571 F.2d 1098
William R. HILL, Plaintiff-Appellant,
UNITED STATES of America, Robert F. Froehlke, Secretary of
the Army of the United States, Melvin Laird, Secretary of
Defense of the United States, Robert E. Hampton, Chairman of
the United States Civil Service Commission, Jayne Be Spain,
Vice-Chairman of the United States Civil Service Commission,
and Lidwig J. Andolsek, Commissioner of the United States
Civil Service Commission, Defendants-Appellees,
The United States Civil Service Commission.
United States Court of Appeals,
Jan. 10, 1978.
As Amended March 23, 1978.
Gaylord L. Henry, San Diego, Cal., for plaintiff-appellant.
Joseph T. Cook, Asst. U. S. Atty., San Diego, Cal., for defendants-appellees.
Appeal from the United States District Court for the Southern District of California.
Before ELY, GOODWIN, and WALLACE, Circuit Judges.
WALLACE, Circuit Judge:
Hill commenced this action in the district court against the United States, the Civil Service Commission, and individual government officials seeking a writ of mandate, declaratory relief, and damages for the allegedly wrongful refusal of the Army and the Civil Service Commission to convert him to "career-conditional" status during his temporary civilian employment with the Army in Yokohama, Japan. After a non-jury trial, the district judge concluded that none of the defendants had acted illegally and ruled in their favor. We have examined important questions of federal jurisdiction and conclude that the court was without jurisdiction to consider Hill's claim for money damages and that the complaint for declaratory relief and the petition for mandamus should have been dismissed for failure to state a claim upon which relief can be granted.
Hill was honorably separated from the Air Force on January 31, 1965 after having been stationed in Japan for several years. He remained in Japan as a civilian employee of the Air Force. In June 1966, he began employment as a civilian procurement officer for the Department of the Army in Yokohama, Japan. Although he had hoped to acquire "career-conditional" status in the Civil Service with this new job, Hill was soon notified that his was merely an "overseas limited appointment," i. e., a temporary or indefinite position. 5 C.F.R. § 8.2 (1977). In October 1967, Hill's command requested his conversion to career-conditional status; this request was denied. In February 1969, Hill unsuccessfully sought relief from the Civil Service Commission. In November 1969, Hill's overseas limited assignment was terminated due to a reduction in force. After serving for about a year on a similar assignment in Taiwan, he returned to the United States.
Although the parties are apparently untroubled by the question of the district court's jurisdiction, we see it as a major issue whether the court was empowered to hear this case at all. As near as we can tell from his imprecisely drafted complaint, Hill asks for mandatory relief, retroactively granting him career-conditional status and for damages consisting of a portion of the pay he would have received had he been converted to that status when requested. The retroactive character of the relief sought raises a major jurisdictional obstacle to Hill's claim.
Subsequent to the entry of judgment by the district court, the Supreme Court, in United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976), held that sovereign immunity deprived the Court of Claims of jurisdiction to award retroactive relief in the form of money damages to government employees who alleged that they had been wrongfully denied reclassification to a higher civil service grade. Under the doctrine of sovereign immunity, of course, the government cannot be sued unless it expressly consents to the cause of action involved. United States v. Testan, supra, 424 U.S. at 399, 96 S.Ct. 948; United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969). The Court in Testan, after examining the relevant statutes, concluded that no such consent had been given.
The precise effect of Testan was to deny money damages in the Court of Claims. But that decision also bars the damages and other retroactive relief sought by Hill in this case. The Tucker Act, 28 U.S.C. § 1346(a), upon which the district court apparently relied for its jurisdiction, "did no more than authorize the District Court to sit as a court of claims and . . . the authority thus given to adjudicate claims against the United States does not extend to any suit which could not be maintained in the Court of Claims." United States v. Sherwood, 312 U.S. 584, 591, 61 S.Ct. 767, 771, 85 L.Ed. 1058 (1941). More broadly, sovereign immunity doctrine applies to suits against the United States in all courts. Id. at 586, 61 S.Ct. 767; Minnesota v. United States, 305 U.S. 382, 388, 59 S.Ct. 292, 83 L.Ed. 235 (1939). Thus, since we find no legal distinction between the Testan plaintiffs' action for damages based upon a claim to retroactive civil service reclassification and Hill's action for damages based upon an alleged right to retroactive conversion to career-conditional status, the Testan sovereign immunity bar necessarily precludes the monetary relief sought by Hill.
With respect to the retroactive but non-monetary declaratory and affirmative relief sought by Hill, the sovereign immunity barrier has apparently been removed by a statute enacted subsequent to Testan. In 1976, the following language was added to a key provision of the Administrative Procedure Act, 5 U.S.C. § 702:
An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party.
This statute is cast as a blanket waiver of sovereign immunity as to a broad category of actions against the government, and by its terms it certainly includes the non-monetary relief sought by Hill. Since it was enacted subsequent to the commencement of this action, however, it cannot have an impact on this case unless it is retrospectively applied.
Despite a line of decisions to the effect that legislation will not be given retrospective effect absent a clear legislative mandate to the contrary, see, e. g., Greene v. United States, 376 U.S. 149, 160, 84 S.Ct. 615, 11 L.Ed.2d 576 (1964); Bruner v. United States, 343 U.S. 112, 117 n.8, 72 S.Ct. 581, 96 L.Ed. 786 (1952); United States v. St. Louis, S. F. & Tex. Ry., 270 U.S. 1, 3, 46 S.Ct. 182, 70 L.Ed. 435 (1926), the Supreme Court has recently decided in several cases that "a court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is a statutory direction or legislative history to the contrary." Bradley v. Richmond School Bd., 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974). Accord, Cort v. Ash, 422 U.S. 66, 76-77, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975); Hamling v. United States, 418 U.S. 87, 102, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). We find nothing in the wording or the legislative history of the amendment to section 702 bearing upon the question of retrospective effect. Further, in view of the fact that the only interests impaired by this voluntary congressional waiver of sovereign immunity are those of the government itself, it cannot be said that any manifest injustice results from applying the amendment retrospectively. We thus conclude that section 702 as amended operates retrospectively to lift the bar of sovereign immunity as to Hill's complaint for declaratory relief and petition for mandamus.
It does not follow, however, that Hill's action was not subject to dismissal. To the contrary, we believe that, even absent any sovereign immunity problems, this action is defeated by Testan. As we read Testan, the plaintiffs there were denied relief for two reasons: not only had Congress failed to waive sovereign immunity as to their cause of action, but Congress had also failed to create a substantive right upon which their claim for relief could be based. 424 U.S. at 400-401, 403, 96 S.Ct. 948. Both of these hurdles must be cleared before a claim against the government can succeed. See 1 Moore's Fed. Practice P 0.65(2.-1), at 700.97-98. Thus, although section 702 removed the sovereign immunity barrier from Hill's path as to his non-monetary claim, he is still required to prove the existence of a substantive right to retroactive relief. It was precisely such a right that the Court in Testan found Congress had not granted. Nothing in the statutes examined by the Supreme Court in Testan or by us in this case can be interpreted as granting Hill a right to retroactive conversion to career-conditional status. Thus, so much of his action as was not beyond the jurisdiction of the district court because of sovereign immunity should have been dismissed upon the defendants' motion for failure to state a claim upon which relief can be granted.
Judgment vacated and case remanded with directions to dismiss.