The Honorable Donald D. Alsop, United States District Judge 1

for the District of Minnesota.

___________

No. 95-4059

___________

Nyleen Mullally, *

 *

Appellant, *

 *

v. *

 *

United States of America; * Appeal from the United States

William Perry, Secretary, * District Court for the

Department of Defense; Togo D. * District of Minnesota.

West, Jr., Secretary, Department *

of the Army; State of Minnesota; * [PUBLISHED]

Minnesota Army National Guard; *

Eugene Andreotti, Major General, *

Adjutant General Minnesota *

National Guard, *

 *

Appellees. *

___________

 Submitted: August 5, 1996

 Filed: September 9, 1996

___________

Before BOWMAN, MAGILL, and LOKEN, Circuit Judges.

___________

PER CURIAM.

Nyleen Mullally appeals from the District Court's grant of summary 1

judgment to various state and federal defendants. We affirm the grant of

summary judgment to the state defendants, but vacate the grant of summary

judgment to the federal defendants, and remand for dismissal of the claims

against the federal defendants for lack of subject-matter jurisdiction.
-2-

Mullally was formerly a member of the Minnesota Army National Guard

(MANG) and employed as a federal civilian technician. Under 32 U.S.C. §

709 (1994), technicians are federal civil servants, hired and supervised

by the state Adjutant General, and must maintain membership in the state

Guard to remain qualified for federal employment. Mullally claimed that

she was forced to resign from MANG and her federal employment because her

body-fat percentage exceeded the maximum allowable standard for a woman of

her height and age under Army Regulation 600-9 (AR 600-9). Mullally

alleged, among other things, that MANG failed to comply with the procedures

set forth in AR 600-9, that AR 600-9 was unconstitutional on its face, and

that she was denied a hearing to contest the voluntariness of her

resignation. She sought reinstatement, back and future pay, lost

retirement benefits, and compensatory and punitive damages.

The District Court granted the state and federal defendants summary

judgment, and Mullally appealed. She then filed a motion requesting this

Court to consider whether the District Court had jurisdiction over the

claims against the federal defendants, and if it did not, to transfer the

case to the Court of Federal Claims. After defendants responded, Mullally

moved to file a supplemental reply brief, which she has tendered, and we

now grant.

We review the grant of summary judgment de novo, applying the same

standard as the District Court. Demming v. Housing and Redevelopment

Auth., 66 F.3d 950, 953 (8th Cir. 1995). The judgment of the district

court should be affirmed when the record, viewed in the light most

favorable to the nonmoving party, shows "that there is no genuine issue as

to any material fact and that the moving party is entitled to a judgment

as a matter of law." Fed. R. Civ. P. 56(c).

We agree with the District Court that Mullally's claims challenging

MANG's failure to follow AR 600-9, as well as her claim
-3-

alleging she was denied a hearing, were nonjusticiable. See Wood v. United

States, 968 F.2d 738, 739-40 (8th Cir. 1992); Lovell v. Heng, 890 F.2d 63,

64-65 (8th Cir. 1989); Watson v. Arkansas Nat'l Guard, 886 F.2d 1004, 1008-

09 (8th Cir. 1989). While Mullally's facial challenges to the

constitutionality of AR 600-9 were justiciable, see Wood, 968 F.2d at 739-

40, we also agree with the District Court that summary judgment was proper

as to these claims, because Mullally did not show the challenged regulatory

language is unconstitutional. We also reject Mullally's argument that

summary judgment was premature, and conclude that the District Court did

not abuse its discretion by failing to grant Mullally leave to amend her

complaint.

As to the federal defendants, we agree with Mullally that the

District Court lacked jurisdiction, because the claims against them fell

within the exclusive jurisdiction of the Court of Federal Claims. See 28

U.S.C. § 1491 (1994); Charles v. Rice, 28 F.3d 1312, 1321-23 (1st Cir.

1994) (noting claims against United States exceeding $10,000 founded upon

Constitution, federal statute, regulation, or contract, are in exclusive

jurisdiction of Court of Federal Claims); Polos v. United States, 556 F.2d

903, 905 (8th Cir. 1977) (same). Here, it is undisputed that Mullally

seeks more than $10,000 in back pay alone. Although we have the authority

under 28 U.S.C. § 1631 (1994) to transfer these claims to the Court of

Federal Claims, we choose not to do so: such a transfer would not be in

the interest of justice, because the Court of Federal Claims would most

likely dismiss Mullally's claims. See Charles, 28 F.3d at 1322-23. 

Accordingly, we affirm as to the state defendants, but vacate the

District Court's order granting the federal defendants summary judgment,

and remand for dismissal of the claims against the federal defendants for

lack of jurisdiction.
-4-

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.