Angel Burgos, et al., Plaintiffs, Appellees, v. Gerard Milton, et al., Defendants, Appellants, 709 F.2d 1 (1st Cir. 1983)

This is an appeal from the district court's judgment of $15,000 against individual officers of the Internal Revenue Service (IRS). We find that the district court lacked jurisdiction over the action because of sovereign immunity.

On September 17, 1976 plaintiff-appellee Angel Burgos Fuentes purchased real property in Puerto Rico from the Internal Revenue Service at a tax sale. According to Burgos, the quitclaim deed he received from the IRS was invalid under Puerto Rico law, preventing him from being able to register the deed with the Registry of Property. As a result, Burgos claims, he was denied the right to intervene and defend his rights to the property in a foreclosure action in a Puerto Rico court brought by the first mortgagee.

On May 30, 1980 Burgos filed the instant action in federal district court for a writ of mandamus compelling officers of the IRS to correct the deed, refund the $15,000 he paid for the property, and pay damages.¹  While the action was pending before the district court, the mortgage was foreclosed and the property was sold to a third party. The defendants then moved that the action be dismissed on the theory that the court could no longer order the correction of the deed and lacked jurisdiction, because of the doctrine of sovereign immunity, to award damages. The district court denied the motion, finding that section 702 of the Administrative Procedures Act (APA), 5 U.S.C. § 702, waived sovereign immunity. The court then went on to find that the government failed to comply with applicable federal and local statutes governing the execution of deeds. The court ordered the defendants to return the $15,000 plaintiff paid for the property. Defendants appealed, arguing that the action was barred by the doctrine of sovereign immunity. We agree.

Although the instant action is nominally one against individual defendants, the acts complained of consist of actions taken by defendants in their official capacity as agents of the United States, and the relief ordered, the return of the purchase price, operates only against the United States. Under such circumstances, the action is in fact one against the United States. See Hawaii v. Gordon, 373 U.S. 57, 83 S. Ct. 1052, 10 L. Ed. 2d 191 (1963) (per curiam); Dugan v. Rank, 372 U.S. 609, 620, 83 S. Ct. 999, 1006, 10 L. Ed. 2d 15 (1962); Larson v. Domestic & Foreign Corp., 337 U.S. 682, 69 S. Ct. 1457, 93 L. Ed. 1628 (1949). Under the long-standing doctrine of sovereign immunity, actions against the United States may only be maintained with its consent. Hawaii v. Gordon, 373 U.S. at 58, 83 S. Ct. at 1052. The issue here, therefore, is whether the United States consented to this action in the district court.

The district court relied upon section 702 of the APA in finding that the United States had consented to this suit.²  Section 702, however, abolishes the defense of sovereign immunity only in actions "seeking relief other than money damages." In the present case, Burgos sought and received a judgment ordering the United States to give him $15,000. We think that such a judgment constitutes money damages and precludes the application of section 702 to the instant case. See Jaffee v. United States, 592 F.2d 712, 715 (3d Cir.) ("A plaintiff cannot transform a claim for damages into an equitable action by asking for an injunction that orders the payment of money."), cert. denied, 441 U.S. 961, 99 S. Ct. 2406, 60 L. Ed. 2d 1066 (1979).

But even if we agreed with Burgos that the award was equitable and did not constitute "money damages," we would still find that section 702 did not remove the defense of sovereign immunity. In American Science & Engineering, Inc. v. Califano, 571 F.2d 58 (1st Cir. 1978), we held that section 702 does not apply to claims sounding in contract because the section was not intended to undermine the Tucker Act, 28 U.S.C. § 1491, which vests the Claims Court with exclusive jurisdiction over contract actions against the United States.³  See also Estate of Watson v. Blumenthal, 586 F.2d 925 (2d Cir. 1978); Wright, Miller & Cooper, Federal Practice & Procedure Sec. 4101 (1978). The instant case clearly falls within the category of cases covered by the Tucker Act and outside the scope of section 702--plaintiff is essentially arguing that the government violated its bargain with him by not delivering a valid deed. Consequently, plaintiff's remedy lies in an action before the Claims Court, not in one before the district court based on section 702.

Burgos also asserts that the district court had mandamus jurisdiction. In American Science & Engineering, however, we held that mandamus jurisdiction is not available in cases in which relief can be obtained from the Claims Court. 571 F.2d at 64. In the present case, Burgos can receive adequate relief to the extent warranted from the Claims Court. Even if the relief he seeks is equitable in nature, as he claims, the Claims Court can now order such relief since the Tucker Act now empowers that court to provide equitable as well as legal remedies in contract actions brought against the United States. 28 U.S.C. § 1491(a) (3) as amended by Pub. L. No. 97-164, 96 Stat. 25. Accordingly, we hold that the district court lacked mandamus jurisdiction over the instant case.

It is evident that the transfer of this case to the Claims Court is in the interest of justice. 571 F.2d at 64; 28 U.S.C. § 1631. The judgment of the district court is therefore vacated. The cause is remanded with directions to transfer it to the Claims Court.

So ordered.