Tootle v. Secretary of the Navy

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 10, 2006 Decided May 5, 2006

No. 04-5409

SAMUEL E. TOOTLE, II ,

APPELLANT/PETITIONER

V.

SECRETARY OF THE NAVY,

APPELLEE/RESPONDENT

On Petition for Writ of Mandamus and

Appeal from the United States District Court

for the District of Columbia

(No. 02cv02508)

Alex Little, Student Counsel, argued the cause as amicus

curiae in support of appellant/petitioner. With him on the briefs

were Steven H. Goldblatt, appointed by the court, David J.

Arkush, Supervising Attorney, and Jonathan J. Li, Student

Counsel.

Samuel E. Tootle, II, pro se, filed appellant/petitioner’s

brief.

Kevin K. Robitaille, Special Assistant U.S. Attorney, argued

the cause for appellee/respondent. With him on the brief were

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Kenneth L. Wainstein, U.S. Attorney, and Michael J. Ryan,

Assistant U.S. Attorney. R. Craig Lawrence, Assistant U.S.

Attorney, entered an appearance.

Before: HENDERSON and GARLAND, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

EDWARDS, Senior Circuit Judge: Appellant Samuel E.

Tootle, II, an enlisted member of the United States Navy, filed

suit in the District Court invoking the Administrative Procedure

Act (“APA”), 5 U.S.C. §§ 551 et seq. (2000). His pro se

petition seeks judicial review of a determination, made by a

Navy physical evaluation board in 1997, that he was “fit for

duty,” and, thus, not eligible for medical retirement. Upon a

motion from the Secretary of the Navy (the “Government”), the

District Court dismissed the case for lack of subject matter

jurisdiction, ruling that the cause was properly within the

exclusive jurisdiction of the Court of Federal Claims. The

District Court also purported to transfer the case to the Court of

Federal Claims.

Under the Tucker Act, the Court of Federal Claims is vested

with exclusive jurisdiction over cases involving non-tort money

damages in excess of $10,000. 28 U.S.C. §§ 1491(a)(1),

1346(a)(2) (2000). “Absent other grounds for district court

jurisdiction, a claim is subject to the Tucker Act and its

jurisdictional consequences if, in whole or in part, it explicitly

or ‘in essence’ seeks more than $10,000 in monetary relief from

the federal government.” Kidwell v. Dep’t of the Army, 56 F.3d

279, 284 (D.C. Cir. 1995). The question before this court is

whether Tootle’s complaint is “in essence” one for money

damages and, thus, subject to the exclusive jurisdiction of the

Court of Federal Claims.

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In Kidwell, we explained that a complaint is not “in

essence” one for money damages “as long as the sole remedy

requested is declaratory or injunctive relief that is not ‘negligible

in comparison’ with the potential monetary recovery.” Id.

(citation omitted). Tootle’s complaint does not explicitly

request money damages. Rather, Tootle seeks declaratory relief

invalidating the board’s determination and correcting his

military records. And, the parties agree that, even if Tootle

prevails on these claims, there is no guarantee that he ever will

be entitled to any money from the federal government.

Furthermore, there is nothing in this record to suggest that

Tootle has engaged in artful pleading in an effort to circumvent

the jurisdiction of the Court of Federal Claims. Indeed, that

court was his forum of first choice. It was only after the

Government moved to have Tootle’s complaint dismissed by the

Court of Federal Claims – contending, in part, that Tootle’s

claim was “equitable” – that he sought relief in the District

Court. Once the case was in District Court, the Government

argued again that Tootle’s complaint should be dismissed for

want of subject matter jurisdiction. Before this court, the

Government initially maintained that Tootle could obtain

jurisdiction in neither the District Court nor the Court of Federal

Claims, a position from which the Government now retreats, and

that we categorically reject.

On the record at hand, it is clear that Tootle’s complaint is

not “in essence” one for money damages. We, therefore, hold

that the District Court erred in dismissing the complaint for want

of subject matter jurisdiction. We reverse the judgment of the

District Court and remand the case so that the merits of Tootle’s

claims can be heard and resolved. We also grant Tootle’s

petition for a writ of mandamus to prevent any further purported

transfer of this case from the District Court.

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I. BACKGROUND

A. The Facts

Tootle enlisted in the Navy in 1979. Compl. ¶ 5, Tootle v.

Sec’y of the Navy, CA No. 02-2508 (D.D.C. Sept. 15, 2004)

(“Compl.”), reprinted in App. to Br. of Appointed Amicus

Curiae (“App.”) 6, 7. In 1987, while serving on active duty, he

was diagnosed with human immunodeficiency virus (“HIV”).

Id. ¶ 6, reprinted in App. 7. Thereafter, he was required to

undergo annual physical evaluations. During his 1995

evaluation, he was diagnosed with idiopathic thrombocytopenia

purpura (“ITP”), a blood disorder that impedes clotting. Id. ¶ 8,

reprinted in App. 8. The doctors determined that the ITP was

caused by the HIV.

In January 1997, “as a result of his deteriorating medical

condition,” Tootle appeared for an evaluation by the local

Medical Evaluation Board (“MEB”) at Portsmouth Naval

Hospital in Virginia. Id. ¶ 10, reprinted in App. 8. The

evaluation took place between January 13 and 17. Id. The HIV

team noted that Tootle showed a “markedly decreased platelet

count of nine predispos[ing] this patient to bleeding with

minimal trauma,” and concluded that “[s]ince this could easily

be life threatening, it is felt that this patient is unfit for duty.”

MEB Report, HIV Evaluation Unit (Jan. 23, 1997) at 3

(emphasis added), reprinted in App. 46, 48.

Following Navy procedure, Tootle’s case was submitted to

the Navy Disability Evaluation System. Compl. ¶ 29, reprinted

in App. 12. On March 13, 1997, the MEB Report was reviewed

by a Physical Evaluation Board (“PEB”) comprised of one

medical officer and two nonmedical officers. Id. ¶ 13, reprinted

in App. 9. The PEB reached the preliminary conclusion that

Tootle was fit, recommending a disposition of “Fit to Continue

on Active Duty.” Prelim. Findings of the PEB Proceedings

(Mar. 13, 1997), reprinted in App. 34. The PEB gave no clear

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explanation for its determination. There are, however,

handwritten notations on the PEB’s “Disposition Work Card”

that say:

(1) The patient is on [illegible]; (2) Does not rise to the

30%; (3) ITP has never bled.

See JDETS Findings & Recommended Disposition Work Card

(Mar. 12, 1997), reprinted in App. 32.

On August 15, 1997, Tootle was notified by telephone of

the PEB’s preliminary finding. Compl. ¶ 20, reprinted in App.

11. Tootle asserts that, “[d]uring this hurried telephonic

counseling,” he “was not advised of his rights to appeal or to

request a personal hearing.” Id. The Navy allegedly attempted

to contact Tootle after August 15, but with no success. On

September 3, when Tootle had neither accepted nor challenged

the PEB’s finding, the Navy presumed his acceptance. See

Presumed Acceptance of Findings (Sept. 3, 1997), reprinted in

App. 36. On September 10, 1997, the PEB’s preliminary

determination became final. PEB’s Notification of Decision

(Sept. 10, 1997), reprinted in App. 41.

In November 1997, Tootle was charged with various

offenses under the Uniform Code of Military Justice. He was

subsequently convicted by a general court-martial on March 27,

1998, and sentenced to approximately eight years of

confinement and a dishonorable discharge. Compl. ¶¶ 21-23,

reprinted in App. 11; see also Report of Results of Trial (Mar.

27, 1998), reprinted in App. 60. Tootle has since been released

from prison, and he is currently on active duty pending

exhaustion of his criminal appeals.

B. Procedural Background

On January 7, 2002, Tootle filed a complaint in the Court of

Federal Claims alleging that

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he [was] statutorily entitled to Permanent Disability

Retirement Pay, back pays and allowances, and retainer

pays due to the Executive Agency arbitrarily denying the

Plaintiff medical retirement and failing to comply with their

own statutorily mandated rules, regulations, and policies.

Compl. ¶ 12, Tootle v. United States, No. 02-17C (filed Fed. Cl.

Jan. 7, 2002), reprinted in App. 108, 109. The complaint

asserted that the question before the court was “simple” –

namely, whether Tootle met the service requirements for a

medical retirement in January 1997. Id. ¶ 44, reprinted in App.

119. Tootle sought correction of his military records “to reflect

that he was placed on [the] Physical Disability Retirement List

[in] January 1997,” and reimbursement of “all pays and

allowances, in the amount of $110,457.60.” Id. ¶¶ 1, 45,

reprinted in App. 108, 119.

On April 19, 2002, the Government filed a motion with the

Court of Federal Claims seeking dismissal of Tootle’s complaint

for, inter alia, want of subject matter jurisdiction. Def.’s Mot.

to Dismiss at 1, Tootle v. United States, No. 02-17C (filed Fed.

Cl. Apr. 19, 2002), reprinted in App. 187. The Government

argued that the Tucker Act confers jurisdiction upon the Court

of Federal Claims only when a claimant has an existing

substantive right to money currently due and owing, and,

because Tootle could not point to a statute under which money

was presently due to him, the court had no jurisdiction under the

Tucker Act. See id. at 7, reprinted in App. 193. Tootle had

invoked 10 U.S.C. § 1201 (2000) as the basis of his entitlement

for disability retirement pay, but the Government insisted that he

could not meet two of the prerequisites for benefits under

§ 1201: first, due to his incarceration, he could not show that he

was entitled to basic pay, id. at 8-9, reprinted in App. 194-95;

and, second, he could not “establish that the Secretary found him

‘unfit to perform the duties of his office, grade, rank, or rating,’”

id. at 11, reprinted in App. 197.

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In seeking dismissal of Tootle’s complaint before the Court

of Federal Claims, the Government argued that the court lacked

the jurisdiction to address Tootle’s essentially equitable claims.

Id. at 12, reprinted in App. 198. The Government pointedly

argued that:

Mr. Tootle’s request for disability pay under 10 U.S.C.

§ 1201 amounts to a claim primarily for equitable relief

because, in order to receive such pay, this Court would first

be required to find him unfit for duty and retroactively

retire Mr. Tootle from the Navy. . . . Mr. Tootle’s claim

amounts to a request primarily for equitable relief over

which this Court lacks jurisdiction.

Id. at 14-15, reprinted in App. 200-01 (emphasis added). On

May 10, 2002, Tootle moved for a voluntary dismissal, and on

May 13, 2002, the Court of Federal Claims dismissed his

complaint without prejudice.

Tootle then filed the present action in the District Court for

the District of Columbia. His complaint, resting on a cause of

action under the APA, alleges that the PEB’s finding that he was

fit for duty was arbitrary and capricious and inadequately

explained, and that the PEB disregarded the Navy’s regulations

by, among other things, failing to provide adequate notice of the

decision and counseling regarding its consequences. See Compl.

¶¶ 13, 20, 29, 32-33, reprinted in App. 9, 11-14a. The

complaint seeks no monetary relief. Rather, it asks the court for

a “declaration that the results of the 13 March 1997, Physical

Evaluation Board are invalid,” and for an order reinstating the

findings of the 1997 MEB and correcting Tootle’s “service

record . . . to show that he was transferred to the Permanent

Disability Retirement List on 27 January 1997.” Id. at 9,

reprinted in App. 14(a).

A year after Tootle filed suit in District Court, the

Government again moved to dismiss, arguing, inter alia, that the

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District Court lacked subject matter jurisdiction. Def.’s Mot. to

Dismiss, Tootle v. Sec’y of the Navy, CA No. 02-2508 (D.D.C.

Sept. 15, 2004), reprinted in App. 82. The Government argued

that, although the complaint did not include an express demand

for monetary relief, the essence of Tootle’s claim was a demand

for disability retirement pay under 10 U.S.C. § 1201. Mem. of

P. & A. in Supp. of Def.’s Mot. to Dismiss at 10, Tootle v. Sec’y

of the Navy, CA No. 02-2508 (D.D.C. Sept. 15, 2004), reprinted

in App. 84, 93. The Government thus contended that the

District Court “lack[ed] subject matter jurisdiction over

Plaintiff’s claim, which ‘in essence’ is for non-tort money

damages in excess of $10,000, and consequently falls within the

exclusive jurisdiction of the Court of Federal Claims.” Id. at 12,

reprinted in App. 95.

On September 15, 2004, the District Court granted the

Government’s motion to dismiss. Tootle v. Sec’y of the Navy,

CA No. 02-2508, Mem. Op. (D.D.C. Sept. 15, 2004), reprinted

in App. 170. The trial court found that, while Tootle “ostensibly

seeks injunctive relief pursuant to the [APA] as well as a

mandamus remedy,” and although “[h]e makes no specific

demand for monetary damages[,] . . . [i]n substance . . . plaintiff

demands monetary relief from the federal government in the

form of disability retirement benefits pursuant to 10 U.S.C.

§ 1201.” Id. at 5 (citations omitted), reprinted in App. 174. The

District Court surmised that Tootle’s “challenge is not to the

PEB’s ‘fit for duty’ determination as much as it is to an

immediate consequence of that determination: the denial of

disability retirement benefits.” Id. at 6, reprinted in App. 175.

The District Court further assumed that “there is no significant

value in the relief plaintiff requests apart from the benefits he

would receive if a ruling in his favor results in disability

retirement,” and thus concluded that the “complaint raises a

claim for monetary damages over which the Court of Federal

Claims has exclusive jurisdiction.” Id. In addition to granting

the Government’s motion to dismiss, the District Court, sua

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sponte, purported to transfer Tootle’s action to the Court of

Federal Claims pursuant to 28 U.S.C. § 1631 (2000). Tootle v.

Sec’y of the Navy, CA No. 02-2508, Transfer Order (D.D.C.

Sept. 15, 2004), reprinted in App. 177. The District Court’s

order made it clear, however, that its judgment was final and

appealable. Id.

Tootle filed a timely Notice of Appeal, which was initially

docketed as a petition for a writ of mandamus. The docketing

was subsequently changed so that the appeal has been correctly

denominated “On Petition for Writ of Mandamus and Appeal

from the United States District Court for the District of

Columbia.” In re Tootle, No. 04-5409, Order (D.C. Cir. Apr.

12, 2006). On September 1, 2005, the court appointed Professor

Steven H. Goldblatt as amicus curiae to present written and oral

arguments on behalf of Tootle.

II. ANALYSIS

A. Appellate Jurisdiction

In granting the Government’s motion to dismiss, the District

Court issued a final appealable order, which this court has

jurisdiction to review pursuant to 28 U.S.C. § 1291 (2000). See

Brown v. Turner, 659 F.2d 1199, 1200 (D.C. Cir. 1981)

(jurisdiction to review is under 28 U.S.C. § 1291 where a district

court grants a motion to dismiss for lack of subject matter

jurisdiction); Rogers v. United States, 902 F.2d 1268, 1269 (7th

Cir. 1990) (holding dismissal for lack of subject matter

jurisdiction is a final judgment).

The District Court’s purported transfer of the case to the

Court of Federal Claims after dismissing Tootle’s complaint for

want of subject matter jurisdiction does not affect the

jurisdiction of this court to entertain Tootle’s appeal. A district

court must dismiss an action where, as here, it concludes that it

lacks subject matter jurisdiction. FED. R. CIV. P. 12(h)(3)

(“Whenever it appears by suggestion of the parties or otherwise

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that the court lacks jurisdiction of the subject matter, the court

shall dismiss the action.”). A federal court “shall, if it is in the

interest of justice, transfer” a case over which it lacks

jurisdiction to a court of competent jurisdiction. See 28 U.S.C.

§ 1631. However, § 1631 “confers on [a federal court] authority

to make a single decision upon concluding that it lacks

jurisdiction – whether to dismiss the case or, ‘in the interest of

justice,’ to transfer it to a court . . . that has jurisdiction.”

Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 818

(1988) (quoting 28 U.S.C. § 1631). There is no dispute here that

the District Court clearly intended to grant the Government’s

motion to dismiss for want of subject matter jurisdiction.

Having taken this action, the trial court was without authority to

transfer the case.

The Government does not contest that, under § 1631, a

district court must dismiss or transfer upon concluding that it

lacks jurisdiction. And the Government does not question that

this court has jurisdiction pursuant to 28 U.S.C. § 1291 to

review the District Court’s final and appealable decision to

dismiss Tootle’s complaint for want of subject matter

jurisdiction. Amicus, on behalf of Tootle, argues explicitly that

this court has jurisdiction to review the District Court’s order as

an ordinary appeal under 28 U.S.C. § 1291, even though the

court initially ordered Tootle’s appeal to be filed as a petition for

a writ of mandamus. Br. of Amicus Curiae at 17. We agree.

This court probably would have been without jurisdiction

to entertain Tootle’s appeal if the District Court had effected a

transfer. See In re Briscoe, 976 F.2d 1425, 1426 (D.C. Cir.

1992) (per curiam) (“The basic rule in civil practice is that if a

case is physically transferred before an appeal or a petition for

mandamus has been filed, the court of appeals in the transferor

circuit has no jurisdiction to review the transfer.”) (citing

Starnes v. McGuire, 512 F.2d 918, 924 (D.C. Cir. 1974) (en

banc)); see also Ukiah Adventist Hosp. v. FTC, 981 F.2d 543,

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546 (D.C. Cir. 1992) (holding that as a general rule no appeal

lies from a transfer order issued pursuant to § 1631 because it is

interlocutory). That, however, is not the situation here. In this

case, the only order the District Court actually effected was the

dismissal. That disposition is final, appealable, and subject to de

novo review. E.g., Ctr. for Law & Educ. v. Dep’t of Educ., 396

F.3d 1152, 1156 (D.C. Cir. 2005) (“A dismissal for lack of

subject matter jurisdiction is . . . reviewed de novo.”).

B. The District Court’s Jurisdiction

Our disposition of this appeal is largely controlled by

Kidwell v. Department of the Army, 56 F.3d 279 (D.C. Cir.

1995). Kidwell brought an action under the APA challenging a

refusal of the Army Board for Correction of Military Records

“to change his military files to indicate a ‘medical’ discharge.”

Id. at 281. As here, “Kidwell’s complaint did not seek any

monetary relief.” Id. at 283. The Government, nonetheless,

“claimed that a district court order requiring the Board to change

Kidwell’s records . . . would entitle Kidwell to retroactive

disability benefits that could exceed $50,000,” and argued that

the District Court, thus, lacked subject matter jurisdiction

“[b]ecause the practical effect of Kidwell’s request would be an

award of money damages.” Id. The district court agreed with

the Government and dismissed Kidwell’s lawsuit. Id. at 281,

283.

This court reversed the District Court’s determination that

it lacked jurisdiction, holding that Kidwell’s claim was neither

explicitly nor “in essence” one for money damages. Id. at 281.

The court gave four justifications for its holding that the District

Court had jurisdiction over Kidwell’s complaint. First, “the

plaintiff . . . [had] not explicitly requested monetary relief.” Id.

at 285. Second, “granting the relief requested would offer a

direct non-monetary benefit to the plaintiff because resting

Kidwell’s discharge on medical grounds would lift some of the

shame associated with failing to receive an honorable

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discharge.” Id. Third, “any monetary benefits that [might] flow

from Kidwell’s victory would not come from the district court’s

exercise of jurisdiction, but from the structure of statutory and

regulatory requirements governing compensation when a

servicemember’s files change.” Id. at 285-86. And, finally, the

court noted that it

could refuse jurisdiction only by going outside the record to

review the process by which Kidwell might receive past

disability payments, a process that is apparently far from

automatic, since Kidwell would have to file a separate

claim with the Secretary for the benefits and since the

amount due him would be reduced by the

yet-to-be-determined amount of any VA benefits that he

receives.

Id. at 285-86 (citation omitted). The court declined to look

“outside the record” and speculate about monetary relief that

might later flow to Kidwell if he prevailed on his non-monetary

claims. See id.

Tootle’s claim is materially indistinguishable from

Kidwell’s and is, therefore, not “in essence” a claim for

monetary relief. First, as the District Court acknowledged, and

the Government concedes, Tootle’s complaint does not

explicitly request money damages. The requested relief is

limited to a “declaration that the results of the 13 March 1997,

Physical Evaluation Board are invalid,” and an order reinstating

“the results of the 13-17 January 1997, MEB board” and

correcting Tootle’s “service record . . . to show that he was

transferred to the Permanent Disability Retirement List on 27

January 1997.” Compl. at 9, reprinted in App. 14(a). Nowhere

in the complaint does Tootle request money.

It does not matter, as the Government contends, that

Tootle’s subsequent filings, in particular the legal memoranda

he submitted to the District Court, indicate that he seeks money.

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A court may look beyond the pleadings to resolve disputed

jurisdictional facts when considering a motion to dismiss under

FED. R. CIV. P. 12(b)(1), e.g., Phoenix Consulting, Inc. v.

Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000); this line

of precedent, however, does not overcome the rule that where

the jurisdiction of the court turns on whether the complaint seeks

monetary relief, the court must generally limit itself to the four

corners of the complaint. Wolfe v. Marsh, 846 F.2d 782 (D.C.

Cir. 1988) (per curiam); accord Kidwell, 56 F.3d at 285

(reaffirming that the court has adopted “a ‘strict pleading

requirement’” in Tucker Act cases). In Wolfe, the plaintiff’s

complaint sought only equitable relief. Wolfe, 846 F.2d at 783.

“Subsequent memoranda contain[ed] hints that Wolfe may have

intended to assert a claim for money damages, however.” Id.

We held that, in determining whether a complaint seeks

monetary relief, a “bright line rule is especially appropriate.” Id.

at 785. As such, the court should consider only the complaint

itself in determining whether money damages have been

requested. We explained:

Given the need for certainty as to jurisdiction, we cannot

allow plaintiff’s subjective intent, ambiguously expressed,

to control the issue. There is no reason why trial courts (or

appellate courts) should have to resort to close scrutiny of

ambiguous memoranda to glean an intent to set forth a

monetary claim. In a matter as basic as whether the

plaintiff is asking the trial court to award monetary relief,

the trial court must be able to answer that question from the

plain terms of the complaint.

Id. (emphasis added).

Second, and most importantly, the equitable relief sought by

Tootle has significant value. Tootle, a service member who

according to undisputed records suffers from deteriorating

health, seeks a determination that he is “unfit for duty” and

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eligible for retirement. Should he succeed, he undeniably will

obtain a win of significant non-monetary value.

The Government asserts that, unlike the “less than

honorable” discharge that was challenged by the plaintiff in

Kidwell, there is no stigma attached to the PEB’s declaration

that Tootle is “fit for duty.” The Government points out that

Kidwell requested a change to his records from an

administrative discharge based on misconduct to a medical

retirement based on a specific disability rating, whereas Tootle

seeks a downgrade in the determination that he is “fit for duty.”

The Government thus contends that Tootle seeks only a status

to which greater stigma is attached. This is a specious

argument. The test here is not whether Tootle will be more or

less stigmatized in metaphysical terms by being classified “unfit

for duty” as opposed to “fit for duty,” but whether there is value

to the equitable relief that he seeks. Given Tootle’s serious

health issues, there can be no doubt that retroactive disability

retirement, i.e., placement on the Permanent Disability

Retirement List, would give him significant value apart from

any potential for future monetary benefits. In other words,

retirement itself has non-negligible value, especially for an ill

serviceman.

Third, as in Kidwell, any monetary benefits that might flow

if Tootle prevails on his non-monetary claims will not come

from the District Court’s exercise of jurisdiction, “but from the

structure of statutory and regulatory requirements governing

compensation when a servicemember’s files change.” Kidwell,

56 F.3d at 285-86. Indeed, we have no way of knowing whether

Tootle ever will be entitled to any monies if he succeeds before

the District Court. As counsel for the Government conceded at

oral argument, reinstating the MEB’s finding that Tootle was

“unfit for duty” would have no immediate monetary

consequences. Oral Arg. Tape at 21:30-22:12. And, given the

yet to be finalized court-martial, the monetary implications of

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any change in Tootle’s retirement status are, at best, unclear.

See id. at 22:15-26:40.

Finally, as in Kidwell, any monetary recovery Tootle might

be entitled to in the future would be entirely separate from the

District Court’s decision regarding whether the Government

acted arbitrarily and capriciously or neglected to follow Navy

regulations and procedures when it adopted the PEB’s finding.

We will not go outside the record to speculate over what Tootle

might secure in the way of monetary benefits should he prevail

in District Court. Nor need the District Court engage in any

such speculation. The issue before the District Court will be the

propriety of the Navy’s administrative process, and there is no

scenario under which it could award Tootle money damages. At

most, a District Court decision in Tootle’s favor would enable

him to avail himself of statutory and regulatory provisions and

procedures that may, or may not, entitle him to a monetary

recovery. See Kidwell, 56 F.3d at 285-86; Vietnam Veterans v.

Sec’y of the Navy, 843 F.2d 528, 534 (D.C. Cir 1988) (“[A]

claim is not for money merely because its success may lead to

pecuniary costs for the government or benefits for the

plaintiff.”).

In granting the Government’s motion to dismiss, the District

Court used the wrong test to determine whether Tootle’s

complaint is “in essence” a claim for monetary relief. Relying

on Bliss v. England, 208 F. Supp. 2d 2 (D.D.C. 2002), the trial

court held that Tootle’s complaint was “in essence” a request for

monetary relief because “the plain effect of a judgment in

plaintiff’s favor would be a significant financial gain for

plaintiff.” Tootle v. Sec’y of the Navy, CA No. 02-2508, Mem.

Op. at 5 (D.D.C. Sept. 15, 2004), reprinted in App. 170, 174.

This is not the law of the circuit. As noted above, whether

Tootle’s claim is “in essence” one for money damages is

controlled by Kidwell. And Kidwell makes it perfectly clear that

“[a] plaintiff does not ‘in essence’ seek monetary relief . . .

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merely because he or she hints at some interest in a monetary

reward from the federal government or because success on the

merits may obligate the United States to pay the complainant.”

56 F.3d at 284 (emphasis added). “[E]ven if [a] plaintiff file[s]

[a] complaint with an eye to future monetary awards, a district

court with otherwise appropriate jurisdiction may hear the claim

and grant the proper equitable relief.” Id.

[A]s long as the plaintiff’s complaint only requests non-

monetary relief that has “considerable value” independent

of any future potential for monetary relief – that is, as long

as the sole remedy requested is declaratory or injunctive

relief that is not “negligible in comparison” with the

potential monetary recovery – we respect the plaintiff’s

choice of remedies and treat the complaint as something

more than an artfully drafted effort to circumvent the

jurisdiction of the Court of Federal Claims.

Id. (citations omitted).

We hold that the District Court had jurisdiction in this case,

because “the sole remedy requested is declaratory or injunctive

relief that is not ‘negligible in comparison’ with the potential

monetary recovery.” Id. Tootle’s challenge to the Navy’s

administrative process is nothing more than a routine APA case

– a challenge to the reasonableness of governmental action on

the grounds that it was arbitrary, capricious, inadequately

explained, and in violation of agency regulations. The District

Court had jurisdiction over this claim under 28 U.S.C. § 1331

(2000), and the complaint states a cause of action under 5 U.S.C.

§§ 704 and 706.

The Government’s position in this case is, to say the least,

troublesome. In its brief submitted to this court and during oral

argument, the Government pressed the claim that neither the

Court of Federal Claims nor the District Court has jurisdiction

to address Tootle’s complaint. Counsel conceded during

17

argument that he could point to no authority to support this

proposition. Oral Arg. Tape at 15:29-16:05, 31:00-32:22.

The Government has since modified its position. In a post-

argument submission, the Government states that, given the

Federal Circuit’s recent decision in Fisher v. United States, 402

F.3d 1167, 1174-75 (Fed. Cir. 2005) (en banc in relevant part),

holding that 10 U.S.C. § 1201 is a money-mandating statute,

“the government now likely would seek dismissal for failure to

state a claim on which relief could be granted, rather than a

dismissal for lack of jurisdiction if the case returned to the Court

of Federal Claims.” Resp. of the Sec’y of the Navy to Question

Raised by the Panel at Oral Arg. at 3 n.1 (emphasis added).

Notably, this post-argument submission does not disavow the

Government’s earlier stance that a district court can be stripped

of jurisdiction by the Tucker Act even when there is no

jurisdiction in the Court of Federal Claims. Rather, the

Government now contends only that the position they espouse

may be foreclosed in this case.

We categorically reject the suggestion that a federal district

court can be deprived of jurisdiction by the Tucker Act when no

jurisdiction lies in the Court of Federal Claims. Put plainly, the

Court of Federal Claims can have exclusive jurisdiction only

with respect to matters that Congress has proclaimed are within

its jurisdictional compass. The Government argues that Tootle’s

complaint is outside of the jurisdiction of the District Court

because it is within the exclusive jurisdiction of the Court of

Federal Claims. This makes no sense, however, if, as is the case

here, Tootle’s complaint is not subject to the jurisdiction of the

Court of Federal Claims. There cannot be exclusive jurisdiction

under the Tucker Act if there is no jurisdiction under the Tucker

Act. See Randall v. 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.”). If the Court of

18

Federal Claims lacks jurisdiction, the only question is whether

there is an affirmative congressional grant of jurisdiction to the

federal district courts.

We need not tarry further over this issue, because it is clear

in this case that the District Court was not divested of its

jurisdiction by the Tucker Act. As noted above, our decision in

Kidwell controls the disposition of this case. The District Court

has subject matter jurisdiction under 28 U.S.C. § 1331 to

entertain Tootle’s APA claims.

III. CONCLUSION

The judgment of the District Court dismissing the complaint

for lack of subject matter jurisdiction is hereby reversed, and the

case is remanded so that the merits of Tootle’s claims can be

heard and resolved. We also grant Tootle’s petition for a writ of

mandamus “in aid of [our] . . . jurisdiction[ ],” pursuant to 28

U.S.C. § 1651(a) (2000), to prevent any further purported

transfer of this case from the District Court. In re Sealed Case,

141 F.3d 337, 340 (D.C. Cir. 1998) (“This circuit has frequently

exercised its mandamus jurisdiction to vacate transfer orders,

especially where the transfer was beyond the district court’s

power . . . .”); see In re Chatman-Bey, 718 F.2d 484, 486 (D.C.

Cir. 1983) (per curiam).

So ordered.