other "similarly situated employees." Plaintiff's Opposition of August 15, 1985, p. 5 (hereinafter Plaintiff's Opp.). It is uncontested that plaintiff did not pursue the mechanism provided by statute, regulation and the NTEU pact for reconsideration of the determination that her competence level was unacceptable.
Plaintiff alleges her supervisor's actions deprived her of property without due process. Amended Complaint, para. 17. She seeks damages "in excess of $10,000." Amended Complaint, para. 23. In addition, at oral argument, plaintiff's attorney stated she was seeking declaratory judgment, as she had in her original complaint, that those acts were unconstitutional. Defendant U.S. Government moved to dismiss under Federal Rule of Civil Procedure 12(b) for improper venue, lack of subject matter jurisdiction, and for failure to state a claim upon which relief can be granted. At oral argument, defendant's attorney stated it would renew these very same objections to the Amended Complaint, which raises no new factual issues. Therefore, the Court will consider the motion to dismiss as applied to the Amended Complaint.
A. Venue and Jurisdiction
In both her amended and original complaints, plaintiff alleges jurisdiction is proper in this Court under 28 U.S.C. § 1331, because her case raises federal questions, and under 28 U.S.C. § 1346, which provides this Court with jurisdiction to hear certain cases where the United States is a defendant. In her original complaint, plaintiff asked for relief against the United States and its agent, the Secretary of the Treasury, in the form of declaratory judgment, injunctive relief, and a claim for monies due and owing for breach of contract.
In her Amended Complaint, plaintiff clarified the statutory basis for her claim and stated she seeks to recover damages in excess of $10,000. She made no contractual claim.
Defendant challenges venue and jurisdiction in this Court because plaintiff has, in both complaints, named the United States as a defendant and seeks to recover monetary damages. Therefore, jurisdiction is controlled by one of the two provisions of the Tucker Act, 28 U.S.C. § 1346 or § 1491, which govern suits for money damages against the government.
Section 1491 gives the Claims Court exclusive jurisdiction over claims against the government "founded either upon the Constitution, or any Act of Congress or any regulation of an executive department. . . ." Section 1346(a)(2) grants concurrent jurisdiction to the district courts and the Claims Court over such claims for less than $10,000. Because her Amended Complaint seeks more than $10,000, this Court cannot assert jurisdiction under Section 1346(a)(2).
That portion of plaintiff's Amended Complaint seeking more than $10,000 is clearly governed by Section 1491 and therefore falls within the exclusive jurisdiction of the Claims Court.
However, the question remains as to whether plaintiff's request for monetary relief prevents this Court from asserting jurisdiction over her request for declaratory judgment.
There is a split of authority on this issue.
Several courts have found that the Claims Court has exclusive jurisdiction under the Tucker Act even when a complaint seeks monetary damages as well as equitable relief and declaratory judgment. See Keller v. Merit Systems Protection Board, 679 F.2d 220 (11th Cir.1982); Cook v. Arentzen, 582 F.2d 870 (4th Cir.1978). In this District, in Davila v. Weinberger, 600 F. Supp. 599 (D.D.C.1985), Judge Hogan found a claim by federal employees was governed by the Tucker Act even though they sought declaratory and injunctive relief as well as money.
However, this line of cases has been criticized by the Claims Court and would appear to be contrary to several rulings of the Supreme Court. In United States v. Testan, 424 U.S. 392, 96 S. Ct. 948, 47 L. Ed. 2d 114 (1976), the Supreme Court reiterated that the Claims Court lacks the authority to grant declaratory judgments. Id. at 398, 96 S. Ct. at 953, citing United States v. King, 395 U.S. 1, 89 S. Ct. 1501, 23 L. Ed. 2d 52 (1969). Testan went on to explain that the Tucker Act is itself only a jurisdictional statute, and does not authorize the Claims Court to grant monetary judgments against the United States absent some other statute that creates a right to the monetary award. Id. 424 U.S. at 400, 96 S. Ct. at 954. Thus, any equitable powers that Section 1491 may confer on the Claims Court to order the readjustment of a federal employee's status may be exercised only in conjunction with an appropriate money judgment. Id. at 404, 96 S. Ct. at 956.
The effect of Testan on the apportionment of jurisdiction between the Claims Court and the district courts is explained in Smith v. United States, 654 F.2d 50, 228 Ct.Cl. 168 (1981). The Smith court noted that district courts may render judgment on a federal employee's nonmonetary claims, even where her monetary claims exceed $10,000. Id. 654 F.2d at 52; see also Giordano v. Roudebush, 617 F.2d 511, 514 (8th Cir.1980). As to the authority to issue a declaratory judgment, the Claims Court stated, "Only the district court has that power; we do not." Smith, supra, 654 F.2d at 53.
The Court finds the explanation in Smith ably reasoned and in line with the Supreme Court authorities on this issue. Therefore, the Court concludes that it lacks jurisdiction over the plaintiff's monetary claims, but may consider her request for declaratory judgment.
Thus the Court must consider the government's motion to dismiss the substance of her constitutional claims for failure to state a claim upon which relief can be granted.
B. Subject Matter Jurisdiction/Failure to State a Claim
Generally, this Court would lack subject matter jurisdiction to hear claims by federal employees based on statute or regulation where, as here, the employee has failed to exhaust her exclusive remedies under the Civil Service Reform Act ("CSRA"), 5 U.S.C. § 7121(a)(1), and the union grievance procedures. See NTEU Agreement, Art. 36; see also Andrade v. Lauer, 234 U.S. App. D.C. 384, 729 F.2d 1475, 1487 (D.C.Cir.1984); Pinar v. Dole, 747 F.2d 899, 910 (4th Cir.1984), cert. denied, 471 U.S. 1016, 105 S. Ct. 2019, 85 L. Ed. 2d 301 (1985); Carter v. Kurzejeski, 706 F.2d 835, 840 (8th Cir.1983).
However, in this circuit, when a federal employee raises constitutional claims in connection with a negative personnel decision, the Court may consider them regardless of whether she has exhausted her administrative remedies.
Andrade, supra, 729 F.2d at 1493; Cutts v. Fowler, 223 U.S. App. D.C. 414, 692 F.2d 138, 140 (D.C.Cir.1982). Thus, in considering defendant's motion to dismiss for failure to state a claim, the Court must consider whether, taking plaintiff's factual allegations as true, her constitutional claims have any basis in law. Doe v. Department of Justice, 243 U.S. App. D.C. 354, 753 F.2d 1092, 1102 (D.C.Cir.1985).
The substance of plaintiff's due process complaint appears to be that she was denied an interest in property -- the pay raise that accompanies a within-grade promotion -- without due process, namely, without independent representation by a lawyer of her own choosing during the reconsideration and grievance procedures.
To demonstrate an interest in property under the due process clause of the fifth amendment, a federal employee must show she has a legitimate entitlement to that property. See Pinar, supra, 747 F.2d at 913; Carducci, supra, 714 F.2d at 176, citing Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970), Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548 (1972), Perry v. Sindermann, 408 U.S. 593, 602, 92 S. Ct. 2694, 2700, 33 L. Ed. 2d 570 (1972). Plaintiff here was denied a promotion and a pay raise. She did not lose her job; nor was she demoted. A review of the case law indicates plaintiff was not deprived of any interest in property to which she was entitled in the constitutional sense.
"As a general matter, of course, a government employee has no property entitlement to a promotion and therefore lacks any constitutional basis for requiring some kind of hearing upon a nonpromotion decision." Colm v. Vance, 186 U.S. App. D.C. 132, 567 F.2d 1125, 1130 (D.C.Cir.1977) (citations omitted). Therefore, to have a fifth amendment property interest here, plaintiff must demonstrate that a legitimate entitlement to a promotion and pay raise was created by a statute, regulation or contract. Pinar, supra, 747 F.2d at 913 (citations omitted); Colm, supra, 567 F.2d at 1131. Such an entitlement may also be based on agency-fostered policies or understandings. Id. Kizas v. Webster, 227 U.S. App. D.C. 327, 707 F.2d 524, 539 (D.C.Cir.1983), cert. denied sub nom. Kizas v. United States, 464 U.S. 1042, 104 S. Ct. 709, 79 L. Ed. 2d 173 (1984).
In her Amended Complaint, plaintiff argues 5 U.S.C. § 5335 creates an automatic entitlement to a within-grade increase.
That provision states that an employee "who has not reached the maximum rate of pay for the grade in which his position is placed, shall advance in pay successively to the next higher rate within the grade," following passage of a specified period of time. However, plaintiff ignores the fact that this within-grade increase is conditional, under Section 5335(a)(A), upon a determination that the work of the employee is of an acceptable level of competency as determined by the head of her agency. Therefore, she has no entitlement to a conditional within-grade increase where she has not satisfied the condition, namely, that she be of an acceptable level of competence.
Plaintiff further contends she was denied due process because the agency did not permit her to pursue reconsideration of the negative competence level rating, as required under 5 C.F.R. § 531.410. It is undisputed that the agency offered her reconsideration, but that she did not pursue it because she was not allowed to be represented by her lawyer during that process. However, she had no right to a lawyer under the statutes or regulation cited by plaintiff. Plaintiff finds this "right" in the CSRA, 5 U.S.C. § 7114(a)(5)(A), which provides that a labor union is the exclusive representative for employees when negotiating collective bargaining agreements. The provision further states:
(5) The rights of an exclusive representative under the provisions of this subsection shall not be construed to preclude any employee from --
(A) being represented by an attorney or other representative, other than the exclusive representative, of employee's own choosing in any grievance or appeal action;