36.

Effect of Declaratory Judgment Act and Administrative Procedure Act

The Congress has enacted a partial waiver of the sovereign immunity defense as to judicial review under the Administrative Procedure Act, 5 U.S.C. § 701, et seq. By Pub.L. No. 94-574, Act of October 21, 1976, 90 Stat. 2721, 5 U.S.C. § 702 was amended to provide that 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 against the United States or that the United States is an indispensable party.") In addition, 5 U.S.C. § 703 has been amended to allow suit to be brought against the United States or any of its agencies or officers. The sovereign immunity defense has been withdrawn only with respect to actions seeking specific relief other than money damages, such as an injunction, a declaratory judgment, or a writ of mandamus. Bowen v. Massachusetts, 487 U.S. 879 (1988). Specific statutory provisions for the recovery of money damages, such as the Little Tucker Act and the Federal Tort Claims Act, are unaffected. See H.Rep. 94-1656, p. 13, 1976 U.S.Code Cong. & Ad.News 6133. Another barrier to judicial review of administrative action was removed by section 2 of Pub.L. No. 94-574, which amended 28 U.S.C. § 1331(a) so as to eliminate the $10,000 amount-in-controversy requirement in actions against the United States, any agency thereof, or any officer or employee thereof in his official capacity. This provision persuaded the Supreme Court to conclude that, subject to preclusion-of-review statutes, jurisdiction to review agency action is conferred by 28 U.S.C. § 1331, and that the Administrative Procedure Act is not an independent grant of jurisdiction. See Califano v. Sanders, 430 U.S. 99, 105-07 (1977). Similarly, the Declaratory Judgment Act, 28 U.S.C. § 2201, is not an independent source of federal jurisdiction. The purpose of that Act is merely to provide an additional remedy, once jurisdiction is found to exist on another ground. See Benson v. State Bd. of Parole and Probation, 384 F.2d 238, 239 (9th Cir. 1967), cert. denied, 391 U.S. 954 (1968); Schilling v. Rogers, 363 U.S. 666, 677 (1960). Therefore, where jurisdiction to review a particular agency action under 28 U.S.C. § 1331 has been precluded by another statute, the Declaratory Judgment Act does not provide an independent basis for granting relief. [cited in USAM 4-2.140]