The opinion of the court was delivered by: Bua, District Judge.
Presently before the court is the defendant's motion to dismiss
the complaint for failure to state a claim upon which relief can
be granted. Rule 12(b)(6), Fed.R.Civ.P.
A detail of more than 60 days to a higher grade
position or to a position of known promotion
potential must be made under competitive promotion
procedures. This requirement is not to be
circumvented by a series of temporary assignments.
Except for brief periods, an employee should not be
detailed to perform work of a higher grade level
unless there are compelling reasons to do so.
Normally an employee should be given a temporary
HEW Personnel Manual, Chapter 300, Instruction 300-3, Exhibit 1.
A detail was defined in the regulations as "the temporary
assignment of an employee to a different position for a specific
period, with the employee returning to his regular duties at the
end of the detail." HEW Personnel Manual, Chapter 300,
After performing the duties of the vacant GS-15 position for
over two years, the plaintiff instituted grievance proceedings
requesting a retroactive promotion to the GS-15 level and back
pay. The grievance was finally denied by the Secretary on April
13, 1978 and this suit was then filed.
The plaintiff seeks review of the final administrative decision
of the Secretary pursuant to 5 U.S.C. § 701 et seq. The
complaint alleges that this court has jurisdiction pursuant to
28 U.S.C. § 1331, in that this is a suit arising under
5 U.S.C. § 3341, 5 U.S.C. § 5596 (hereinafter the Back Pay Act), and
regulations of the Department of Health, Education and Welfare.
The relief sought by the plaintiff is a promotion to the GS-15
position, retroactive to April of 1974, with an award of all back
pay differentials in an amount in excess of $19,000.00. He also
seeks a correction of his employment records to reflect an
appointment to the GS-15 position and an award of costs,
attorney's fees, and punitive damages.
Although neither party has questioned this court's
jurisdiction, it is the court's duty to raise a lack of
jurisdiction sua sponte. Rule 12(h)(3), Fed.R.Civ.P. The
complaint in this case names the Secretary of the Department of
Health, Education and Welfare in his official capacity as
defendant and it is clear to this court that plaintiff seeks no
relief from the Secretary individually. The relief requested
pursuant to the Back Pay Act, 5 U.S.C. § 5596, is an order
awarding $19,000 to the plaintiff. Such an award is necessarily
an award against the United States. A suit against an officer of
the United States is one against the United States if the decree
would operate against the sovereign, Hawaii v. Gordon,
373 U.S. 57, 58, 83 S.Ct. 1052, 10 L.Ed.2d 191 (1963), or if "the judgment
sought would expend itself on the public treasury or domain,"
Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91
L.Ed. 1209 (1947), or if the effect of the judgment would be "to
restrain the Government from acting or compel it to act." Larson
v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 704, 69
S.Ct. 1457, 1468,
93 L.Ed. 1628 (1949). See Dugan v. Rank, 372 U.S. 609, 83 S.Ct.
999, 10 L.Ed.2d 15 (1963); Cook v. Arentzen, 582 F.2d 870, 872
n. 1 (4th Cir. 1978).
28 U.S.C. § 1331 does not provide this court with jurisdiction.
Although by its terms this jurisdictional provision applies to
suits against the United States, any agency thereof, or any
officer or employee thereof in his official capacity, courts have
consistently held that this jurisdictional provision does not
allow the district courts to entertain claims against the United
States for monetary relief in excess of $10,000. Back pay claims
of federal employees in excess of $10,000 are within the
exclusive jurisdiction of the Court of Claims and sovereign
immunity acts as a bar to district court jurisdiction over such
claims. Polos v. United States, 556 F.2d 903, 905 (8th Cir.
1977); Crawford v. Cushman, 531 F.2d 1114, 1126 n. 17 (2d Cir.
1976); Carter v. Seamans, 411 F.2d 767, 771 (5th Cir. 1969)
cert. denied, 397 U.S. 941, 90 S.Ct. 953, 25 L.Ed.2d 121
The Court of Appeals in this circuit has recently held that a
suit against the United States seeking a monetary award is
"subject to a defense of sovereign immunity unless brought in the
Court of Claims under the Tucker Act (28 U.S.C. § 1346 and
1491)." Clark v. United States, 596 F.2d 252 at 253 (7th Cir.
1979). The Court of Appeals noted that the 1976 amendment to "§
1331(a) providing that `no such sum or value [exceeding $10,000]
shall be required in any such action brought against the United
States, any agency thereof, or any officer or employee thereof in
his official capacity' only withdraws the defense of sovereign
immunity in actions seeking relief other than money damages.
See 5 U.S. Code Congressional & Administrative News, 94th
Cong.2d Sess. (1976) pp. 6161, 6124, 6125, 6140." Clark, supra.
Adopting the Fourth Circuit's view, the Seventh Circuit Court of
Appeals stated that because the "plaintiffs have intermingled
their prayer for declaratory relief with their prayer for damages
from the United States in excess of $10,000", district court
jurisdiction was not proper under § 1331(a), Clark, supra.
In Clark, the Court of Appeals relied on the Fourth Circuit's
decision in Cook v. Arentzen, 582 F.2d 870 (4th Cir. 1978). In
that case a naval reserve officer sought reinstatement and back
pay in the regular navy alleging that her separation from the
regular navy was unconstitutional. The court held that the Tucker
Act's $10,000 limitation on district court jurisdiction could not
be circumvented by resorting to § 1331, either by seeking damages
from an officer in his official capacity or by coupling a claim
for money damages exceeding $10,000 in the form of a back pay
award with a request for a declaratory judgment. Cook v.
Arentzen, 582 F.2d at 872 n. 1, 878 (4th Cir. 1978). The Court
of Appeals in Cook relied on the legislative history of the
1976 amendment to § 1331 in holding that the deletion of the
$10,000 amount in controversy requirement for suits against the
federal government, federal officers and federal agencies did not
affect sovereign immunity as a bar to a district court's
jurisdiction to enter a judgment for damages in excess of $10,000
against the United States.
"The report of the House Judiciary Committee states:
`Congress has made great strides toward
establishing monetary liability on the part of the
Government for wrongs committed against its
citizens by passing the Tucker Act of 1875,
28 U.S.C. § 1346, 1491, and the Federal Tort
Claims Act of 1947, 28 U.S.C. § 1346(b).
S.800 would strengthen this accountability by
withdrawing the defense of sovereign immunity in
actions seeking relief other than money damages
such as an injunction, declaratory judgment, or
writ of mandamus. Since S.800 would be limited only
to actions of this type for specific relief, the
recovery of money damages contained in the Federal
Tort Claims Act and the ...