Commonwealth of Massachusetts v. Departmental Grant Appeals Board of United States Department of Health & Human Services , 815 F.2d 778 ( 1987 )

COFFIN, Circuit Judge,

concurring.

I concur in the judgment but write to clarify my views on two points.

First, I agree with the majority that the Commonwealth’s prayer for declaratory relief falls outside the APA’s waiver of sovereign immunity for suits in federal district court because the requested declaration— that the cost of the court-ordered abortions is a reimbursable Medicaid expense — is unlikely to have any significant prospective effect upon the ongoing grant-in-aid relationship between the Commonwealth and the United States. That is, I see this case as a rare if not a unique one, particularly after the merits of this litigation are finally resolved. My decision does not, however, rest upon a finding that the Commonwealth’s “prime objective” in filing suit was monetary rather than declaratory relief. In my view, the Commonwealth’s subjective motivations are not only impossible to glean but also irrelevant to the sovereign immunity question, for if the Commonwealth had articulated a claim for declaratory relief with significant prospective effect, the district court would have had power to grant appropriate declaratory relief even if the Commonwealth’s motivations were primarily monetary. See State of Minnesota by Noot v. Heckler, 718 F.2d 852, 857-860 (8th Cir.1983).

Second, I perceive no contract claim sufficient to invoke the exclusive jurisdiction of the Claims Court in this case. Indeed, the Commonwealth’s amended complaint does not even contain an allegation of contract. Rather, the complaint alleges that the Commonwealth provided the funds in question not pursuant to a contract, but rather, “solely in compliance with the federal court orders” issued pending resolution of the process of statutory interpretation. Record Appendix at 172. Under these circumstances, I think it unwise to imply a contractual basis for Tucker Act jurisdiction. See Bennett v. Kentucky Department of Education, 470 U.S. 656, 669, 105 S.Ct. 1544, 1552, 84 L.Ed.2d 590 (1985) (“Unlike normal contractual undertakings, federal grant programs originate in and remain governed by statutory provisions expressing the judgment of Congress concerning desirable public policy.”); Maryland Department of Human Resources v. Department of Health and Human Services, 763 F.2d 1441, 1449 (D.C.Cir.1985) (Claims that “arise under a federal grant program and turn on the interpretation of statutes and regulations rather than on the interpretation of an agreement negotiated by the parties____are not contract claims for Tucker Act purposes.”).