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February 19, 1982

Kenneth G. SMITH, Plaintiff,
John LEHMAN, Secretary of the Navy, and the United States Department of the Navy, Defendants

The opinion of the court was delivered by: MCLAUGHLIN


Plaintiff brought this action against a federal official and a federal agency alleging wrongful dismissal from a civilian position as a Special Agent with the Naval Investigative Service ("NIS"). *fn1" He seeks reinstatement, money damages, and back pay.


 Plaintiff, who was working for the New York State Deputy Attorney General's Office as a Special Investigator, applied for a position with NIS as a Special Agent. He was hired by NIS on October 6, 1980, after a successful interview and background investigation. As part of security clearance procedures, on October 10, 1980, plaintiff completed "DD Form 398", which is a detailed statement of personal history. In November 1980, plaintiff was asked to sign a waiver releasing all records to the Defense Investigative Service ("DIS"). He refused on advice of counsel.

 The DIS investigation revealed what appear to be misleading or false statements on two distinct parts of DD Form 398. *fn2" Plaintiff was told by his supervisor that NIS would undertake an independent investigation and that plaintiff would be requested to furnish a sworn statement. On December 9, 1980, the Regional Director of Operations attempted to interview the plaintiff. Before the Director was able to read plaintiff his rights, however, plaintiff interjected that, upon advice of counsel, he would make no statements at that time.

 Plaintiff was fired on December 12, 1980. The letter from the Acting Director of NIS notifying plaintiff of his dismissal states that he was removed for "falsification of an official record." *fn3" On the effective date of termination, plaintiff allegedly expressed a desire to hold a meeting between the parties and their attorneys. The request was denied. In January, 1981, plaintiff wrote Edward J. Hidalgo, who was then Secretary of the Navy, requesting that he be reinstated. The request was denied with the further finding that the plaintiff's false statement is "inconsistent with the high standards demanded" of NIS Special Agents. Plaintiff has not been employed since his discharge from the Navy.

 Plaintiff alleges that the information supplied on DD Form 398 was "honest and true" and claims that defendants' actions were arbitrary and capricious, were not in accord with unspecified applicable law and regulations, and deprived him of his Fifth Amendment right to a hearing. He has not invoked any specific statutes or regulations in support of his claims. As the bases for this Court's jurisdiction, plaintiff alleges that the action arises under the Constitution and the laws of the United States and cites the federal question statute (28 U.S.C. § 1331), the mandamus statute (28 U.S.C. § 1361), the Declaratory Judgment Act (28 U.S.C. § 2201), the "Further Relief" statute (28 U.S.C. § 2202), and Title 7 of the Administrative Procedure Act (5 U.S.C. § 701, et seq.). The matter in controversy is alleged to exceed the sum of $ 10,000, exclusive of interest and costs.

 The defendants now move for a dismissal of the action, or in the alternative for summary judgment, on the ground that because there has been no waiver of sovereign immunity, this Court lacks subject matter jurisdiction. Plaintiff has failed to respond directly to the Government's sovereign immunity defense, arguing only that jurisdiction is established pursuant to 28 U.S.C. § 1331 because plaintiff is entitled to procedural due process under the Fifth Amendment.


 Of the five jurisdictional bases alleged by plaintiff, only one, 28 U.S.C. § 1331, vests this Court with jurisdiction. The Administrative Procedure Act, 5 U.S.C. ss 701, et seq., is not jurisdictional and "does not afford an implied grant of subject matter jurisdiction permitting federal judicial review of agency action." Califano v. Sanders, 430 U.S. 99, 107, 97 S. Ct. 980, 985, 51 L. Ed. 2d 192 (1977). See Estate of Watson v. Blumenthal, 586 F.2d 925, 932 (2d Cir. 1978).

 The Declaratory Judgment Act, 28 U.S.C. § 2201, the "Further Relief" statute, 28 U.S.C. § 2202, and the mandamus statute, 28 U.S.C. § 1361, do not confer jurisdiction but merely provide additional remedies where jurisdiction already exists. See, e.g., Estate of Watson v. Blumenthal, supra, 586 F.2d at 934-35; Warner-Jenkinson Co. v. Allied Chemical Corp., 567 F.2d 184, 186 (2d Cir. 1977); Lam Tat Sin v. Esperdy, 227 F. Supp. 482 (S.D.N.Y.1963), aff'd, 334 F.2d 999 (2d Cir.), cert. denied, 379 U.S. 901, 85 S. Ct. 190, 13 L. Ed. 2d 176 (1964). However, because plaintiff has alleged that defendants' actions (1) were arbitrary and capricious, in violation of the Administrative Procedure Act, and (2) deprived him of his procedural due process rights under the Fifth Amendment of the Constitution, the Federal Question statute, 28 U.S.C. § 1331, does confer jurisdiction in this case. Califano v. Sanders, 430 U.S. at 106-8, 97 S. Ct. at 984-85; Doe v. United States Civil Service Comm'n, 483 F. Supp. 539, 558 (S.D.N.Y.1980). At the same time, because the remedies of reinstatement and damages requested by plaintiff would require expenditures from the public treasury, (Land v. Dollar, 330 U.S. 731, 738, 67 S. Ct. 1009, 1012, 91 L. Ed. 1209 (1947)), and would compel the Government to act, (Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 704, 69 S. Ct. 1457, 1468, 93 L. Ed. 1628 (1948)), we are faced with the "Procrustean task" of reconciling myriad sovereign immunity decisions. Malone v. Bowdoin, 369 U.S. 643, 646, 82 S. Ct. 980, 982, 8 L. Ed. 2d 168 (1962).


 It is elementary that the United States may not be sued without its consent. United States v. Mitchell, 445 U.S. 535, 538, 100 S. Ct. 1349, 1352, 63 L. Ed. 2d 607 (1980); Affiliated Ute Citizens v. United States, 406 U.S. 128, 141, 92 S. Ct. 1456, 1466, 31 L. Ed. 2d 741 (1972). Consent usually takes the form of an "unequivocally expressed" waiver by Congress. United States v. Mitchell, supra, quoting United States v. King, 395 U.S. 1, 4, 89 S. Ct. 1501, 1502, 23 L. Ed. 2d 52 (1969). See United States v. Kubrick, 444 U.S. 111, 100 S. Ct. 352, 62 L. Ed. 2d 259 (1979). Plaintiff, regrettably, has not cited any specific statute that waives sovereign immunity. However, there are at least two waiver statutes that arguably might apply in this case: Section 702 of the APA and the Federal Question statute itself. Section 702 provides:

An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is ...

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