Before Mayer, Chief Judge, Michel, and Schall, Circuit Judges. Opinion for the court filed by Circuit Judge Schall. Dissenting opinion filed by Circuit Judge Michel.
The opinion of the court was delivered by: Schall, Circuit Judge.
Appealed from: United States District Court for the Northern District of California Judge Vaughn R. Walker
Augustin S. James appeals the order of the United States District Court for the Northern District of California that transferred his case to the United States Court of Federal Claims pursuant to 28 U.S.C. § 1631 (1994). See James v. West, No. C-96-1779-VRW (Jan. 15, 1997). We have jurisdiction pursuant to 28 U.S.C. § 1292(d)(4)(A) (1994). James, a former non-commissioned officer in the United States Army, filed suit in the district court seeking mandamus relief under the Administrative Procedure Act (APA), 5 U.S.C. §§ 551-559, 701-706 (1994). He alleged that, in discharging him, the Army had wrongfully denied him a five-month extension of his enlistment. Consequently, he sought from the district court an order directing the Army to correct his records to reflect the twenty years active duty service and eligibility for retirement that would have been his had he been allowed to stay in the service for an additional five months. He also asked the court to direct the Army to remove from his records a bar to reenlistment that had been imposed upon him, and he alleged that the Army had improperly denied him the right to appeal the bar. The district court granted the government's motion to transfer the case to the Court of Federal Claims because it concluded that it lacked jurisdiction. Noting that the APA waives sovereign immunity only with respect to claims other than for money damages and that it excludes a waiver of sovereign immunity when adequate relief is available in another court, the court held that transfer was necessary because James asserted claims for money damages which could be heard in the Court of Federal Claims. We hold, however, that the claims asserted by James with respect to the bar to reenlistment are not for money damages and that the Court of Federal Claims lacks jurisdiction to adjudicate them. As far as the extension of enlistment claim is concerned, in view of the allegations in the complaint, the record before us, and the way in which the appeal has been argued, we are not in a position to decide whether the district court had jurisdiction to adjudicate the claim. Accordingly, we reverse the transfer order in-part, vacate it in-part, and remand the case to the district court for further proceedings.
Insofar as they relate to the issues before us, the facts are not in dispute. At the time of the events giving rise to this litigation, James had served in the Army as an enlisted man for almost twenty years and held the rank of Sergeant First Class. He was stationed at Schofield Barracks in Hawaii. One of James' duties was to schedule and coordinate random drug testing for the soldiers in his unit. When he did so, he was not required to schedule testing for himself. On July 22, 1988, however, James voluntarily submitted his own urine specimen for testing. When the specimen was analyzed, it tested positive for cocaine, and re-testing confirmed the result. On November 4, 1988, for having wrongfully possessed cocaine-laced tea, James received a non-judicial punishment under Article 15 of the Uniform Code of Military Justice, see 10 U.S.C. § 815 (1994), in the form of forfeiture of $450 pay for two months. James appealed the Article 15 decision, but the appeal was denied. In April of 1989, administrative discharge proceedings were commenced against James. Accordingly, a Board of Officers hearing was convened pursuant to Army Regulation (AR) 15-6 and AR 635-200 to determine whether James should be discharged for having committed an offense in violation of Army drug abuse regulations. *fn1 In due course, the Board determined that James was innocent of knowingly ingesting cocaine and recommended that he be retained in the Army. On April 18, 1989, James' company commander initiated bar to reenlistment proceedings against James under AR 601-280. *fn2 The basis for the proceedings was the non-judicial punishment that had been levied against James and his positive drug test. At the same time, James submitted a request to have his current enlistment extended by five months so that, for retirement purposes, he could leave the Army with twenty years of service. See 10 U.S.C. § 3914 (1994) (providing that an enlisted member of the Army with at least twenty years of service may retire). Lt. Ledouceur, James' immediate commander, approved the enlistment extension on April 24, 1989. On May 4, 1989, James' Battalion Commander recommended that James be barred from reenlistment but that he be allowed to extend his enlistment for the requested five-month period. The final deciding official, James' Division Commander, approved the bar to reenlistment, but denied the request for an extension of enlistment. This final action took place on July 20, 1989. On August 1, 1989, James was informed that the bar to his reenlistment had been approved and that he would not be permitted to extend his enlistment for an additional five months. Two days later, on August 3, the end of his current term of enlistment, James was honorably discharged from the Army. On February 13, 1992, James applied to the Army Board for Correction of Military Records (ABCMR) for correction of his service record. Specifically, he asked that the bar to reenlistment be removed from his record and that he be allowed to serve in the Army for an additional five months so that he could attain twenty years of service for retirement purposes. On November 24, 1993, the ABCMR denied the request.
On May 13, 1996, James filed suit in the district court, naming as defendants his former base commander, Col. Philip J. Schrock, and Togo D. West, Jr., then-Secretary of the Army. In the first paragraph of his complaint, James summarized his action as follows:
"This is a complaint for Mandamus relief and for relief under the Administrative Procedure Act (5 U.S.C. § 701 et. se[q.]) seeking an order compelling the Army to correct plaintiff's military records and restore plaintiff's reputation by deleting from those records a Bar to Reenlistment improperly imposed 5 months before plaintiff would have attained 20 years in service and retirement eligibility. Plaintiff further asks that his military record be corrected to reflect that he had 20 years of active duty service and that he be granted retirement pay and benefits accordingly."
In the very next paragraph of the complaint, under the heading "JURISDICTION," James asserted that his action arose under "the due process clause of the Fifth Amendment to the U.S. Constitution, the laws of the United States, including the Administrative Procedure Act (5 U.S.C. § 701 et. se[q.]), and the regulations of the United States Army." James stated that the district court had jurisdiction to adjudicate his claims under 28 U.S.C. §§ 1331, 1361, 1651, 2201, and 2202 (1994). In the body of his complaint, James asserted that the actions of the Army in discharging him, in refusing to permit him to extend his enlistment for five months, and in imposing the bar to reenlistment deprived him of the right to due process guaranteed by the Fifth Amendment to the Constitution. He also asserted that the denial of his request to extend his enlistment and the imposition of the bar to reenlistment constituted punishment and violated the Fifth Amendment's Double Jeopardy Clause, because the Army previously had unsuccessfully sought to achieve the same results through the administrative discharge proceedings. Specifically, in paragraph 19 of his complaint, James stated that, under Army Regulations, authority to give final approval to his request to extend his enlistment rested with Lt. Ledouceur, his immediate commander. Accordingly, he asserted in paragraph 23 of the complaint:
"Plaintiff's request for extension of enlistment was already approved and in effect as of April 24, 1989. The Bar to Reenlistment imposed upon plaintiff was not finally approved until July 20, 1989. The Bar to Reenlistment should therefore not have operated to prevent plaintiff from serving out the 5 months remaining to obtain retirement eligibility."
James further asserted, in paragraph 25 of his complaint, that Army Regulations then in effect provided no standards governing when an extension of enlistment for purposes of attaining retirement should be granted or denied in the context of a bar to reenlistment. "By granting Army officials total discretion to determine whether or not to allow extensions of enlistment in these circumstances, the regulations violate U.S. Constitutional Due Process requirements," James alleged.
As far as the bar to reenlistment itself was concerned, James alleged that, at the time of his discharge, he asked about his right to appeal but was told that he had no such right. James asserted that the denial of his right to appeal "violated AR 601-280 6-5e, which provides that soldiers desiring to submit an appeal to a Bar to Reenlistment will not be involuntarily separated while an appeal is pending, and that from the time he is informed that the Bar has been approved, the soldier shall be allowed seven days in which to submit an appeal."
James concluded his complaint with the following prayer for relief:
"WHEREFORE, plaintiff prays that the Court make the following orders and judgments: a. Issue an order directing the defendants to correct plaintiff's Army personnel record as follows: 1) to reflect 20 years active duty service and eligibility for retirement retroactive to the date that plaintiff would have attained 20 years service had his request for extension of enlistment been properly granted; 2) to remove the Bar to Reenlistment and the statements thereupon suggesting that plaintiff engaged in illegal drug use. b. Award plaintiff reasonable attorney's fees and the costs of this action, and; c. Grant such other and further relief as the Court deems just and proper."
In due course, the government moved to dismiss the complaint on the ground that the district court lacked jurisdiction because the United States had not waived sovereign immunity with respect to the various claims asserted by James. In its motion, the government contended that court lacked jurisdiction under the APA for two separate reasons. First, the government argued that James' suit was one for damages rather than injunctive relief, and therefore beyond the scope of 5 U.S.C. § 702. Second, the government argued that, even if James' suit could be construed as being for injunctive relief, pursuant to 5 U.S.C. § 704 the action could not be maintained in the district court under the APA because an adequate remedy was available in another court, specifically, the Court of Federal Claims. Responding to the government's motion, James argued that he was seeking only equitable relief and that therefore his action did not ...