Delbert v. Mathis, Appellant, v. Melvin R. Laird, Secretary of Defense, Appellee, 483 F.2d 943 (9th Cir. 1973)

Delbert V. Mathis appeals from a summary judgment in favor of the Secretary of Defense. Mathis sought judicial review of his separation from the Air Force following a conviction by court-martial and other relief.

Mathis was separated from the Air Force in 1958, after a conviction of a military offense was affirmed by the Air Force Board of Review, and further review was denied by the United States Court of Military Appeals. Eleven years after his separation, Mathis sought relief from the Air Force Board for the Correction of Military Records. His latest request for administrative relief was denied by that board on September 14, 1971.

Mathis argued below, and in this court, that the Air Force order convening his general court-martial had not been properly signed by his commanding general. He contends that the court-martial therefore had no jurisdiction to try him. He then argues that his separation from the service was based upon a void conviction and was itself void, with the result that he is still "in" the Air Force. We need not reach the merits of his contentions, because the district court and this court are without jurisdiction to consider his complaint.

Mathis is seeking back pay and allowances from the date of his allegedly defective discharge to the present. He also seeks promotion to the grade he would have achieved had he suffered no adverse personnel action. Although his complaint is cast in terms of an action for mandamus and a declaratory judgment, the case is essentially one for a money judgment.

The Court of Claims has been given exclusive jurisdiction for such money claims against the United States when they exceed $10,000. See 28 U.S.C. §§ 1346(a) (2), 1491. Mathis' claim greatly exceeds $10,000. Although the Supreme Court in United States v. Augenblick, 393 U.S. 348, 350-352, 89 S. Ct. 528, 21 L. Ed. 2d 537 (1969), specifically refused to decide whether a collateral attack on a court-martial judgment will lie in the Court of Claims through a back-pay suit alleging a "constitutional" defect, the Court did not challenge the jurisdiction of the Court of Claims over back-pay suits where the courts-martial lacked jurisdiction in the traditional sense, viz., where no law authorized the court-martial or where the statutory requirements for the convening or jurisdiction of the court-martial were not observed. Moreover, since Augenblick the Court of Claims has continued to hear back-pay claims alleging absence of jurisdiction by the court-martial. See, e. g., Gallagher v. United States, 423 F.2d 1371 (Ct. Cl. 1970). To permit this action in District Court would be to undermine the Court of Claims' jurisdiction by permitting the District Court, in effect, to grant relief in excess of the Tucker Act limit. 28 U.S.C. § 1346(a) (2). See McClendon v. Blount, 452 F.2d 381, 383 (7th Cir. 1971); Carter v. Seamans, 411 F.2d 767 (5th Cir. 1969).

The judgment of the District Court is modified to a judgment of dismissal under Fed. R. Civ. P. 12(h) (3), and affirmed as modified.