Suburban Mortgage Associates, Inc. v. United States Department of Housing & Urban Development , 480 F.3d 1116 ( 2007 )

United States Court of Appeals for the Federal Circuit
06-1207
SUBURBAN MORTGAGE ASSOCIATES, INC.,
Plaintiff-Appellee,
v.
UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,
Alphonso Jackson, SECRETARY OF HOUSING AND URBAN DEVELOPMENT,
FEDERAL HOUSING ADMINISTRATION and
John Weicher, ASSISTANT SECRETARY FOR HOUSING/FHA COMMISSIONER,
Defendants-Appellants.
.
Michael J. Schaengold, Patton Boggs LLP, of Washington, DC, argued for
plaintiff-appellee. With him on the brief was Douglas C. Proxmire.
Mark R. Freeman, Attorney, Appellate Staff, Civil Division, United States
Department of Justice, of Washington, DC, argued for defendants-appellants. With him
on the brief were Peter D. Keisler, Assistant Attorney General, and Michael S. Raab,
Attorney.
Appealed from: United States District Court for the District of Columbia
Judge Henry H. Kennedy, Jr.
United States Court of Appeals for the Federal Circuit
06-1207
SUBURBAN MORTGAGE ASSOCIATES, INC.,
Plaintiff-Appellee,
v.
UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,
Alphonso Jackson, SECRETARY OF HOUSING AND URBAN DEVELOPMENT,
FEDERAL HOUSING ADMINISTRATION and
John Weicher, ASSISTANT SECRETARY FOR HOUSING/FHA COMMISSIONER,
Defendants-Appellants.
__________________________
DECIDED: March 12, 2007
__________________________
Before RADER, Circuit Judge, PLAGER, Senior Circuit Judge, and LINN, Circuit Judge.
PLAGER, Senior Circuit Judge.
This case requires us to reexamine the jurisdictional boundary between the
Tucker Act and the Administrative Procedure Act, as that boundary is understood in the
light of the Supreme Court’s decision in Bowen v. Massachusetts. 1 The case began as
a dispute between plaintiff Suburban Mortgage Associates, Inc. (“Suburban”), and
defendants, the United States Department of Housing and Urban Development (“HUD”)
et al. (“Government”), 2 with regard to a contract for insurance. Plaintiff sued the
Government in the United States District Court for the District of Columbia. The suit
1
487 U.S. 879 (1988).
2
The other defendants are the Federal Housing Administration (“FHA”),
which is a subagency of HUD; Alphonso Jackson, Secretary of HUD; and John
Weicher, Assistant Secretary for Housing/FHA Commissioner.
was cast in part as an action for specific performance of the contract and in part as a
declaratory judgment action. The relief sought was to require the Government to
perform its contract obligations so that Suburban Mortgage could get the money
allegedly due it under the insurance agreement.
The action quickly morphed into a dispute over what court had been authorized
by Congress to hear the case: was it the district court (the plaintiff’s choice) or was it
the United States Court of Federal Claims (the Government’s choice)? The
Government forced the issue by moving in the district court to have that court either
dismiss the entire case or transfer it from the district court to the Court of Federal
Claims. The district court denied the Government’s motion.
Litigation over where to litigate is the unfortunate consequence of the complex of
statutes and courts that comprise the federal system. “Nothing is more wasteful than
litigation about where to litigate, particularly when the options are all courts within the
same legal system that will apply the same law.” Bowen, 487 U.S. at 930 (Scalia, J.,
dissenting). This court plays a role in such litigation. When a district court denies a
motion to transfer an action to the Court of Federal Claims as provided by 28 U.S.C.
§ 1631, an interlocutory appeal from such a denial may be taken to the United States
Court of Appeals for the Federal Circuit. 28 U.S.C. § 1292(d)(4)(A). The Government
has exercised that right in this case.
For the reasons we shall explain, and despite Suburban’s valiant effort to frame
the suit as one for declaratory or injunctive relief, this kind of litigation should be
understood for what it is. At bottom it is a suit for money for which the Court of Federal
Claims can provide an adequate remedy, and it therefore belongs in that court. The
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district court’s determination to the contrary is reversed, and the matter is remanded to
that court with instructions to either dismiss the suit in its entirety or transfer it to the
Court of Federal Claims.
BACKGROUND
Suburban is a commercial mortgage 3 lender based in Maryland. In 1998
Suburban made a loan, secured by a mortgage on the subject property, to Hillside
Nursing Home (“Hillside”), a now defunct nursing home and assisted living facility in
Rhode Island. 4 To encourage development of such facilities for the elderly, Congress
has authorized HUD to underwrite such loans, that is, to guarantee payment of the
mortgage loan. See National Housing Act (“NHA”) § 232, 12 U.S.C. § 1715w. In effect,
the Government insures the loan. At Suburban’s request, HUD, in exchange for
premiums paid by Suburban, undertook that obligation with regard to the Hillside loan.
The agreement with HUD means that, should the borrower (Hillside) default on
the underlying loan and the lender (Suburban) consequently incur loses, HUD will
reimburse the lender pursuant to the terms of the insurance agreement. In order to
collect the insurance proceeds when there has been a default by the borrower, the
lender must first transfer its interest in the mortgage and mortgaged property to HUD.
The lender has the option of foreclosing and taking title to the property, then transferring
3
Although in common parlance the term ‘mortgage’ is often used to refer to
the entire loan transaction, technically a mortgage is only the security interest in
property conveyed to a lender as security for a loan made to the property owner; the
loan itself is a separate part of the transaction. See Black’s Law Dictionary 1031 (8th
ed. 2004).
4
There were two related Hillside entities involved. For purposes of this
opinion it is not necessary to differentiate among them. We will follow the trial court’s
lead and for simplicity refer to them collectively as “Hillside.”
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the property to HUD, 24 C.F.R. § 207.258(c), 5 or directly assigning the defaulted note
and mortgage to HUD, 24 C.F.R. § 207.258(b). In either case, HUD pays the lender the
outstanding debt the borrower owed, less certain charges. 24 C.F.R. § 207.259.
In this case, the nursing home (Hillside) defaulted on its mortgage loan.
Thereafter, Suburban notified HUD that it wished to exercise its contractual right under
24 C.F.R. § 207.258(b) to assign the defaulted Hillside mortgage to HUD. HUD,
however, declined to accept assignment. Under HUD’s statutory authority for these
insurance agreements, there is an incontestability clause that generally precludes HUD
from challenging its duty to pay. See NHA § 203(e), 12 U.S.C. § 1709(e). However, an
exception to that clause exists when the agreement involves “fraud or misrepresentation
on the part of [the lender].” Id. In this case, HUD thought it had sufficient reason to
5
The regulations in 24 C.F.R. Part 207, setting out the contract rights and
obligations applicable to multifamily housing mortgage insurance, see NHA § 207, also
apply to mortgage insurance for nursing homes pursuant to the section 232 mortgage
insurance program. 24 C.F.R. § 232.251.
06-1207 4
believe that Suburban had committed fraud or made material misrepresentations to
HUD. 6
An extensive period of negotiation between the parties proved fruitless.
Suburban then sued HUD in the District Court for the District of Columbia, asserting
jurisdiction under 28 U.S.C. § 1331 as well as the Administrative Procedure Act (“APA”),
5 U.S.C. §§ 701-06; the Declaratory Judgment Act, 28 U.S.C. §§ 2201-02, and the Fifth
Amendment to the United States Constitution. The complaint contained two counts.
The first count, entitled “Declaratory Judgment: for HUD to comply with its
obligations pursuant to § 232 of the NHA,” asked the district court to declare HUD’s
actions unlawful and to order HUD to perform its duties under the agreement,
specifically, to accept assignment of the loan with ultimate reimbursement of the loan
balance to Suburban. Echoing the language of the APA, Suburban alleged that the
Government, by denying its assignment, acted arbitrarily, capriciously, and in violation
of Suburban’s due process rights under the Fifth Amendment. The second count,
entitled “Breach of Contract: Request for Specific Relief under § 702 of the APA,” asked
6
The Government’s concern related to the actions of one Antonio L.
Giordano, whom the Government believed owned or controlled both Suburban
Mortgage and the Hillside Nursing Home, and that fraudulent conduct by him caused
Hillside’s failure. Subsequent to the argument in this case, and in a series of letters filed
pursuant to Fed. R. App. P. 28(j), both the Government and Suburban Mortgage have
advised this court regarding the guilty plea of Mr. Giordano to a charge of equity-
skimming and his indictment on other charges, relating to the Hillside Nursing Home
among other properties. Suburban alleges that Mr. Giordano never “owned or
controlled” Suburban Mortgage, and though at one time he owned 50% of the company
he was not its president or chair of its board, and his conduct cannot be imputed to
Suburban Mortgage. The trial court in its opinion detailed other Suburban Mortgage
business activities that had alerted HUD to a problem. Suburban Mortgage Assocs.,
Inc. v. U.S. Dep’t of Hous. & Urban Dev., No. 05-00856, 2005 WL 3211563, at *4
(D.D.C. Nov. 14, 2005). The truth of these matters is not directly relevant to the
jurisdiction question before us, and remains to be determined on the merits by a court of
competent jurisdiction.
06-1207 5
the court for “specific relief in the form of payment of the insured loan amount” and
reimbursement of certain taxes and fees as losses plaintiff suffered because the
Government allegedly did not perform its duties under the insurance contract.
The Government moved in the district court to dismiss the suit for lack of subject
matter jurisdiction on the grounds that the suit was basically a contract action, and
therefore can only be heard in the Court of Federal Claims under the Tucker Act, 28
U.S.C. § 1491(a)(1). As an alternative to dismissal, the Government requested that the
district court transfer the case to the Court of Federal Claims pursuant to 28 U.S.C.
§ 1631.
In ruling on the motion, the district court looked for guidance to the precedent of
its regional circuit, the United States Court of Appeals for the District of Columbia
Circuit. The district court recognized that it could exercise subject matter jurisdiction
over claims against the Government only if a plaintiff identifies an explicit waiver of
sovereign immunity. Citing Transohio Savings Bank v. Office of Thrift Supervision, 967
F.2d 598, 607 (D.C. Cir. 1993), the court noted that the APA provides the necessary
waiver of sovereign immunity for challenges to agency action, subject to three
exceptions found in 5 U.S.C. §§ 702 and 704: “the APA excludes from its waiver of
sovereign immunity (1) claims for money damages, (2) claims for which an adequate
remedy is available elsewhere, and (3) claims seeking relief expressly or impliedly
forbidden by another statute.” Suburban Mortgage Assocs., Inc. v. U.S. Dep’t of Hous.
& Urban Dev., No. 05-00856, 2005 WL 3211563, at *6 (D.D.C. Nov. 14, 2005). The
court then examined Suburban’s claims in light of these exceptions.
06-1207 6
With regard to Count II of the complaint, the district court viewed that as a
contract claim asking for “essentially ‘the classic contractual remedy of specific
performance.’” Id. at *8 (citing Spectrum Leasing Corp. v. United States, 764 F.2d 891,
894 (D.C. Cir. 1985)). The court read the relevant precedent as precluding it from
hearing contract claims against the Government, whether for money damages or
specific relief, because the Tucker Act “impliedly forbids” (as that term is used in the
APA) any such relief by district courts. Id. (citing Transohio, 967 F.2d at 609; Sharp v.
Weinberger, 798 F.2d 1521, 1524 (D.C. Cir. 1986)). Applying this case law, the district
court concluded that the APA did not waive sovereign immunity for Count II, and
accordingly that Count II was outside of its jurisdiction.
The district court viewed Count I differently. With regard to the first exception
limiting the APA’s waiver of sovereign immunity, the district court cited Bowen v.
Massachusetts for the proposition that a claim for money is not necessarily a claim for
“money damages” as that term is used in the APA. Citing Maryland Department of
Human Resources v. Department of Health and Human Services, 763 F.2d 1441, 1446
(D.C. Cir. 1985), the court drew a distinction based on the purpose behind the payment
sought: is the plaintiff seeking money damages “to substitute for a suffered loss,” or is
the plaintiff seeking specific relief in the form of money, i.e., “the very thing to which he
was entitled”? Suburban Mortgage, 2005 WL 3211563, at *6. Although Suburban
characterized its requested relief in injunctive terms, the court recognized that Suburban
would recover money from HUD if it prevailed. Nevertheless, the court concluded that
any such recovery would be money that HUD was obligated to pay under the
06-1207 7
agreement. Suburban therefore was seeking specific relief in the form of money to
which it was entitled, rather than money damages.
Turning to the second exception, the district court determined that Suburban
Mortgage did not have an adequate remedy in the Court of Federal Claims. While
some of plaintiff’s claimed losses could be reduced to a monetary sum, the district court
concluded that concerns about possible bankruptcy, loss of reputation, and lost future
profits could only be addressed through injunctive relief.
Finally, the district court held that Count I did not seek relief expressly or
impliedly forbidden by the Tucker Act. The Government had argued that the claim was
a disguised contract claim and therefore, like Count II, could not be adjudicated in
district court. But the court concluded that plaintiff’s allegations regarding HUD’s
arbitrary refusal to accept assignment because of unproven fraud suspicions found their
source in the statutes and constitutional provisions cited by Suburban, and not the
underlying contract for insurance that it had with HUD. The district court therefore
granted the Government’s motion to dismiss Count II, and denied the motion to dismiss
Count I or to transfer the remaining case to the Court of Federal Claims.
In the same order, the district court granted Suburban’s motion to require HUD to
file with the court a copy of the administrative record on which it relied in making its
determination with respect to the election of assignment. Since an APA suit basically
challenges an agency’s actions, the agency’s administrative record of what it has done
is the record on which the court bases its decision. The effect of filing the agency’s
administrative record in the matter would be to provide Suburban with what amounts to
discovery of the Government’s case, i.e., whatever information the Government may
06-1207 8
have for suspecting fraud. The Government, however, would not have an equal
opportunity for discovery of the facts known to Suburban, the kind of discovery that
could be had in a normal civil suit, including a contract dispute in the Court of Federal
Claims.
The Government resisted producing the administrative record under the
circumstances and promptly took an interlocutory appeal of the Count I jurisdictional
issue to this court, as it is entitled to do pursuant to 28 U.S.C. § 1292(d)(4)(A).
DISCUSSION
A.
Sovereign immunity—the notion cherished by the medieval English Kings and
Queens that they could do no wrong, at least no wrong correctable in their own courts—
is a privilege still granted by the federal courts to the Royals’ successor, the United
States Government. One consequence of this doctrine is that, absent a Constitutional
grant of authority, if one wishes to sue the United States for a wrong committed by one
of its agents (and agencies), one must find an appropriate Act of Congress that waives
the Government’s immunity from suit for that particular wrong.
If the suit is a civil action, other than in tort, there are two general statutes that
waive sovereign immunity. One is the Tucker Act, the origins of which go back to the
late 1800s. 7 In the Tucker Act, Congress recognized that for a variety of reasons it was
7
The Tucker Act authorizes the Court of Federal Claims to “render
judgment upon any claim against the United States founded either upon the
Constitution, or any Act of Congress or any regulation of an executive department, or
upon any express or implied contract with the United States, or for liquidated or
unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1).
06-1207 9
in the Government’s interest to waive immunity and to allow people to bring suit against
the Government for money they believed was owed to them. For one thing, it relieved
Congress of the hassle of having to enact special bills to resolve run-of-the-mill
disputes. For another, in the absence of such a waiver, the Government’s cost of doing
business would be greater since parties contracting with the Government would
understand that they had to factor in the costs of arbitrary bureaucratic behavior for
which, absent the waiver, no judicial remedy would be available. The Tucker Act both
waives sovereign immunity for, and grants the Court of Federal Claims exclusive
jurisdiction over, actions for money damages of more than $10,000. 28 U.S.C.
§ 1491(a)(1). 8
The other general statute is the Administrative Procedure Act (“APA”). Enacted
to provide for judicial review in the federal district courts of certain agency actions, the
Act was amended in 1976 to expressly waive sovereign immunity for actions against the
Government. 5 U.S.C. §§ 701-06, amended by Pub. L. No. 94-574, 90 Stat. 2721(1976). Though the APA itself does not provide an independent grant of subject matter
jurisdiction, the general federal question jurisdictional statute, 28 U.S.C. § 1331, confers
authority on the district courts to hear APA cases. 9
8
“It is often assumed that the [Court of Federal Claims] has exclusive
jurisdiction of Tucker Act claims . . . . That assumption is not based on any language in
the Tucker Act granting such exclusive jurisdiction to the [Court of Federal Claims].
Rather, that court’s jurisdiction is ‘exclusive’ only to the extent that Congress has not
granted any other court authority to hear the claims that may be decided by the [Court
of Federal Claims].” Bowen, 487 U.S. at 910 n.48. There is also a statute, 28 U.S.C.
§ 1346(a)(2), known as the Little Tucker Act, under which the Court of Federal Claims
and the district courts have concurrent jurisdiction over claims not exceeding $10,000.
9
Bowen, 487 U.S. at 891 n.16.
06-1207 10
Congress reconciled these two general statutory waivers by providing in the APA
the three specific limitations noted by the trial court: (1) a suit under the APA can only
seek relief other than “money damages,” 5 U.S.C. § 702; (2) the suit would lie under the
APA only if there were “no other adequate remedy” in a court, 5 U.S.C. § 704; and (3)
the suit could not be maintained if “any other statute that grants consent to suit
expressly or impliedly forbids the relief which is sought,” 5 U.S.C. § 702. With these
limitations, the APA and the Tucker Act were understood to cover quite different
challenges to Government action. A plaintiff seeking relief, other than monetary relief,
from a disputed government agency action could challenge that action in district court
under the APA. In contrast, a suit requesting relief in the form of a money judgment
against the Government could be brought in the Court of Federal Claims under the
Tucker Act, but not in a district court. 10 For jurisdictional purposes between the district
courts under the APA and the Court of Federal Claims under the Tucker Act, the money
distinction seemed to provide a relatively watertight barrier.
In 1988 the barrier sprang a leak, a leak that has threatened to become a gusher.
Bowen v. Massachusetts, 487 U.S. 879 (1988), is the source of the leak. In that case,
the Commonwealth of Massachusetts brought suit challenging a decision by the
Secretary of Health and Human Services refusing to reimburse the state for certain
Medicaid expenditures. Under the Medicaid program, the Government makes quarterly
advance payments to the state in anticipation of future reimbursable costs. When the
Secretary disallowed costs as not covered by the program, the result was a withholding
10
See supra note 8 for the Little Tucker Act exception for claims not
exceeding $10,000.
06-1207 11
of funds from future advances to compensate for past overpayments and to preclude
future overpayments.
Massachusetts filed suit in federal district court requesting declaratory and
injunctive relief setting aside the Secretary’s decision. The state invoked federal
question jurisdiction pursuant to 28 U.S.C. § 1331 and alleged that the APA waived the
Government’s immunity. The Government challenged the district court’s authority to
hear the case, arguing that the Claims Court 11 had exclusive jurisdiction over the state’s
claim because it was one for money in excess of $10,000.
The Supreme Court agreed with the district court and the First Circuit that the
APA provided a waiver of sovereign immunity for the state’s claim and that the case
was properly before the district court. In its opinion, the Court first analyzed whether the
claim was one for “money damages,” which would take it outside the purview of the
APA under 5 U.S.C. § 702. Although the ultimate relief sought by the state was
monetary, that did not necessarily mean it could be described as “money damages.”
Bowen, 487 U.S. at 893. The Court understood the term “money damages” to mean
“compensation for the damage sustained by the failure of the Federal Government to
pay as mandated.” Id. at 900. In contrast, the state was seeking to “enforce the
statutory mandate itself, which happens to be one for the payment of money.” Id.Because the state sought to recover money it thought it was entitled to under the
relevant statutes, the state’s claim was for “specific relief” rather than “money
damages.” Id. at 900-01. The dissent found this distinction unconvincing. Id. at 917-21(Scalia, J., dissenting).
11
The Claims Court is now known as the Court of Federal Claims. Federal
Courts Administration Act of 1992, Pub. L. No. 102-572, § 902(a), 106 Stat. 4506, 4516.
06-1207 12
The Court next addressed the Government’s argument that the state’s APA claim
was barred under 5 U.S.C. § 704 because there was an “adequate remedy” in the
Claims Court. The Court rejected the Government’s position on the ground that the
Claims Court had no power to grant equitable relief. Id. at 905. The state sought
declaratory and injunctive relief requiring the Secretary to modify future Medicaid
practices. Since the Medicaid program was ongoing and a judgment in the case would
require future cooperation between the parties, the Court was “not willing to assume,
categorically, that a naked money judgment against the United States will always be an
adequate substitute for prospective relief fashioned in the light of the rather complex
ongoing relationship between the parties.” Id. The dissent disagreed with the majority
on this issue as well, stating that a successful claim for money damages in the Claims
Court would have precedential as well as collateral estoppel effect and therefore would
be as effective in establishing the state’s future rights as would a declaratory judgment
in district court. Id. at 926-27 (Scalia, J., dissenting). In the dissent’s view, “[s]ince [the
majority’s] reasoning cannot possibly be followed where it leads, the jurisdiction of the
Claims Court has been thrown into chaos.” Id. at 929 (Scalia, J., dissenting).
B.
As the dissent predicted, the Bowen case has generated much confusion
regarding the jurisdiction of the courts, as well as adverse commentary. 12 In 1988, the
same year Bowen was decided, Congress attempted to bring some order to the
12
For a thorough review of the Bowen case and its consequences, with
extensive citation, see Gregory C. Sisk, The Tapestry Unravels: Statutory Waivers of
Sovereign Immunity and Money Claims Against the United States, 71 Geo. Wash. L.
Rev. 602, 707 (2003) (“The Supreme Court by overruling Bowen v. Massachusetts, the
Federal Circuit by limiting it, or the Congress by modest legislative intervention should
act to restore clarity and stability to jurisdictional lines.”).
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process. It enacted a statute providing that, when a district court order grants or denies
a motion to transfer a suit against the Government to the Court of Federal Claims, an
interlocutory appeal can be taken by either plaintiff or the Government. Pub. L. No.
100-702, Title V, § 501, 102 Stat. 4652 (1988) (codified at 28 U.S.C. § 1292(d)(4)).
Prior to then, parties could not obtain appellate review of the jurisdictional question until
the case had been tried on the merits, possibly in the wrong trial court. To ensure
uniform adjudication of all Tucker Act issues in a single forum, when Congress
established interlocutory review of these jurisdictional disputes it assigned the Federal
Circuit exclusive jurisdiction over such appeals. H.R. Rep. No. 100-889, at 52 (1988),
as reprinted in 1988 U.S.C.C.A.N. 5982, 6012.
One consequence of the Bowen case has been to create a sort of cottage
industry among lawyers attempting to craft suits, ultimately seeking money from the
Government, as suits for declaratory or injunctive relief without mentioning the money.
If successful, a plaintiff could have the case heard under the APA in one or another
district court, with appeal to a regional circuit, rather than in the Court of Federal Claims,
where money claims against the Government are routinely heard and decided, with
appeal in the Federal Circuit. This court has had several opportunities to deal with such
attempts, and to interpret and apply Bowen.
To thwart such attempted forum shopping, our cases have emphasized that in
determining whether a plaintiff’s suit is to be heard in district court or the Court of
Federal Claims, we must look beyond the form of the pleadings to the substance of the
claim. We have cautioned litigants that dressing up a claim for money as one for
equitable relief will not remove the claim from Tucker Act jurisdiction and make it an
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APA case. See, e.g., Christopher Vill., L.P. v. United States, 360 F.3d 1319, 1328 (Fed.
Cir. 2004) (“A party may not circumvent the Claims Court’s exclusive jurisdiction by
framing a complaint in the district court as one seeking injunctive, declaratory or
mandatory relief where the thrust of the suit is to obtain money from the United States.”
(quoting Rogers v. Ink, 766 F.2d 430, 434 (10th Cir. 1985))); Consol. Edison Co. of
N.Y., Inc. v. United States, 247 F.3d 1378, 1385 (Fed. Cir. 2001) (“This court and its
sister circuits will not tolerate a litigant’s attempt to artfully recast its complaint to
circumvent the jurisdiction of the Court of Federal Claims.”); Brazos Elec. Power Coop.,
Inc. v. United States, 144 F.3d 784, 787 (Fed. Cir. 1998) (“Court of Federal Claims
jurisdiction cannot be circumvented by such artful pleading and, accordingly, we
customarily look to the substance of the pleadings rather than their form.”); Nat’l Ctr. for
Mfg. Scis. v. United States, 114 F.3d 196, 199 (Fed. Cir. 1997) (“NCMS”)
(“Notwithstanding the imprecision of the complaint, we therefore ‘look to the true nature
of the action in determining the existence or not of jurisdiction.’” (quoting Katz v.
Cisneros, 16 F.3d 1204, 1207 (Fed. Cir. 1994))); Kanemoto v. Reno, 41 F.3d 641, 646
(Fed. Cir. 1994) (“‘A party may not avoid the [Court of Federal Claims’] jurisdiction by
framing an action against the federal government that appears to seek only equitable
relief when the party’s real effort is to obtain damages in excess of $10,000.’” (quoting
Marshall Leasing, Inc. v. United States, 893 F.2d 1096, 1099 (9th Cir. 1990))).
Once we discern the true nature of a plaintiff’s claim as a claim for money,
because of Bowen we still must determine whether the claim is excluded from APA
jurisdiction by the limitations in 5 U.S.C. §§ 702 and 704. Bowen and several cases
following Bowen begin their analysis by asking first whether the claim is for other than
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“money damages,” as that term is used in 5 U.S.C. § 702, and thus whether the suit
meets this requirement for district court jurisdiction. The problem with that approach is
that it turns on a linguistic distinction between ‘money damages’ and a claim that
happens to be for money, a distinction that is at best murky, and at worst without a
difference.
Our cases, and Congress’s purpose in giving this court jurisdiction over these
interlocutory appeals, dictate that the better course is to ask first whether the cause is
one over which the Court of Federal Claims has jurisdiction under the Tucker Act. The
analysis begins, then, with the question raised by 5 U.S.C. § 704—is there an
“adequate remedy” in a court other than the district court, that is, can the Court of
Federal Claims provide an adequate remedy under the Tucker Act for the alleged
wrong?
One reason for beginning the analysis with the “adequate remedy” issue is that
its resolution often will be dispositive. If the suit is at base a claim for money, and the
relief available through the Court of Federal Claims under the Tucker Act—a money
judgment—will provide an adequate remedy, the inquiry is at an end. There is no need
to address the § 702 “money damages” limitation because § 704 precludes adjudication
under the APA. A number of cases have recognized the value in this approach. See
Christopher Vill., 360 F.3d at 1327-29 (determining there was an adequate remedy in
the Court of Federal Claims without analyzing the “money damages” limitation); Consol.
Edison, 247 F.3d at 1382-83 (declining to address the “money damages” issue because
the Court of Federal Claims would provide an adequate remedy); Kanemoto, 41 F.3d at
644 (treating the “adequate remedy” issue as a threshold question); see also Randall v.
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United States, 95 F.3d 339, 346 (4th Cir. 1996) (“[T]o determine whether Plaintiff’s suit
is cognizable under the APA, the court must first examine whether he has an available
remedy under the Tucker Act.” (emphasis added)).
Another reason it is preferable to start with the § 704 “adequate remedy”
limitation rather than the “money damages” limitation found in § 702 is the way the
Supreme Court has read the § 702 limitation. As earlier noted, the Supreme Court in
Bowen interpreted the § 702 term “money damages” to mean that not all monetary relief
is “money damages,” an interpretation that opened the way to linguistic manipulation
and the consequent opportunity for forum shopping. As the Court explained, if the
plaintiff requests funds to which a statute allegedly entitles it, rather than money in
compensation for sustained losses, the relief sought is something other than “money
damages.” Bowen, 487 U.S. at 900; see also NCMS, 114 F.3d at 200; Kanemoto, 41
F.3d at 644; Katz, 16 F.3d at 1208-09. Thus if a plaintiff seeks a money judgment but a
court concludes that the relief sought is other than “money damages,” the § 702
limitation is not an impediment to APA review by the district court.
However, even if the plaintiff escapes the § 702 limitation in this manner, the
inquiry cannot end there because a claim seeking monetary relief, however defined,
may nevertheless be within the jurisdictional scope of the Tucker Act. 13 A court must
therefore undertake the second analytical step—determining whether there is an
adequate remedy available under the Tucker Act in the Court of Federal Claims for the
sought-after monetary relief. See NCMS, 114 F.3d at 200-01; Katz, 16 F.3d at 1209. If
13
“The jurisdiction of the Claims Court, however, is not expressly limited to
actions for ‘money damages,’ . . . whereas that term does define the limits of the
exception to § 702.” Bowen, 487 U.S. at 900 n.31.
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the jurisdictional requirements of the Tucker Act are satisfied, i.e., the claim is for more
than $10,000 and is based on a money-mandating statute, regulation, or constitutional
provision, or an express or implied contract with the Government, see Fisher v. United
States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc in relevant part), and if the Court
of Federal Claims through a money judgment can provide an adequate remedy under
the Tucker Act, § 704 bars the district court from hearing the case because it belongs in
another court—the Court of Federal Claims. Again, the same conclusion could have
been reached without first addressing the “money damages” limitation of § 702. See
Consol. Edison, 247 F.3d at 1382-83 (acknowledging that plaintiff might satisfy § 702 by
seeking monetary relief other than “money damages,” but declining to address the issue
because the Court of Federal Claims would provide an adequate remedy).
In sum, when the plaintiff’s claims, regardless of the form in which the complaint
is drafted, are understood to be seeking a monetary reward from the Government, then,
for the reasons explained, a straightforward analysis calls for determining whether the
case falls within the jurisdiction of the Court of Federal Claims. If that court can provide
an adequate remedy—if a money judgment will give the plaintiff essentially the remedy
he seeks—then the proper forum for resolution of the dispute is not a district court under
the APA but the Court of Federal Claims under the Tucker Act. There is no need at that
point to even address the other APA limitations, the “money damages” and the
“expressly or impliedly forbids” provisions. The three limitations function in the
disjunctive; the application of any one is enough to deny a district court jurisdiction
under the APA.
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C.
Applying these concepts to the case before us, it is clear that the proper forum
for Suburban’s claim is the Court of Federal Claims. In Count I of the complaint,
Suburban seeks a declaration that HUD acted unlawfully when it refused to accept
assignment of the mortgage and defaulted loan. Though the claim is styled as one for
declaratory relief, Suburban in essence is seeking to obtain the financial benefit of a
prior contract-based obligation that allegedly has not been honored by the Government.
Suburban contracted with HUD for mortgage insurance. Suburban filed a claim under
the insurance policy; HUD refused to pay the claim. Suburban’s ultimate goal now is to
recover the insurance proceeds. We therefore agree with the Government that despite
the form of the complaint, Suburban’s claim is in substance a contract-based action
asking for monetary relief from the Government.
With that in mind, we must decide whether the Court of Federal Claims can
provide Suburban with an “adequate remedy” within the meaning of § 704. We begin
with the proposition that “[t]he availability of an action for money damages under the
Tucker Act or Little Tucker Act is presumptively an ‘adequate remedy’ for § 704
purposes.” Telecare Corp. v. Leavitt, 409 F.3d 1345, 1349 (Fed. Cir. 2005) (citing
Christopher Vill., 360 F.3d at 1327-29; Consol. Edison, 247 F.3d at 1382-84). The
Government asserts, and Suburban does not dispute, that Suburban could have
brought an action for breach of contract in the Court of Federal Claims. See Manhattan
Sav. Bank v. United States, 557 F.2d 1388 (Ct. Cl. 1977); Estabrook v. United States,
41 Fed. Cl. 283 (1998); Fairington Apartments v. United States, 7 Cl. Ct. 647 (1985).
As the Government suggests, if Suburban were to obtain a judgment for breach of
06-1207 19
contract, the Court of Federal Claims could order payment of the insurance proceeds as
a form of expectation damages, giving Suburban the benefits it expected to receive had
the Government not breached the insurance contract. See Glendale Fed. Bank, FSB v.
United States, 239 F.3d 1374, 1380 (Fed. Cir. 2001) (citing Restatement (Second) of
Contracts § 344(a) (1981)). An adequate remedy is therefore presumptively available in
the Court of Federal Claims.
Suburban relies on Bowen to support its contention that a money judgment from
the Court of Federal Claims will not be adequate. But, as we have noted elsewhere,
Bowen turned on the “complexity of the continuous relationship between the federal and
state governments administering the Medicaid program,” Consol. Edison, 247 F.3d at
1383, and the Court “linked its judgment to a specific set of circumstances” that are not
present in most cases, id. at 1384. These circumstances include: Bowen was a dispute
between two sovereigns—a state government and the federal government—implicating
federalism issues; the dispute centered on the administration of a major federal grant,
the Medicaid program, involving enormous sums of money and complex interactions
between the governments and the beneficiaries; at issue were the institutional
arrangements between these two governments; the governments were locked into a
fabric of long-term administration of the program; and the money involved in the
uncovered education services was a small fraction of the total reimbursement the state
received each year for its Medicaid costs under the program. In addition, the Court’s
focus was on the statutory requirements set forth in this complex grant program—
nowhere in Bowen did the Court make reference to the existence of any specific
contract or express agreement defining the relationship between the parties.
06-1207 20
Furthermore, unlike Bowen, this case does not involve a complex, ongoing
relationship between plaintiff and the Government in which the plaintiff seeks
declaratory or injunctive relief to modify the Government’s future obligations under the
program. Suburban does not seek to change any long-term future conduct by the
Government. Even if we were to discount the point made by the dissent in Bowen, that
a money judgment against the Government can impact on its future behavior through
doctrines such as collateral estoppel, a judgment ordering prospective relief would not
be necessary or appropriate.
The thrust of Suburban’s claim is that HUD breached the insurance contract
when it refused to accept assignment of the mortgage and pay Suburban the insurance
proceeds. Accordingly, “[e]very legal issue that [Suburban] seeks to resolve in the
district court could be . . . decided in a suit before the Court of Federal Claims.” Consol.
Edison, 247 F.3d at 1385. Nor are Suburban’s concerns about possible bankruptcy,
loss of reputation, and lost future profits a basis for saying that there is not an adequate
remedy in the Court of Federal Claims. Those concerns can be alleged by any claimant
seeking money from the Government for an allegedly wrongful failure to pay a claim; to
the extent they have merit in a given case, money usually can assuage the wrong. 14
We have considered the other arguments raised by Suburban, including its
argument that it has been denied due process and that that alone entitles it to APA
review in the district court. We agree with the Government that a claim that a
government agency has violated a party’s right to due process by refusing performance
14
“[E]ven though a plaintiff may often prefer a judicial order enjoining a
harmful act or omission before it occurs, damages after the fact are considered an
adequate remedy in all but the most extraordinary cases.” Bowen, 487 U.S. at 925(Scalia, J. dissenting).
06-1207 21
under a contract is substantively indistinguishable from a breach of contract claim. The
process to which plaintiff is due on these facts is a post-deprivation suit for breach of the
contract. See Lujan v. G&G Fire Sprinklers Inc., 532 U.S. 189, 196 (2001). We find
these further arguments without merit. Because an adequate remedy is available under
the Tucker Act in the Court of Federal Claims, this case cannot proceed in the district
court under the APA.
D.
The district court in making its determination in this case sought guidance from
and relied heavily on decisions from its regional circuit. The Government seemed to
shape its case for dismissal on the same basis, arguing that because Suburban’s claim
arose out of a contract, there was no APA jurisdiction. The source for that argument is
a line of cases in other courts of appeals, including the Court of Appeals for the District
of Columbia, holding that claims based on contracts can only be brought in the Court of
Federal Claims. See Transohio, 967 F.2d at 609-10; Sharp, 798 F.2d at 1523-24;
Spectrum Leasing, 764 F.2d at 893-94; N. Side Lumber Co. v. Block, 753 F.2d 1482,
1485-86 (9th Cir. 1985); Megapulse, Inc. v. Lewis, 672 F.2d 959, 967 (D.C. Cir. 1982).
The basis for this rule is the third limitation on the APA’s waiver of sovereign immunity—
waiver is not available “if any other statute that grants consent to suit expressly or
impliedly forbids the relief which is sought.” 5 U.S.C. § 702. Since the Tucker Act
grants consent for suits based on contract, this has been interpreted by these other
courts to preclude under the APA contract claims of any kind, either for damages or
specific performance. This court has acknowledged the issue but not squarely
addressed it. See, e.g., Katz, 16 F.3d at 1209. Since we conclude the case is better
06-1207 22
decided under the limitation in § 704 of the APA, we need not address the argument
further. 15
Finally, the regional circuits are of course free to provide such guidance as they
choose to the district courts in their circuits, and when the question of jurisdiction comes
up outside of these interlocutory appeals, the district courts properly may look to the law
of their circuit for guidance. But guidance from and reliance upon regional circuit law
must take into account two considerations. First, since 1988 and the Bowen decision,
there has been considerable development regarding this jurisdictional issue. The
regional circuit court cases may be older cases, and indeed, as was the case here,
some may have been decided before Bowen.
Second, and of equal if not greater importance, for almost twenty years this court
has been tasked by Congress to be the exclusive arbiter of the issue when it is brought
to us in these interlocutory appeals. We of course are bound to follow our own circuit
law. District courts, as well as counsel for the parties, would be better able to predict
the outcome of such appeals if they follow the same law.
CONCLUSION
The judgment of the district court is reversed. The matter is remanded with
instructions to either dismiss Count I of the complaint or transfer it to the Court of
Federal Claims.
REVERSED and REMANDED
15
For a full discussion of the issue, see Richard H. Seamon, Separation of
Powers and the Separate Treatment of Contract Claims Against the Federal
Government for Specific Performance, 43 Vill. L. Rev. 155 (1998).
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