DISTRICT OF COLUMBIA, Plaintiff, v. The UNITED STATES, Defendant, 67 Fed. Cl. 292

OPINION BUSH, Judge. This matter comes before the court on the parties’ cross-motions for

summary judgment. For the reasons set forth herein, Plaintiffs Motion for

Summary Judgment on Counts I, IV and V is granted in part and denied in part. Defendant’s Motion to Dismiss or for Partial

Summary Judgment on Counts I and IV-VI of Plaintiffs Amended Complaint is also granted in part and denied in part. BACKGROUND Transfer of Saint Elizabeths Hospital from the Federal Government to the Distñct of Columbia For over 130 years, between 1855 and September 30, 1987, Saint Elizabeths Hospital (Hospital or Saint Elizabeths) was owned and operated by the United States as an inpatient mental health facility located in the District of Columbia (District or plaintiff). On November 8, 1984, Congress enacted the Saint Elizabeths Hospital and District of Columbia Mental Health Services Act, Pub.L.

No. 98-621, 98 Stat. 3369 (1984) (codified at 24 U.S.C. §§ 225-225h (2000)) (Transfer Act or Act), which provided that the responsibility for the operations of the Hospital would be transferred from the federal government to the District on October 1, 1987. See 24 U.S.C. § 225b(a)(l). Congress found that allowing the District to undertake operation of the Hospital would increase efficiency and effectiveness of mental health care services and would further the goal of the District’s home rule. Id. § 225(a)(6)-(7).

Accordingly, it was Congress’ desire that the District have its own mental health care system and that the District and the federal government bear equitable shares of the costs of the transition of the Hospital from the federal government to the District. Id. § 225(a)-(b). The Act requires the United States to bear its equitable share of the costs of the transition of the Hospital from the federal government to the District for the overall creation of the District’s comprehensive mental health system. Id. § 225(b).

Under the Act, these costs included, but were not limited to, the full costs for the provision of mental health diagnostic and treatment services for the following types of patients: (

A) Any individual referred to the [District’s mental health] system pursuant to a Federal statute or by a responsible Federal agency; [or] (

B) Any individual referred to the [District’s mental health] system for emergency detention or involuntary commitment after being taken into custody (

i) as a direct result of the individual’s action or threat of action against a Federal official, (ii) as a direct result of the individual’s action or threat of action on the grounds of the White House or of the Capitol, or (iii) under

chapter 9 of Title 21 of the District of Columbia Code. Id. § 225g(b)(1)-(1)(B). The above provisions applied to any individual referred to the District’s mental health system before or after November 8, 1984. Id. § 225g(b)(1)(C). The legislative history of the Act explains that the purpose of

section 225g(b)(1) is to: [A]uthorize[ ] the head of the appropriate federal agency to pay the District the full costs of mental health care provided to so-called Federal mental health case individuals. These instances include any case which is referred pursuant [to] a Federal statute or by a responsible Federal agency, any case referred under

chapter 9 of title 21 of the D.C.Code, any case referred as a result of an individual[’]s action or threat of action against a Federal official, and any case referred as a result of a criminal proceeding in a Federal court. H.R.Rep. No. 98-1024, at 15 (1984), reprinted in 1984 U.S.C.C.A.N. 5810, 5825.

The Act also requires the United States, through the Department of Health and Human Services (HHS), to bear the costs to repair and renovate the Hospital to meet all applicable national and District codes and standards by October 1, 1993 for those portions of the physical plant and facility support systems of the Hospital to be utilized by the District under the final system implementation plan. See 24 U.S.C. § 225b(f)(2)(A).

The final system implementation plan was a statutorily-mandated document that would serve as a blueprint for the creation of the District’s mental health system and was to be reviewed by Congress and the District’s City Council. See § 225b(b)-(c). Under the Act, the Mayor of the District was to prepare a preliminary system implementation plan which would be reviewed by the City Council and the Committee on the District of Columbia of the House of Representatives and the Committees on Labor and Human Resources and on Governmental Affairs of the Senate. Id. § 225b(b).

After review and comment, the Mayor would prepare a final system implementation plan which would propose and describe the components of the District’s mental health system; identify the types of treatment to be offered to patients; and, inter alia, identify any capital improvements to facilities at the Hospital. Id. § 225b(c).

To assist in the development of a system implementation plan and in preparation for the transfer of the Hospital from the federal government to the District on October 1, 1987, the Act required the Secretary of HHS to contract for a physical plant audit of all existing facilities at the Hospital. The Act required that the audit be completed by January 1, 1986 to “recognize any relevant national and District codes and estimate the useful life of existing facility support systems.” Id. § 225b(f)(l).

The Secretary of HHS contracted with AEPA Architects/Engineers of Washington, D.C. (AEPA) to conduct the physical plant audit. The AEPA audit was completed in late 1985 and submitted to Congress in January, 1986. After the completion of the AEPA audit, the District submitted its final system implementation plan to Congress. In its final system implementation plan, the District proposed to take ownership of the majority of the East Campus of the Hospital. The District also proposed to take over five buildings on the West Campus.

The Act required the Secretary of HHS to repair and renovate the physical plant and facility support systems of the Hospital pursuant to the physical plant audit. See 24 U.S.C. § 225b(f)(2)(A). The Secretary of HHS was required to initiate these repairs and renovations no later than October 1, 1987, and complete them no later than October 1,1991. 24 U.S.C. § 225b(f)(2)(A) (1988). Via legislative amendment to the Act, the deadline was extended and HHS was permitted until October 1, 1993 to complete the repairs. Pub.L. No. 102-150, 105 Stat. 980 (1991) (now codified at 24 U.S.C. § 225b(f)(2)(A) (2000)).

This amendment to the Act also permitted HHS an alternative to performing the repairs; HHS could provide funds to the District and have the District complete the necessary repairs and renovations itself. 24 U.S.C. § 225b(f)(2)(C). All other facilities and the infrastructure of the Hospital “not assumed by the District” were to be maintained by the Secretary of HHS in the condition described in the AEPA report, at least until October 1, 1987. Id. § 225b(f)(2)(B). In its final system implementation plan, the District also proposed to use buildings located on the West Campus on a temporary basis.

Accordingly, the District and HHS negotiated and entered into a Use Permit which permitted the District to occupy the non-transferred buildings on the West Campus during the transition period from October 1,1987 through September 30,1991 (Use Permit). By deed dated September 30,1987, HHS transferred to the District the portions of the Hospital campus identified therein. The District occupied the West Campus under the Use Permit during the specified term. In January of 1986, HHS submitted to Congress its appropriation request for fiscal year 1988.

Included in its appropriation request was a request for funds that HHS projected would be needed to carry out its responsibilities under the Act to complete repairs and renovations of the Hospital. After HHS submitted its fiscal year 1988 appropriation request to Congress, the District expressed its view that the amount requested by HHS would be insufficient, and that more funds would be needed to bring the Hospital campus up to standards.

HHS disagreed with the District, and advanced the view that the appropriation request, together with other amounts requested, would be sufficient to carry out the requirements of the Act. On December 22, 1987, Congress passed Pub.L. No. 100-202, 101 Stat. 1329-91, and 1329-267 (1987), including two federal appropriation provisions to carry out the purposes of the Act. The first was a payment of $29 million to the District of Columbia pursuant to the Act, while the second was a subsidy appropriating $62,793,000 to carry out various provisions of the Act for the year 1988.

Funds from the second appropriation were to be used for sections 4, 6 and 9 of the Act, as codified at 24 U.S.C. §§ 225, 225b, and 225g. The second appropriation also authorized transfer to the District of any unobligated balances from the Hospital’s construction and renovation account, apart from the balance determined by HHS to be necessary to carry out existing renovation contracts. See Pub.L. No. 100-202, 101 Stat. at 1329-267.

According to defendant, the unobligated construction balance of $3,826,438.86 in the Hospital’s construction and renovation account was transferred to and accepted by the District on February 4, 1988. Def.’s App. at 7, ¶ 16 (Pittman Decl.). On April 14, 1988, HHS transferred $27,618,445.48 to the District. Id. Defendant claims that [t]his represented total payments of $62,185,911.10, of which $26,751,000 was for repair and renovation costs and $1,186,000 was for preservation and protection of the residual federal property on the St. Elizabeths campus.

However, because an offset of $34,567,465.62 (representing money owed by the District to the U.S. Treasury for services provided by the federal government at St. Elizabeths) was applied to the transfer, the amount of funds actually transferred on April 14, 1988 was $27,618,445.48. Id. at 7-8, ¶ 16. The Claims On September 30, 1993, the District filed a multi-count complaint against the United States. The complaint was amended twice, once on November 3, 1995 and again on December 12, 2003.

In its six-count complaint, as amended, the District contends that various federal agencies, including the United States Secret Service (Secret Service), the Department of Veterans Affairs (VA), the Department of Labor, and the United States Marshals Service (Marshals Service), failed to pay the District for the full costs of mental health care and treatment provided to individuals referred to the Hospital under 24 U.S.C. § 225g.

The complaint also alleges that HHS failed to provide the District with the funds to make repairs and renovations to the Hospital campus under 24 U.S.C. § 225b(f)(2), and that HHS failed to transfer all of the allotted monies under the Use Permit. On April 9, 1999, Count VI was settled as to all allegations against the Marshals Service except for plaintiffs claim for prejudgment interest. Count VI had alleged that the government failed to pay the District the full costs for the provision of mental health diagnostic services for persons referred to the District’s mental health system under 24 U.S.C. § 225g(b)(l)(

C) by the Marshals Service in the amount of $2,794,358.08. On December 20, 2002, plaintiff filed its motion for

summary judgment on Counts I, IV and V. Counts II and III of the complaint were settled by the parties at about this time and were dismissed on January 3, 2003. Count II involved allegations that the VA referred at least seventy-three patients to the District’s mental health system for diagnostic and treatment services. Plaintiff sought reimbursement of $455,943.73 for mental health services provided to patients referred before and after October 1, 1987 by the VA for the period up to July 31, 1993 under 24 U.S.C. § 225g(b).

Count III involved allegations that the Department of Labor referred at least one patient to the District for diagnostic and treatment services. Plaintiff sought reimbursement in the amount of $310,345.96 for mental health services for patients referred by the Department of Labor through May 31, 1995 under 24 U.S.C. § 225g(b). On June 12, 2003, defendant filed its motion to dismiss or for partial

summary judgment on Counts I and IV-VI of plaintiffs amended complaint, which included its opposition to plaintiffs motion for

summary judgment. Plaintiff filed its opposition to defendant’s motion to dismiss or for partial

summary judgment and its reply to defendant’s opposition to plaintiffs motion for

summary judgment on September 9, 2003. Defendant filed its reply to plaintiffs opposition to defendant’s motion to dismiss or for partial

summary judgment on November 6, 2003 and plaintiff filed a sur-reply on December 8, 2003. Plaintiffs December 20, 2002 motion for

summary judgment and defendant’s June 12, 2003 motion to dismiss or for partial

summary judgment are the pending motions being considered by this court in this opinion. Plaintiffs remaining claims are described as follows: In Count I, plaintiff claims that the Act requires the appropriate federal agency, beginning on October 1, 1987, to pay the District the full costs for the provision of mental health diagnostic and treatment services for certain categories of patients. These patients include, inter alia, (

a) any individual referred to the District’s mental health system pursuant to a federal statute or by a responsible federal agency; or (

b) any individual referred to the District’s mental health system for emergency detention or involuntary commitment after being taken into custody (

i) as a direct result of the individual’s action or threat of action against a federal official, or (ii) as a direct result of the individual’s action or threat of action on the grounds of the White House or of the Capitol. See 24 U.S.C. § 225g(b)(l). According to plaintiff, the United States, through its agency the Secret Service, is financially responsible for the mental health and diagnostic and treatment services provided to at least 355 individuals who were provided mental health services by the District between October 1, 1987 and August 22, 2002.

Plaintiff claims that the total cost of mental health diagnostic and treatment services owed for the 355 individuals is $11,010,262.51, plus any interest due. Compl. ¶ 12. With respect to Count IV, plaintiff claims that, pursuant to 24 U.S.C. § 225b(f)(l), the United States, through its agency HHS, was required to conduct a financial and physical plant audit of all existing facilities at the Hospital by January 1, 1986. The physical plant audit was required to recognize any relevant national and District code violations and to estimate the useful life of existing facility support systems. 24 U.S.C. § 225b(f)(l).

Defendant was required to initiate, no later than October 1, 1987 and complete no later than October 1, 1993, such repairs and renovations to the physical plant and facility support systems of the Hospital to be utilized by the District under the system implementation plan as part of the District’s comprehensive mental health system. Id. § 225b(f)(2)(A). According to plaintiffs motion, the estimated cost of repairing and renovating the buildings identified in the final system implementation plan was $32,980,624. PL’s Mot. at 17.

Plaintiff now claims that defendant failed to complete or pay for the necessary repairs and renovations indicated in the audit, including, but not limited to, the power plant and steam distribution system, in violation of the Act in the amount of $12,305,624. Id. Plaintiff also claims an additional unpaid balance for asbestos removal of at least $2,028,000, id. at 28, and that defendant failed to provide for an escalation of costs through November 2002, id. at 17, for a total claim under Count IV of $21,187,856.58, id. at i.

With respect to Count V, plaintiff claims that as of October 1, 1987, defendant continued to hold title to most of the buildings and grounds on the West Campus. On September 30, 1987, HHS and plaintiff executed the Use Permit under which HHS allegedly granted permission to plaintiff to use and occupy most of the West Campus. The term of the Use Permit was from October 1, 1987 through September 30, 1991. According to plaintiff, under

section 13 of the Use Permit, plaintiff agreed to be responsible for the preservation, maintenance and repair of any buildings on the West Campus not occupied or operated by plaintiff, and defendant agreed to reimburse plaintiff for the actual cost of such preservation, maintenance and repair up to $1,386,000. Plaintiff claims that HHS provided only $1,186,000 to the District, and is thus liable to plaintiff in the amount of $200,000.

With respect to the remaining claim for interest in Count VI, it appears that plaintiff continues to seek prejudgment interest on this count, although the parties settled other aspects of Count VI claims and filed a stipulation of partial dismissal of Count VI on April 12,1999. DISCUSSION I. Standard of Review This matter is before the court on defendant’s motion to dismiss or for partial

summary judgment on Counts I and IV-VI of plaintiffs amended complaint and plaintiffs motion for

summary judgment on Counts I, IV and V. Because defendant’s motion is one to dismiss the complaint under Rule 12(b)(6) of the Rules of the United States Court of Federal Claims (RCFC) for failure to state a claim upon which relief can be granted, or, in the alternative, for

summary judgment under RCFC 56, the court must first address the standard of review for defendant’s motion. RCFC 12(

b) provides that “[i]f, on a motion ... to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for

summary judgment and disposed of as provided in RCFC 56.” RCFC 12(b). Both parties have referred to extra-pleading materials in support of their respective positions. Once the court decides to accept extra-pleading material, it must convert the 12(b)(6) motion into a Rule 56 motion. De Brousse v. United States, 28 Fed.Cl. 187, 188 (1993) (treating a motion to dismiss as a motion for

summary judgment because matters outside of the pleadings were not excluded by the court); Schultz v. United States, 5 Cl.Ct. 412, 416 (1984) (stating that the court was required to treat a motion for judgment on the pleadings as a motion for

summary judgment because the plaintiff presented matters outside the pleadings). RCFC 12(

b) provides that when an RCFC 12(b)(6) motion is converted into an RCFC 56 motion, the parties “shall be given a reasonable opportunity to present all material made pertinent to such a motion by RCFC 56.” RCFC 12(b); see Thoen v. United States, 765 F.2d 1110, 1114 (Fed.Cir.1985) (“Cases from this and other courts underscore the importance of the opportunity for the opposing party to counter a

summary judgment motion.”). In this instance, because defendant moved in the alternative for

summary judgment, plaintiff has had ample time to submit materials and arguments opposing

summary judgment. This is evidenced most clearly by the exhibits submitted by plaintiff with its original motion for

summary judgment and its opposition briefs. Accordingly, because the court has considered the extra-pleading materials submitted by the parties and because plaintiff has had ample opportunity to present all materials and arguments in support of its position against defendant’s motion for

summary judgment, defendant’s motion to dismiss will be treated as a motion for

summary judgment under RCFC 56. See RCFC 12(b). The moving party is entitled to

summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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.” RCFC 56(c). Defendant, as the moving party on its motion, has the burden of establishing the absence of disputed genuine issues of material fact and its entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

A genuine issue of material fact is one that would change the outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When opposing defendant’s motion, plaintiff has the burden of providing sufficient evidence to show that a genuine issue of material fact indeed exists. Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548. Any evidence presented by the nonmovant is to be believed and all justifiable inferences are to be drawn in its favor. Anderson, 477 U.S. at 255, 106 S.Ct. 2505 (citing Adickes v. S.H.

Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)).

Summary judgment pursuant to RCFC 56 properly can intercede and prevent trial if the movant has demonstrated that trial would be useless because more evidence than is already available in connection with its motion could not reasonably be expected to change the result. Pure Gold, Inc. v. Syntex (U.S.A.), Inc., 739 F.2d 624, 626 (Fed.Cir.1984). The court addresses the issues and burdens surrounding pending cross-motions for

summary judgment. Separate motions for

summary judgment from each party are not an admission that no material facts remain at issue. See Massey v. Del Labs., Inc., 118 F.3d 1568, 1573 (Fed.Cir.1997) (citing United States v. Fred A. Arnold, Inc., 573 F.2d 605, 606 (9th Cir.1978)). Rather, as in this ease, the separate

summary judgment motions of each party may focus on different legal principles and allege as undisputed a different set of facts. Id. Defendant requests that this court rule in favor of its motion for

summary judgment on the basis that no genuine issues of material fact exist and as a matter of law, plaintiff is not entitled to the relief it seeks. Plaintiff is afforded, in opposing defendant’s motion, a favorable view of the facts presented by the parties. The inquiry on defendant’s motion for

summary judgment is whether, on the facts presented, defendant has discharged its burden of showing that it is entitled to judgment as a matter of law. With respect to plaintiffs motion for

summary judgment, plaintiff is held to the same standard. As the movant, plaintiff must show its entitlement to judgment as a matter of law after demonstrating an absence of any genuine disputes over material facts. Id. (stating that on cross-motions for

summary judgment, “[ejach party carries the burden on its own motion to show entitlement to judgment as a matter of law after demonstrating the absence of any genuine disputes over material facts”); Bayou Land & Marine Contractors, Inc. v. United States, 23 Cl.Ct. 764, 768 (1991) (“Both plaintiff and defendant, as the moving parties, have the burden of establishing that there are no genuine material issues in dispute and that the movant is entitled to judgment as a matter of law.”) (citing Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548).

As the nonmovant with respect to plaintiffs motion, defendant has the burden of providing sufficient evidence, not necessarily admissible at trial, to show that a genuine issue of material fact indeed exists. Bayou Land, 23 Cl.Ct. at 768 (citing Celotex, 477 U.S. at 322, 106 S.Ct. 2548). II. Analysis A. Jurisdictional Inquiry Before reaching the substantive questions presented by this case, the court must first address its jurisdiction over plaintiffs claims. This inquiry is regrettably complex.

Although all of the four remaining counts of the complaint are similar in that each states a request for a sum certain in money damages, they are also dissimilar in that they are founded on distinct theories of recovery and different aspects of the Transfer Act. Therefore, each count will be the focus of a separate discussion of this court’s jurisdiction over the type of claim at issue in that count. The court begins, however, with a more general review of this court’s jurisdiction and the analysis it must undertake to exercise jurisdiction over these claims.

Plaintiff bears the burden of establishing subject matter jurisdiction, see Alder Terrace, Inc. v. United States, 161 F.3d 1372, 1377 (Fed.Cir.1998) (citing McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)), and must do so by a preponderance of the evidence, see Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988). The court may look beyond the pleadings in order to determine jurisdiction. Martinez v. United States, 48 Fed.Cl. 851, 857 (2001) (citing Rocovich v. United States, 933 F.2d 991, 993 (Fed.Cir.1991)).

As stated in Martinez, “[ijndeed, the court may, and often must, find facts on its own.” 48 Fed.Cl. at 857. This court’s jurisdiction is based on the Tucker Act, 28 U.S.C. § 1491(a)(1) (2000). Pursuant to this statute, this court has jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in eases not sounding in tort. Id.

The Tucker Act functions as a jurisdictional statute, but plaintiffs in this court must, in addition, found their substantive right to bring an action on a specific source of law. United States v. Testan, 424 U.S. 392, 400, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). The United States Supreme Court decided that this court may generally entertain a suit only if it is founded upon a claim for money allegedly due to the plaintiff from the government. Id. at 397-98, 96 S.Ct. 948; see also Kanemoto v.

Reno, 41 F.3d 641, 644-45 (Fed.Cir.1994) (noting that, with limited exceptions, only monetary relief is available from this court). Pertinent to the ease at bar, the Supreme Court has recognized that not all statutes which provide an economic benefit are compensation mandating. See Bowen v. Massachusetts, 487 U.S. 879, 905 n. 42, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988). In United States v.

Mitchell, 463 U.S. 206, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983), the Supreme Court explained that a claimant must demonstrate that the source of substantive law relied upon “ ‘ “can fairly be interpreted as mandating compensation by the Federal Government for the damages sustained.” ’ ” Id. at 217, 103 S.Ct. 2961 (quoting Testan, 424 U.S. at 400, 96 S.Ct. 948 (quoting Eastport S.S. Corp. v. United States, 178 Ct.Cl. 599, 372 F.2d 1002, 1009 (1967) (Eastport Steamship))). The Supreme Court has further explained that: This “fair

interpretation” rule demands a showing demonstrably lower than the standard for the initial waiver of sovereign immunity____ It is enough, then, that a statute creating a Tucker Act right be reasonably amenable to the reading that it mandates a right of recovery in damages. While the premise to a Tucker Act claim will not be “lightly inferred,” a fair inference will do. United States v. White Mountain Apache Tribe, 537 U.S. 465, 472-73, 123 S.Ct. 1126, 155 L.Ed.2d 40 (2003) (citation omitted). The Federal Circuit explained and re-framed this jurisdictional inquiry in its recent decision in Fisher v.

United States, 402 F.3d 1167 (Fed.Cir.2005) (portion decided en banc). In Fisher, the Federal Circuit overruled Gollehon Farming v. United States, 207 F.3d 1373 (Fed.Cir.2000), which had described a two-step jurisdictional inquiry for determining whether a source of law, such as a statute or regulation, is money-mandating. Fisher, 402 F.3d at 1173.

Under Gollehon, in order to satisfy the jurisdictional requirement that a money-mandating statute or regulation is before this court, first, the plaintiff was only required to make a non-frivolous allegation that the statute or regulation could be interpreted as money-mandating. 207 F.3d at 1379. The non-frivolous allegation satisfied the jurisdictional requirement. Id.

If, as a second step, the issue of jurisdiction was later pressed and it was subsequently decided that the statute or regulation was not money-mandating, then the case would be dismissed for failure to state a claim upon which relief can be granted. Id. The Federal Circuit departed from this two-step inquiry and opted for a one-step inquiry. This inquiry requires the court to determine at the outset whether, in response to a motion by the government, or sua sponte, the constitutional provision, statute, or regulation, see 28 U.S.C. § 1491(a)(1), is one that is money-mandating. Fisher, 402 F.3d at 1173.

If the court’s conclusion is that the source of law meets the money-mandating test, the court shall declare that it has jurisdiction over the cause, and shall then proceed with the case. Id. The inquiry “shall be determinative both as to the question of the court’s jurisdiction and thereafter as to the question of whether, on the merits, plaintiff has a money-mandating source on which to base his cause of action.” Id. The Federal Circuit further determined that if the source as alleged and pled is not money-mandating, the court shall dismiss the cause for lack of jurisdiction under RCFC 12(b)(1). Id.

If a source is found instead to be money-mandating, but the plaintiff fails to meet the requirements that the money-mandating statute requires, or the plaintiffs claim does not fit within the scope of the source statute, the plaintiff loses on the merits for failing to state a claim on which relief can be granted. Id. at 1175-76. Thus, the jurisdictional question in this case is whether the Transfer Act can be fairly interpreted as mandating compensation. A statute is money-mandating if the statute “ ‘grants the claimant, expressly or by implication, a right to be paid a certain sum.’ ” Ont.

Power Generation, Inc. v. United States, 369 F.3d 1298, 1301 (Fed.Cir.2004) (quoting Eastport Steamship, 372 F.2d at 1007, and citing Testan, 424 U.S. at 401-02, 96 S.Ct. 948). This inquiry is different for each count of the complaint because the Transfer Act might mandate compensation under some of its provisions, but not under others. Following the guidance of Fisher, the court must, at the outset, determine whether the Transfer Act confers subject matter jurisdiction on this court for these counts before addressing whether the facts of this case could support granting the relief requested in the complaint. 1.

Subject Matter Jurisdiction Over Count 1 Count I, in particular, presents a novel jurisdictional issue related to the unique nature of the Transfer Act. The United States has committed to providing funding to the District for the treatment of certain types of mental health patients for whom the federal government accepts fiscal responsibility, based on the unique situation of the District in its roles as host to the federal government and as the transferee of Saint Elizabeths. 24 U.S.C. § 225g(b)(l)(A)-(C).

Defendant argues that this court lacks subject matter jurisdiction over Count I of plaintiffs lawsuit because the Act is not a compensation-mandating statute for the mental health care needs of the particular types of patients described in the statute. Def.’s Reply at 1-6. Plaintiff disagrees, arguing that this court has jurisdiction under the Tucker Act because the Transfer Act “requires defendant to compensate the District for the services it has already provided to those specific individuals who Congress has expressly deemed a federal financial responsibility.” Pl.’s Sur-Reply at 2.

The Fisher court acknowledged that the Supreme Court has applied for decades what is known as the Mitchell test for determining whether a statute is a money-mandating source. 402 F.3d at 1173. The Supreme Court in Mitchell established that a statute is money-mandating for jurisdictional purposes if it “can fairly be interpreted as mandating compensation for damages sustained as a result of a breach of the duties [it] impose[s].” Mitchell, 463 U.S. at 219, 103 S.Ct. 2961; see also White Mountain Apache Tribe, 537 U.S. at 472-73, 123 S.Ct. 1126.

Because this court appears to be the first to decide whether the Transfer Act is a money-mandating statute, the court begins its analysis with the language of the statute itself. See Flowers v. Sec’y of Dep’t of Health and Human Servs., 49 F.3d 1558, 1560 (Fed.Cir.1995) (stating that “statutory

interpretation begins with the language of the statute itself, which must ordinarily be regarded as eonclusive absent a clearly expressed legislative intent to the contrary”) (citing Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980)).

The plain language of the Transfer Act clearly mandates payment by the United States to the District for the mental health services for certain types of patients. 24 U.S.C. § 225g(b)(1) (stating that “the appropriate Federal agency is directed to pay the District of Columbia the full costs for the provision of mental health diagnostic and treatment services for the following types of patients”) (emphasis added). When a statute states that the United States “shall pay” compensation for a rendered service, such a statute is generally found to be money-mandating. Agwiak v.

United States, 347 F.3d 1375, 1380 (Fed.Cir.2003) (‘We have repeatedly recognized that the use of the word ‘shall’ generally makes a statute money-mandating.”) (citing McBryde v. United States, 299 F.3d 1357, 1361 (Fed.Cir.2002); Huston v. United States, 956 F.2d 259, 261-62 (Fed.Cir.1992); Grav v. United States, 886 F.2d 1305, 1307 (Fed.Cir.1989)). Even statutory language such as “may award and pay” has been found to be money-mandating, when the legislative intent and context of the statute indicate that the applicant is entitled to payment from the United States if certain conditions have been met. See Doe v.

United States, 100 F.3d 1576, 1580-82 (Fed.Cir.1996) (finding an informant payment statute, 19 U.S.C. § 1619 (1994), to be money-mandating for purposes of subject matter jurisdiction in this court).

The Transfer Act language, “[the United States] is directed to pay the District of Columbia the full costs for the provision of mental health diagnostic and treatment services for the following types of patients,” is an unambiguous mandate for compensation and fits well within the definition of a money-mandating statutory provision given in Eastport Steamship: a “specific provision of law [that] embodies a command to the United States to pay the plaintiff some money, upon proof of conditions which he is said to meet.” 372 F.2d at 1008.

Thus, under the Mitchell test, Tucker Act jurisdiction lies for Count I of the complaint. Nevertheless, Defendant launches a full-scale assault on this court’s jurisdiction over Count I in its reply brief, relying principally on Bowen v. Massachusetts, 487 U.S. 879, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988). Bowen has engendered extensive commentary within the Federal Circuit and elsewhere as courts and other authorities have grappled with its holding concerning the jurisdiction of federal courts over suits where the United States is one of the party defendants. See Gregory C.

Sisk, The Tapestry Unravels: Statutory Waivers of Sovereign Immunity and Money Claims Against the United States, 71 Geo. Wash. L.Rev. 602, 619 (2003). The Bowen line of authority is best understood by reviewing a number of decisions which are controlling precedent for this court, including Bowen, of course, which contrast two waivers of sovereign immunity.

The first is found in the Tucker Act, 28 U.S.C. § 1491(a)(1) (2000), the foundation of this court’s jurisdiction, and the second is found in the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (2000) (APA), which gives United States district courts jurisdiction over certain claims “seeking relief other than money damages” against the United States, id. § 702. When the holding in Bowen is applied to this case, jurisdiction lies squarely in this court for the District’s claims in Count I. a.

The Bowen Court Finds Jurisdiction Over Certain Monetary Claims To Lie in the United States District Courts Under the APA Chula TV The court begins its discussion with a preBowen jurisdictional decision by the Federal Circuit. In Chula Vista City School District v. Bennett, 824 F.2d 1573 (Fed.Cir.1987) (Chula IV), plaintiff school districts began their litigation in the United States District Court for the Southern District of California.

The school districts sought injunctive and declaratory relief for review of their FY 1979 applications for federal funding under the Impact Aid program, 20 U.S.C. §§ 236-244, using a particular set of criteria. Id. at 1577-78.

The controversy centered on whether these plaintiffs had the right under the statute to have their applications reviewed under an experimental grading system used by the Department of Education for a brief, three-month period, a system which produced higher grant awards for some school districts, rather than under the long-standing grading system which tended to keep awards at a lower level. Id. The plaintiffs sought administrative resolution of the controversy, but were not successful in obtaining review of their grant applications under the more generous grading system. Id. at 1578.

In the district court, plaintiffs won a judgment declaring that their amended applications should be reviewed under the experimental criteria system that was likely to bring greater grant amounts to each district, even though that system had been quickly abandoned by the Department of Education. Id. When an appeal of the judgment for plaintiffs in that case, originally filed in the Ninth Circuit, was transferred to the Federal Circuit by order of the United States Supreme Court, Chula Vista City Sch. Dist. v.

Bennett, 474 U.S. 1098, 106 S.Ct. 876, 88 L.Ed.2d 913 (1986) (Chula III), the Federal Circuit decided that plaintiffs’ pleas for relief were in essence monetary claims against the United States based on statutory rights, Chula IV, 824 F.2d at 1579. The Federal Circuit ordered the dismissal of the claims of forty-nine of the fifty-five school district plaintiffs because the district court lacked jurisdiction for monetary claims against the United States for more than $10,000 and the great majority of the school districts sought sums in excess of that amount. Id.

As the Federal Circuit noted, under the Tucker Act, exclusive jurisdiction for monetary claims against the United States for more than $10,000 is vested in the Claims Court (now the United States Court of Federal Claims). Id. at 1578-79. It is not clear whether APA jurisdiction over the claims was argued by the parties in Chula IV. In any case, because of the exclusive grant of jurisdiction to this court for monetary claims against the United States amounting to more than $10,000, the district court was found to not have jurisdiction over those claims.

Bowen Less than a year later, the United States Supreme Court issued Bowen v. Massachusetts, 487 U.S. 879, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988), which yielded a different result — a district court, not the Claims Court, was in certain circumstances the only appropriate forum for monetary claims against the United States for more than $10,000 based on rights embodied in a federal statute. Bowen confronted the question of whether a dispute over Medicaid reimbursement to a state should be brought in a United States district court or the Claims Court (now the Court of Federal Claims). Id. at 882, 108 S.Ct. 2722.

After a thorough analysis of the particular nature of the relief sought by the Commonwealth of Massachusetts (State) regarding the disallowance of certain expenditures in the State’s Medicaid program, the Supreme Court held that the APA created a waiver of sovereign immunity for this type of claim, and that the action was properly before the United States District Court for the District of Massachusetts. Id. at 891-908, 108 S.Ct. 2722. The Supreme Court also stated that jurisdiction was “doubtful” in the Claims Court for the type of Medicaid disallowance dispute presented by Bowen. Id. at 905, 108 S.Ct. 2722.

For the court’s present purposes, it is perhaps most useful to discuss the holding in Bowen by separating the Supreme Court’s commentary on the jurisdictional issue into two themes: the reasons why the dispute in that ease would not be transferred to the Claims Court and should remain in the district court; and, the circumstances under which monetary claims based on statutory rights should be filed, instead, in the Claims Court. The Supreme Court listed several reasons why the Bowen suit should not have been brought in, or transferred to, the Claims Court.

The first set of reasons was discussed in the context of the limitations on the APA waiver of sovereign immunity. Under the APA, judicial review of federal agency decisions may only occur in a district court when “there is no other adequate remedy in a[nother] court.” 5 U.S.C. § 704. The Court explained that this provision was designed to rule out duplicative procedures for the review of agency actions, and cited examples of statutory grants of jurisdiction vested in courts other than district courts for the review of the decisions of particular boards and commissions. Bowen, 487 U.S. at 903, 108 S.Ct. 2722.

Under the facts of Bowen, the Court held that the Claims Court could not provide an adequate remedy for the State, and therefore held that

section 704 did not bar jurisdiction in the district court under the APA. Id. at 904-05, 108 S.Ct. 2722. The Supreme Court reasoned that an adequate remedy in Bowen would require a court to be able to exercise equitable powers, give prospective relief, manage relationships between federal and state governments over time, and consider the state-law aspects of grant-in-aid programs. Id. at 905-08, 108 S.Ct. 2722. The Court held that the Claims Court was not the forum that could offer this type of remedy. Id. at 908, 108 S.Ct. 2722.

The Court also expressed doubt concerning the Claims Court’s jurisdiction over a Medicaid disallowance dispute, stating that it was “likely” that Congress did not intend the Medicaid Act, 42 U.S.C. § 1396, to be a money-mandating statute providing for a cause of action for money damages. Id. at 907 n. 42,108 S.Ct.

Section 702 contains another limitation on a district court’s jurisdiction over APA claims. 5 U.S.C. § 702. A district court may entertain claims “seeking relief other than money damages” from plaintiffs who are alleged to have suffered legal wrongs because of federal agency action. Id. In Bowen, the State sought declaratory and injunctive relief, as well as monetary relief. 487 U.S. at 893, 108 S.Ct. 2722. The Bowen Court was confronted with deciding whether or not the State’s monetary relief claim was indeed for “money damages.” Id. The Supreme Court stated that the type of money damages claims barred by

section 702 are those monetary claims seeking compensation for damage sustained by the failure of the federal government to pay what is due under a statute, not claims seeking to enforce the statutory mandate for the payment of money. Id. at 900, 108 S.Ct. 2722. If a complex statutory payment scheme requires “intricate, ongoing relationships” between federal and state governments, and may require injunctive and declaratory powers to enforce the payment scheme, monetary claims founded on the statute in question are for specific monetary relief and not compensatory money damages. Id. at 901 n. 31, 108 S.Ct. 2722.

The relief sought in Bowen could not be “properly characterized as an award of ‘damages,’ ” because the money recovered by the State would be “usually a relatively minor [adjustment] in the size of the federal grant to the State that is payable in huge quarterly installments.” Id. at 893, 108 S.Ct. 2722. The Supreme Court held that the Medicaid Act monetary claims asserted in Bowen were for “specific relief,” not money damages, and were thus not barred by

section 702. Id. at 901, 108 S.Ct. 2722. Overcoming a vigorous dissent and an otherwise supportive concurrence, the Court distinguished between the monetary relief requested in Bowen, described as specific relief, and the payment of money as damages. Id. Taking a larger view of the Medicaid Act, the Court also decided that jurisdiction for Medicaid disallowance disputes between federal and state governments was intended by Congress to be vested in the district courts. Id. at 908, 108 S.Ct. 2722.

The Court noted that a HHS decision finding substantial noncompliance with federal requirements in a state Medicaid program, a ruling with larger impact than a disallowance decision, may be appealed to the regional circuit court of appeals. Id. The Court reasoned that Congress must have intended the less momentous disputes over Medicaid disallowance decisions to go to the district courts, rather than to the Claims Court and up to the Federal Circuit. Id. The Court also indicated that policy questions inherent in cases affecting federal-state relations and health programming were better handled by

Article III judges of district courts who possess life tenure. Id. at 908 n. 46, 108 S.Ct. 2722. On the other hand, the Supreme Court commented on situations where jurisdiction would be appropriate in the Claims Court for disputes between states and the federal government over the right to payment under a given federal statute. If a statute creates a right to “compensation for specific instances of past injuries or labors,” jurisdiction lies in the Claims Court, not the district courts. Id. at 901 n. 31, 108 S.Ct. 2722.

The Court indicated that claims for the compensation of a past wrong, as opposed to claims for subsidies for future expenditures, were more properly brought in the Claims Court. Id. at 907 n. 42, 108 S.Ct. 2722. Suits that request a specific sum of money owed by the federal government under a given statute, as opposed to suits on an open account subject to future fluctuations, are also more appropriate for Tucker Act jurisdiction than for APA jurisdiction. Id. at 907, 108 S.Ct. 2722.

Finally, without specifying why, the Supreme Court remarked that the “situation” in Chula IV was different from the situation in Bowen, and pointed out that the Federal Circuit had found the Claims Court to be the “proper tribunal” to enforce the rights embodied in the federal statute at issue in Chula IV. Id. at 883 n. 1, 108 S.Ct. 2722.

Thus, the Bowen majority began the practice of distinguishing the facts and issues of the Medicaid reimbursement dispute in Bowen from other disputes grounded in statutory rights, for the purposes of deciding the appropriate forum in which to bring monetary claims against the United States. The Federal Circuit has, in turn, had further occasion to either analogize or distinguish the facts of Bowen when deciding other cases where the plaintiffs have sought payment from the United States. b. The Federal Circuit Applies the Jurisdictional Holding in Bowen to a Variety of Claims Kate In Katz v.

Cisneros, 16 F.3d 1204 (Fed.Cir.1994), a private developer participated in a subsidized housing program funded by the Department of Housing and Urban Development (HUD) and renovated 176 subsidized apartments. Id. at 1206. Katz began to receive rent on the apartments at a rate based, in part, on his financing costs for the project. Id. at 1205-06. After a HUD audit, the rental amounts were declared to be against regulation and too high. Therefore, HUD sought recovery of the overpayments. Id. at 1206.

Katz exhausted his administrative appeals and filed suit in the United States District Court for the District of Massachusetts, seeking injunctive and declaratory relief, mandamus and monetary relief. Id. The district court transferred the monetary claims and the request for declaratory judgment to the Court of Federal Claims and denied or dismissed other prayers for relief, but the transfer action was appealed to the Federal Circuit. Id. at 1206-07. The central question on appeal was whether the district court had jurisdiction over Katz’ claims and whether sovereign immunity had been waived as to defendant HUD.

Id. at 1207. The Federal Circuit quickly disposed of the subject matter jurisdiction issue and found that federal question jurisdiction of the district court was not ousted simply because HUD alleged that the suit was based in contract and that contract cases against the United States are normally prosecuted in the Court of Federal Claims. Id. at 1207-08. The Circuit then turned to the Bowen analysis of limitations on the APA waiver of sovereign immunity pursuant to sections 702 and 704.

The Circuit found that the types of relief requested in Katz were perfectly analogous to the relief requested in Bowen, such that the monetary aspects of the relief requested were not money damages but equitable relief. Id. at 1208-09. And, the Circuit held that an adequate remedy was not available to Katz in the Court of Federal Claims because his request for prospective relief would affect the ongoing relationships of the parties. Id. at 1209. Thus, neither of the

section 702 or 704 limitations applied, and the APA waiver of sovereign immunity allowed the Katz suit to go forward in district court. Id. at 1210. One of the factual peculiarities of the Katz case was that the plaintiff was not in privity with the United States — his dealings were with local and state entities which passed through the HUD funding. Id. Absent privity of contract with the United States, the Circuit reasoned that Tucker Act jurisdiction, based on contract breach theories, would not permit Katz to proceed in the Court of Federal Claims. Id.

Thus, the Circuit found additional support for its holding that APA jurisdiction, not Tucker Act jurisdiction, allowed this suit to remain in the district court, and that the suit could not be transferred to the Court of Federal Claims. Id. Despite a vigorous dissent from Judge Rader asserting that the nature of the suit was for breach of contract and that a full and adequate remedy was available in the Court of Federal Claims, id. at 1210-13, the Circuit found that this payment dispute under the United States Housing Act of 1937, 42 U.S.C. § 1437 et seq., belonged in the district court. Katz, 16 F.3d at 1210.

Kanemoto A few months later, the Federal Circuit again had an opportunity to apply the Bowen analysis to the issue of whether a case begun in a district court should be transferred to the Court of Federal Claims, Kanemoto v. Reno, 41 F.3d 641 (Fed.Cir.1994). Ms. Kanemoto and other plaintiffs had been interned and then relocated to Japan during World War II. Id. at 642. A reparations statute was passed in 1988 which offered apologies and $20,000 to persons of Japanese descent who had been sent to internment camps. Id. at 642-43. However, Ms.

Kanemoto was refused the reparation funds because the statute excluded persons relocated to other countries during the war. Id. at 643. She and the other plaintiffs brought suit in the United States District Court for the Northern District of California, and the government moved to transfer the case to the Court of Federal Claims. Id. When the motion was denied, the Federal Circuit heard the appeal and addressed the question of “whether Kanemoto’s claim was brought in the appropriate forum.” Id.

After an extensive discussion of the limitations on the APA waiver of sovereign immunity found in sections 702 and 704, and a review of the holding in Bowen, the Circuit held that Ms. Kanemoto had an adequate remedy in the Court of Federal Claims and was thus precluded by

section 704 from proceeding in the district court under the APA. Id. at 644-46. The Federal Circuit explained that “the ultimate relief Kanemoto seeks in all counts of the complaint is the payment to her of the $20,000 statutory amount of restitution.” Id. at 646. Because the monetary relief sought, if granted, would compel payment of the statutory amount of restitution, no declaratory or injunctive relief was required. Id.

Although the Federal Circuit did not assign a label of either “money damages” or “specific relief’ to such an award, the Circuit did note that the Court of Federal Claims has the power to provide specific relief in the form of money. Id. (citing Bowen, 487 U.S. at 900 n. 31, 108 S.Ct. 2722). Although specific relief in monetary form falls under APA jurisdiction in the Medicaid disallowance dispute context, the Federal Circuit determined that in other statutory schemes specific relief in monetary form may be sought in this court. Id.

The Circuit distinguished the rights arising from the reparations statute from the rights arising under the Medicaid Act at issue in Bowen because the reparations statute, 50 U.S.C. § 1989b-4(a)(1), did not contemplate a complex payment scheme nor an ongoing, intricate relationship between the parties. Id. at 647. Brighton Village About a year after Katz, the Federal Circuit revisited the jurisdictional question of whether a subsidized housing payment dispute involving HUD would lie in the Court of Federal Claims. Brighton Vill. Assocs. v. United States, 52 F.3d 1056 (Fed.Cir.1995).

In an opinion written by Judge Rader, the author of the dissent in Katz, the Federal Circuit determined that Brighton Village was a contract case requesting money damages and was properly brought in the Court of Federal Claims. Id. at 1060. The Brighton Village court, unlike the Katz court, did not rely on Bowen to resolve the jurisdictional question. The Circuit commented that several features of Bowen were absent in subsidized housing payment contracts: Bowen, however, did not address the

Section 8 housing program, but the Medicaid program. In concluding that a Medicaid disallowance claim was not a contract action, Bowen relied on the congressional intent for the Medicaid program, the role of state law in Medicaid disallowance actions, and the long-term Medicaid interactions between the states and the Federal Government involving ever-shifting balance sheets. Bowen, 487 U.S. at 903-05 & n. 39, 108 S.Ct. at 2737 & n. 39. None of these features unique to Medicaid disallowance disputes applies to

Section 8 housing contracts. Id. at 1059 n. 3. The court relied instead on precedent, holding that, despite Bowen, “[t]he Court of Federal Claims has the power to award money damages on contract claims under the Tucker Act.” Id. at 1060 (relying on 28 U.S.C. § 1491(a)(1) and numerous cases). The Circuit distinguished the contrary result in Katz by stating that Brighton Village Associates was in privity with the United States in a housing payment agreement and thus contract law, not a statutory right to payment, was the source of the relief sought. Id.

The Circuit also noted that Katz sought prospective relief, whereas Brighton Village Associates sought retroactive monetary relief. Id. NCMS The plaintiff in National Center for Manufacturing Sciences v. United States, 114 F.3d 196 (Fed.Cir.1997) (NCMS), filed in the United States District Court for the District of Columbia and sought, under both statutory entitlement and contract theories, to compel the United States Air Force (USAF) to release the remaining portion of $40,000,000 that had been appropriated for NCMS by Congress. Id. at 197-98.

The $40,000,000 appropriation was governed by a cooperative agreement between USAF and NCMS, although only a portion of the $40,000,000 was described in that agreement as “ ‘currently available and allotted.’” Id. at 198. The district court held that the case was founded on contract and transferred the NCMS case to the Court of Federal Claims. Id. On appeal, the Federal Circuit disagreed, found district court jurisdiction under the APA and reversed the transfer order. Id. at 202. The Circuit discussed Bowen, Katz and Kanemoto, and applied the holdings of these decisions to the facts in NCMS. Id. at 198-202.

Because the request for payment under the statute was not for compensatory money damages but for a statutory entitlement, NCMS did not run afoul of

section 702 and the APA waived sovereign immunity for its $15,875,000 claim. Id. at 200. The court also held that an adequate remedy could not be provided by the Court of Federal Claims with an award of monetary relief. Id. at 200- 02. Rather, a prevailing NCMS would require injunctive relief reserving unspent USAF funds for NCMS, and the restrictions on the congressional appropriation embodied in either the statute or the cooperative agreement would require an ongoing, cooperative relationship between the parties. Id. at 201- 02. Therefore,

section 704 proved no impediment, and NCMS was found to be akin to Bowen and Katz and distinguishable from Kanemoto — with jurisdiction in the district court under the APA. Id. at 201-02. The Circuit also decided that the Court of Federal Claims did not have the power to dispense the forms of equitable relief that were at issue in NCMS. Id. The existing cooperative agreement was only allotted a little more than half of the congressional appropriation.

In order for NCMS to obtain all of the appropriation it requested, a court would have to direct the USAF to obligate the remainder of the funding and to supplement the old agreement or replace it with a new one that extended the contracting relationship of the parties both in time and over the newly allotted funds. The Circuit explained that the Court of Federal Claims did not possess jurisdiction to give that sort of equitable relief and remanded the case to the district court.

Brazos In 1998, the Federal Circuit again addressed whether the holding in Bowen would support the transfer of a case from a district court to the Court of Federal Claims. Brazos Elec. Power Co-op., Inc., 144 F.3d 784 (Fed.Cir.1998) (Brazos). In Brazos, a power cooperative filed suit in the United States District Court for the Western District of Texas to contest the charge of a prepayment penalty on a loan amount repaid to the United States. Id. at 786. The district court decided it did not have jurisdiction under the APA because an adequate remedy existed in the Court of Federal Claims.

The Federal Circuit agreed. The Circuit first examined whether the power cooperative’s claim was for money damages. Id. at 787. Cancellation of a debt, the court reasoned, is just another form of monetary damages and, therefore, the relief requested was within Tucker Act jurisdiction. Next, the court examined whether

section 704, the bar on APA suits when an adequate remedy exists in another court, prevented a waiver of sovereign immunity under the APA. The Circuit held that the power cooperative was seeking “a single, uncomplicated payment of money” and that this was an entirely adequate remedy.” Id. at 788. Unlike the situation in Bowen, where a court might have to oversee an ongoing Medicaid reimbursement relationship, in Brazos “[n]o prospective relief would be required and there would be no ongoing relationship to monitor and referee.” Id.

Finally, the Circuit determined that the claims in Brazos were contractual in nature. Despite the incorporation of certain statutory terms and conditions in the note held by the United States, the contract dispute between the parties “d[id] not concern the administration of that statute.” Id. For these reasons, the District court did not have jurisdiction under the APA and the transfer of Brazos to the Court of Federal Claims was upheld. Con Ed II In 2001, the Federal Circuit again examined the Bowen jurisdictional holding and took the unusual step of vacating, en banc, a panel decision, Consol.

Edison Co. of N.Y. v. United States Dep’t of Energy, 234 F.3d 642 (Fed.Cir.2000) (Con Ed I), and resubmitting the appeal to the same panel which then issued a revised opinion. Consol. Edison Co. of N.Y., Inc. v. United States Dep’t of Energy, 247 F.3d 1378, 1386 (Fed.Cir.2001) (Con Ed II). The revised opinion in Con Ed II held that Bowen was distinguishable from Con Ed II; that jurisdiction for the type of relief claimed in Con Ed II lies in the Court of Federal Claims; and that this court’s adequate remedy ousted APA jurisdiction in the district court pursuant to

section 704. Id. at 1383-86. Con Ed I had reached the opposite conclusion on all of these points. 234 F.3d at 646-47. The court examines Con Ed II in detail. In an opinion written by Judge Rader, the Federal Circuit described the litigation history of Con Ed II, 247 F.3d at 1380-82. At the heart of the suit was a dispute over payments required from nuclear power utilities under the Energy Policy Act of 1992, 42 U.S.C. § 2297g (EPACT). Id. at 1380-81. After making initial payments under EPACT, some nuclear power utilities sued in the Court of Federal Claims for refunds of the payments. Id. at 1381.

One of those eases rose on appeal to the Federal Circuit, Yankee Atomic Elec. Co. v. United States, 112 F.3d 1569 (Fed.Cir.1997), and the plaintiff-utility lost. 247 F.3d at 1381. A petition for writ of certiorari was also denied. Yankee Atomic Elec. Co. v. United States, 524 U.S. 951, 118 S.Ct. 2365, 141 L.Ed.2d 735 (1998). Some of the utilities, apparently unhappy with their track record before the Court of Federal Claims, “sought a hearing in another forum.” Con Ed II, 247 F.3d at 1381.

Twenty-two nuclear power utilities filed a suit in the United States District Court for the Southern District of New York seeking declaratory judgments and injunctive relief against the required payments under EPACT. Id. at 1380. The district court refused a request to transfer the case to the Court of Federal Claims and found that it had jurisdiction for the suit under the APA. Id. at 1382. On appeal, the Federal Circuit applied the holding in Bowen and initially affirmed the district court’s jurisdictional decision, Con Ed I, 234 F.3d at 647-48, over a vigorous dissent by Judge Gajarsa, id. at 648-54.

Judge Gajarsa opened his dissent with a succinct description of his disagreement with Con Ed I: I respectfully dissent from the majority opinion for two reasons. First, I believe that the majority’s analysis is in direct conflict with Supreme Court precedent, precedent of this court, and the statutory scheme promulgated by Congress, which provides for judicial review pursuant to the Administrative Procedure Act only when no other adequate remedy is available.

Second, the majority opinion allows the plaintiffs an opportunity to collaterally attack a clear and controlling precedent of this court and moreover it frustrates the legislative purpose of the Tucker Act. Id. at 648. In Judge Gajarsa’s view, “the district court lack[ed] jurisdiction under

Section 702 because the [Court of Federal Claims] can provide an adequate remedy for the purposes of

Section 704.” Id. at 654. In Con Ed II, Judge Gajarsa joined in the panel’s unanimous decision to adopt the result suggested by his dissent in Con Ed I, 247 F.3d at 1386. The court reversed the district court’s jurisdictional decision and remanded with instructions to transfer the case to the Court of Federal Claims. The Federal Circuit revised its assessment of the applicability of Bowen as it distinguished the facts of Bowen from the facts of Con Ed II.

The Federal Circuit also paused to reflect on the dangers of the unbridled forum shopping that might result if plaintiffs could use Bowen to circumvent the exclusive Tucker Act jurisdiction of the Court of Federal Claims and the precedent of the Federal Circuit that is binding upon this court. See id. at 1385 (“This court and its sister circuits will not tolerate a litigant’s attempt to artfully recast its complaint to circumvent the jurisdiction of the Court of Federal Claims.”) (citing cases).

The court now turns to the Federal Circuit’s commentary on the applicability of Bowen to different types of disputes, and next, to the Federal Circuit’s discussion of money judgments, res judicata, and retrospective versus prospective relief. The court in Con Ed II rested its decision on

section 704, finding that APA jurisdiction had been trumped by the existence of an adequate remedy in the Court of Federal Claims. Id. at 1385-86. Bowen, to be sure, had held that in that Medicaid reimbursement dispute, an adequate remedy did not exist in the Court of Federal Claims. The Federal Circuit proceeded to identify aspects of the dispute in Con Ed II that could be distinguished from the facts of Bowen. First, the Federal Circuit declared that Bowen “does not enunciate a broad rule that the Court of Federal Claims cannot supply an adequate remedy in any case seeking injunctive relief.” Id. at 1383.

Second, the court noted that “the Supreme Court’s ruling in Bowen emphasized the complexity of the continuous relationship between the federal and state governments administering the Medicaid program,” id., and that the Supreme Court had “le[ft] room for the proposition that the Court of Federal Claims may well supply an adequate remedy in cases without a complex ongoing federal-state interface,” id. (citing Kanemoto, 41 F.3d at 645).

Third, the court noted that the Supreme Court had expressed doubt about jurisdiction in the Court of Federal Claims for the Medicaid disallowance decisions in Bowen, but this concern was not present in Con Ed IBs disputes over constitutional issues such as illegal exactions, an area over which this court “has long possessed jurisdiction.” Id. at 1384.

Fourth, the Federal Circuit pointed out that the issues in Bowen, unlike the utilities’ claims in Con Ed II, “ ‘typically involve state governmental activities’ ” better understood and evaluated by a district court than by “ ‘a single tribunal headquartered in Washington.’ ” Id. (quoting Bowen, 487 U.S. at 907-08, 108 S.Ct. 2722).

Fifth, the controversy in Bowen implicated “ ‘[mjanaging the relationships between States and the Federal Government that occur over time and that involve constantly shifting balance sheets,”’ id. (quoting Bowen, 487 U.S. at 904 n. 39, 108 S.Ct. 2722), whereas Con Ed II did not implicate “govemment-to-government” relationships. Id.

Because of these distinguishing characteristics, the Federal Circuit decided that “the Supreme Court linked its judgment [in Bowen] to a specific set of circumstances that are not present in this case [(Con Ed II)],” and held that Bowen did not preclude the Court of Federal Claims from providing an adequate remedy for the claims of the nuclear power utilities. Id. The Federal Circuit also explained how a money judgment in the Court of Federal Claims offers complete relief to a party seeking equitable relief such as a declaratory judgment and an injunction of required payments. Id. at 1384.

The court reasoned that the nuclear power utilities in the district court, despite the drafting of their complaint, “in reality [were] seeking] only prospective monetary relief’ from the required payments under EPACT. Id. at 1385. In the Court of Federal Claims, these same plaintiffs had claims pending for retrospective monetary relief, seeking the return of their initial payments under EPACT. The Federal Circuit held that a money judgment in the Court of Federal Claims would provide an adequate remedy for both sets of claims.

The mechanism for providing such complete relief would be the principle of res judicata. Id. at 1384-85. Should the utilities win in the Court of Federal Claims, not only would they recoup their initial payments with interest, but the United States would be bound by the ruling under the principle of res judicata and could no longer require unlawful payments under EPACT. “[A]n explicit grant of prospective relief’ would not be necessary. Id. at 1384. Because the nuclear power utilities could receive an adequate remedy in the Court of Federal Claims,

section 704 deprived the plaintiff-utilities “of duplicative district court adjudication.” Id. at 1386. To the court’s knowledge, the holding in Con Ed II has not yet been commented on, approved or disapproved by the Supreme Court. The Federal Circuit has continued to apply the principles discussed in Con Ed II in other decisions weighing Tucker Act and APA jurisdiction. Christopher Village Although Christopher Village, L.P. v. United States, 360 F.3d 1319 (Fed.Cir.2004), was decided primarily on breach of contract theories rather than on statutory entitlements, the Federal Circuit again relied on

section 704, as interpreted in Con Ed II, to determine that no APA jurisdiction existed over a claim for equitable relief when an adequate remedy could be had in the Court of Federal Claims. Id. at 1327-29. A request for “a declaratory judgment as to the legality of HUD’s actions” related to troubled subsidized housing contracts with the owners of a housing complex would not lie in the district court because a suit for money damages in the Court of Federal Claims would provide an adequate remedy.

Because all requests for injunctive relief were moot due to the foreclosure on and razing of the subject property, the remaining claim requested relief which would simply act as the predicate basis for a money judgment in the Court of Federal Claims. As a result, the Federal Circuit declared that APA jurisdiction over that claim was barred by the adequate remedy available in this court.

The Federal Circuit explained that Con Ed II had held “that a litigant’s ability to sue the government for money damages in the Court of Federal Claims is an ‘adequate remedy’ that precludes an APA waiver of sovereign immunity in other courts.” Id. at 1327 (citing Con Ed II, 247 F.3d at 1384). The court then quoted Con Ed II for the proposition that Bowen had not announced a “‘broad rule’ ” denying the adequacy of Court of Federal Claims remedies for claims that requested injunctive relief, and for the determination that the Bowen holding was focused on particular circumstances and considerations.

Id. at 1328 n. 2 (quoting Con Ed II, 247 F.3d at 1383). The Christopher Village court’s citation to Con Ed II confirms that the

interpretation of Bowen in Con Ed II continues to be the controlling law in this circuit. Doe Only a couple of months after Christopher Village was issued, another panel of the Federal Circuit ejqilored the boundary between Tucker Act and APA jurisdiction. Doe v. United States, 372 F.3d 1308 (Fed.Cir.2004). Plaintiff-Doe, the spouse of a member of the armed services, sought equitable relief in a district court in order to obtain a government-funded abortion when she found out her anencephalic fetus would never attain consciousness and had a fatal abnormality. Id. at 1310-11.

The Federal Circuit had to decide whether her claim was encompassed within Tucker Act jurisdiction or APA jurisdiction.

Although her claim, if successful, would entail a payment of money by the United States, the Federal Circuit held that her claim was not a simple request for monetary damages that would fall under Tucker Act jurisdiction: The fact that the injunctive relief Doe sought would ultimately involve a transfer of money, i.e., a payment by the government to the medical service provider that would perform her abortion, did not bring her complaint under the Little Tucker Act; it is not enough that the injunctive relief sought by a plaintiff, if granted, would cause the defendant to expend money.

Id. at 1313-14 (citing Bowen, 487 U.S. at 893, 900-01, 108 S.Ct. 2722; NCMS, 114 F.3d at 202; Katz, 16 F.3d at 1208-09; Alaska Airlines, Inc. v. Johnson, 8 F.3d 791, 796-97 (Fed.Cir.1993)). Although the merits of plaintiff-Doe’s claim concerned an alleged unconstitutional violation of due process, the jurisdictional question turned on the nature of the relief she sought. Id. at 1310, 1313.

The Federal Circuit analyzed her claims and found that the relief requested was “only an injunction requiring [the United States] to authorize payment for the abortion and related services, and a declaration that the statutory and regulatory prohibition on paying for aborting anencephalic pregnancies was unlawful.” Id. at 1313. The Circuit ruled out the possibility that Doe’s request for equitable relief was simply a claim for money damages in disguise, as was the case in Brazos, Con Ed II and Christopher Village. Id.

First, the court noted that the injunction would force the government to provide a service, rather than a payment to the plaintiff. Second, the harms plaintiff sought to avoid were the psychological and physical effects of carrying an anencephalic fetus to term, harms that could not be remedied by a simple payment of money damages after the fact.

Third, the court noted that prospective monetary relief would not have been available to redress the plaintiffs alleged inability to pay for an abortion, in that the government’s health care system “provides no mechanism for prospective financing of anticipated medical procedures, and hence there would be no money-mandating statute or regulation on which to base such a judgment.” Id. (citing 32 C.F.R. § 199.7(f)(4)). Because the suit demanded equitable relief and could not be read to present a claim for money damages, the Circuit found that Tucker Act jurisdiction did not lie.

Finally, the Federal Circuit distinguished a similar appeal it had decided on the same day, Britell v. United States, 372 F.3d 1370 (Fed.Cir.2004), another challenge to the ban on government-funded abortions by the spouse of a member of the armed services. Doe, 372 F.3d at 1316-17. As the Federal Circuit explained, Britell is similar to this case in that it involved a military dependent who sought to have the military dependents’ medical care system pay for an abortion to terminate her anencephalic pregnancy.

Despite the similarity in the facts, however, Britell differs procedurally from this case in an important respect. In Britell, the plaintiff obtained an abortion on her own and paid for it herself before filing suit against the government. Accordingly, her lawsuit simply sought reimbursement of the costs of the abortion and the related medical services. Her action was therefore clearly and solely for money damages and thus fell squarely within the Little Tucker Act. In this case, by contrast, Doe from the outset sought injunctive relief, not money damages.

She claimed, and the district court ruled, that the after-the-fact payment of money damages would not have been an adequate remedy in her case. She was not requesting reimbursement, but was requesting the provision of a service that she was unable to obtain on her own. While the government’s payment of money to the [health-care] provider was required to ensure that Doe would receive that service, her request was nonetheless for equitable relief, not damages. After the government provided Doe’s abortion pursuant to the injunction, Doe had no further claim against the government for money damages.

In the aftermath of the abortion, the government moved to dismiss the complaint, presumably to set the stage for an action to recover the expenses of the abortion from Doe, and Doe moved for judgment on the pleadings, presumably to obtain a judgment that she could invoke to resist such an action. Unlike Britell, however, this case never became an action against the government for money damages, and it thus never became an action under the Little Tucker Act. Id. at 1316-17 (citation omitted).

Because the nature of the relief requested in Doe was not initially, and did not become, a request for money damages so as to deny APA jurisdiction under

section 702, the district court had jurisdiction over the suit under the APA. c. The Decisive Factor for Determining Whether This Court Has Jurisdiction under Bowen The jurisdictional holding in Bowen is complex. Indeed, the subsequent decisions of the Federal Circuit interpreting the jurisdictional holding of Bowen, a few of which are described supra, offer a kaleidoscopic view of Bowen as it applies to various jurisdictional controversies.

However, it is possible to discern one primary factor that in this case is determinative of whether this court, or a district court, has jurisdiction over the claims in Count I. The pivotal question is whether this court can provide the District with an adequate remedy in its quest for reimbursement for the mental health care of certain individuals described by the Transfer Act. This court’s remedy qualifies as adequate pursuant to

section 704 if it can provide all of the plaintiffs requested relief. Kanemoto, 41 F.3d at 646. If the claims asserted are purely for retrospective relief based on a money-mandating statute, an adequate remedy exists in the Court of Federal Claims.

See id. at 646-47; see also Doe, 372 F.3d at 1316-17 (distinguishing Tucker Act jurisdiction over “reimbursement” claims from APA jurisdiction over requests for injunctive relief, where an “after-the-fact payment of money damages would not [provide] an adequate remedy”); Brighton Village, 52 F.3d at 1060 (finding no jurisdiction under the APA, in part, because the Brighton Village plaintiffs were seeking “retroactive monetary relief,” not “prospective relief’).

If, however, a plaintiff seeks retrospective relief but the controversy will also implicate future financial and legal relationships between the parties, the court must determine whether a “naked money judgment” will provide an adequate remedy. See Bowen, 487 U.S. at 905, 108 S.Ct. 2722 (“We are not willing to assume, categorically, that a naked money judgment against the United States will always be an adequate substitute for prospective relief .... ”). In this ease a money judgment would be an adequate remedy for the claims in Count I.

The financial relationship linking the District and HHS implicated by the claims in Count I most resembles the relationship of the parties in Con Ed II. Embodied in their duplicative suits, the nuclear power utilities had retrospective and prospective claims concerning a tax they were required to pay regularly to the United States. See Con Ed II, 247 F.3d at 1385 (“Con Ed’s case for retrospective monetary relief before the Court of Federal Claims overlaps with its claims for prospective monetary relief before the district court.”).

The utilities desired a refund of past payments and an injunction against future payments of the tax. The arguments concerned whether the tax was constitutional. Here, the United States resists paying for the mental health services that the District alleges are promised reimbursement by the Transfer Act. The dispute has both retrospective aspects, i.e., for the past years of mental health services provided and described in the complaint, as well as prospective aspects, i.e., for future mental health services not described in the complaint. The dispute is over the

interpretation of the Transfer Act. This type of ongoing payment dispute has an adequate remedy in the Court of Federal Claims, because when the retrospective claims are resolved, the question of law will have been answered and the court’s decision will govern the future financial relationship of the parties through the principle of res judicata. See id. at 1385 (stating that “[r]elief from [plaintiffs’] retrospective obligations will also reheve [plaintiffs] from the same obligations prospectively” because of res judicata).

Because an adequate remedy for the District exists in the Court of Federal Claims, there is no jurisdiction over this dispute pursuant to the APA, and this court is the appropriate forum to decide the claims in Count I. Nothing in Bowen commands a different result. Although the Bowen Court held in that case that the State’s claims did not run afoul of

section 704 “because the doubtful and limited relief available in the Claims Court is not an adequate substitute for r

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