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BROWN v. UNITED STATES

March 4, 1986

Deteria BROWN, Plaintiff,
v.
The UNITED STATES of America, and Secretary of the Treasury, Donald Regan, Defendants



The opinion of the court was delivered by: GASCH

 GASCH, Senior District Judge.

 This matter is before the Court on defendant United States Government's motion to dismiss or in the alternative for summary judgment. On the eve of oral argument on this motion, plaintiff filed a motion to amend her complaint to cure the defects the motion revealed in her case. At oral argument, the Court granted plaintiff's motion to amend the complaint. Nonetheless, for the reasons stated below, the Court will grant the motion to dismiss.

 I. FACTS

 For more than 20 years, plaintiff Deteria Brown has been an employee of the Internal Revenue Service ("IRS"), a division of the Department of the Treasury. She is currently a Revenue Officer in the Forestville, Maryland IRS office. On May 30, 1984, she was informed by her supervisor that she would be denied a within-grade increase for failure to perform at an acceptable level of competence. She was given 80 days to improve her performance, as required by statute and regulation. Defendant's Exh. 1. On June 6, 1984, she filed a grievance, alleging her supervisor, Richard Waldman, "began a systematic attack on plaintiff which culminated in a poor promotion appraisal and denial of a within-grade increase." Amended Complaint, paras. 8-9. That grievance was pursued through four steps of a process provided for in the collective bargaining agreement between the National Treasury Employees Union ("NTEU") and the IRS. Def. Exh. 2-10. Plaintiff was represented by an NTEU representative during the grievance. On September 20, 1984, plaintiff was officially notified that she was being denied the within-grade increase because she had not raised her work to an "acceptable level of competence" during the 80-day period. Def. Exh. 11. She did not appeal for reconsideration as she could have under 5 C.F.R. § 531.410 and under Article 36 of the NTEU pact [hereinafter "NTEU Agreement"]. *fn1" She did not do so because she was informed by her supervisor that she could not be represented in that process by counsel of her own choosing. Amended Complaint para. 13, Def. Exh. 12-14. However, she was given an additional 15 days to refile for reconsideration on her own or with a union representative. Def. Exh. 14. She also could have filed a grievance had the reconsideration decision been against her. NTEU Agreement, Art. 10, sec. 5(B).

 In her opposition to this motion, plaintiff elaborated on her claims, alleging her supervisor, Mr. Waldman, acting on false information that she spent time in a shopping center rather than on the job during a business trip, supervised her more closely than other employees. For example, plaintiff alleges Mr. Waldman required her to document how she would spend every hour of every work day, but did not so require 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.

 II. DISCUSSION

 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. *fn2" 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). *fn3"

 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. *fn4" 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. *fn5" There is a split of authority on this issue.


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