### 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.
NyleenMullally appeals from the District Court's grant of summary 1 judgment to various s tate and federal defendants. We affirm the grant of summary judgment to t he state defendants, but vacate the grant of summary judgment to the federal defendants, and remand f or 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 bythe state Adjutant General, and must maintain membership in the state Guardto remain qualified for federal employment. Mullally claimed that she was forced to res ign from MANG and her federal employment because her body-fat percentage exceeded the maximum allowab le standard for a woman of her height and age under Army Regulation 600-9 (AR 600-9). Mullall y alleged, among other things, that MANG failed to comply with the procedure s set forth in AR 600-9, that AR 600-9 was unconst itutional on its face, and that she was denied a hearing to contest the voluntariness of he r resign ation. She sought reinstatement, back and future pay, los t retirement benefits, and compensatory and punitive damages.

The Distr ict Court granted the state and federal defendants summary judgment, and Mullall y appealed. She then filed a motion requesting this Court to consider whether the District Court had jurisdiction over th e claims against the fe deral defendants, and if it did not, to transfer the case to the Court of Federal Claims. After defe ndants responded, Mullally movedto file a supplemental reply brief, which she has tendered, and we now grant.

We revi ew the grant of summary judgment de novo , applying the sam e standar das the District Court. Demming v. Housing and Redevelopmen t Auth. , 6 6 F.3d 950, 953 (8th Cir. 1995). The judgment of the distric t
cou rt should be affirmed when the record, viewed in the light mos t favorable to the nonmoving party, shows "that th ere 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. Unite d States , 968 F.2d 738, 739-40 (8th Cir. 1992); Lo vell v. Heng , 890 F.2d 63, 64-65 (8th Cir. 1989); Watson v. Arkansas Nat'l Guard , 886 F.2d 1004, 1008

- 09 (8t h Cir. 1989). While Mullally's facial challenges to th e constitutionality of AR 600-9 were justiciable, see Wood , 968 F.2d at 739- 40, we also agree with the District Court that s ummary judgment was proper
as to these claims, because Mullally did not show the challenged regulator y langua ge is unconstitutional. We also reject Mullally's argument tha t summaryjudgment 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 th e 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 Mullall y seeks more than $10,000 in back pay alone. Alth ough we have the authority under 28 U.S.C. § 1631 (1994) to transfer these claims to the Court o f 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 mos t likely dismiss Mullally's claims. See Charles , 28 F.3d at 1322-23.

Accor dingly, we affirm as to the state defendants, but vacate th e District Court's order granting the federal defendants summary judgment, and remand for dismis sal of the claims against the federal defendants for lack of jurisdiction.

### -4- A true copy.

Attest:

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