or injunctive relief, but are in fact disguised contract claims which properly belong within the exclusive jurisdiction of the Claims Court. See Megapulse, Inc. v. Lewis, 217 U.S. App. D.C. 397, 672 F.2d 959, 968 (D.C. Cir. 1982). Thus, if counts I and II are in reality contract claims for purposes of the Tucker Act, this Court has no jurisdiction over those claims.
"Whether a claim is one 'founded upon' a contract for purposes of the Tucker Act 'depends both on the source of the rights upon which the plaintiff bases its claim, and upon the type of relief sought (or appropriate).' Megapulse, Inc. v. Lewis, 217 U.S. App. D.C. 397, 672 F.2d 959, 968 (D.C. Cir. 1982)." Spectrum Leasing Corp. v. United States, 246 U.S. App. D.C. 258, 764 F.2d 891, 893 (D.C. Cir. 1985). Here, the essential basis for Mrs. Thurston's APA claims is directly founded upon the contract entered into by her husband with the Department of State on January 13, 1969 and her rights under that contract. See Amended Complaint para. 20. The rights asserted were created under the contract and are dependent on it. In addition, the relief sought is essentially equivalent to classic contractual remedies -- i.e., money damages and specific performance. Plaintiff's APA claims, therefore, are barred by the Tucker Act. Moreover, section 704 of the APA itself states that judicial review is inappropriate where there exists some "other adequate remedy in a court" and this Circuit has held that the availability of a remedy in the Claims Court may be just such an adequate remedy. See International Engineering Co., Division of A-T-O, Inc. v. Richardson, 167 U.S. App. D.C. 396, 512 F.2d 573, 580-81 (D.C. Cir. 1975).
Counts III, IV and V: Violations of Equal Protection, Due Process and Compensation Clauses
As to Counts III and IV, the violations of constitutional rights asserted emanate from the State Department's interpretation of the annuity benefits contract and amendments of the Foreign Service Act affecting those benefits. Plaintiff requests declaratory, injunctive and mandatory relief -- extreme measures which would require the Court to, in essence, declare the United States in breach of its contractual obligations, issue an injunction compelling the United States to fulfill its contract obligations and order the United States to release and make restitution for all annuity payments it has withheld. Such extreme relief is inappropriate where other fair and adequate remedies are available and the real relief sought is basically monetary. This contract case properly belongs in the Claims Court where Mrs. Thurston's interests will be fully protected by the availability of fair and adequate remedies based on her contract claims.
Count V is based on the fifth amendment compensation clause. Mrs. Thurston alleges that the Department of State denied her her property rights under the annuity benefits contract without just compensation; there is no claim that any official of the Department of State acted outside the scope of their authorized discretion in interpreting the contract and later amendments of the Foreign Service Act affecting it. The Supreme Court has held that where fair and adequate relief for claims based on the just compensation clause is available in the Claims Court, fifth amendment takings claims will not be recognized. See Larson v. Domestic & Foreign Corp., 337 U.S. 682, 697 n. 18, 93 L. Ed. 1628, 69 S. Ct. 1457 (1949); Ramirez de Arellano v. Weinberger, 240 U.S. App. D.C. 363, 745 F.2d 1500, 1526 (D.C. Cir. 1984). Accordingly, because such fair and adequate relief is available in the Claims Court, plaintiff's just compensation claim will be transferred by this Court to the Claims Court along with counts VIII and IX.
Count VI: Conversion
The success of Mrs. Thurston's conversion essentially depends on proof of the contractual claim. Since jurisdiction over the asserted contract claims lies exclusively in the Claims Court and relief under the contract claims adequately redresses the conversion claim, no purpose is served by having this Court retain jurisdiction over the conversion claim while the Claims Court determines the contract claims. Such piecemeal adjudication would serve neither the interest of justice nor judicial economy.
Count VII: Negligent, Reckless, and Intentional Infliction of Emotional Distress
Under 28 U.S.C. § 2401(b), "[a] tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented." See also 22 C.F.R. § 31.1 (1987) (regulations setting out written notice requirements for tort suits brought against the Department of State). Satisfaction of this notice provision is a jurisdictional prerequisite to bringing a tort claim against the United States. Mrs. Thurston has not satisfied this prerequisite by submitting written information sufficient to permit the Department of State to investigate, evaluate and consider settlement of the tort claim. Consequently, her tort claim is jurisdictionally barred.
Count X: Anti-Deficiency Act Violation
The Anti-Deficiency Act, 31 U.S.C. §§ 1342, 1351, explicitly sets forth procedures for reporting violations of the Act and enforcing its provisions. See § 1351. No private right of action for declaratory, mandatory or injunctive relief exists under this statute and Mrs. Thurston, therefore, may not maintain this count.
Finally, as to plaintiff's equity claim for prospective relief, this claim is premature. Not only may it be advanced if and when her contract right is established but it may well be that the Claims Court may grant her assistance in this regard in the form of the incidental equitable relief available in that Court should she prevail on the underlying contract claim.
Accordingly, the Court is of the that view counts V, VIII and IX should be transferred to the Claims Court, the remaining claims should be dismissed and the motion to dismiss granted as to each of the remaining claims. An appropriate Order is attached.
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