States where an appropriate grant of jurisdiction and waiver of immunity can be found outside the Tucker Act.
Our earlier holding that the Tucker Act remedy is adequate to redress plaintiff's takings claim may at first blush appear to necessitate a parallel holding with respect to the § 704 exception: that the Tucker Act remedy is adequate and the exception therefore applicable. We note, however, that the analysis here differs somewhat from that under the takings clause. The constitutional prohibition against government takings "without just compensation" itself contains a built-in assumption that damages are an adequate remedy for a taking. It does not necessarily follow that damages provide an adequate remedy for a contract breach. Because we hold that the other exception to the APA's waiver of sovereign immunity applies here, however, we need not reach this issue directly.
As we noted above, it is not entirely clear whether the Tucker Act's grant of jurisdiction to the Claims Court actually operates to affirmatively "forbid" other relief in other forums, or whether it grants exclusive jurisdiction to the Claims Court only to the extent that no other statute usually provides the necessary grant of jurisdiction and waiver of immunity to allow such suits to be brought in other courts. An examination of the case law indicates that the Tucker Act operates differently with respect to contract claims than it does with respect to claims founded upon the Constitution, statutes or regulations, even though there is no indication in the language of the statute that these claims should be treated differently. Thus, with the exception of takings claims,
the Tucker Act does not operate to affirmatively forbid injunctive relief in district courts on constitutional, statutory and regulatory claims that fall within the ambit of the Tucker Act.
Therefore, to the extent that a statutory grant of jurisdiction and waiver of immunity can be found elsewhere (such as in the APA and 28 U.S.C. § 1331), such claims can be brought in district courts.
See Bowen, 487 U.S. at 910 n. 48; Hahn v. United States, 757 F.2d 581, 586 (3d Cir. 1985).
With respect to contract claims against the United States, on the other hand, there is case law that holds not only that the Tucker Act's jurisdiction over claims for damages is exclusive, but that the Tucker Act impliedly forbids any relief other than money damages on a contract claim, either in the Claims Court or any other court. Under that interpretation, jurisdiction cannot be based on the APA for any contract claim against the United States, since the Tucker Act "impliedly forbids" any relief "other than money damages" on such a claim. See, e.g., Sharp v. Weinberger, 255 U.S. App. D.C. 90, 798 F.2d 1521, 1524 (D.C.Cir. 1906) (Scalia, J.) ("The sole remedy for an alleged breach of contract by the federal government is a claim for money damages . . . under the Tucker Act" -- therefore the APA "does not run to actions seeking declaratory relief or specific performance in contract cases, because that waiver is by its terms inapplicable" since the Tucker Act impliedly "forbids the relief which is sought"); North Side Lumber, 753 F.2d at 1485 ("the Tucker Act 'impliedly forbids' declaratory and injunctive relief and precludes a § 702 waiver of sovereign immunity in suits on government contracts"); C.Wright, A.Miller, and E.Cooper, Federal Practice and Procedure § 3659 at 359 (1985) (stating, in context of discussing § 702 of the APA, "the Tucker Act . . . forbids by implication relief other than that specifically provided by the Act"); see also Sea-Land Service, Inc. v. Brown, 600 F.2d 429, 433 (3d Cir. 1979) ("Since plaintiffs could not get specific performance on a government contract prior to the  amendments [to the APA] . . . it follows that they are not entitled to similar relief now in the district courts by virtue of the APA amendments").
This interpretation of the Tucker Act and its impact upon jurisdiction under the APA also finds support in the legislative history of the 1976 amendments to the APA. The House report reads:
The amendment to 5 U.S.C. section 702 is not intended to permit suit in circumstances where statutes forbid or limit the relief sought. Clause (2) of the third new sentence added to section 702 contains a second proviso concerned with situations in which Congress has consented to suit and the remedy provided is intended to be the exclusive remedy. For example, in the [Tucker Act], Congress created a damage remedy for contract claims with jurisdiction limited to the Court of Claims except in suits for less than $ 10,000. The measure is intended to foreclose specific performance of government contracts. In the terms of the proviso, a statute granting consent to suit, i.e., the Tucker Act, "impliedly forbids" relief other than the remedy provided by the Act. Thus, the partial abolition of sovereign immunity brought about by this bill does not change existing limitations on specific relief, if any, derived from statutes dealing with such matters as government contracts . . . .
H.R.Rep. No. 94-1656, 94th Congress, 2nd Session at 12-13, reprinted in 1976 U.S. Code Cong. & Admin. News 6121, 6133 (emphasis added).
Plaintiff argues that a recent supreme Court case, Bowen v. Massachusetts, 487 U.S. 879, 101 L. Ed. 2d 749, 108 S. Ct. 2722 (1988), overruled this line of precedent. In Bowen, the state of Massachusetts sought declaratory and injunctive relief compelling the Secretary of Health and Human Services to pay the state for expenditures that were allegedly reimbursable under the Medicaid program. The government argued that pursuant to § 704, the APA's waiver of sovereign immunity was not applicable to plaintiff's claims because another "adequate remedy" was available: an action for damages in the Claims Court under the Tucker Act. The Court rejected this argument, because, "the Claims Court does not have the general equitable powers of a district court to grant prospective relief." Id. at 905. Because the Court found that the monetary relief sought by Massachusetts was not equivalent to money damages and, moreover, that the entry of injunctive or declaratory relief might turn out to be an appropriate remedy in the case, it held that the availability of relief under the Tucker Act did not in this instance preclude application of the APA's waiver of sovereign immunity.
Unfortunately for plaintiff, Bowen's holding is clearly not on point here because it involved a statutory claim rather than a contract claim. It was clear before Bowen that the Tucker Act would not bar statutory claims for equitable relief. What Bowen did was to redraw the definition of equitable relief in such circumstances to include certain claims for monetary relief. But for plaintiff in this action, it is not the line between equitable relief and damages that is troubling; rather, it is the distinction between statutory/constitutional claims and contract claims. Bowen did nothing to address that distinction directly. Moreover, Bowen made no mention of the language in § 702 so troubling to plaintiff here: rendering the APA's waiver of sovereign immunity inapplicable where another statute "impliedly forbids the relief sought."
Indeed, a number of post-Bowen circuit court opinions have noted Bowen's inapplicability to contract actions and have continued to apply the Sharp line of authority that holds that the Tucker Act forbids injunctive relief on contract claims against the United States. See Wabash Valley Power Assoc. v. Rural Electrification Admin., 903 F.2d 445, 452 (7th Cir. 1990) ("Tucker Act assigns all actions seeking equitable relief based on a contract with the U.S. to the Claims Court"); Eagle-Picher Industries, Inc. v. U.S., 901 F.2d 1530, 1532 (10th Cir. 1990) ("the waiver of sovereign immunity in the APA does not extend to actions founded upon a contract with the United States, which are governed by the Tucker Act"). Coggeshall Development Corp. v. Diamond, 884 F.2d 1, 3 (1st Cir. 1989) ("the only remedy to which the U.S. has consented in cases of breach of contract is payment of money damages in the Court of Claims if the amount is over $ 10,000");
We find the supposition that the Tucker Act treats contract actions differently from statutory and constitutional claims somewhat troubling because there is no indication in the language of the Act itself that such a distinction should be drawn, and the cases taking this position offer no explanation or rationale for the distinction. Nonetheless, the legislative history quoted above convinces us that when Congress included the § 702 exception to the APA's waiver of sovereign immunity for situations where another statute "impliedly forbids the relief sought" it was aware that the courts had interpreted the Tucker Act to impliedly forbid equitable relief on contract claims against the United States,
and that it was precisely that doctrine that Congress sought to preserve with the exception. Because we therefore find a clear congressional intent to exclude contract claims cognizable under the Tucker Act from the APA's waiver of sovereign immunity, we hold that the APA cannot form a jurisdictional basis for plaintiff's contract claims here.
Accordingly, we hold that the Tucker Act provides the sole basis for jurisdiction over both plaintiff's takings claim and its contract claims. Because the Tucker Act waives sovereign immunity and grants jurisdiction over such claims to the Claims Court only, this court is without subject matter jurisdiction. Plaintiff's complaint must therefore be dismissed in its entirety. The accompanying order has been entered.
JOHN F. GERRY, CHIEF JUDGE
DATED: July 28, 1992
ORDER - July 28, 1992, Filed
This matter having come before the court on defendants' motion to dismiss and plaintiff's motion for summary judgment, and the court having considered the submissions of the parties, and having determined that it is without subject matter jurisdiction over plaintiffs claims;
It is, this 28th day of July, 1992, hereby ORDERED that defendants' motion to dismiss is GRANTED, and plaintiff's motion for summary judgment is DENIED.
JOHN F. GERRY, CHIEF JUDGE