                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                  _____________

                                  No. 00-3794EA
                                  _____________

Winston G. Chandler,                   *
                                       *
            Appellant,                 *
                                       *
      v.                               *
                                       *
United States Air Force, Secretary;    * On Petition for Rehearing
Raymond H. Welder, Chief of            *
Correction Board, United States Air    *
Force; Martha Maust, Panel Chair,      *
United States Air Force,               *
                                       *
            Appellees.                 *
                                  ___________

                          Submitted: September 14, 2001
                              Filed: November 8, 2001
                                   ___________

Before MORRIS SHEPPARD ARNOLD, RICHARD S. ARNOLD, and FAGG,
      Circuit Judges.
                        ___________

RICHARD S. ARNOLD, Circuit Judge.

       This case is before us on petition for rehearing by the panel filed by the
appellees, the Secretary of the Air Force and others. For reasons to be given, we deny
the petition for rehearing. The petition for rehearing en banc remains pending before
the en banc Court.
       In our previous opinion, Chandler v. United States Air Force, 255 F.3d 919
(8th Cir. 2001), we agreed with the federal defendants that the courts lack jurisdiction
to grant Major Chandler's principal prayer for relief, that is, that he be made a
Lieutenant Colonel. We held, however, that the federal courts do have jurisdiction,
under the Administrative Procedure Act, to review decisions of the Air Force Board
for the Correction of Military Records. In addition, we noted that the plaintiff had
reduced his claim to monetary relief to $10,000, thus bringing the case within the
jurisdiction of the District Court under the Little Tucker Act, 28 U.S.C. § 1346(a)(2).
Exercising our power to review the District Court, we held that that Court had erred
in holding Mr. Chandler's suit barred by limitations.

     The major argument presented by the petition for rehearing is that this Court
was without appellate jurisdiction.

       The Secretary reminds us that the Court of Appeals for the Federal Circuit has
exclusive jurisdiction over the appeal of a claim jurisdiction over which is based in
whole or in part under the Little Tucker Act (see 28 U.S.C. § 1295(a)(2); Shaw v.
Gwatney, 795 F.2d 1351, 1353 (8th Cir. 1986). As a general rule, this assertion is
sound, and we acknowledge it. In determining the true jurisdictional basis of
plaintiff's claims, however, we must examine our jurisdiction for ourselves, going
behind the plaintiff's and the District Court's characterizations of jurisdiction.
“[A]ppellate jurisdiction [is] . . . based on the 'real rather than ostensible source of the
district court's jurisdiction.' ” Shaw, 795 F.2d 1353, quoting Wronke v. Marsh, 767
F.2d 354, 355 (7th Cir. 1985) (per curiam).

       As noted, our previous opinion upheld the jurisdiction of the District Court to
grant monetary damages under the Little Tucker Act. We have now concluded that,
in doing so, we were mistaken. For reasons given in the previous opinion, the District
Court had no jurisdiction to order a promotion. Likewise, it lacked jurisdiction to
enter judgment for monetary damages, because such a judgment would be appropriate

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only as an incident to an order that the plaintiff be promoted. The true basis of the
District Court's jurisdiction was 28 U.S.C. § 1331, the general federal-question
jurisdiction statute, coupled with the waiver of sovereign immunity found in the
Administrative Procedure Act (APA), 5 U.S.C. §§ 701-06. See also 10 U.S.C.
§ 1552, the statute governing review and correction of military records. If monetary
relief comes about, it will be solely because the Air Force Board for Correction of
Military Records decides, in its own discretion, to grant such relief (assuming that
ultimately the case is remanded to that Board for reconsideration, a proposition as to
which we express no current view).

       For an analogy, we look to the Supreme Court's opinion in Bowen v.
Massachusetts, 487 U.S. 879, 895-900, 911 (1988). There, a state brought an action
for injunctive and declaratory relief from the administrative denial of its Medicaid
reimbursement claim. Monetary relief was also requested. The Supreme Court held,
however, that monetary damages were to be distinguished from monetary relief, and
that the District Court had jurisdiction under the APA to review the agency's action.
Just so, Major Chandler here seeks primarily equitable relief. His request for
monetary relief, which will become relevant only if he succeeds on his main claim,
is incidental. A very similar case is Randall v. United States, 95 F.3d 339, 347 & n.8
(4th Cir. 1996), cert. denied, 519 U.S. 1150 (1997). There, the complaint requested
the equitable relief of promotion, and also back pay in an unspecified amount. The
request for monetary relief was held to be merely incidental, and the Tucker Act, the
Court concluded, was not a basis for jurisdiction. Likewise, the Federal Circuit itself
has held that 10 U.S.C. § 1552 is not a pay-mandating statute for Tucker Act
purposes. Dehne v. United States, 970 F.2d 890, 891-94 (Fed. Cir. 1992) (plaintiff
did not state claim under Tucker Act because § 1552 “does not mandate pay at all,”
but provides for “appropriate discretionary payment by [military secretary] in certain
circumstances.” (Emphasis added.)

      In short, in the present case the plaintiff cannot demonstrate that the substantive

                                          -3-
law on which he relies can fairly be interpreted to mandate an award of monetary
damages against the government. An appeal to the Federal Circuit under the Tucker
Act would therefore be fruitless. See Wardle v. Northwest Investment Co., 830 F.2d
118, 121-22 (8th Cir. 1987) (Court of Appeals has jurisdiction over appeal where
statute upon which plaintiff's claim was based is not a money-mandating statute for
Tucker Act purposes).

       To summarize: we have no jurisdiction to order that the plaintiff be made a
Lieutenant Colonel. Consequently, we have no jurisdiction to enter judgment against
the United States for any amount of back pay. We do, however, have jurisdiction to
review decisions of the Air Force Board for Correction of Military Records. If the
courts ultimately decide, after proceedings on remand, that the Board's decision
should be set aside because it was contrary to law, an abuse of discretion, or arbitrary
and capricious, the case would be remanded to the Board for further consideration.
If the Board should then decide in Major Chandler's favor that his records should be
corrected, the Board would have power, in its discretion, to make a monetary award
to the plaintiff. Such an award, however, would not be the consequence of, nor
would it be authorized by, the Little Tucker Act. It would, instead, be a discretionary
decision by the Air Force to grant monetary relief under 10 U.S.C. § 1552. In these
circumstances, we hold that the current appeal is not based, in whole or in part, on
any viable claim under the Little Tucker Act. The appeal, therefore, need not be
transferred to the United States Court of Appeals for the Federal Circuit.

      The petition for rehearing by the panel is denied.

      A true copy.

             Attest:

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

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