                                    ___________

                                    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's1 grant of summary
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.




     1
      The Honorable Donald D. Alsop, United States District Judge
for the District of Minnesota.
       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




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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.




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A true copy.


     Attest:


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




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