Almy et al v. United States Department of Defense et al

Filing 31

RESPONSE (re 30 MOTION for Leave to File First Amended Complaint ) filed byDepartment of the Air Force, Department of the Navy, Michael B. Donley, Robert M. Gates, Ray Mabus, United States Department of Defense. (Attachments: # 1 Exhibit Trail Transcript, Witt v. Dep't of the Air Force)(Parker, Ryan) (Filed on 4/13/2011)

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IAN HEATH GERSHENGORN
Deputy Assistant Attorney General
MELINDA L. HAAG
United States Attorney
VINCENT M. GARVEY
Deputy Director
PAUL G. FREEBORNE
Virginia Bar No. 33024
RYAN B. PARKER
Utah Bar No. 11742
Trial Attorneys
U.S. Department of Justice
Civil Division
Federal Programs Branch
P.O. Box 883
Washington, D.C. 20044
Telephone: [phone]
Facsimile: [phone]
E-mail: paul.freeborne@ usdoj.gov

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Attorneys for Federal Defendants

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

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Plaintiffs,
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v.
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UNITED STATES DEPARTMENT OF
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DEFENSE, ROBERT M. GATES, Secretary of )
Defense; DEPARTMENT OF THE AIR FORCE; )
MICHAEL B. DONLEY, Secretary, Department )
of the Air Force; DEPARTMENT OF THE
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NAVY; and RAY MABUS, Secretary,
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Department of the Navy,
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Defendants.
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MICHAEL D. ALMY, ANTHONY J.
LOVERDE, and JASON D. KNIGHT,

Case No. 3:10-cv-5627 (RS)
FEDERAL DEFENDANTS’
OPPOSITION TO PLAINTIFFS’
MOTION SEEKING LEAVE TO FILE
FIRST AMENDED COMPLAINT
Hearing Date: May 5, 2011
Time: 1:30 P.M.
Courtroom: San Francisco Courthouse,
Courtroom 3 - 17th Floor 450 Golden
Gate Avenue, San Francisco, CA 94102

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Federal Defendants’ Opposition to Plaintiffs’ Motion Seeking Leave to File First Amended Complaint,
Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS)

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TABLE OF AUTHORITIES

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CASES

PAGE(S)

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Ahlmeyer v. Nev. Sys. of Higher Educ.,
555 F.3d 1051 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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Bakersfield City School Dist. of Kern Cnty. v. Boyer,
610 F.2d 621 (9th Cir. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6

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8

Bowen v. Massachusetts,
487 U.S. 879 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

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Branson v. City of Los Angeles,
1999 WL 439383 (9th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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11

Cape Fox Corp. v. United States,
646 F.2d 399 (9th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

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Clark v. United States,
19 Cl. Ct. 220 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

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Consol. Edison Co. v. U.S. Dep’t of Energy,
247 F.3d 1378 (Fed. Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4

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Denton v. Schlesinger,
605 F.2d 484 (9th Cir. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

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James v. Caldera,
159 F.3d 573 (Fed. Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

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Lane v. Pena,
518 U.S. 187 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

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Local 783, Allied Indus. Workers v. General Elec. Co.,
471 F.2d 751 (6th Cir. 1973), cert. denied, 414 U.S. 822 (1973) . . . . . . . . . . . . . . . . . . . . . . 7

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Mosley v. Cnty of Clark,
1993 WL 230272 (9th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

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Rowe v. United States,
633 F.2d 799 (9th Cir. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

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Smith v. Orr,
855 F.2d 1544 (Fed. Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

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Steckman v. Hart Brewing, Inc.,
143 F.3d 1293 (9th Cir.1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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Federal Defendants’ Opposition to Plaintiffs’ Motion Seeking Leave to File First Amended Complaint,
Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS)

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Suburban Mortg. Assoc., Inc. v. U.S. Dep't of Hous. and Urban Dev.,
480 F.3d 1116 (Fed. Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

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Townsend v. Univ. of Alaska,
543 F.3d 478 (9th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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Tucson Airport Auth. v. Gen. Dynamics Corp.,
136 F.3d 641 (9th Cir.1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

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United States v. Park Place Assoc., Ltd.,
563 F.3d 907 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 7

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Waters v. Rumsfeld,
320 F.3d 265 (D.C. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

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Williams v. Department of the Army,
715 F.2d 1485 (Fed. Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

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Witt v. Department of the Air Force,
No. 06-5195, 2010 WL 3522519 (W.D. Wash. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

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STATUTES

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28 U.S.C. § 1491(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

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Federal Defendants’ Opposition to Plaintiffs’ Motion Seeking Leave to File First Amended Complaint,
Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS)

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TABLE OF CONTENTS
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PAGE
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INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
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ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
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I.

Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II.

Plaintiffs’ Motion for Leave to Amend their Complaint Should Be Denied
Because Plaintiffs’ Attempt to Circumvent The Exclusive Tucker Act
Jurisdiction Congress Created in 28 U.S.C. § 1491(a)(2) Would Cause
Unnecessary Delay, Prejudice Defendants, and Fail to Remedy the
Jurisdictional Defects in the Complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

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A.

Congress Enacted 28 U.S.C. § 1491(a)(2) to Provide the Relief
Plaintiffs Intend to Pursue for their Alleged Wrongful Discharge . . . . . . . . . . . . 3

B.

The Wholesale and Adequate Remedy Created in
28 U.S.C. § 1491(a)(2) Cannot be Circumvented by
Plaintiffs Through Creative Pleading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

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III.

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To the Extent Plaintiffs Wish to Proceed in this Court, They Must
Expressly and Clearly Waive Any Right to Money Relief
Exceeding $10,000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

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CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

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Federal Defendants’ Opposition to Plaintiffs’ Motion Seeking Leave to File First Amended Complaint,
Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS)

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INTRODUCTION

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As explained in Defendants’ motion to transfer or, in the alternative, motion to dismiss

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(Doc. 19), Plaintiffs must clearly and expressly waive all money claims that directly flow from

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retroactive reinstatement and promotion, e.g., back pay and health care allowances, to proceed

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in this Court. Not only have Plaintiffs refused to provide such a clear and express waiver of any

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money claim, they have specifically reserved their “right to commence a separate action in the

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Court of Federal Claims to seek [money] relief.” See Doc. 30 at 3 n.2. Plaintiffs thus intend to

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split their claims and have their equitable claims for reinstatement first heard in district court,

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pursuant to the Administrative Procedure Act (APA), and then have their money claims heard in

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the Court of Federal Claims, pursuant to the Tucker Act. The Court should reject Plaintiffs’

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attempt to circumvent the exclusive jurisdiction of the Court of Federal Claims, and reject

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Plaintiffs’ motion for leave to amend their complaint to delete any reference to the “back pay,

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allowances, or benefits” (Doc. 30 at 4: 22-24) that they intend to pursue in the Court of Federal

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Claims.

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Although leave is to be freely given under Fed. R. Civ. P. 15(a)(2), that is only “when

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justice so requires.” Justice would not be served by permitting Plaintiffs to circumvent the

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Court of Federal Claims’ exclusive jurisdiction. As explained in Defendants’ motion (Doc. 19),

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Congress specifically amended the Tucker Act, in 1972, and added 28 U.S.C. § 1491(a)(2), to

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ensure that the equitable and money relief Plaintiffs seek could be adjudicated in one

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proceeding before the Court of Federal Claims. Plaintiffs’ attempt to remedy the jurisdictional

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defects in their complaint by simply deleting money claims that they fully intend to pursue is

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futile. Creative pleading does not defeat exclusive Tucker Act jurisdiction.1

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Should the Court permit Plaintiffs to proceed in this Court, Defendants would oppose any
subsequent attempt by Plaintiffs to bring a claim for money in the Court of Federal Claims based
on the same operative facts. Moreover, both in this Court and in the Court of Federal Claims,
Defendants believe there are substantial grounds for dispositive motions that would result in
dismissal of some or all of Plaintiffs’ claims in advance of trial. Accordingly, although
jurisdiction is appropriate only in the Court of Federal Claims and not in this Court, nothing in
this filing should be read to suggest that Plaintiffs’ claims would survive Defendants’ anticipated
Motion to Dismiss or a Motion for Summary Judgment in either forum.
Federal Defendants’ Opposition to Plaintiffs’ Motion Seeking Leave to File First Amended Complaint,
Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS)

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Given that Plaintiffs intend to pursue money relief, they must proceed in the Court of

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Federal Claims. They can proceed in this Court only by (1) clearly and expressly waiving any

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money claims and proceeding under the terms of the APA or (2) waiving money claims over

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$10,000 and proceeding under the Little Tucker Act. To the extent the Court is inclined to

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permit any amendment of the complaint at this late juncture, the Court should condition any

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amendment upon an express waiver. Absent such a clear and express waiver of money claims,

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however, the Court should not permit any further amendment of the complaint and should

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transfer this case to the Court of Federal Claims (or dismiss the case) pursuant to Defendants’

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pending motion so that Plaintiffs’ money and equitable claims can be heard in the proper forum.

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ARGUMENT

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I.

Standard
Courts consider five factors when assessing the propriety of a motion for leave to

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amend: undue delay, bad faith, futility of amendment, prejudice to the opposing party and

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whether the plaintiff has previously amended the complaint. Ahlmeyer v. Nev. Sys. of Higher

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Educ., 555 F.3d 1051, 1055 n.3 (9th Cir. 2009). Futility, alone, can justify denying a motion to

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amend, id., and can be determined by whether a proposed claim would survive a motion to

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dismiss. See Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir.1998). If a

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proposed claim would fail to clear the applicable legal threshold, it is futile and should not be

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added to the complaint. See id. Amendments that fail to cure jurisdictional deficiencies are

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accordingly futile and leave to amend will appropriately be denied. See e.g., Townsend v. Univ.

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of Alaska, 543 F.3d 478, 485, 487 (9th Cir. 2008) (affirming denial of motion for leave to

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amend where amendment would not cure jurisdictional deficiency); Branson v. City of Los

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Angeles, 1999 WL 439383, * 1 (9th Cir. 1999) (unpublished decision) (“[T]he district court did

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not err by denying [plaintiff] leave to amend his complaint because amendment would be futile

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given the district court's lack of subject matter jurisdiction.”). Because Plaintiffs’ motion for

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leave to amend their complaint runs afoul of these standard requirements, further amendment

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Federal Defendants’ Opposition to Plaintiffs’ Motion Seeking Leave to File First Amended Complaint,
Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS)

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should not be permitted and the motion should be denied.

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II.

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Plaintiffs’ Motion for Leave to Amend their Complaint Should Be Denied Because
Plaintiffs’ Attempt to Circumvent The Exclusive Tucker Act Jurisdiction
Congress Created in 28 U.S.C. § 1491(a)(2) Would Cause Unnecessary Delay,
Prejudice Defendants, and Fail to Remedy the Jurisdictional Defects in the
Complaint

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A.

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Congress Enacted 28 U.S.C. § 1491(a)(2) to Provide the Relief Plaintiffs
Intend to Pursue for their Alleged Wrongful Discharge

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In 1972, Congress amended the Tucker Act to allow the Court of Federal Claims to
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adjudicate wrongful military discharge cases, such as this case, in which Plaintiffs intend to
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seek both equitable and monetary relief. Prior to the amendment, the jurisdiction of the Court
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of Claims (now the Court of Federal Claims) was limited to actions for monetary relief. S. Rep.
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No. 92-1066, at 1 (1972). To provide an “entire remedy,” the Court of Claims’ jurisdiction was
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expanded to permit the award of equitable relief, including reinstatement, as an incident of and
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collateral to any money judgment. Id.
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To effectuate such wholesale relief, Congress amended the Tucker Act as follows:
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“To provide an entire remedy and to complete the relief afforded by the
judgment, the [Court of Federal Claims] may, as an incident of and collateral to
any such judgment, issue orders directing restoration to office or position,
placement in appropriate duty or retirement status, and correction of applicable
records, and such orders may be issued to any appropriate official of the United
States.”

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28 U.S.C. § 1491(a)(2) (emphasis added). In enacting Section 1491(a)(2), Congress intended to

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have wrongful discharge cases involving both equitable relief and money damages exceeding

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$10,000 be resolved by “allowing persons having monetary claims within the jurisdiction of the

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Court of Claims to obtain all necessary relief in one action.” S. Rep. No. 92-1066, at 1

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(emphasis added). Congress revised the Tucker Act to improve the “administration of justice in

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the Court of Claims by simplifying the procedure and reducing the costs incurred in

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litigation[.]” Id.

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B.

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The Wholesale and Adequate Remedy Created in 28 U.S.C. § 1491(a)(2)
Cannot be Circumvented by Plaintiffs Through Creative Pleading

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Plaintiffs cannot skirt the exclusive jurisdiction Congress created over money claims in
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the Tucker Act by artful pleading that simply omits any reference to the money relief they
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Federal Defendants’ Opposition to Plaintiffs’ Motion Seeking Leave to File First Amended Complaint,
Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS)

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intend to seek. Courts “will not tolerate a litigant’s attempt to artfully recast its complaint to

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circumvent the jurisdiction of the Court of Federal Claims.” Consol. Edison Co. v. U.S. Dep’t

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of Energy, 247 F.3d 1378, 1385 (Fed. Cir. 2001). “[T]he exclusive jurisdiction of the court of

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claims over non-tort claims exceeding $10,000 cannot be evaded or avoided by framing a

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district court complaint to appear to seek only injunctive, mandatory or declaratory relief

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against government officials or the government itself.” Bakersfield City School Dist. of Kern

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Cnty. v. Boyer, 610 F.2d 621, 628 (9th Cir. 1979) (citations omitted). The Federal Circuit has

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recognized that plaintiffs sometimes “craft suits, ultimately seeking money from the

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Government, as suits for declaratory or injunctive relief without mentioning the money” so they

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can stay in district court but has “cautioned litigants that dressing up a claim for money as one

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for equitable relief” is not enough to negate the exclusive jurisdiction of the Court of Claims or

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trigger the APA’s waiver of sovereign immunity. Suburban Mortg. Assoc., Inc. v. U.S. Dep’t of

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Hous. and Urban Dev., 480 F.3d 1116, 1124 (Fed. Cir. 2007). Where, as here, “the real effort

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of the complaining party is to obtain money from the federal government[,]” Bakersfield, 610

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F.2d at 628, the Tucker Act governs, and the case must proceed in the Court of Federal Claims.

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Like any waiver of sovereign immunity, the APA’s waiver of sovereign immunity must

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be “unequivocally expressed in statutory text and will not be implied.” Lane v. Pena, 518 U.S.

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187, 192 (1996) (citations omitted). As such, the APA’s “waiver of the Government’s

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sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign.”

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Id. For the APA’s waiver of sovereign immunity to apply, the following three conditions must

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be satisfied: (1) the claims are not for “money damages;” (2) an adequate remedy for the claims

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is not available elsewhere; and (3) the claims do not seek relief expressly or impliedly forbidden

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by another statute. United States v. Park Place Assoc., Ltd., 563 F.3d 907, 929 (9th Cir. 2009);

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Tucson Airport Auth. v. Gen. Dynamics Corp., 136 F.3d 641, 645 (9th Cir.1998).

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Plaintiffs’ motion to amend makes clear that Plaintiffs intend to seek money damages

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(Doc. 30 at 3 n.2), contrary to the first condition above, and explained that simply deleting

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money claims from the complaint here does not alter Plaintiffs’ expressed intent to pursue such

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relief, nor allow Plaintiffs to invoke APA jurisdiction and circumvent Tucker Act jurisdiction.
Federal Defendants’ Opposition to Plaintiffs’ Motion Seeking Leave to File First Amended Complaint,
Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS)

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This is particularly so, given that Congress specifically enacted 28 U.S.C. § 1491(a)(2)

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to provide a wholesale and adequate remedy for the violations Plaintiffs allege. Where such

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relief exists, the second and third conditions for APA jurisdiction are absent. See e.g.,

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Suburban Mortg., 480 F.3d at 1126-1127 (adequate remedy under Tucker Act precludes

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exercise of APA jurisdiction); James v. Caldera, 159 F.3d 573, 580 (Fed. Cir. 1999) (same).

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“When Congress enacted the APA to provide a general authorization for review of agency

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action in the district courts, it did not intend that general grant of jurisdiction to duplicate . . .

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established special statutory procedures . . . . ” Bowen v. Massachusetts, 487 U.S. 879, 903

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(1988).

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The Ninth Circuit has examined both the text and legislative history of Section

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1491(a)(1) and concluded that “Congress has expressly granted jurisdiction to the Court of

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Claims” over wrongful discharge cases such as this where both equitable relief and damages

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claims are sought. Denton v. Schlesinger, 605 F.2d 484, 486-87 (9th Cir. 1979). Section

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1491(a)(2) controls this case and there is “no basis to refuse transferring both the monetary and

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equitable claims to the Claims Court.” Smith v. Orr, 855 F.2d 1544, 1553 (Fed. Cir. 1988).

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Plaintiffs may not attempt to split their cause of action, as they suggest. Allowing

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Plaintiffs to litigate the same case in the district court and Court of Federal Claims would waste

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valuable judicial resources. See Williams v. Dep’t of the Army, 715 F.2d 1485, 1489 (Fed. Cir.

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1983) (recognizing that requiring district courts and courts of appeals to consider the same case

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twice would be “tremendous waste of judicial resources.”). Plaintiffs must elect a forum

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(district court or the Court of Federal Claims) and remedial scheme (APA or Tucker Act/Little

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Tucker Act); they cannot pick and choose. See Clark v. United States, 19 Cl. Ct. 220 (1980)

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(holding that party cannot first proceed in district court under one remedial statute (e.g., the

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Federal Tort Claims Act) and then proceed under the Tucker Act; party must instead make an

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affirmative election of both forum and remedy).

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Rowe v. United States, 633 F.2d 799 (9th Cir. 1980), which Plaintiffs rely upon in their

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motion (Doc. 30 at 3 n. 2) in purported support of a bifurcation of claims, does not support

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Plaintiffs’ position. The court there recognized that attempts, like those made by Plaintiffs here,
Federal Defendants’ Opposition to Plaintiffs’ Motion Seeking Leave to File First Amended Complaint,
Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS)

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to bifurcate equitable claims and money claims are to be disfavored. Id. at 802. The court also

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recognized that the Court of Federal Claims’ exclusive “jurisdiction cannot be avoided by a

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complaint that appears to seek only equitable relief when ‘the real effort of the complaining

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party is to obtain money (in excess of $10,000) from the federal government.’” Id. (quoting

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Bakersfield, 610 F.2d at 628)).

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Rowe is also distinguishable because in that action the Tucker Act did not provide an

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adequate remedy. There, a dissatisfied bidder sought to bring an APA action in district court

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challenging a Department of Interior decision to award oil and gas leases to another bidder and

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sought both contract damages exceeding $10,000 and an order compelling the Secretary to

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award the oil and gas leases to plaintiffs. Id. at 800-01. The Ninth Circuit found that plaintiffs

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could proceed in district court for the injunction because the Court of Claims lacked the

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authority to grant the equitable relief sought in the complaint that would “compel the Secretary

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of the Interior to award the oil and gas leases to the plaintiffs, pursuant to their agency appeal.”

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Id. at 802. It was thus the lack of an adequate remedy at law under the Tucker Act that

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permitted plaintiffs to proceed in district court in Rowe. See Cape Fox Corp. v. United States,

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646 F.2d 399, 402 (9th Cir. 1981) (distinguishing Rowe on that basis). That consideration is not

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present here given that Congress specifically enacted 28 U.S.C. § 1491(a)(2) so that Plaintiffs

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could obtain an adequate, wholesale remedy.

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Plaintiffs are correct that the district court in Witt v. Dept’ of the Air Force observed

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without deciding that the plaintiff there might be able seek damages in the Court of Federal

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Claims at some later date. See No. 06-5195, 2010 WL 3522519 (W.D. Wash. Sept. 7, 2010).

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The Government objected to that procedure in Witt. The matter soon became moot, however,

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because the plaintiff in that case withdrew any claim for monetary relief. See Attachment,

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September 13, 2010 Transcript, Witt v. Dep’t of the Air Force, 4:21 - 7:18. Unless and until

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Plaintiffs make a similar clear and express waiver of their money claims, the Court should,

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consistent with the principles discussed above, deny Plaintiffs’ motion for leave to amend their

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complaint and either transfer or dismiss this action pursuant to Defendants’ motion.

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Federal Defendants’ Opposition to Plaintiffs’ Motion Seeking Leave to File First Amended Complaint,
Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS)

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III.

To the Extent Plaintiffs Wish to Proceed in this Court, They Must Expressly and
Clearly Waive Any Right to Money Relief Exceeding $10,000

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Without such a clear and express waiver of money damages, the Tucker Act provides
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exclusive jurisdiction and permits suit only in the Court of Federal Claims. “Parties may waive
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their right to receive more than $10,000 in order to satisfy the Little Tucker Act and obtain
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jurisdiction in the district court.” Park Place Assoc., 563 F.3d at 927. A party can also waive
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all money damages, as the plaintiff did in Witt, but such a waiver “must be clearly and
7
adequately expressed.” Waters v. Rumsfeld, 320 F.3d 265, 271-72 (D.C. 2003) (internal
8
quotation omitted). Without a clear waiver of money damages, however, there is no waiver of
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sovereign immunity under the APA nor a basis for jurisdiction in this Court. Under the Tucker
10
Act and Little Tucker Act, the waiver of sovereign immunity and grant of jurisdiction are a
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“package deal,” and jurisdiction cannot lie in district court absent a clear and express waiver of
12
damages exceeding $10,000. Park Place Assoc., 563 F.3d at 927.
13
Under the Federal Rules, “the granting of leave to amend can be conditioned in order to
14
avoid prejudice to the opposing party.” Local 783, Allied Indus. Workers v. General Elec. Co.,
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471 F.2d 751, 756 (6th Cir. 1973), cert. denied, 414 U.S. 822 (1973); Mosley v. Cnty of Clark,
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1993 WL 230272, *3 (9th Cir. 1993) (unpublished decision) (quoting Local 783); see also 6
17
Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 1486 at
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693 (2010) (“The statement in Rule 15(a)(2) that the court ‘should freely give leave when
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justice so requires’ presupposes that the court may use its discretion to impose conditions on the
20
allowance of a proposed amendment... .”). If the Court decides to grant Plaintiffs leave to
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amend their complaint, it should condition leave on Plaintiffs waiving all money claims, as was
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done in Witt. Otherwise, Plaintiffs’ request for leave to amend their complaint should be
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denied, and this action should be transferred or dismissed pursuant to Defendants’ motion.
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25
26
27
28
Federal Defendants’ Opposition to Plaintiffs’ Motion Seeking Leave to File First Amended Complaint,
Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS)

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CONCLUSION
Plaintiffs’ request for leave to amend their complaint should be denied, and the Court
should move to resolve Defendants’ motion (Doc. 19) and either transfer or dismiss the action.

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DATED: April 13, 2011

Respectfully submitted,
IAN HEATH GERSHENGORN
Deputy Assistant Attorney General,
Civil Division
MELINDA L. HAAG
United States Attorney

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VINCENT M. GARVEY
Deputy Director
/s/ Paul G. Freeborne
PAUL G. FREEBORNE
RYAN B. PARKER
Trial Attorneys
U.S. Department of Justice
Civil Division

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Attorneys for the Federal Defendants
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16
17
18
19
20
21
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23
24
25
26
27
28
Federal Defendants’ Opposition to Plaintiffs’ Motion Seeking Leave to File First Amended Complaint,
Almy v. United States Department of Defense, Case No. 3:10-cv-5627 (RS)

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