Opinion
Civil Docket No. C-00-1526-PJH
February 8, 2001
ORDER RE: MOTION TO DISMISS
Now before the court is the motion of defendants United States Air Force and United States of America to dismiss the amended complaint of plaintiff Ernest C. Hanes Having carefully reviewed the parties' papers and considered their arguments and relevant legal authority, and good cause appearing, the court hereby GRANTS defendants' motion for the following reasons.
The court finds it appropriate to decide this matter without oral argument. See Civil L.R. 7-6.
BACKGROUND
Pro se plaintiff Colonel Ernest Hanes is a retired officer of the United States Air Force. He files this action against the Air Force and the United States of America alleging damage to his personal property. In September of 1994 Hanes's property was picked up by contract movers in Germany. On November 8, 1994 it was delivered to his new residence in Colorado Springs, Colorado. Two years later, on November 7, 1996, Hanes filed a claim for damages to the above personal property in the amount of $200. This claim form was not accompanied by any explanation of the nature of the loss or damage. On December 12, 1996, Captain Robert Drown, the claims officer with the Air Force, wrote Hanes a letter denying his claim for failure to substantiate his alleged losses. In February of 1997, Hanes amended his claim with detailed information of his specific damages and demanded an additional $9,092. Based on these amendments, the Air Force claims department awarded Hanes $6,056. The remaining portion of his claim was denied. In July of 1997 Hanes requested the base legal office to reconsider his claim. His request for reconsideration was denied, and his file was forwarded to the Air Force's General Claims Division of the Civil Law and Litigation Directorate ("JACC") for review.
The date written on the claim form says November 8, 1996, but in the left hand margin it says "received 7 Nov 96."
On April 29, 1998, the acting JACC Division Chief notified Hanes that his reconsideration request was denied and that any payment beyond the original $200 claim was in fact paid to him in error because Air Force regulations have a two-year statute of limitations for filing and amending claims. Hanes was therefore advised that he had to repay the Air Force $5,856. The $5,856 has since been deducted from Hanes's retirement pay.
Hanes filed this action in May of 2000. His complaint and amended complaint seek monetary relief in the amount of $9,096. Defendants now move to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1).
DISCUSSION
A. Motion to Dismiss for Lack of Subject Matter Jurisdiction
1. Legal Standard
Subject matter jurisdiction is fundamental and cannot be waived. The party seeking to invoke jurisdiction of the court has the burden of establishing that jurisdiction exists. Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986). The court is under a continuing duty to dismiss an action whenever it appears that the court lacks jurisdiction. Billingsley v. C.I.R. 868 F.2d 1081, 1085 (9th Cir. 1989). A complaint will be dismissed under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction if (1) the cause does not "arise under" any federal law or the United States Constitution, (2) there is no cause or controversy within the meaning of that constitutional term, or (3) the cause is not one described by any jurisdictional statute. Baker v. Carr, 369 U.S. 186, 198 (1962).
2. Defendant's Motion to Dismiss
Defendants first argue that the United States has not waived sovereign immunity for this suit. The United States is immune from being sued unless it has specifically consented. Cato v. United States of America, 70 F.3d 1103, 1107 (9th Cir. 1995). If the United States has not consented, there is no subject matter jurisdiction in federal court. Id. It is the plaintiff's burden to demonstrate that a wavier of the government's sovereign immunity has been "unequivocally expressed." Id. Waivers of sovereign immunity are to be strictly construed. Tucson Airport Authority v. General Dynamics Corp., 136 F.3d 641, 644 (9th Cir. 1997).
Hanes seeks restoration of the $5,856 deducted from his retirement pay and for defendants to process the remaining claim amount of $3,040. He cites to both the Military Personnel and Civilian Employees' Claims Act ("MPCECA"), codified at 31 U.S.C. § 3721, and The Little Tucker Act, codified at 28 U.S.C. § 1346. Neither of these statutes, however, waive sovereign immunity.
The MPCECA governs claims by an employee of a military agency against the United States Government for damage to or loss of personal property occurring incident to service. 31 U.S.C. § 3721. The MPCECA provides, in relevant part: "[t]he head of an agency may settle and pay not more than $40,000 for a claim against the Government made by a member of the uniform services . . . for damage to, or loss of, personal property incident to service. . . . Settlement of a claim under this section is final and conclusive." 31 U.S.C. § 3721. Defendants contend that their motion to dismiss should be granted because the MPCECA does not provide for judicial review of military personnel's personal property damage claims. Courts have interpreted the settlement of claims under the MPCECA as precluding judicial review. See e.g., Meade v. Federal Aviation Administration, 855 F. Supp. 619, 629 (E.D.N.Y. 1994) (holding that Federal Aviation Administration employee claim for personal property under MPCECA was not subject to judicial review); Merrifield v. United States, 14 Cl. Ct. 180, 184 (1988) (holding retired Marine Corp member's claim under MPCECA was not subject to judicial review); Talstrom v. United States, 3 Cl. Ct. 106, 107 (1983) (holding Army's denial of employee's claim under MPCECA was not subject to judicial review); see also Preferred Insurance Co. v. United States, 222 F.2d 942, 946 (9th Cir. 1955) (holding that the Military Claims Act of 1945, an almost identical precursor to the MPCECA of 1982, precluded judicial review of governmental agencies' decisions to deny claims for personal property damage).
The Little Tucker Act gives district courts "original jurisdiction, concurrent with the United States Claims Court of: . . . [a]ny . . . civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department. . . ." 28 U.S.C. § 1346 (a). This provision does not grant district courts jurisdiction for any "civil action or claim for a pension." 28 U.S.C. § 1346 (d).
Defendants argue that plaintiff's claim is not governed by the Little Tucker Act because retired military pay is considered a pension. Although defendants are correct that in the tax law context military retired pay is considered to be a pension, this is not a universal rule that permeates into other areas of law. When a military officer is retired from active duty and collecting retirement pay, he or she is still subject to be called to active duty as long as his or her physical condition will permit. Military retirement pay is not deferred compensation for work already performed, but rather a continuation of active pay on a reduced basis. United States v. Tyler, 105 U.S. 244 (1881) (holding that retired military officers were entitled to pay raises because they are still part of the military and may be assigned to such duty); In the matter of James Stewart Legare Haynes, 679 F.2d 718, 719 (7th Cir. 1982) (holding that because military retirees have continuing duties, military retirement is more like wages than it is like a pension); Costello v. United States of America, 587 F.2d 424, 426 (9th Cir. 1978), cert. denied, 414 U.S. 1024 (finding that retired pay is not deferred compensation because retired military personnel have a continuing duty to serve); Berkey v. The United States, 176 Ct. Cl. 1, 15 (1966) (finding that military retirement pay has generally not been considered a pension, but something the serviceman earns and has earned).
Despite the fact that retired military pay is not a pension, plaintiff still cannot bring this action under the Little Tucker Act because it does not waive sovereign immunity. It is "only a jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages." Moose v. United States, 674 F.2d 1277, 1280 (9th Cir. 1982), citing United States v. Testan, 424 U.S. 392, 398 (1976).
Hanes also seeks a writ of mandamus pursuant to 28 U.S.C. § 1361. A writ of mandamus, however, is not an independent source of jurisdiction.Danahue v. Butz, 363 F. Supp. 1316, 1318 (N.D. Cal. 1973). Plaintiff has thus failed to establish any source of subject matter jurisdiction.
CONCLUSION
In accordance with the foregoing the court hereby GRANTS defendants' motion to dismiss the amended complaint. Because an attempt at amending the complaint would be futile, the dismissal is not with leave to amend.Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996). This order fully adjudicates the motion listed at No. 15 of the clerk's docket for this case.
IT IS SO ORDERED.