the statutes mentioned above waive sovereign immunity and grant subject matter jurisdiction as to these agencies, particularly when the relief sought, as here, is merely injunctive and declaratory, and not monetary. Opposition at 3-4, 7-23. The defendants counter that plaintiff's suit really challenges an action of the United States under the standard set forth in Dugan, which states:
The general rule is that a suit is against the sovereign if "the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration," . . . or if the effect of the judgment would be "to restrain the Government from acting, or compel it to act."
372 U.S. at 620 (citations omitted). Motion to Dismiss at 23. To be sure, the defendants are correct that the relief the plaintiff seeks -- an injunction barring application of OTS's stricter accounting regulations to plaintiff -- could only operate to "interfere with the public administration" of FIRREA and "restrain the Government from acting, or compel it to act." Id. In FIRREA, Congress charged the Director of OTS to promulgate, in response to a nationwide crisis, new regulations prescribing stricter capital standards for all thrift institutions. See Olympic, supra, at 4; Northeast, supra, at 4. Moreover, as the Court of Appeals for the Fourth Circuit stated in interpreting Dugan, "a suit against a federal official for acts performed within his official capacity . . . amounts to an action against the sovereign." Portsmouth Redev. & Housing Auth. v. Pierce, 706 F.2d 471, 473 (4th Cir. 1983).
It is also noteworthy that, like the plaintiffs in Olympic, supra, plaintiffs here argue that "the defendants seek to drain their own statutory waivers of sovereign immunity of any meaning, without offering any explanation as to Congress' purpose in including the 'sue and be sued' and 'subject to suit' language in FIRREA."
Opposition at 13. As the Olympic decision made clear, however,
an action is against an agency, rather than against the United States, when the agency has within its possession and control funds which it can use to pay a judgment. As the Supreme Court has made clear, actions for monetary relief are not necessarily claims for money damages. Bowen v. Massachusetts, 487 U.S. 879, 893-96, 101 L. Ed. 2d 749, 108 S. Ct. 2722 (1988). Accordingly, suits seeking monetary relief could be brought against the Director of OTS under the "subject to suit provision" if the money used to pay the judgment was in OTS' control. The long-standing interpretation of the limits on the waiver of an agency's sovereign immunity therefore do not rob the OTS "subject to suit" provision of meaning.
Olympic, supra, at 12. As in Olympic, the fact that the plaintiff here is seeking equitable relief, i.e., an injunction, rather than monetary relief, does not alter the limits on the sovereign immunity waivers of the OTS and FDIC.
The plaintiff relies on the Federal Circuit's decision in Far West Federal v. Office of Thrift Supervision, 930 F.2d 833 (Fed. Cir. 1991), to support the contention that the Federal Circuit has found its "own lower court -- the Claims Court -- does not have exclusive jurisdiction over claims such as Coast's against the very same defendants as in the instant case." Opposition at 12. Examination of the Federal Circuit's decision in Far West, however, shows it to be inapposite to "claims such as Coast's" and fully consistent with the reasoning set forth in Olympic.
In Far West, the plaintiff thrift sought relief in the district court in Oregon consisting of declaratory and injunctive relief from the FIRREA-based regulations and, in Count IV of its complaint, sought contract recission and restitution from OTS and the FDIC.
See Id. at 885-87; Far West Federal v. Dir., Office of Thrift Supervision, 744 F. Supp. 233 (D. Ore. 1990). As noted in Olympic, supra, at 13 n.4 (emphasis added), the district court in Far West found as to all of the plaintiff's claims
that plaintiff's action was against the sovereign but that the "subject to suit" provision waived immunity. The court did not, however, discuss any of the cases relied on by this court [cited at Olympic, supra, slip op. at 10-11] or explicitly decide that the agency's waiver was binding on the United States. It is therefore not clear that the issue was adequately presented to the Far West court."
For this reason, the court in Olympic expressly declined to follow the District of Oregon's holding that FIRREA's waivers waived the sovereign immunity of the United States. Id.
The Federal Circuit became involved in the case when the District of Oregon denied the government's motion in Far West to sever and transfer to the Claims Court the recission and restitution claims embodied in Far West's Court IV; the Federal Circuit heard the government's appeal of this denial, in accordance with 28 U.S.C. 1292(d)(4)(A). Eight months after the Olympic decision, the Federal Circuit held that FIRREA's "sue and be sued" and "subject to suit" clauses waived the immunity of the FDIC and OTS and granted subject matter jurisdiction in the district court to hear the recission and restitution claims of the plaintiff.
Thus, the issue before the Federal Circuit in Far West, and the only one to which it spoke, was whether there was a waiver of immunity and jurisdiction in the district court over plaintiff's claims for the equitable remedy in contract of recission, in conjunction with restitution of funds identified to the FDIC.
The Federal Circuit's holding in this regard is in lockstep with the conclusion in Olympic that
an action is against an agency, rather than against the United States, when the agency has within its possession and control funds which it can use to pay a judgment.
Olympic, supra, at 12. The Federal Circuit decision did not consider the injunctive and declaratory relief sought in the district court in Oregon, whose ruling on waiver of sovereign immunity and subject matter jurisdiction was specifically rejected by Olympic.
The sole remedy sought in the case at hand, as in Olympic and Northeast, and unlike that considered by the Federal Circuit in Far West, is an injunction prohibiting OTS from applying its current capital regulations to the plaintiff thrifts. See Opposition at 16. This Court agrees with the defendants that the injunctive relief plaintiff seeks "is nothing more than a request for specific performance" of plaintiff's contract with the defendants. Motion to Dismiss at 21. See Olympic, supra, at 16-17 ("Plaintiff cannot avoid the Tucker Act merely by alleging that damages will be inadequate or by requesting specific relief"); Northeast, supra, at 9-10 ("[A] claimant may not avoid the exclusive jurisdiction of the Claims Court simply by framing a complaint to seek nonmonetary relief").
The plaintiff is quite clear that it is seeking to "vindicate its contractual and constitutional rights," and that it "does not seek money, whether in the possession and control of defendant agencies or of the United States Treasury." Opposition at 6, 16. Plaintiff argues that "if FIRREA waived immunity for recovery from monetary relief in Far West, surely it waives nonmonetary relief for Coast against the same defendants." Id. at 12. As demonstrated above, however, this conclusion does not follow from the Federal Circuit's Far West decision. It is precisely because the plaintiff seeks relief that is non-monetary and tantamount to specific performance against the defendant agencies that this Court finds that plaintiff's suit is in effect "against the sovereign" within the meaning of Dugan v. Rank.
B. The District Court's Jurisdiction
Having found that plaintiff is effectively suing the United States, this Court is confronted squarely with defendants' argument that plaintiff's claims fall within the ambit of the Tucker Act, that no other federal statute manifests a waiver of sovereign immunity and vests subject matter jurisdiction in this Court over these claims, and that the Claims Court therefore has exclusive jurisdiction over the instant suit. Motion to Dismiss at 18-19.
The decisions in Olympic and Northeast are wholly dispositive on these points. The Olympic court's analysis of 12 U.S.C. 1464 and 1819, the "subject to suit" and "sue and be sued" provisions affecting the defendants, has already been discussed. This Court agrees that these provisions do not waive the sovereign immunity of the United States and therefore do not confer subject matter jurisdiction on the district court.
See Olympic, supra, at 10-13. Plaintiff acknowledges that Olympic holds squarely against it on the matter of these statutory waivers; however, it points to cases decided by other district courts before and since Olympic, as well as to the Federal Circuit's decision in Far West, that plaintiff contends "have either expressly or implicitly found jurisdiction." Opposition at 11 and n.12. As to the seven pre-Olympic district court holdings relied on, Judge Lamberth considered each and expressly "declined to follow their lead," either because they did not discuss or did not adequately consider the limits to FIRREA's immunity waivers when the suit is actually against the United States. Olympic, supra, at 12-13 & n.4.
This Court also finds no jurisdiction over plaintiff's action conferred by the Administrative Procedures Act, 5 U.S.C. 702. In brief, the Supreme Court's decision in Massachusetts v. Bowen, 487 U.S. 879, 101 L. Ed. 2d 749, 108 S. Ct. 2722 (1988), does not apply to breach of contract claims. See Olympic, supra, at 15-16. Accordingly, in a contract action, the court must consider, as per Section 702, whether "any other statute that grants consent to suit expressly or impliedly forbids the relief sought." The pertinent statute here is the Tucker Act, which courts have consistently interpreted as barring relief other than for money damages on contract claims and therefore precluding APA review of such claims. Id. at 16-17; Northeast, supra, at 10 (both citing Sharp v. Weinberger, 255 App. D.C. 90, 798 F.2d 1521, 1523-24 (D.C. Cir. 1986)). The Court of Appeals decision in Esch v. Yeutter, 278 App. D.C. 98, 876 F.2d 976 (D.C. Cir. 1989), is inapposite here because plaintiff's claims are rooted in its alleged contract with defendant. See Olympic, supra, at 18,
The plaintiff's "taking" claim alleges that the provisions of FIRREA and the OTS regulations "constitute a repudiation and abrogation of Coast's contract rights . . . and effect a taking of Coast's property without just compensation." Complaint at para. 79. As in Olympic and Northeast, it is apparent that the property allegedly taken is the putative contract right. Olympic, supra, at 20-21; Northeast, supra, at 11. Plaintiff's taking claim is thus in essence a contracts claim actionable in the Claims Court and over which this Court lacks subject matter jurisdiction. Likewise, plaintiff's due process claim is in essence a contracts claim. Complaint at para. 81. This claim also belongs exclusively in the Claims Court. Olympic, supra, at 18-20; Northeast, supra, at 8-10 (both citing Megapulse, Inc. v. Lewis, 217 App. D.C. 397, 672 F.2d 959, 967-68 (D.C. Cir. 1982)).
Plaintiff further alleges that defendants should be estopped, based on their Assistance Agreement with Coast, from applying FIRREA and the OTS capital regulations to the plaintiff. Complaint at para. 85. This Court again concurs with the Olympic's holding that the Administrative Procedures Act does not waive sovereign immunity as to such a promissory estoppel claim. See Olympic, supra, at 22-24.
For the foregoing reasons, plaintiff's contract (COUNT III), taking (COUNT I), due process (COUNT II), and estoppel (COUNT IV) claims are dismissed for lack of subject matter jurisdiction.
Judge George H. Revercomb