contract with the Air Force, and sought declaratory and injunctive relief requiring the Air Force to reinstate the award of the contract to the plaintiff. The Court of Appeals looked beyond the request for declaratory and injunctive relief and determined that the practical effect of granting the plaintiff's request would be to require the government to perform on the contract. Id. at 75, 79-80. The same situation prevails here. The plaintiffs request that the defendants be forced to perform their part of the bargain by tendering payment on the contracts.
According to the plaintiffs, the CDA does not apply because the contracts were fully performed 11 years ago when the supplies were delivered and the checks issued. However, the plaintiffs ignore the fact that the checks are no longer valid. While they were valid and outstanding, they merely suspended the underlying obligation, but did not extinguish it Cf. U.C.C. § 3-310(1991) (Revised Article 3); U.C.C. § 3-802 (1991) (Prior Article 3).
If the checks were not negotiated or cashed, as plaintiffs maintain, the defendants' contractual obligations remain uncompleted.
3. APA Waiver of Sovereign Immunity. The plaintiffs argue that even if the Tucker Act and the CDA bar jurisdiction here, this court has jurisdiction under 28 U.S.C. § 1331 (1994) (federal question), or 28 U.S.C. §§ 2201-2202 (1994) (declaratory judgment). "Alternative sources of jurisdiction are relevant only if there is an alternative waiver of sovereign immunity." DSI Corp. v. Secretary of HUD, 594 F.2d 177, 180 (9th Cir. 1979) (citation omitted). The plaintiffs argue that the Administrative Procedure Act, 5 U.S.C. § 702 (1994) ("APA"), provides such a waiver.
This contention is without merit The APA does not confer jurisdiction "if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought" 5 U.S.C. § 702. The Tucker Act impliedly forbids declaratory relief and specific performance in contracts cases, and so the APA immunity waiver does not apply. United States Info. Agency v. KRC, 300 U.S. App. D.C. 339, 989 F.2d 1211, 1216 (D.C. Cir. 1993) (citing Sharp v. Weinberger, 255 U.S. App. D.C. 90, 798 F.2d 1521, 1523 (D.C. Cir. 1986)), cert. denied, 114 S. Ct. 1049, 127 L. Ed. 2d 371 (1994). In Sharp, the Court held that since the Tucker Act and the Little Tucker Act make a claim for money damages the sole remedy in a breach of contract action against the government other relief is implicitly forbidden. Sharp, 798 F.2d at 1523. See also Transohio Savings Bank v. Director, Office of Thrift Supervision, 296 U.S. App. D.C. 231, 967 F.2d 598, 611 (D.C. Cir. 1992) (noting that courts "have interpreted the Tucker Act as providing the exclusive remedy for contract claims against the government, at least vis a vis the APA.") (emphasis in original).
Even though the plaintiffs also raise a federal statutory claim, this does not provide an independent basis for jurisdiction in this court. The plaintiffs seek a declaration that defendants' interpretation of 31 U.S.C. § 3702(b) is contrary to law. This provision imposes a six year limitation period on certain claims against the United States. Assertion of jurisdiction to resolve plaintiffs' statutory claim would be inappropriate in this case because the entire action is founded upon a contractual issue. In a similar case, the Court of Appeals determined that a claim with some statutory elements was essentially contractual. In Spectrum Leasing Corp. v. United States, 246 U.S. App. D.C. 258, 764 F.2d 891 (D.C. Cir. 1985), the plaintiff, Spectrum Leasing Corporation ("Spectrum") provided data processing equipment to the General Services Administration ("GSA"). GSA became dissatisfied with the product plaintiffs were supplying, and returned Spectrum's invoices unpaid. Spectrum brought suit in federal district court, claiming GSA's failure to pay was in violation of the Debt Collection Act of 1982, 31 U.S.C.A §§ 3701 et seq. (1983 & Supp. 1995). Spectrum sought both an order declaring that the government violated its rights under the Debt Collection Act, and an injunction to prevent GSA from continuing to withhold payments under the parties' contract. 764 F.2d at 892.
The Court rejected Spectrum's argument that Section 702 of the APA provided the necessary waiver of sovereign immunity. Instead, the Court applied the Megapulse test and that decided Spectrum's claims were founded upon a contract. Although the Court began with the admonition that it would not "find that a particular claim is one contractually based merely because resolution of that claim requires some reference to the contract," the Court went on to say that
Spectrum apparently contends that the source of its right to relief in this case is the Debt Collection Act and not the contract We disagree. Spectrum seeks an injunction requiring the government to pay monies owed for computer hardware. The right to these payments is created in the first instance by the contract, not by the Debt Collection Act The DCA, even if it applied, confers no such right in the absence of the contract itself. Although the DCA might impose procedural requirements on the government having some impact on the contract, the Act in no way creates the substantive right to the remedy Spectrum seeks.
764 F.2d at 892-95.
The plaintiffs here find themselves in a position similar to Spectrum's. This Court has already conducted the Megapulse analysis and concluded that the claims at issue in this case are founded upon contracts. As in Spectrum, the plaintiffs' rights are created in the first instance by their contracts with defendants, rather than by statutory provisions or Treasury regulations governing the issuance of checks. The plaintiffs' case, fully considered, would require the interpretation of federal statutes and regulations, but the gravamen of their complaint centers around performance of the contract Because this court does not have jurisdiction to determine whether or not the defendants have breached their contractual obligations, it should not simply assume a breach has occurred and then decide what rights plaintiffs would have under federal statutes and regulations governing the reissuance of checks.
It must be noted that the reach of Spectrum has limits. Sharp, and other cases suggest that in some circumstances, when statutory and contractual issues coexist in an action, district courts can exercise jurisdiction over the statutory issues if they are sufficiently independent or sufficiently dominate the cause of action. In Sharp, the court divided the plaintiffs various claims into two groups. Included in the first group was the argument that the plaintiff's military reassignment violated a federal statutory provision permitting reservists to occupy civilian government positions. The second group encompassed those claims which sought either a declaratory judgment that plaintiff had a valid contract with defendant to keep the plaintiff in his present position or injunctive relief requiring defendants to perform their obligations under the reservist agreement With regard to the latter group of claims, the Court concluded it did not have jurisdiction, as discussed above. However, with regard to the statutory claim, the Court held that it did have jurisdiction as a consequence of the sovereign immunity waiver contained in Section 702 of the APA. 789 F.2d at 1523. See also Transohio, 967 F.2d at 610-11 (collecting cases in which contractual claim did not bar jurisdiction of other claims).
Unlike the situation presented in Sharp, the plaintiffs' statutory claims here cannot be dissected from the underlying contractual dispute. The plaintiffs are entitled to new checks only if they establish as a preliminary matter that the defendants breached their contracts. This point is in dispute, because the defendants contest the plaintiffs' claim that the checks involved were not paid. Consequently, this Court will be required to make an initial finding concerning whether or not the Treasury checks issued were cashed or negotiated. In other words, the Court must decide whether the defendants performed their contractual obligations before considering the plaintiffs' rights, if any, under federal statutes and regulations governing the issuance of checks. In Sharp, the Court was not required to determine whether a breach of contract occurred in order to consider the plaintiffs statutory claim. The question of whether the defendants had breached federal law by transferring the plaintiff was not dependent upon any contractual claim. However, such an interrelationship exists in this case.
One other point deserves brief discussion. Plaintiffs argue that Bowen v. Massachusetts, 487 U.S. 879, 101 L. Ed. 2d 749, 108 S. Ct. 2722 (1988), must be read to provide this Court with jurisdiction. Bowen interpreted the Section 702 waiver expansively, rejecting the notion that the Claims Court's jurisdiction under the Tucker Act was exclusive. Instead, Bowen held that the Claims Court's jurisdiction was exclusive only to the extent that no other Court was granted authority by Congress to hear a claim. 487 U.S. at 910 n.48.
Sharp's limitation on the breadth of the Section 702 waiver still holds after Bowen. In Transohio, the Court of Appeals declined to overrule Sharp and extend Bowen to circumstances in which another statute (like the Tucker Act) appeared to impliedly prohibit APA jurisdiction. 967 F.2d at 613. Moreover, the legislative history surrounding the Tucker Act indicates it was intended to trump the Section 702 waiver:
Congress created a damage remedy for contract claims with jurisdiction limited to the Court of Claims except in suits for less than $ 10,000. The measure is intended to foreclose specific performance of government contracts. In terms of the proviso, a statute granting consent to suit, i.e., the Tucker Act, "impliedly forbids" relief other than the remedy provided by the Act.
Spectrum, 764 F.2d at 893 n.2 (citing H. Rep. No. 1656, 94th Cong., 2d Sess. 12-13 (1976), reprinted in 1976 U.S.C.C.A.N. 6121, 6133).
To recapitulate, the plaintiffs' claims for payment on their contracts are governed by both the Tucker Act and the CDA, and not by Section 702 of the APA. The Tucker Act provides a waiver of sovereign immunity, but it lays jurisdiction in the Court of Federal Claims for claims exceeding $ 10,000. Although the complaint does not seek monetary relief, pecuniary gain would be the only substantial and direct consequence of an exercise of jurisdiction in the plaintiffs' favor. The CDA also restricts federal district court jurisdiction when contract claims against executive agencies are involved. The plaintiffs clearly present contract claims, because the source of their rights derive from their contracts with the defendants, and they in essence seek contractual relief by requesting that the defendants be held to their part of the bargain. While Section 702 provides an alternate waiver of sovereign immunity, it extends only to statutory claims against the United States, not to contractual claims. However, because the plaintiffs' entire action is founded upon contractual claims, and because plaintiffs' statutory claims can not be resolved without initially addressing their breach of contract claim, this Court can not exercise jurisdiction.
B. Transfer to the Court of Federal Claims
A court, after discovering it lacks jurisdiction over a case, must transfer the case to a court of competent jurisdiction if it is in the interest of justice to do so. 28 U.S.C. § 1631 (1994). In this instance, transfer of the case to the Court of Federal Claims would not serve this function. Motorola and ALGC tailed to submit their claims in writing to a contracting officer, and tailed to receive a decision on their claims from a contracting officer. Consequently, the Court of Federal Claims can not exercise jurisdiction. 41 U.S.C. § 605(c). See also Judge Robert T. Peacock, A Complete Guide to the Contract Disputes Act 37(1986) (contracting officer decisions are "linchpin" for subsequent proceedings). It would not be in the interest of justice to transfer this case when the Court of Claims would refuse to exercise jurisdiction. A & S Council Oil Co., Inc. v. Lader, 56 F.3d 234, 237. The case will therefore be dismissed. An order will accompany this opinion.
March 5th, 1996
Thomas F. Hogan
United States District Judge
For the reasons stated in the Memorandum Opinion issued today, it is hereby ORDERED that the defendants' motion for summary judgment is GRANTED and the plaintiffs' motion for summary judgment is DENIED.
March 5th, 1996
Thomas F. Hogan
United States District Judge