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McClary v. United States

October 7, 1985

DARYL C. MCCLARY, APPELLANT
v.
THE UNITED STATES, APPELLEE



Appealed from: United States Claims Court

Before Davis, Bennett, and Bissell, Circuit Judges. Bissell, Circuit Judge.

Bissell

McClary appeals from the judgment of the United States Claims Court dismissing his complaint for want of jurisdiction and for failure to state a claim. We affirm in part, reverse in part, and remand.

BACKGROUND

The facts are succinctly set forth in the trial court's opinion:

As of January 1977, plaintiff was a GS-13, Senior Special Agent in the Blaine, Washington office of the Drug Enforcement Administration ("DEA"). Upon learning in 1978 that his position in Blaine was to be eliminated, plaintiff commenced searching for GS-13 Special Agent positions elsewhere. Because plaintiff's wife subsequently received a promotion in her private industry job necessitating a move to Denver, Colorado, plaintiff informed the DEA of his desire to be transferred to that area. After receiving assurances that something would be done to accommodate his needs, however, available GS-13 positions in Denver subsequently were filled by other special agents.

After his replacement was transferred to Blaine in November 1979, plaintiff was advised that to effect his transfer to Denver, he would be required to write a memorandum offering to accept a GS-12 position and volunteering to assume his own moving expenses. Plaintiff submitted the requested memoranda and was assigned to the Denver District Office of the DEA. Plaintiff avers, however, that other agents were granted preferential treatment by being permitted to transfer to the Denver office without taking downgrades.

Claiming that his reduction in grade was coerced and constituted a prohibited personnel practice, plaintiff filed, in March 1981, a request for an inquiry into DEA's actions with the Office of Special Counsel of the Merit Systems Protection Board [Board]. After the Special Counsel declined to take action, plaintiff filed this action in May 1983.

McClary v. United States, 7 Cl. Ct. 160, 161-62 (1984).

In his May 1983 suit in the Claims Court, McClary sought back pay for his reduction in grade and reimbursement for his moving expenses. With respect to the back pay claim, the Claims Court held that McClary could not use the Civil Service Reform Act of 1978 (CSRA) to invoke a substantive right for purposes of jurisdiction under the Tucker Act, 28 U.S.C. § 1491, because McClary had failed to exhaust his administrative remedies under the CSRA and that he did not have an implied private right of action under the CSRA to seek judicial review of his claim. With respect to the reimbursement claim under 5 U.S.C. § 5724, the Claims Court held that it did have Tucker Act jurisdiction but that McClary failed to state a claim upon which relief could be granted.

I

In his brief McClary asserts that the Claims Court erred in dismissing his back pay claim on jurisdictional grounds because his complaint "clearly presents tort claims" and "amply pleads unconstitutionally unequal treatment."

His tort argument requires little discussion. To the extent he is actually asserting a claim sounding in tort, it is expressly beyond the jurisdiction of the Claims Court. The Tucker Act provides that the Claims Court "shall have jurisdiction . . . in cases not sounding in tort." 28 U.S.C. § 1491(a)(1) (1982)(emphasis added).

In his other argument, McClary appears to suggest that he has an implied right to pursue his action in the Claims Court "because the MSPB had no jurisdiction" over his claim. He argues that his case is controlled by Kennedy v. United States, 5 Cl. Ct. 792 (1984), which held that where a federal employee claims he was unconstitutionally deprived of a statutorily created substantive right, and ...


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