## 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, alleges that the United

States Department of Defense and the Department of the Air Force violated its right to equal protecti on under the Fifth Amendm ent

when it awarded a contract to a higher bidder,

International Computers 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 fe es. The government

claims that its race-based preference program

under 10 U.S.C. § 2323 satisfies the st rict

scrutiny standard required under A darand

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 wel l into

the briefing process, the government moves to

dismiss the appea l 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

immunit y fro m 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) ; U

nited States v. Mitchell

, 463 U.S.

(continued...)

## 2

“must be unequivocally expressed in statutory

text

. . . [and] will be str ict ly 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 relief 

### S S but not

monetary damages 

### SS

can be found in § 702 of

the Adminis t rative 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 Rot h e brings its action for

injunctive relief under § 702, for its complaint

fa ils to cite any legal source giving district

courts that power.

We similarly are left in

the dark as to the

basis for Rothe’s claim for monetary damages.

As with its claim for injunctive relief, we must find a basis for Rothe’s damages action t o

determ ine whether sovereign immunity has

been waived. In the di stri ct court, Rothe

sought refuge in the Tucker Act, which waives

sov ereign immunity to suit for monetary

damages on a wide variety of claims. S ee

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

16 (19 83). 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, 3 founded either upon the Constitution, or any Act of Congress, or any regulation of an executive

department, or upon any express or implied contract with the United States,

or for liquidated or unliquidate d

damages in cases not sounding in tort. 4

28 U.S.C. § 1346(a)(2).

Assuming that Rothe’s action for monetary

da mages arises under the Tucker Act 

### S S an

issue we d i scuss below 

### SS the district court properly exercised original jur isdiction.

Appellate jurisdiction, however, is confe rred

n ot on this court, but on the Federal Ci rcuit,

for the Act confers exclusive appellate

ju risdiction on that court over cases in which

district court jurisdiction is “based, in whole or

in par t,” on § 1346(a)(2). S ee 28 U.S.C. §

1295(a)(2).

Rothe would prefer a partial d ismissal or

transfer to t he Federal Circuit, limited to the

appeal of its claim for bid pr e paration costs,

but t he plain language of § 1295(a)(2) does

not permit such bifurcation, for , as we have

said, all that is require d to trigger exclusive

appellate ju r isdiction in the Federal Circuit is

for jurisdiction in the district court to have

been “based, in whole or in part,” on

§ 1346(a)(2). I

d. Thus, even had Rothe

appealed only th e denial of injunctive relief,

the basis of distric t 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 a ga inst 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. S ee 2 8 U.S.C.

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

(continued...) (...continued)

c laims is exclusive in the United States Cou rt of

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

. § 1295(a)(3).

4 The Tucker Act does not cover torts; that is

the purpose of the FTCA

. See 2 8 U.S.C.

§§ 1346(b), 2674. S ee 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 r ecover damages against the United States where a private

person ‘woul d 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

N ow, on appeal, Rothe denies that its

complaint is premised on t h e Tucker Act.

Presumably, it hopes to find another statutory

vehicl e fo r its damages claim, one that must

also include an express, unequivocal waiver of

sovereign immunit y. What that vehicle would

be, outside the Tucker Act, is far from evident,

however, and Rothe offers precious little

guidance on how ot h erwise it might recover.

To the con t rary , the Tucker Act appears to

provide for Rothe’s claim.

The Act is a jurisdictional statute. Because

it does no t pro vide an independent right of

action, courts must look elsewhere f o r a

source. S ee United States v. Testan

, 424 U.S.

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

ra nge o f actions that it seems fruitless for

Rothe to base it s action anywhere else, given

the facts of this case.

Two possibilities for T ucker Act recovery

come to mind. Pleaded as an “equal

protecti on” cl a im, Rothe’s suit, at first blush,

seems to fit squarely within the “founded . . .

upon the Con st itution” prong of the Tucker

Act. S ee 28 U.S.C. § 1346(a)(2). After all, court s have already recognized an implied

right of act io n against federal o

fficials in the

Constitution itself, for v io lations of equal

protecti on under the Fifth Ame ndment. S ee

Davis v. Passman

, 442 U.S. 228, 242-43

(1979). The “founded upon the Constitution”

clause of the Tucker Act has been limit ed to apply only to the Ta kings Clause, however,

because only tha t cl

ause contemplates payment

b y t he federal g overnment

. 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 ”); W illiams v. Secretary of

the Navy

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

(“Presence o f additional allegations . . . does not

divest [Federal Circui t] of its constitutionally

granted jurisdiction of the entire case

. . . . To hold

to the contrary would defeat t he purposes of

Congress.”); Professional Manage r s’ Ass’n v.

U nited States

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

1985) (holding that “trans fer of appeals to the

Federal Circuit even in cases where a dist rict

court’s jurisdiction was ‘primarily’ based on some jurisdictional grant other t han the Tucker Act” is

“compell e d by the plain language of” §

1295(a)(2)). 6 As the Claims Court has said,

It is well settled, that [under the Tucker Act,

t he 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 Governme nt to pay money damages.

. . . Thus, in order to fall within

th e 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 co m

pensation by the Federal

Government for the damages they sustained.

Be llamy v. United States , 7 Cl. Ct. 720, 723

(Cl. Ct. 1985) (c i tations omitted). S ee 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 the Tucker

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 permitt ed under the Tucker

Act because Takings Clause is self -executing).

There wa s a brief flirtation with allowing First

Amendment claims under the Tucker Act, see, e.g.,

Jackson v. United States

, 192 Ct. Cl. 765, 428

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

ha s since embraced the takings-clause-onlyapproach. S ee 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

claim as one arising out of an “implied contract

with the United States,” another trigger for the

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

support, th e go vernment cites a number of

cases th at establish “an implied-in-fact contract

to treat a bid honestly and f airly.” S ee Coflexip & Servs., Inc. v. United Stat e s

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

Where a breach of such implied contract has

occurr ed, “an unsuccessful bidder on a

Government contract may recover its proposal

preparation costs.” I

d. Thus, Rothe’s theory

may be that to infect the bidding process with

unconstitutional race-consciousness, the r eby

denying equal protecti on, would be unfair,

thereby triggering the Tucker Act’s waiver of

sovereign immu n ity 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 concl ude that

appellate jurisdiction is wanting in this court

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

TRANSFERRED to the United States C ourt of Appeals for the Federal Circuit. 9

7 The “implied contract” provision is not

limitless, however; it confers Tuc ker Act

jurisdiction over contracts implied in fact, but not

contracts implied in law. S ee Mitchell

, 463 U.S. at

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

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

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

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

sovereign immunity would bar” monetary relief for

violation of Equal Protection Clause to compensate

for loss of contract).

9 Specifically, we dispose of the o utstanding

motions as follows: Defendants’ motion to dismiss

the appeal is DENIED. Defendants’ alternative

motion to transfer the appea l 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

a lternative motion to transfer the appeal to the

United States Court of Appeals for the Federal

Circuit is GRANTED.