Smeltzer v. United States ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DAVE R. SMELTZER,
Plaintiff-Appellant,
v. No. 96-2241
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Carl Horn, III, Chief Magistrate Judge.
(CA-96-83-H)
Submitted: November 18, 1997
Decided: December 8, 1997
Before MURNAGHAN and ERVIN, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Dismissed by unpublished per curiam opinion.
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COUNSEL
Raymond C. McRorie, ARMED FORCES LEGAL CENTER OF
WAPLE & MCRORIE, Fayetteville, North Carolina, for Appellant.
Mark T. Calloway, United States Attorney, James M. Sullivan, Assis-
tant United States Attorney, Charlotte, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Dave Smeltzer, an officer in the United States Army, was injured
while on duty during two separate incidents in 1983. In January 1988,
the Army Physical Disability Agency advised Smeltzer that it
approved the Army Physical Evaluation Board's ("PEB") rating of his
disability at 20 percent and its recommendations to take Smeltzer off
temporary disability status and to discharge Smeltzer from the Army.
In October 1994, Smeltzer filed an action in the United States Court
of Federal Claims, alleging improper physical evaluations and viola-
tions of procedural regulations by the PEB. Smeltzer sought a 30 per-
cent disability rating, medical retired status, back pay from the date
of his discharge, and related benefits and allowances. The Court of
Federal Claims dismissed the action as barred by the six-year statute
of limitations in January 1995. See 28 U.S.C. § 2501 (1994). Smeltzer
did not appeal this decision. Instead, he filed a second complaint in
the district court alleging nearly identical claims. The district court
dismissed the action as barred by res judicata, and Smeltzer appealed.
Because we lack appellate jurisdiction over his claim, we dismiss the
appeal.
Under 28 U.S.C. § 1346(a)(2) (1994), often referred to as the "Lit-
tle Tucker Act," federal district courts have concurrent jurisdiction
with the United States Claims Court over civil claims not exceeding
$10,000. But under 28 U.S.C.A. § 1491(a)(1) (West Supp. 1996), the
so-called "Big Tucker Act," if the amount sought exceeds $10,000,
the Claims Court has exclusive jurisdiction. See Bowen v. Massachu-
setts, 487 U.S. 879, 910 n.48 (1988).
In his complaint, Smeltzer invoked the district court's jurisdiction
solely under 28 U.S.C. § 1346(a)(2). In his prayer for relief, he sought
placement on the U.S. Army Permanent Disability Retired List with
a combined disability rating of not less than 40 percent, retroactive
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medical disability pay with applicable allowances and benefits not to
exceed $10,000, declaratory relief, costs, expenses, and fees. Because
on the face of the complaint, Smeltzer did not seek retroactive disabil-
ity pay in excess of $10,000, the district court apparently exercised
jurisdiction over Smeltzer's claim under the "Little Tucker Act."
We conclude, however, that we lack appellate jurisdiction. The
exclusive appellate jurisdiction of the Federal Circuit includes final
decisions by a federal district court whose jurisdiction "was based in
whole or in part" on 28 U.S.C. § 1346. See 28 U.S.C. § 1295(a)(2)
(1994). The Federal Circuit has exclusive appellate jurisdiction "over
every appeal from a Tucker Act or nontax Little Tucker Act claim."
United States v. Hohri, 482 U.S. 64, 73 (1987). Because the district
court's jurisdiction was based upon 28 U.S.C. § 1346, the proper
forum for this appeal is the Federal Circuit Court of Appeals. Because
the Court of Federal Claims and the Court of Appeals for the Federal
Circuit have "extensive experience reviewing decisions of corrections
boards in military pay cases," we are "cautious about trespassing into
the province of the Court of Federal Claims and the Federal Circuit
to decide non-tort actions against the United States." Randall v.
United States, 95 F.3d 339, 346 (4th Cir. 1996), cert. denied, ___ U.S.
___, 65 U.S.L.W. 3581 (U.S. Feb. 24, 1997) (No. 96-1086).
We decline to transfer this action to the Court of Appeals for the
Federal Circuit for further proceedings because neither party has
requested such transfer and because we conclude that transfer would
not be "in the interest of justice." See 28 U.S.C. § 1631 (1994).
Accordingly, we dismiss this appeal. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
DISMISSED
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