IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

m 99-50436

_______________

ROTHE DEVELOPMENT CORPORATION,

Plaintiffs-Appellants,

VERSUS

UNITED STATES DEPARTMENT OF DEFENSE

and

UNITED STATES DEPARTMENT OF THE AIR FORCE,

Defendants-Appellees.

_________________________

Appeal from the United States District Court

for the Western District of Texas

_________________________

October 27, 1999

Before JOLLY, SMITH, and WIENER, 

Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Rothe Development Corporation

(“Rothe”), a contractor, allegesthat theUnited

States Department of Defense and the Department of the Air Force violated its right to

equal protection under the Fifth Amendment

when it awarded a contract to a higher bidder,

InternationalComputers and Telecommunications, Inc., because of the race of ICT’s

owner, who is of Korean descent. Rothe seeks

injunctive and declaratory relief and monetary

damages to compensate it for bid preparation

costs, and attorney’s fees. The government

claims that its race-based preference program

under 10 U.S.C. § 2323 satisfies the strict

scrutiny standard required under Adarand

Constructors, Inc. v. Peña, 515 U.S. 200

(1995). The district court agreed and granted

summary judgment for defendants.

For the first time on appeal, and well into

the briefing process, the government movesto

dismiss the appeal for want of appellate

jurisdiction, or in the alternative to transfer the

appeal to the United States Court of Appeals

for the Federal Circuit. Because we conclude

that, under 28 U.S.C. § 1295(a)(2), we do not

have jurisdiction, we transfer the appeal to the

Federal Circuit. 

The United States enjoys sovereign

immunity from suit, which immunity can be

waived only by act of Congress.1 Such waiver

 

1

See United States v. Testan, 424 U.S. 392,

398 (1976); United States v. Mitchell, 463 U.S.

(continued...)
2

“must be unequivocally expressed in statutory

text . . . [and] will be strictly construed, in

terms of its scope, in favor of the sovereign.”

Lane v. Peña, 518 U.S. 187, 192 (1996).

A waiver as to injunctive reliefSSbut not

monetary damagesSScan be found in § 702 of

the Administrative Procedure Act, which

permits parties “suffering legal wrong because

of agency action” to file an “action in a court

of the United States seeking relief other than

money damages.” 5 U.S.C. § 702.2 We can

only presume that Rothe brings its action for

injunctive relief under § 702, for its complaint

fails to cite any legal source giving district

courts that power.

We similarly are left in the dark as to the

basisfor Rothe’s claim for monetary damages.

As with its claim for injunctive relief, we must

find a basis for Rothe’s damages action to

determine whether sovereign immunity has

been waived. In the district court, Rothe

sought refuge in the Tucker Act, which waives

sovereign immunity to suit for monetary

damages on a wide variety of claims. See

United States v. Mitchell, 463 U.S. 206, 212-

16 (1983). Specifically, the Act confers on

district courts original jurisdiction, concurrent

with that of the Court of Federal Claims, over

[a]ny . . . civil action or claim against the

United States, not exceeding $ 10,000 in

amount,3founded either upon the

Constitution, or anyAct ofCongress, or

any regulation of an executive

department, or upon any express or

implied contract with the United States,

or for liquidated or unliquidated

damages in cases not sounding in tort.4

28 U.S.C. § 1346(a)(2).

Assuming that Rothe’s action for monetary

damages arises under the Tucker ActSSan

issue we discuss belowSSthe district court

properly exercised original jurisdiction.

Appellate jurisdiction, however, is conferred

not on this court, but on the Federal Circuit,

for the Act confers exclusive appellate

jurisdiction on that court over cases in which

district court jurisdiction is “based, in whole or

in part,” on § 1346(a)(2). See 28 U.S.C. §

1295(a)(2). 

Rothe would prefer a partial dismissal or

transfer to the Federal Circuit, limited to the

appeal of its claim for bid preparation costs,

but the plain language of § 1295(a)(2) does

not permit such bifurcation, for, as we have

said, all that is required to trigger exclusive

appellate jurisdiction in the Federal Circuit is

for jurisdiction in the district court to have

been “based, in whole or in part,” on

§ 1346(a)(2). Id. Thus, even had Rothe

appealed only the denial of injunctive relief,

the basis of district court jurisdiction would

(...continued)

206, 215-26 (1983).

 

2

See Sheehan v. Army & Air Force Exch.

Serv., 619 F.2d 1132, 1139 (5th Cir. 1980), rev'd

on other grounds, 456 U.S. 813 (1981) (“The

1976 amendment [to § 702] waives sovereign

immunity for actions against federal government

agencies, seeking nonmonetary relief, if the agency

conduct is otherwise subject to judicial review.”).

 

3 Where such claims exceed $10,000 in amount,

original jurisdiction vests exclusively in the United

States Court of Federal Claims. See 28 U.S.C.

§ 1491(a)(1). Appellate jurisdiction over such

(continued...)

(...continued)

claims is exclusive in the United States Court of

Appeals for the Federal Circuit. See 28 U.S.C.

§ 1295(a)(3).

 

4 The Tucker Act does not cover torts; that is

the purpose of the FTCA. See 28 U.S.C.

§§ 1346(b), 2674. See also Carlson v. Green,

446 U.S. 14, 28 n.1 (1980) (Powell,J., concurring)

(noting that the FTCA “is not a federal remedial

scheme at all, but a waiver of sovereign immunity

that permits an injured claimant to recover

damages against the United States where a private

person ‘would be liable to the claimant in

accordance with the law of the place where the act

or omission occurred.’”).
3

have been the same.5

Now, on appeal, Rothe denies that its

complaint is premised on the Tucker Act.

Presumably, it hopes to find another statutory

vehicle for its damages claim, one that must

also include an express, unequivocal waiver of

sovereign immunity. What that vehicle would

be, outside the Tucker Act, isfar fromevident,

however, and Rothe offers precious little

guidance on how otherwise it might recover.

To the contrary, the Tucker Act appears to

provide for Rothe’s claim.

The Act is a jurisdictionalstatute. Because

it does not provide an independent right of

action, courts must look elsewhere for a

source. See United States v. Testan, 424 U.S.

392, 400 (1976). The Act covers such a broad

range of actions that it seems fruitless for

Rothe to base its action anywhere else, given

the facts of this case.

Two possibilities for Tucker Act recovery

come to mind. Pleaded as an “equal

protection” claim, Rothe’s suit, at first blush,

seems to fit squarely within the “founded . . .

upon the Constitution” prong of the Tucker

Act. See 28 U.S.C. § 1346(a)(2). After all,

courts have already recognized an implied

right of action against federal officials in the

Constitution itself, for violations of equal

protection under the Fifth Amendment. See

Davis v. Passman, 442 U.S. 228, 242-43

(1979). The “founded upon the Constitution”

clause of the Tucker Act has been limited to

apply only to the Takings Clause, however,

because onlythat clause contemplates payment

by the federal government.

6 Nor is

this limitation likely to be of

much help to Rothe, for any

attempt to justify recovery

against the federal government

on a constitutional theory

 

5

See also United States v. Hohri, 482 U.S. 64,

69 n. 3 (1987) (stating in dictum that “bifurcation

is inappropriate” because the “language of

§ 1295(a)(2) discusses jurisdiction over an appeal

‘in a case,’ not over an appeal from resolution of ‘a

claim’”); Brant v. Cleveland Nat’l Forest Serv.,

843 F.2d 1222, 1224 (9th Cir. 1988) (stating that

“even the non-Tucker Act claims must be appealed

to the Federal Circuit”); Williams v. Secretary of

the Navy, 787 F.2d 552, 558 (Fed. Cir. 1986)

(“Presence of additional allegations . . . does not

divest [Federal Circuit] of its constitutionally

granted jurisdiction of the entire case . . . . To hold

to the contrary would defeat the purposes of

Congress.”); Professional Managers’ Ass’n v.

United States, 761 F.2d 740, 743-44 (D.C. Cir.

1985) (holding that “transfer of appeals to the

Federal Circuit even in cases where a district

court’s jurisdiction was ‘primarily’ based on some

jurisdictional grant other than the Tucker Act” is

“compelled by the plain language of” §

1295(a)(2)).

 

6

 As the Claims Court has said,

It is wellsettled, that [under the Tucker Act,

the Court of Federal Claims] has no

jurisdiction over claims based upon the Due

Process and Equal Protection guarantees of

the Fifth Amendment, because these

constitutional provisions do not obligate the

Federal Government to pay money

damages. . . . Thus, in order to fall within

the jurisdiction of this Court, the plaintiffs

must establish that their claims are based on

a constitutional provision, statute, or

regulation that can be fairly interpreted as

mandating compensation by the Federal

Governmentfor the damagesthey sustained.

Bellamy v. United States, 7 Cl. Ct. 720, 723

(Cl. Ct. 1985) (citations omitted). See also

Carruth v. United States, 627 F.2d 1068, 1081

(Ct. Cl. 1980); Montoya v. United States,

22 Cl. Ct. 568, 570 (Cl. Ct. 1991). In fact, “courts

have uniformly held that jurisdiction under the

‘founded upon the constitution’ grant of theTucker

Act is limited to claims under the ‘takings clause’

of the Fifth Amendment.” Clark v. Library of

Congress, 750 F.2d 89, 103 n. 31 (D.C. Cir.

1984); see also Testan, 424 U.S. at 401 (noting

that takings cases are permitted under the Tucker

Act because Takings Clause is self-executing).

There was a brief flirtation with allowing First

Amendment claims under theTucker Act,see, e.g.,

Jackson v. United States, 192 Ct. Cl. 765, 428

F.2d 844 (Ct. Cl. 1970), but the Federal Circuit

has since embraced the takings-clause-onlyapproach. See United States v. Connolly, 716

F.2d 882, 886-87 (Fed. Cir. 1983).
4

outside the Tucker Act would

run squarely afoul of the Act’s

unambiguous language.

The government characterizes Rothe’s

claimas one arising out of an “implied contract

with the United States,” another triggerfor the

Tucker Act. See 28 U.S.C. § 1346(a)(2). In

support, the government cites a number of

casesthat establish “an implied-in-fact contract

to treat a bid honestly and fairly.” See

Coflexip & Servs., Inc. v. United States,

961 F.2d 951, 952-53 (Fed. Cir. 1992).

Where a breach of such implied contract has

occurred, “an unsuccessful bidder on a

Government contract mayrecover its proposal

preparation costs.” Id. Thus, Rothe’s theory

may be that to infect the bidding process with

unconstitutional race-consciousness, thereby

denying equal protection, would be unfair,

thereby triggering the Tucker Act’s waiver of

sovereign immunity through its implied

contract clause.7 It is up to the Federal Circuit

to locate Rothe’s claim within a particular

provision of the Tucker Act.8

In summary, because we conclude that

appellate jurisdiction is wanting in this court

under 28 U.S.C. § 1295(a)(2), the appeal is

TRANSFERRED to the United States Court

of Appeals for the Federal Circuit.9

 

7 The “implied contract” provision is not

limitless, however; it confers Tucker Act

jurisdiction over contracts implied in fact, but not

contracts implied in law. See Mitchell, 463 U.S. at

218; Bembenista v. United States, 866 F.2d 493,

496-97 (D.C. Cir. 1989).

 

8 But see Adarand, 515 U.S. at 210 (stating

that “we express no view, however, as to whether

sovereign immunity would bar” monetary relieffor

violation ofEqualProtectionClause to compensate

for loss of contract).

 

9 Specifically, we dispose of the outstanding

motions as follows: Defendants’ motion to dismiss

the appeal is DENIED. Defendants’ alternative

motion to transfer the appeal to the United States

Court of Appeals for the Federal Circuit is

GRANTED. Defendants’ motion to vacate the

(continued...)

(...continued)

stay pending appeal is CARRIED WITH THE

CASE. Plaintiff’s alternative motion to dismiss the

appeal only to the extent that it is based in part on

the Little Tucker Act is DENIED. Plaintiff’s

alternative motion to transfer the appeal to the

United States Court of Appeals for the Federal

Circuit is GRANTED.