    United States Court of Appeals for the Federal Circuit

                                        06-1207


                    SUBURBAN MORTGAGE ASSOCIATES, INC.,

                                                       Plaintiff-Appellee,

                                            v.


     UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,
     Alphonso Jackson, SECRETARY OF HOUSING AND URBAN DEVELOPMENT,
                    FEDERAL HOUSING ADMINISTRATION and
    John Weicher, ASSISTANT SECRETARY FOR HOUSING/FHA COMMISSIONER,

                                                       Defendants-Appellants.
.



        Michael J. Schaengold, Patton Boggs LLP, of Washington, DC, argued for
plaintiff-appellee. With him on the brief was Douglas C. Proxmire.

       Mark R. Freeman, Attorney, Appellate Staff, Civil Division, United States
Department of Justice, of Washington, DC, argued for defendants-appellants. With him
on the brief were Peter D. Keisler, Assistant Attorney General, and Michael S. Raab,
Attorney.

Appealed from: United States District Court for the District of Columbia

Judge Henry H. Kennedy, Jr.
 United States Court of Appeals for the Federal Circuit

                                      06-1207

                   SUBURBAN MORTGAGE ASSOCIATES, INC.,

                                                    Plaintiff-Appellee,
                                          v.

   UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,
   Alphonso Jackson, SECRETARY OF HOUSING AND URBAN DEVELOPMENT,
                  FEDERAL HOUSING ADMINISTRATION and
  John Weicher, ASSISTANT SECRETARY FOR HOUSING/FHA COMMISSIONER,

                                                    Defendants-Appellants.

                           __________________________

                             DECIDED: March 12, 2007
                           __________________________


Before RADER, Circuit Judge, PLAGER, Senior Circuit Judge, and LINN, Circuit Judge.

PLAGER, Senior Circuit Judge.

      This case requires us to reexamine the jurisdictional boundary between the

Tucker Act and the Administrative Procedure Act, as that boundary is understood in the

light of the Supreme Court’s decision in Bowen v. Massachusetts. 1 The case began as

a dispute between plaintiff Suburban Mortgage Associates, Inc. (“Suburban”), and

defendants, the United States Department of Housing and Urban Development (“HUD”)

et al. (“Government”), 2 with regard to a contract for insurance.    Plaintiff sued the

Government in the United States District Court for the District of Columbia. The suit


      1
            487 U.S. 879 (1988).
      2
            The other defendants are the Federal Housing Administration (“FHA”),
which is a subagency of HUD; Alphonso Jackson, Secretary of HUD; and John
Weicher, Assistant Secretary for Housing/FHA Commissioner.
was cast in part as an action for specific performance of the contract and in part as a

declaratory judgment action.     The relief sought was to require the Government to

perform its contract obligations so that Suburban Mortgage could get the money

allegedly due it under the insurance agreement.

       The action quickly morphed into a dispute over what court had been authorized

by Congress to hear the case: was it the district court (the plaintiff’s choice) or was it

the United States Court of Federal Claims (the Government’s choice)?                  The

Government forced the issue by moving in the district court to have that court either

dismiss the entire case or transfer it from the district court to the Court of Federal

Claims. The district court denied the Government’s motion.

       Litigation over where to litigate is the unfortunate consequence of the complex of

statutes and courts that comprise the federal system. “Nothing is more wasteful than

litigation about where to litigate, particularly when the options are all courts within the

same legal system that will apply the same law.” Bowen, 487 U.S. at 930 (Scalia, J.,

dissenting). This court plays a role in such litigation. When a district court denies a

motion to transfer an action to the Court of Federal Claims as provided by 28 U.S.C.

§ 1631, an interlocutory appeal from such a denial may be taken to the United States

Court of Appeals for the Federal Circuit. 28 U.S.C. § 1292(d)(4)(A). The Government

has exercised that right in this case.

       For the reasons we shall explain, and despite Suburban’s valiant effort to frame

the suit as one for declaratory or injunctive relief, this kind of litigation should be

understood for what it is. At bottom it is a suit for money for which the Court of Federal

Claims can provide an adequate remedy, and it therefore belongs in that court. The




06-1207                                     2
district court’s determination to the contrary is reversed, and the matter is remanded to

that court with instructions to either dismiss the suit in its entirety or transfer it to the

Court of Federal Claims.



                                     BACKGROUND

       Suburban is a commercial mortgage 3 lender based in Maryland.                In 1998

Suburban made a loan, secured by a mortgage on the subject property, to Hillside

Nursing Home (“Hillside”), a now defunct nursing home and assisted living facility in

Rhode Island. 4 To encourage development of such facilities for the elderly, Congress

has authorized HUD to underwrite such loans, that is, to guarantee payment of the

mortgage loan. See National Housing Act (“NHA”) § 232, 12 U.S.C. § 1715w. In effect,

the Government insures the loan.        At Suburban’s request, HUD, in exchange for

premiums paid by Suburban, undertook that obligation with regard to the Hillside loan.

       The agreement with HUD means that, should the borrower (Hillside) default on

the underlying loan and the lender (Suburban) consequently incur loses, HUD will

reimburse the lender pursuant to the terms of the insurance agreement. In order to

collect the insurance proceeds when there has been a default by the borrower, the

lender must first transfer its interest in the mortgage and mortgaged property to HUD.

The lender has the option of foreclosing and taking title to the property, then transferring

       3
               Although in common parlance the term ‘mortgage’ is often used to refer to
the entire loan transaction, technically a mortgage is only the security interest in
property conveyed to a lender as security for a loan made to the property owner; the
loan itself is a separate part of the transaction. See Black’s Law Dictionary 1031 (8th
ed. 2004).
       4
               There were two related Hillside entities involved. For purposes of this
opinion it is not necessary to differentiate among them. We will follow the trial court’s
lead and for simplicity refer to them collectively as “Hillside.”


06-1207                                      3
the property to HUD, 24 C.F.R. § 207.258(c), 5 or directly assigning the defaulted note

and mortgage to HUD, 24 C.F.R. § 207.258(b). In either case, HUD pays the lender the

outstanding debt the borrower owed, less certain charges. 24 C.F.R. § 207.259.

      In this case, the nursing home (Hillside) defaulted on its mortgage loan.

Thereafter, Suburban notified HUD that it wished to exercise its contractual right under

24 C.F.R. § 207.258(b) to assign the defaulted Hillside mortgage to HUD.          HUD,

however, declined to accept assignment. Under HUD’s statutory authority for these

insurance agreements, there is an incontestability clause that generally precludes HUD

from challenging its duty to pay. See NHA § 203(e), 12 U.S.C. § 1709(e). However, an

exception to that clause exists when the agreement involves “fraud or misrepresentation

on the part of [the lender].” Id. In this case, HUD thought it had sufficient reason to




      5
              The regulations in 24 C.F.R. Part 207, setting out the contract rights and
obligations applicable to multifamily housing mortgage insurance, see NHA § 207, also
apply to mortgage insurance for nursing homes pursuant to the section 232 mortgage
insurance program. 24 C.F.R. § 232.251.


06-1207                                    4
believe that Suburban had committed fraud or made material misrepresentations to

HUD. 6

         An extensive period of negotiation between the parties proved fruitless.

Suburban then sued HUD in the District Court for the District of Columbia, asserting

jurisdiction under 28 U.S.C. § 1331 as well as the Administrative Procedure Act (“APA”),

5 U.S.C. §§ 701-06; the Declaratory Judgment Act, 28 U.S.C. §§ 2201-02, and the Fifth

Amendment to the United States Constitution. The complaint contained two counts.

         The first count, entitled “Declaratory Judgment: for HUD to comply with its

obligations pursuant to § 232 of the NHA,” asked the district court to declare HUD’s

actions unlawful and to order HUD to perform its duties under the agreement,

specifically, to accept assignment of the loan with ultimate reimbursement of the loan

balance to Suburban. Echoing the language of the APA, Suburban alleged that the

Government, by denying its assignment, acted arbitrarily, capriciously, and in violation

of Suburban’s due process rights under the Fifth Amendment.             The second count,

entitled “Breach of Contract: Request for Specific Relief under § 702 of the APA,” asked

         6
                The Government’s concern related to the actions of one Antonio L.
Giordano, whom the Government believed owned or controlled both Suburban
Mortgage and the Hillside Nursing Home, and that fraudulent conduct by him caused
Hillside’s failure. Subsequent to the argument in this case, and in a series of letters filed
pursuant to Fed. R. App. P. 28(j), both the Government and Suburban Mortgage have
advised this court regarding the guilty plea of Mr. Giordano to a charge of equity-
skimming and his indictment on other charges, relating to the Hillside Nursing Home
among other properties. Suburban alleges that Mr. Giordano never “owned or
controlled” Suburban Mortgage, and though at one time he owned 50% of the company
he was not its president or chair of its board, and his conduct cannot be imputed to
Suburban Mortgage. The trial court in its opinion detailed other Suburban Mortgage
business activities that had alerted HUD to a problem. Suburban Mortgage Assocs.,
Inc. v. U.S. Dep’t of Hous. & Urban Dev., No. 05-00856, 2005 WL 3211563, at *4
(D.D.C. Nov. 14, 2005). The truth of these matters is not directly relevant to the
jurisdiction question before us, and remains to be determined on the merits by a court of
competent jurisdiction.


06-1207                                      5
the court for “specific relief in the form of payment of the insured loan amount” and

reimbursement of certain taxes and fees as losses plaintiff suffered because the

Government allegedly did not perform its duties under the insurance contract.

      The Government moved in the district court to dismiss the suit for lack of subject

matter jurisdiction on the grounds that the suit was basically a contract action, and

therefore can only be heard in the Court of Federal Claims under the Tucker Act, 28

U.S.C. § 1491(a)(1). As an alternative to dismissal, the Government requested that the

district court transfer the case to the Court of Federal Claims pursuant to 28 U.S.C.

§ 1631.

      In ruling on the motion, the district court looked for guidance to the precedent of

its regional circuit, the United States Court of Appeals for the District of Columbia

Circuit. The district court recognized that it could exercise subject matter jurisdiction

over claims against the Government only if a plaintiff identifies an explicit waiver of

sovereign immunity. Citing Transohio Savings Bank v. Office of Thrift Supervision, 967

F.2d 598, 607 (D.C. Cir. 1993), the court noted that the APA provides the necessary

waiver of sovereign immunity for challenges to agency action, subject to three

exceptions found in 5 U.S.C. §§ 702 and 704: “the APA excludes from its waiver of

sovereign immunity (1) claims for money damages, (2) claims for which an adequate

remedy is available elsewhere, and (3) claims seeking relief expressly or impliedly

forbidden by another statute.” Suburban Mortgage Assocs., Inc. v. U.S. Dep’t of Hous.

& Urban Dev., No. 05-00856, 2005 WL 3211563, at *6 (D.D.C. Nov. 14, 2005). The

court then examined Suburban’s claims in light of these exceptions.




06-1207                                    6
       With regard to Count II of the complaint, the district court viewed that as a

contract claim asking for “essentially ‘the classic contractual remedy of specific

performance.’” Id. at *8 (citing Spectrum Leasing Corp. v. United States, 764 F.2d 891,

894 (D.C. Cir. 1985)). The court read the relevant precedent as precluding it from

hearing contract claims against the Government, whether for money damages or

specific relief, because the Tucker Act “impliedly forbids” (as that term is used in the

APA) any such relief by district courts. Id. (citing Transohio, 967 F.2d at 609; Sharp v.

Weinberger, 798 F.2d 1521, 1524 (D.C. Cir. 1986)). Applying this case law, the district

court concluded that the APA did not waive sovereign immunity for Count II, and

accordingly that Count II was outside of its jurisdiction.

       The district court viewed Count I differently. With regard to the first exception

limiting the APA’s waiver of sovereign immunity, the district court cited Bowen v.

Massachusetts for the proposition that a claim for money is not necessarily a claim for

“money damages” as that term is used in the APA. Citing Maryland Department of

Human Resources v. Department of Health and Human Services, 763 F.2d 1441, 1446

(D.C. Cir. 1985), the court drew a distinction based on the purpose behind the payment

sought: is the plaintiff seeking money damages “to substitute for a suffered loss,” or is

the plaintiff seeking specific relief in the form of money, i.e., “the very thing to which he

was entitled”?   Suburban Mortgage, 2005 WL 3211563, at *6.             Although Suburban

characterized its requested relief in injunctive terms, the court recognized that Suburban

would recover money from HUD if it prevailed. Nevertheless, the court concluded that

any such recovery would be money that HUD was obligated to pay under the




06-1207                                       7
agreement. Suburban therefore was seeking specific relief in the form of money to

which it was entitled, rather than money damages.

       Turning to the second exception, the district court determined that Suburban

Mortgage did not have an adequate remedy in the Court of Federal Claims. While

some of plaintiff’s claimed losses could be reduced to a monetary sum, the district court

concluded that concerns about possible bankruptcy, loss of reputation, and lost future

profits could only be addressed through injunctive relief.

       Finally, the district court held that Count I did not seek relief expressly or

impliedly forbidden by the Tucker Act. The Government had argued that the claim was

a disguised contract claim and therefore, like Count II, could not be adjudicated in

district court.   But the court concluded that plaintiff’s allegations regarding HUD’s

arbitrary refusal to accept assignment because of unproven fraud suspicions found their

source in the statutes and constitutional provisions cited by Suburban, and not the

underlying contract for insurance that it had with HUD. The district court therefore

granted the Government’s motion to dismiss Count II, and denied the motion to dismiss

Count I or to transfer the remaining case to the Court of Federal Claims.

       In the same order, the district court granted Suburban’s motion to require HUD to

file with the court a copy of the administrative record on which it relied in making its

determination with respect to the election of assignment. Since an APA suit basically

challenges an agency’s actions, the agency’s administrative record of what it has done

is the record on which the court bases its decision. The effect of filing the agency’s

administrative record in the matter would be to provide Suburban with what amounts to

discovery of the Government’s case, i.e., whatever information the Government may




06-1207                                      8
have for suspecting fraud.      The Government, however, would not have an equal

opportunity for discovery of the facts known to Suburban, the kind of discovery that

could be had in a normal civil suit, including a contract dispute in the Court of Federal

Claims.

       The Government resisted producing the administrative record under the

circumstances and promptly took an interlocutory appeal of the Count I jurisdictional

issue to this court, as it is entitled to do pursuant to 28 U.S.C. § 1292(d)(4)(A).



                                       DISCUSSION

                                             A.

       Sovereign immunity—the notion cherished by the medieval English Kings and

Queens that they could do no wrong, at least no wrong correctable in their own courts—

is a privilege still granted by the federal courts to the Royals’ successor, the United

States Government. One consequence of this doctrine is that, absent a Constitutional

grant of authority, if one wishes to sue the United States for a wrong committed by one

of its agents (and agencies), one must find an appropriate Act of Congress that waives

the Government’s immunity from suit for that particular wrong.

       If the suit is a civil action, other than in tort, there are two general statutes that

waive sovereign immunity. One is the Tucker Act, the origins of which go back to the

late 1800s. 7 In the Tucker Act, Congress recognized that for a variety of reasons it was



       7
              The Tucker Act authorizes the Court of Federal Claims to “render
judgment upon any claim against the United States 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
unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1).


06-1207                                       9
in the Government’s interest to waive immunity and to allow people to bring suit against

the Government for money they believed was owed to them. For one thing, it relieved

Congress of the hassle of having to enact special bills to resolve run-of-the-mill

disputes. For another, in the absence of such a waiver, the Government’s cost of doing

business would be greater since parties contracting with the Government would

understand that they had to factor in the costs of arbitrary bureaucratic behavior for

which, absent the waiver, no judicial remedy would be available. The Tucker Act both

waives sovereign immunity for, and grants the Court of Federal Claims exclusive

jurisdiction over, actions for money damages of more than $10,000.              28 U.S.C.

§ 1491(a)(1). 8

       The other general statute is the Administrative Procedure Act (“APA”). Enacted

to provide for judicial review in the federal district courts of certain agency actions, the

Act was amended in 1976 to expressly waive sovereign immunity for actions against the

Government.       5 U.S.C. §§ 701-06, amended by Pub. L. No. 94-574, 90 Stat. 2721

(1976). Though the APA itself does not provide an independent grant of subject matter

jurisdiction, the general federal question jurisdictional statute, 28 U.S.C. § 1331, confers

authority on the district courts to hear APA cases. 9




       8
               “It is often assumed that the [Court of Federal Claims] has exclusive
jurisdiction of Tucker Act claims . . . . That assumption is not based on any language in
the Tucker Act granting such exclusive jurisdiction to the [Court of Federal Claims].
Rather, that court’s jurisdiction is ‘exclusive’ only to the extent that Congress has not
granted any other court authority to hear the claims that may be decided by the [Court
of Federal Claims].” Bowen, 487 U.S. at 910 n.48. There is also a statute, 28 U.S.C.
§ 1346(a)(2), known as the Little Tucker Act, under which the Court of Federal Claims
and the district courts have concurrent jurisdiction over claims not exceeding $10,000.
        9
               Bowen, 487 U.S. at 891 n.16.


06-1207                                     10
       Congress reconciled these two general statutory waivers by providing in the APA

the three specific limitations noted by the trial court: (1) a suit under the APA can only

seek relief other than “money damages,” 5 U.S.C. § 702; (2) the suit would lie under the

APA only if there were “no other adequate remedy” in a court, 5 U.S.C. § 704; and (3)

the suit could not be maintained if “any other statute that grants consent to suit

expressly or impliedly forbids the relief which is sought,” 5 U.S.C. § 702. With these

limitations, the APA and the Tucker Act were understood to cover quite different

challenges to Government action. A plaintiff seeking relief, other than monetary relief,

from a disputed government agency action could challenge that action in district court

under the APA. In contrast, a suit requesting relief in the form of a money judgment

against the Government could be brought in the Court of Federal Claims under the

Tucker Act, but not in a district court. 10 For jurisdictional purposes between the district

courts under the APA and the Court of Federal Claims under the Tucker Act, the money

distinction seemed to provide a relatively watertight barrier.

       In 1988 the barrier sprang a leak, a leak that has threatened to become a gusher.

Bowen v. Massachusetts, 487 U.S. 879 (1988), is the source of the leak. In that case,

the Commonwealth of Massachusetts brought suit challenging a decision by the

Secretary of Health and Human Services refusing to reimburse the state for certain

Medicaid expenditures. Under the Medicaid program, the Government makes quarterly

advance payments to the state in anticipation of future reimbursable costs. When the

Secretary disallowed costs as not covered by the program, the result was a withholding




       10
            See supra note 8 for the Little Tucker Act exception for claims not
exceeding $10,000.


06-1207                                      11
of funds from future advances to compensate for past overpayments and to preclude

future overpayments.

       Massachusetts filed suit in federal district court requesting declaratory and

injunctive relief setting aside the Secretary’s decision.      The state invoked federal

question jurisdiction pursuant to 28 U.S.C. § 1331 and alleged that the APA waived the

Government’s immunity. The Government challenged the district court’s authority to

hear the case, arguing that the Claims Court 11 had exclusive jurisdiction over the state’s

claim because it was one for money in excess of $10,000.

       The Supreme Court agreed with the district court and the First Circuit that the

APA provided a waiver of sovereign immunity for the state’s claim and that the case

was properly before the district court. In its opinion, the Court first analyzed whether the

claim was one for “money damages,” which would take it outside the purview of the

APA under 5 U.S.C. § 702.        Although the ultimate relief sought by the state was

monetary, that did not necessarily mean it could be described as “money damages.”

Bowen, 487 U.S. at 893. The Court understood the term “money damages” to mean

“compensation for the damage sustained by the failure of the Federal Government to

pay as mandated.”       Id. at 900.   In contrast, the state was seeking to “enforce the

statutory mandate itself, which happens to be one for the payment of money.” Id.

Because the state sought to recover money it thought it was entitled to under the

relevant statutes, the state’s claim was for “specific relief” rather than “money

damages.” Id. at 900-01. The dissent found this distinction unconvincing. Id. at 917-21

(Scalia, J., dissenting).

       11
            The Claims Court is now known as the Court of Federal Claims. Federal
Courts Administration Act of 1992, Pub. L. No. 102-572, § 902(a), 106 Stat. 4506, 4516.


06-1207                                      12
       The Court next addressed the Government’s argument that the state’s APA claim

was barred under 5 U.S.C. § 704 because there was an “adequate remedy” in the

Claims Court. The Court rejected the Government’s position on the ground that the

Claims Court had no power to grant equitable relief. Id. at 905. The state sought

declaratory and injunctive relief requiring the Secretary to modify future Medicaid

practices. Since the Medicaid program was ongoing and a judgment in the case would

require future cooperation between the parties, the Court was “not willing to assume,

categorically, that a naked money judgment against the United States will always be an

adequate substitute for prospective relief fashioned in the light of the rather complex

ongoing relationship between the parties.” Id. The dissent disagreed with the majority

on this issue as well, stating that a successful claim for money damages in the Claims

Court would have precedential as well as collateral estoppel effect and therefore would

be as effective in establishing the state’s future rights as would a declaratory judgment

in district court. Id. at 926-27 (Scalia, J., dissenting). In the dissent’s view, “[s]ince [the

majority’s] reasoning cannot possibly be followed where it leads, the jurisdiction of the

Claims Court has been thrown into chaos.” Id. at 929 (Scalia, J., dissenting).

                                              B.

       As the dissent predicted, the Bowen case has generated much confusion

regarding the jurisdiction of the courts, as well as adverse commentary. 12 In 1988, the

same year Bowen was decided, Congress attempted to bring some order to the

       12
               For a thorough review of the Bowen case and its consequences, with
extensive citation, see Gregory C. Sisk, The Tapestry Unravels: Statutory Waivers of
Sovereign Immunity and Money Claims Against the United States, 71 Geo. Wash. L.
Rev. 602, 707 (2003) (“The Supreme Court by overruling Bowen v. Massachusetts, the
Federal Circuit by limiting it, or the Congress by modest legislative intervention should
act to restore clarity and stability to jurisdictional lines.”).


06-1207                                       13
process. It enacted a statute providing that, when a district court order grants or denies

a motion to transfer a suit against the Government to the Court of Federal Claims, an

interlocutory appeal can be taken by either plaintiff or the Government.         Pub. L. No.

100-702, Title V, § 501, 102 Stat. 4652 (1988) (codified at 28 U.S.C. § 1292(d)(4)).

Prior to then, parties could not obtain appellate review of the jurisdictional question until

the case had been tried on the merits, possibly in the wrong trial court. To ensure

uniform adjudication of all Tucker Act issues in a single forum, when Congress

established interlocutory review of these jurisdictional disputes it assigned the Federal

Circuit exclusive jurisdiction over such appeals. H.R. Rep. No. 100-889, at 52 (1988),

as reprinted in 1988 U.S.C.C.A.N. 5982, 6012.

         One consequence of the Bowen case has been to create a sort of cottage

industry among lawyers attempting to craft suits, ultimately seeking money from the

Government, as suits for declaratory or injunctive relief without mentioning the money.

If successful, a plaintiff could have the case heard under the APA in one or another

district court, with appeal to a regional circuit, rather than in the Court of Federal Claims,

where money claims against the Government are routinely heard and decided, with

appeal in the Federal Circuit. This court has had several opportunities to deal with such

attempts, and to interpret and apply Bowen.

         To thwart such attempted forum shopping, our cases have emphasized that in

determining whether a plaintiff’s suit is to be heard in district court or the Court of

Federal Claims, we must look beyond the form of the pleadings to the substance of the

claim.    We have cautioned litigants that dressing up a claim for money as one for

equitable relief will not remove the claim from Tucker Act jurisdiction and make it an




06-1207                                      14
APA case. See, e.g., Christopher Vill., L.P. v. United States, 360 F.3d 1319, 1328 (Fed.

Cir. 2004) (“A party may not circumvent the Claims Court’s exclusive jurisdiction by

framing a complaint in the district court as one seeking injunctive, declaratory or

mandatory relief where the thrust of the suit is to obtain money from the United States.”

(quoting Rogers v. Ink, 766 F.2d 430, 434 (10th Cir. 1985))); Consol. Edison Co. of

N.Y., Inc. v. United States, 247 F.3d 1378, 1385 (Fed. Cir. 2001) (“This court and its

sister circuits will not tolerate a litigant’s attempt to artfully recast its complaint to

circumvent the jurisdiction of the Court of Federal Claims.”); Brazos Elec. Power Coop.,

Inc. v. United States, 144 F.3d 784, 787 (Fed. Cir. 1998) (“Court of Federal Claims

jurisdiction cannot be circumvented by such artful pleading and, accordingly, we

customarily look to the substance of the pleadings rather than their form.”); Nat’l Ctr. for

Mfg. Scis. v. United States, 114 F.3d 196, 199 (Fed. Cir. 1997) (“NCMS”)

(“Notwithstanding the imprecision of the complaint, we therefore ‘look to the true nature

of the action in determining the existence or not of jurisdiction.’”      (quoting Katz v.

Cisneros, 16 F.3d 1204, 1207 (Fed. Cir. 1994))); Kanemoto v. Reno, 41 F.3d 641, 646

(Fed. Cir. 1994) (“‘A party may not avoid the [Court of Federal Claims’] jurisdiction by

framing an action against the federal government that appears to seek only equitable

relief when the party’s real effort is to obtain damages in excess of $10,000.’” (quoting

Marshall Leasing, Inc. v. United States, 893 F.2d 1096, 1099 (9th Cir. 1990))).

       Once we discern the true nature of a plaintiff’s claim as a claim for money,

because of Bowen we still must determine whether the claim is excluded from APA

jurisdiction by the limitations in 5 U.S.C. §§ 702 and 704. Bowen and several cases

following Bowen begin their analysis by asking first whether the claim is for other than




06-1207                                     15
“money damages,” as that term is used in 5 U.S.C. § 702, and thus whether the suit

meets this requirement for district court jurisdiction. The problem with that approach is

that it turns on a linguistic distinction between ‘money damages’ and a claim that

happens to be for money, a distinction that is at best murky, and at worst without a

difference.

       Our cases, and Congress’s purpose in giving this court jurisdiction over these

interlocutory appeals, dictate that the better course is to ask first whether the cause is

one over which the Court of Federal Claims has jurisdiction under the Tucker Act. The

analysis begins, then, with the question raised by 5 U.S.C. § 704—is there an

“adequate remedy” in a court other than the district court, that is, can the Court of

Federal Claims provide an adequate remedy under the Tucker Act for the alleged

wrong?

       One reason for beginning the analysis with the “adequate remedy” issue is that

its resolution often will be dispositive. If the suit is at base a claim for money, and the

relief available through the Court of Federal Claims under the Tucker Act—a money

judgment—will provide an adequate remedy, the inquiry is at an end. There is no need

to address the § 702 “money damages” limitation because § 704 precludes adjudication

under the APA. A number of cases have recognized the value in this approach. See

Christopher Vill., 360 F.3d at 1327-29 (determining there was an adequate remedy in

the Court of Federal Claims without analyzing the “money damages” limitation); Consol.

Edison, 247 F.3d at 1382-83 (declining to address the “money damages” issue because

the Court of Federal Claims would provide an adequate remedy); Kanemoto, 41 F.3d at

644 (treating the “adequate remedy” issue as a threshold question); see also Randall v.




06-1207                                     16
United States, 95 F.3d 339, 346 (4th Cir. 1996) (“[T]o determine whether Plaintiff’s suit

is cognizable under the APA, the court must first examine whether he has an available

remedy under the Tucker Act.” (emphasis added)).

       Another reason it is preferable to start with the § 704 “adequate remedy”

limitation rather than the “money damages” limitation found in § 702 is the way the

Supreme Court has read the § 702 limitation. As earlier noted, the Supreme Court in

Bowen interpreted the § 702 term “money damages” to mean that not all monetary relief

is “money damages,” an interpretation that opened the way to linguistic manipulation

and the consequent opportunity for forum shopping. As the Court explained, if the

plaintiff requests funds to which a statute allegedly entitles it, rather than money in

compensation for sustained losses, the relief sought is something other than “money

damages.” Bowen, 487 U.S. at 900; see also NCMS, 114 F.3d at 200; Kanemoto, 41

F.3d at 644; Katz, 16 F.3d at 1208-09. Thus if a plaintiff seeks a money judgment but a

court concludes that the relief sought is other than “money damages,” the § 702

limitation is not an impediment to APA review by the district court.

       However, even if the plaintiff escapes the § 702 limitation in this manner, the

inquiry cannot end there because a claim seeking monetary relief, however defined,

may nevertheless be within the jurisdictional scope of the Tucker Act. 13 A court must

therefore undertake the second analytical step—determining whether there is an

adequate remedy available under the Tucker Act in the Court of Federal Claims for the

sought-after monetary relief. See NCMS, 114 F.3d at 200-01; Katz, 16 F.3d at 1209. If



       13
              “The jurisdiction of the Claims Court, however, is not expressly limited to
actions for ‘money damages,’ . . . whereas that term does define the limits of the
exception to § 702.” Bowen, 487 U.S. at 900 n.31.


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the jurisdictional requirements of the Tucker Act are satisfied, i.e., the claim is for more

than $10,000 and is based on a money-mandating statute, regulation, or constitutional

provision, or an express or implied contract with the Government, see Fisher v. United

States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc in relevant part), and if the Court

of Federal Claims through a money judgment can provide an adequate remedy under

the Tucker Act, § 704 bars the district court from hearing the case because it belongs in

another court—the Court of Federal Claims. Again, the same conclusion could have

been reached without first addressing the “money damages” limitation of § 702. See

Consol. Edison, 247 F.3d at 1382-83 (acknowledging that plaintiff might satisfy § 702 by

seeking monetary relief other than “money damages,” but declining to address the issue

because the Court of Federal Claims would provide an adequate remedy).

       In sum, when the plaintiff’s claims, regardless of the form in which the complaint

is drafted, are understood to be seeking a monetary reward from the Government, then,

for the reasons explained, a straightforward analysis calls for determining whether the

case falls within the jurisdiction of the Court of Federal Claims. If that court can provide

an adequate remedy—if a money judgment will give the plaintiff essentially the remedy

he seeks—then the proper forum for resolution of the dispute is not a district court under

the APA but the Court of Federal Claims under the Tucker Act. There is no need at that

point to even address the other APA limitations, the “money damages” and the

“expressly or impliedly forbids” provisions.      The three limitations function in the

disjunctive; the application of any one is enough to deny a district court jurisdiction

under the APA.




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                                          C.

      Applying these concepts to the case before us, it is clear that the proper forum

for Suburban’s claim is the Court of Federal Claims.     In Count I of the complaint,

Suburban seeks a declaration that HUD acted unlawfully when it refused to accept

assignment of the mortgage and defaulted loan. Though the claim is styled as one for

declaratory relief, Suburban in essence is seeking to obtain the financial benefit of a

prior contract-based obligation that allegedly has not been honored by the Government.

Suburban contracted with HUD for mortgage insurance. Suburban filed a claim under

the insurance policy; HUD refused to pay the claim. Suburban’s ultimate goal now is to

recover the insurance proceeds. We therefore agree with the Government that despite

the form of the complaint, Suburban’s claim is in substance a contract-based action

asking for monetary relief from the Government.

      With that in mind, we must decide whether the Court of Federal Claims can

provide Suburban with an “adequate remedy” within the meaning of § 704. We begin

with the proposition that “[t]he availability of an action for money damages under the

Tucker Act or Little Tucker Act is presumptively an ‘adequate remedy’ for § 704

purposes.” Telecare Corp. v. Leavitt, 409 F.3d 1345, 1349 (Fed. Cir. 2005) (citing

Christopher Vill., 360 F.3d at 1327-29; Consol. Edison, 247 F.3d at 1382-84). The

Government asserts, and Suburban does not dispute, that Suburban could have

brought an action for breach of contract in the Court of Federal Claims. See Manhattan

Sav. Bank v. United States, 557 F.2d 1388 (Ct. Cl. 1977); Estabrook v. United States,

41 Fed. Cl. 283 (1998); Fairington Apartments v. United States, 7 Cl. Ct. 647 (1985).

As the Government suggests, if Suburban were to obtain a judgment for breach of




06-1207                                   19
contract, the Court of Federal Claims could order payment of the insurance proceeds as

a form of expectation damages, giving Suburban the benefits it expected to receive had

the Government not breached the insurance contract. See Glendale Fed. Bank, FSB v.

United States, 239 F.3d 1374, 1380 (Fed. Cir. 2001) (citing Restatement (Second) of

Contracts § 344(a) (1981)). An adequate remedy is therefore presumptively available in

the Court of Federal Claims.

      Suburban relies on Bowen to support its contention that a money judgment from

the Court of Federal Claims will not be adequate. But, as we have noted elsewhere,

Bowen turned on the “complexity of the continuous relationship between the federal and

state governments administering the Medicaid program,” Consol. Edison, 247 F.3d at

1383, and the Court “linked its judgment to a specific set of circumstances” that are not

present in most cases, id. at 1384. These circumstances include: Bowen was a dispute

between two sovereigns—a state government and the federal government—implicating

federalism issues; the dispute centered on the administration of a major federal grant,

the Medicaid program, involving enormous sums of money and complex interactions

between the governments and the beneficiaries; at issue were the institutional

arrangements between these two governments; the governments were locked into a

fabric of long-term administration of the program; and the money involved in the

uncovered education services was a small fraction of the total reimbursement the state

received each year for its Medicaid costs under the program. In addition, the Court’s

focus was on the statutory requirements set forth in this complex grant program—

nowhere in Bowen did the Court make reference to the existence of any specific

contract or express agreement defining the relationship between the parties.




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       Furthermore, unlike Bowen, this case does not involve a complex, ongoing

relationship between plaintiff and the Government in which the plaintiff seeks

declaratory or injunctive relief to modify the Government’s future obligations under the

program.    Suburban does not seek to change any long-term future conduct by the

Government. Even if we were to discount the point made by the dissent in Bowen, that

a money judgment against the Government can impact on its future behavior through

doctrines such as collateral estoppel, a judgment ordering prospective relief would not

be necessary or appropriate.

       The thrust of Suburban’s claim is that HUD breached the insurance contract

when it refused to accept assignment of the mortgage and pay Suburban the insurance

proceeds.   Accordingly, “[e]very legal issue that [Suburban] seeks to resolve in the

district court could be . . . decided in a suit before the Court of Federal Claims.” Consol.

Edison, 247 F.3d at 1385. Nor are Suburban’s concerns about possible bankruptcy,

loss of reputation, and lost future profits a basis for saying that there is not an adequate

remedy in the Court of Federal Claims. Those concerns can be alleged by any claimant

seeking money from the Government for an allegedly wrongful failure to pay a claim; to

the extent they have merit in a given case, money usually can assuage the wrong. 14

       We have considered the other arguments raised by Suburban, including its

argument that it has been denied due process and that that alone entitles it to APA

review in the district court.    We agree with the Government that a claim that a

government agency has violated a party’s right to due process by refusing performance

       14
               “[E]ven though a plaintiff may often prefer a judicial order enjoining a
harmful act or omission before it occurs, damages after the fact are considered an
adequate remedy in all but the most extraordinary cases.” Bowen, 487 U.S. at 925
(Scalia, J. dissenting).


06-1207                                     21
under a contract is substantively indistinguishable from a breach of contract claim. The

process to which plaintiff is due on these facts is a post-deprivation suit for breach of the

contract. See Lujan v. G&G Fire Sprinklers Inc., 532 U.S. 189, 196 (2001). We find

these further arguments without merit. Because an adequate remedy is available under

the Tucker Act in the Court of Federal Claims, this case cannot proceed in the district

court under the APA.

                                             D.

       The district court in making its determination in this case sought guidance from

and relied heavily on decisions from its regional circuit. The Government seemed to

shape its case for dismissal on the same basis, arguing that because Suburban’s claim

arose out of a contract, there was no APA jurisdiction. The source for that argument is

a line of cases in other courts of appeals, including the Court of Appeals for the District

of Columbia, holding that claims based on contracts can only be brought in the Court of

Federal Claims.    See Transohio, 967 F.2d at 609-10; Sharp, 798 F.2d at 1523-24;

Spectrum Leasing, 764 F.2d at 893-94; N. Side Lumber Co. v. Block, 753 F.2d 1482,

1485-86 (9th Cir. 1985); Megapulse, Inc. v. Lewis, 672 F.2d 959, 967 (D.C. Cir. 1982).

The basis for this rule is the third limitation on the APA’s waiver of sovereign immunity—

waiver is not available “if any other statute that grants consent to suit expressly or

impliedly forbids the relief which is sought.” 5 U.S.C. § 702. Since the Tucker Act

grants consent for suits based on contract, this has been interpreted by these other

courts to preclude under the APA contract claims of any kind, either for damages or

specific performance.     This court has acknowledged the issue but not squarely

addressed it. See, e.g., Katz, 16 F.3d at 1209. Since we conclude the case is better




06-1207                                      22
decided under the limitation in § 704 of the APA, we need not address the argument

further. 15

        Finally, the regional circuits are of course free to provide such guidance as they

choose to the district courts in their circuits, and when the question of jurisdiction comes

up outside of these interlocutory appeals, the district courts properly may look to the law

of their circuit for guidance. But guidance from and reliance upon regional circuit law

must take into account two considerations. First, since 1988 and the Bowen decision,

there has been considerable development regarding this jurisdictional issue.           The

regional circuit court cases may be older cases, and indeed, as was the case here,

some may have been decided before Bowen.

        Second, and of equal if not greater importance, for almost twenty years this court

has been tasked by Congress to be the exclusive arbiter of the issue when it is brought

to us in these interlocutory appeals. We of course are bound to follow our own circuit

law. District courts, as well as counsel for the parties, would be better able to predict

the outcome of such appeals if they follow the same law.



                                      CONCLUSION

        The judgment of the district court is reversed. The matter is remanded with

instructions to either dismiss Count I of the complaint or transfer it to the Court of

Federal Claims.

                              REVERSED and REMANDED


        15
            For a full discussion of the issue, see Richard H. Seamon, Separation of
Powers and the Separate Treatment of Contract Claims Against the Federal
Government for Specific Performance, 43 Vill. L. Rev. 155 (1998).



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