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October 30, 1995

GINGER ANSELMO, et al., Plaintiffs,

James Robertson, United States District Judge

The opinion of the court was delivered by: ROBERTSON

This memorandum sets forth the reasons for the court's order entered October 13, 1995, granting in part and denying in part defendant's Rule 12(b)(1) motion to dismiss for want of subject matter jurisdiction.

 Last year, in Wassenaar v. Office of Personnel Management, 21 F.3d 1090 (Fed. Cir. 1994), the United States Court of Appeals for the Federal Circuit held that the survivor annuity paid to the widow of a federal law enforcement officer had been erroneously calculated using the percentages set forth in 5 U.S.C. § 8339(a) and that it should have been calculated instead using the higher percentages set forth in 5 U.S.C. § 8339(d)(1). Ms. Wassenaar's spouse had served 24 years in the government and was 47 years old when he died. The Office of Personnel Management had taken the position that § 8339(d)(1) described a "retirement" annuity available only in cases meeting the criteria for retirement -- 20 years of service and 50 years of age. The Federal Circuit gave Chevron deference to OPM's interpretation of the statutes but found the interpretation unreasonable and instructed OPM to recalculate using the higher calculation percentages found in § 8339(d)(1). The government did not seek Supreme Court review.

 In this action, the surviving spouses and former spouses of ten federal firefighters and law enforcement officers who died before reaching age 50, or before completing 20 years of service, or both, sue to compel OPM to apply the law announced by the Wassenaar decision to themselves and to everyone else who is entitled to its benefits. Their complaint alleges on information and belief that "in excess of 1,000 similarly situated surviving spouses and former spouses of law enforcement officers and firefighters . . . are equally entitled to the proper survivor annuity but are unaware of their entitlement"; that OPM has not notified any of them of their entitlement to recalculation under the Wassenaar rule; and that OPM does not intend to notify or recalculate without a court order. Plaintiffs seek declaratory relief and mandamus on behalf of a class of similarly situated persons.

 OPM has not responded on the merits but asserts that I have no jurisdiction to hear and decide this case.

 1. Sovereign immunity.

 OPM's main submission in this motion is that the United States has not waived its sovereign immunity to the claims presented in this case. The premise of the argument is OPM's characterization of this case as one for money damages, see National Association of Counties v. Baker, 268 U.S. App. D.C. 373, 842 F.2d 369, 372-77 (D.C. Cir.), cert denied, 488 U.S. 1005, 102 L. Ed. 2d 775, 109 S. Ct. 784 (1989). That premise, however, is false. These plaintiffs are "seeking funds to which a statute allegedly entitles them rather than money compensation for losses they may have suffered by virtue of the withholding of those funds. Therefore, the relief sought by [plaintiffs] is specific relief and not classical money damages." National Ass'n of Counties v. Baker, 268 U.S. App. D.C. 373, 842 F.2d 369, 373 (D.C. Cir. 1988). See Bowen v. Massachusetts, 487 U.S. 879, 893-901, 101 L. Ed. 2d 749, 108 S. Ct. 2722 (1988) ("The fact that a judicial remedy may require one party to pay money to another is not sufficient reason to characterize the relief as money damages,'" quoting Maryland Dept. of Human Resources v. Department of Health and Human Services, 246 U.S. App. D.C. 180, 763 F.2d 1441 (D.C. Cir. 1985); School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359, 370-71, 85 L. Ed. 2d 385, 105 S. Ct. 1996 (1985) (when the state belatedly pays expenses that it should have paid all along and would have borne in the first instance, the state is not paying damages).

 This complaint seeks only declaratory relief and mandamus. It is not an action for damages, and the sovereign immunity of the United States is not implicated.

 2. Administrative procedures.

 OPM argues that plaintiffs must follow the established administrative path for federal survivor benefit claims. *fn1" To support its argument that plaintiffs must exhaust administrative procedures, OPM invokes the teaching of Lindahl v. OPM, 470 U.S. 768, 797, 84 L. Ed. 2d 674, 105 S. Ct. 1620 (1985) and United States v. Fausto, 484 U.S. 439, 449, 98 L. Ed. 2d 830, 108 S. Ct. 668 (1988), that "duplicate, wasteful and inefficient" judicial review should be avoided. At least with respect to plaintiffs' claims about calculations and payments under the Civil Service Retirement Act, that argument is unpersuasive. Ms. Wassenaar sought and received judicial review of OPM's position from the Federal Circuit in Wassenaar. The doctrine of stare decisis binds the administrative tribunals to the Federal Circuit ruling. *fn2" See Yellow Taxi Co. of Minneapolis v. NLRB, 232 U.S. App. D.C. 131, 721 F.2d 366, 382-83 (D.C. Cir. 1983); Ithaca College v. NLRB, 623 F.2d 224, 228 (2d Cir.), cert. denied, 449 U.S. 975, 66 L. Ed. 2d 237, 101 S. Ct. 386 (1980). Requiring a thousand applicants, or even these ten, to repeat the procedural steps Ms. Wassenaar took in order to reach the same outcome would not foster the policy goal of eradicating waste, duplication and inefficiency.

 The OPM argument fails moreover to address plaintiffs' allegation, which must be taken as true for purposes of this motion, that members of a putative class of survivors eligible for recalculated annuities do not know of their eligibility. The requirement to exhaust administrative remedies may not be used to deny relief to a class of such persons. Bowen v. City of New York, 476 U.S. 467, 481, 90 L. Ed. 2d 462, 106 S. Ct. 2022 (1986). In the City of New York case, a unanimous Supreme Court reviewed the policy reasons for the exhaustion requirement:

Exhaustion is generally required as a matter of preventing premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review.

 Id. at 484, quoting Weinberger v. Salfi, 422 U.S. 749, 765, 45 L. Ed. 2d 522, 95 S. Ct. 2457 (1975) (emphasis added). Those policy reasons do not apply, the Court observed, in a case involving a "system-wide, unrevealed policy" of agency action, rather than simply an individual who seeks review of an particular error in his own proceeding. 476 U.S. at 484-85. The policy reasons do not apply to this case either, particularly in the face of plaintiffs' unanswered allegation that OPM has no intention voluntarily to "correct its own errors." *fn3"

 I do agree with OPM, however, that I have no jurisdiction to hear plaintiffs' claims for recalculated survivors' annuities under the Federal Employees' Retirement System ("FERS"), 5 U.S.C. § 8415. The Wassenaar case did not deal with FERS-related benefits, but only with specific provisions of the Civil Service Retirement Act ("CSRA"), 5 U.S.C. § 8339. Stare decisis does not apply to the FERS-related claims. Plaintiff's invitation to apply Wassenaar's analysis to the language of FERS and to calculations made under FERS must be declined because ...

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