governmental officers with a claim for money damages. See e.g., Jesko v. United States, 713 F.2d 565, 566 (10th Cir. 1983) (where money damages as well as declaratory, injunctive and mandatory relief requested in connection with alleged wrongful cancellation of emergency disaster loans, essentially claim for monetary damages in excess of $ 10,000 vesting jurisdiction in Court of Claims); Cook v. Arentzen, 582 F.2d 870, 878 (4th Cir. 1978) (to allow action seeking declaratory, mandatory and injunctive relief arising from allegedly wrongfully requiring pregnant naval officer to resign commission to be brought in district court would improperly create jurisdiction co-extensive with Court of Claims over claims in excess of $ 10,000).

 Just as the drafting of the complaint should not be permitted to evade the jurisdictional provisions of the Tucker Act divesting the Claims Court of jurisdiction in favor of a federal district court where the monetary claim exceeds $10,000, neither should it be permitted to evade the venue provisions of the Act to result in venue in one federal district court as opposed to another district court, or as opposed to the Claims Court, where the claim is for less than $10,000. To the extent that the Complaint in this action seeks declaratory, injunctive and mandatory relief, those requested remedies are inextricably intertwined with plaintiffs' claims for damages. Accordingly, the true nature of this action as a claim for monetary damages, with jurisdiction arising under the Tucker Act, cannot be disguised, and the venue provisions of that Act must be found controlling. *fn2" See Kelley v. United States, C.A. No. 83-2294, mem. op. at 3 (D.D.C. May 21, 1984) (claim for declaratory and injunctive and monetary relief for alleged violations of FLSA in actuality claim for monetary damages under Tucker Act, requiring claim to be brought in conformity with venue provisions of that act) (citing Denton v. Schlesinger, 605 F.2d 484 (9th Cir. 1979)); Cook v. Arentzen, 582 F.2d 870 (4th Cir. 1978).

 Applying the Venue Provisions of the Tucker Act

 Having determined that the Tucker Act's venue provision is controlling, this Court must next determine the proper ...


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