855 F.2d 1544 | Fed. Cir. | 1988
Lead Opinion
In this military separation/discharge case, the United States District Court for the Southern District of Mississippi, in an order dated February 19, 1987, granted the Secretary of the Air Force’s (Government) motion to dismiss and/or for summary judgment and dismissed with prejudice Capt. James H. Smith’s (Captain Smith) complaint seeking both reinstatement and
I. Issues
In reviewing the order of the district court, dismissing with prejudice Captain Smith’s complaint, we address the following two issues.
1. Whether this court has exclusive jurisdiction to make final decision for appellate review purposes whether a district court’s jurisdiction was based on a nontax Tucker Act claim.
2. Whether, under the Tucker Act, the district court loses jurisdiction over a non-tax Little Tucker Act claim if the claim, when first filed, did not exceed $10,000, but over the course of the litigation accrued to exceed this amount.
II. Background
Captain Smith, on January 31, 1984, involuntarily received an honorable discharge from the United States Air Force on grounds that he twice had been nonselected for promotion and retention on active duty.
On April 7, 1981, Captain Smith applied to the Air Force Board for Correction of Military Records (AFBCMR) for correction of his military records and for supplemental consideration for promotion based upon the erroneous personal records. On February 23, 1982, the AFBCMR directed the correction of Captain Smith’s military records. The case then was referred to a special review board. On April 29, 1982, the special review board met and issued a recommendation stating that despite the corrections to Captain Smith’s record, Captain Smith would not have been recommended for promotion. Upon consideration of the recommendation of the Special Review Board, the AFBCMR concluded that Captain Smith’s nonselection was not caused by the deficiencies in his military record. On October 4, 1982, the AFBCMR issued its decision regarding the correction of Captain Smith’s record and additional consideration of his promotion.
In an attempt to prevent his discharge, Captain Smith, on October 25, 1983, filed an action in the United States District Court for the Southern District of Mississippi. On January 24, 1984, Captain Smith’s motion for preliminary relief precluding his separation was denied. The district court directed Captain Smith to exhaust his administrative remedies. Accordingly, on January 31, 1984, Captain Smith filed a second application with the AFBCMR contending that his separation was erroneous because he was given a special review board rather than a special selection board. The AFBCMR determined that the relief requested by Captain Smith was not warranted because Captain Smith’s record would not have met the criteria for promotion regardless of the type of board which considered it. Thereafter, however, the AFBCMR granted partial relief to Captain Smith by recommending that his records show separation on May 15, 1984, rather than January 31, 1984. Captain Smith was notified of these actions of the AFBCMR on April 17, 1985.
As well as pursuing his administrative remedies, Captain Smith sought relief in the district court seeking both reinstatement and back pay. Captain Smith’s claim for back pay began to accrue on his separation from the Air Force. At the time Captain Smith filed in the district court his claim for back pay, the accrued amount of his back pay did not exceed $10,000. Once the accrued amount exceeded $10,000, the
On February 19, 1987, the district court reached the merits of Captain Smith’s case and granted the Government’s motion to dismiss and/or for summary judgment. Captain Smith’s complaint was dismissed with prejudice. The district court held that Captain Smith’s claims were not subject to judicial review by that court and, even if they were, that Captain Smith’s discharge was lawful. Subsequently, Captain Smith appealed that judgment to the United States Court of Appeals for the Fifth Circuit. The Fifth Circuit, without explanation, transferred the case to this court.
III. Analysis
A. Inherent Jurisdiction To Determine Jurisdiction
At the threshold of reaching the issue whether the district court properly exercised jurisdiction over Captain Smith’s complaint, we address the Government’s contention that this court has exclusive jurisdiction to determine for appellate review purposes whether a district court had jurisdiction over a nontax Little Tucker Act claim. The Government contends that the principles underlying the Federal Courts Improvement Act of 1982,
Congress, pursuant to 28 U.S.C. § 1295, did not remove the power from all other circuits to decide for themselves whether jurisdiction of the district courts in given cases was based on the Little Tucker Act. The Government’s position, if adopted by this court, would usurp the well-established jurisdictional power of the regional circuit courts to determine for themselves, within the bounds of the law-of-the-case doctrine,
Implicit in the Government’s position that this court has exclusive appellate jurisdiction to determine whether a district court’s jurisdiction is based on the Little Tucker Act is the creation of a two-tiered system for appellate review of the issue whether a district court’s jurisdiction is based on the Little Tucker Act. Under the Government’s putative system, the regional circuits’ inherent jurisdictional authority to determine for themselves whether they have jurisdiction over the merits of any appeal before them is restricted by section 1295 to making a mere threshold determination whether the Little Tucker Act was fairly at issue in the district court. According to the Government, if a regional circuit determines that the Little Tucker Act was fairly at issue in the district court, the regional circuit is required to transfer the case to this court so that we can finally decide whether the district court’s jurisdiction was based on the Little Tucker Act.
Pursuant to the Government’s construction of section 1295, only this court has the authority to decide whether the district courts actually had jurisdiction under the Little Tucker Act. Because the regional circuits, under that interpretation, would be
Moreover, the Government’s position runs afoul to the recent decision of the United States Supreme Court in Christian-son v. Colt Industries Operating Corp.
The Eighth Circuit, in Shaw v. Gwatney,
The Federal Circuit, relying on additional portions of the legislative history regarding the need to limit forum shopping and achieve decisional uniformity in specified areas of the law, once stated that section 1295 vests it with the exclusive power to determine all issues of appellate subject matter jurisdiction arising thereunder. C.R. Bard, Inc. v. Schwartz, 716 F.2d 874, 877-78 (Fed.Cir.1983). Uniformity achieved in that manner, however, would require that a regional circuit refer to the Federal Circuit all issues of section 1295 jurisdiction even when addressing an appeal on its face within regional jurisdiction or when raising jurisdiction on its own motion. We decline to lightly read into the language of section 1295 a requirement which would thus subordinate a regional circuit to the Federal Circuit with regard to such traditional and inherent functions as determining its own jurisdiction and supervising the exercise of jurisdiction by the district courts below it. [Emphasis supplied.]
We believe that only congressional action expressly excising a fundamental power from the regional circuits, i.e., the inherent power of the circuit courts to determine for themselves whether they have jurisdiction over the appeal before them, and mandating such an alteration to our federal court
As grounds for supporting its interpretation of section 1295, the Government relies on both Supreme Court and Federal Circuit precedent. However, contrary . to the Government’s assertions, these cases neither control nor support its statutory interpretation in this case.
First, relying on C.R. Bard, Inc. v. Schwartz,
The Government relies on, as binding precedent, a statement made in C.R. Bard that “Congress intended this court to have the exclusive authority under § 1295 to decide the issue, necessarily an integral part of a case, whether a district court has jurisdiction to entertain a case under § 1338.”
The Government’s interpretation of C.R. Bard conflicts with, and is contrary to, the Supreme Court’s decision in Christianson. As previously discussed, the Supreme Court’s decision makes no exception for this court in its analysis of the law-of-the-ease doctrine as applied to transfer decisions. This court, like every other circuit court, must apply law-of-the-case principles
Moreover, it is well established that a general expression in an opinion, which expression is not essential to the disposition of the case, does not control a judgment in a subsequent proceeding.
This court, in C.R. Bard, recognized that we have the inherent jurisdiction to determine our jurisdiction. On that basis, this court held expressly that “we hold that we have jurisdiction to decide whether the district court had jurisdiction under § 1338.”
Second, the Government cites the recent decision of the United States Supreme Court in United States v. Hohri
The Supreme Court, in Hohri, was faced with the issue of which circuit court, either the appropriate regional circuit or the Federal Circuit, has jurisdiction over the merits of an appeal from a district court’s decision of a case raising both a nontax claim under the Little Tucker Act and a claim under the Federal Tort Claims Act (FTCA). There was no dispute in Hohri that the jurisdiction of the district court was based in part on the Little Tucker Act. On the basis of a detailed analysis of section 1295, the Supreme Court held that this court, rather than the appropriate regional circuit, has exclusive jurisdiction, pursuant to section 1295, over the merits of such a “mixed” appeal.
The Supreme Court’s holding in Hohri is specific to the issue before that Court whether the Federal Circuit has exclusive jurisdiction over the merits of an appeal from a district court case raising both non-tax Little Tucker Act claims and FTCA claims. In contrast, the issue in this case is whether we have the exclusive jurisdictional authority to determine whether the district court’s jurisdiction was based upon the Little Tucker Act. Not only is the issue before this court, i.e., exclusive jurisdiction to determine whether a district court possessed section 1295 subject matter jurisdiction, wholly unrelated to the issue addressed by the Supreme Court in Hohri, i.e., exclusive jurisdiction over the merits of an appeal from a district court proceeding based on the Little Tucker Act, but the two issues involve unrelated policy considerations. We can see no justification for the Government to rely on Hohri as supporting its conclusion.
Third, the Government cites the following precedents of this court as supporting its statutory interpretation and jurisdictional position in this case: Reynolds v. Army and Air Force Exchange Service,
In Reynolds, in exercising this court’s inherent jurisdiction to determine whether we had jurisdiction over Reynolds' appeal, we were unable to make a jurisdictional determination because it was not clear that Reynolds was afforded an opportunity to establish jurisdictional facts prior to the district court dismissing her case. Accordingly, we vacated the district court’s judgment and remanded the case to that court for further proceedings.
Finally, in reaching its jurisdictional conclusion, the Government recognizes, but fails either to explain or to distinguish, the Eighth Circuit’s decision in Shaw v. Gwatney
As explained earlier, the Eighth Circuit, in Shaw, rejected the statement in C.R. Bard, relied upon by the Government in this case, that section 1295 provides this court with the exclusive jurisdiction to determine whether a district court’s jurisdiction is based in whole or in part on subject matter arising under section 1295.
Well established among the jurisdictional powers of all appellate courts is the inherent power of the courts to determine for themselves, within the bounds of the law-of-the-case doctrine, whether they have subject matter jurisdiction over an appeal before them. The Government, under the guise of section 1295, attempts to usurp this power of our sister circuits by elevating this court to a position of supervising and mandating the regional circuits’ exercise of their own jurisdiction. We believe that only congressional action expressly providing for such a deviation could provide the basis for what the Government attempts in this case. Contrary to the position taken by the Government, nothing in section 1295 provides the basis for such a change.
B. Jurisdiction of the District Court
The Government, on two different occasions, argued to the district court that it lacked jurisdiction under the Little Tucker Act over Captain Smith’s case. The Government contended that although Captain Smith’s back pay, at the time he filed his claim, did not exceed $10,000, Captain Smith’s back pay had subsequently accrued to an amount exceeding $10,000. Because Captain Smith had not waived his right to the amount exceeding $10,000, the Government argued that the district court lost jurisdiction when the back pay accrued to more than $10,000. The district court rejected these assertions and continued with the ease, ultimately reaching the merits and granting the Government’s motion to dismiss and/or for summary judgment. Because we hold that the district court lacked Little Tucker Act jurisdiction over Captain Smith’s case, we vacate the district court’s order and remand this case to that court with instructions to transfer the case to the Claims Court.
Our analysis of this issue begins with the Little Tucker Act itself, which act operates both as a grant of jurisdiction as well as a waiver of sovereign immunity:
§ 1346. United States as defendant
(a) The district courts shall have original jurisdiction, concurrent with the United States Claims Court, of:
(2) Any other civil action or claim against the United States, not exceeding $10,000 in amount, 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 cases not sounding in tort * * *.
It is clear from the language of the Little Tucker Act that the district courts are without jurisdiction over a nontax claim against the United States on which claim plaintiff’s request for recovery exceeds $10,000.
The Tucker Act operates as a waiver of sovereignty by the United States and we are obliged to construe such waiv
Here, Captain Smith filed a claim with the district court for back pay. Although at the time he filed his complaint the accrued amount of his claim did not exceed $10,000, Captain Smith’s claim for back pay did accrue to greater than $10,000 during the district court’s consideration of his claim. Because Captain Smith did not waive his right to recover the amount exceeding $10,000, the district court lost jurisdiction over his claim when it exceeded this amount.
Typically, when a back pay claim exceeds $10,000, district courts transfer it, along with any associated equitable claim, to the Claims Court.
IV. CONCLUSION
In view of the foregoing, we hold that the district court lacked jurisdiction over Captain Smith’s case. Accordingly, we vacate the district court’s order and remand this case to that court with instructions to transfer the case in its entirety to the United States Claims Court.
V. COSTS
Costs on appeal are awarded to appellant Captain Smith.
VACATED AND REMANDED.
. Circumstances leading to Captain Smith’s discharge, not critical to our disposition of his appeal, are set forth in the district court's opinion upon which this appeal is based. Smith v. Secretary of the Air Force, No. S83-0825(R) (S.D.Miss. filed Feb. 19, 1987).
. 28 U.S.C. § 1346(a)(2) (1982).
. Id. § 1295(a)(2).
. See Christianson v. Colt Indus. Operating Corp., — U.S. -, -, 108 S.Ct. 2166, 2176, 100 L.Ed.2d 811 (1988).
.See Stoll v. Gottlieb, 305 U.S. 165, 171-72, 59 S.Ct. 134, 137-38, 83 L.Ed. 104 (1938); In re Labor Board, 304 U.S. 486, 494, 58 S.Ct. 1001, 1005, 82 L.Ed. 1482 (1938).
. S.Rep. No. 275, 97th Cong., 2d Sess. 2-3, reprinted in 1982 U.S. Code Cong. & Admin. News 11, 12-13.
. Christianson, — U.S. -, 108 S.Ct. 2166, 100 L.Ed.2d 811.
. Id. at - & n. 5, 108 S.Ct. at 2177 & n. 5. Law-of-the-case principles must be applied notwithstanding that the transferor court did not explicate its rationale for the transfer. Id. at -, 108 S.Ct. at 2177.
. Id. at -, 108 S.Ct. at 2177 (quoting Arizona v. California, 460 U.S. 605, 618 n. 8, 103 S.Ct. 1382, 1391 n. 8, 75 L.Ed.2d 318 (1983)).
. Shaw v. Gwatney, 795 F.2d 1351 (8th Cir.1986).
. Chabal v. Reagan, 822 F.2d 349 (3d Cir.1987).
. Shaw, 795 F.2d at 1353 n. 2.
. Currently, in the House Committee on the Judiciary is a proposed bill that would vest with this court "exclusive jurisdiction of an appeal from an interlocutory order of a district court of the United States, * * * granting or denying, in whole or in part, a motion to transfer an action to the United States Claims Court.” House Comm, on the Judiciary, 100th Cong., 2d Sess., A Bill to Amend Title 28, United States Code, to Make Certain Improvements with Respect to the Federal Judiciary, and for Other Purposes 48 (Comm. Print 1988).
. We are aware of no regional circuit court that shares the view of the Government that this court has exclusive appellate jurisdiction to determine whether a district court’s jurisdiction was based on the Little Tucker Act. Rather, a regional circuit, when faced with the issue whether it has jurisdiction over the merits of the appeal before it, first will determine for itself whether the district court's jurisdiction was based on the Little Tucker Act, and then will act appropriately based on that determination. See, e.g., Massachusetts v. Departmental Grant Appeals Bd. of the Dep’t of Health and Human Servs., 815 F.2d 778 (1st Cir.1987); Chabal, 822 F.2d 349; Amoco Prod. Co. v. Hodel, 815 F.2d 352 (5th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 2898, 101 L.Ed.2d 932 (1988); Matthews v. United States, 810 F.2d 109 (6th Cir.1987); Wronke v. Marsh, 767 F.2d 354 (7th Cir.1985); Shaw, 795 F.2d 1351; Kotarski v. Cooper, 799 F.2d 1342 (9th Cir.1986), vacated on other grounds, — U.S. -, 108 S.Ct. 2861, 101 L.Ed.2d 897 (1988); Sharp v. Weinberger, 798 F.2d 1521 (D.C.Cir.1986).
. C.R. Bard, Inc. v. Schwartz, 716 F.2d 874 (Fed.Cir.1983).
. Id. at 878.
. See Christianson, — U.S. at - n. 5, 108 S.Ct. at 2177 n. 5.
. See, e.g., Osaka Shosen Kaisha Line v. United States, 300 U.S. 98, 103, 57 S.Ct. 356, 358, 81 L.Ed. 532 (1937); Humphrey's Executor v. United States, 295 U.S. 602, 627, 55 S.Ct. 869, 873, 79 L.Ed. 1611 (1935); Harriman v. Northern Sec. Co., 197 U.S. 244, 291, 25 S.Ct. 493, 502, 49 L.Ed. 739 (1905).
. Kastigar v. United States, 406 U.S. 441, 454-55, 92 S.Ct. 1653, 1661-62, 32 L.Ed.2d 212 reh'g denied, 408 U.S. 931, 92 S.Ct. 2478, 33 L.Ed.2d 345 (1972).
. C.R. Bard, 716 F.2d at 878.
. United States v. Hohri, - U.S. -, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987).
. Id. at 2253.
. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746 (Fed.Cir.1988).
. Harris v. United States, 841 F.2d 1097 (Fed.Cir.1988).
. Galloway Farms, Inc. v. United States, 834 F.2d 998 (Fed.Cir.1987).
. Bragg v. Keohane, 820 F.2d 402 (Fed.Cir.1987).
. Bray v. United States, 785 F.2d 989 (Fed.Cir.1986).
. Reynolds, 846 F.2d at 748.
. Harris, 841 F.2d at 1099.
. Galloway Farms, 834 F.2d at 1000.
. Bragg, 820 F.2d at 403-04.
. Bray, 785 F.2d at 990-93.
. Shaw, 795 F.2d 1351.
. Chabal, 822 F.2d 349.
. We express no opinion as to whether our sister circuits correctly determined in these cases whether the jurisdiction of the district courts was based on the Little Tucker Act or whether they properly transferred the case or otherwise disposed of it following such a determination. Our reliance on these cases is limited to their recognition and application of the well-established principle that the regional circuits have the inherent authority to determine for themselves whether they have jurisdiction over the appeal before them.
. Shaw, 795 F.2d at 1353 n. 2.
.In this post-Hohri case, the Third Circuit, expressly agreeing with and quoting from the Eighth Circuit's reasoning in Shaw, rejected the Government's jurisdictional argument that was premised on the interpretation of section 1295 asserted by the Government in this case that the Federal Circuit has exclusive appellate jurisdiction to determine whether a district court's jurisdiction is based on the Little Tucker Act. Cha-bal, 822 F.2d at 355.
. Id. at 354 n. 5.
. 28 U.S.C. § 1346.
. See Chula Vista City School Dist. v. Bennett, 824 F.2d 1573, 1578-79 (Fed.Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 774, 98 L.Ed.2d 861 (1988).
. 28 U.S.C. § 1491.
. See, e.g., Library of Congress v. Shaw, 478 U.S. 310, 106 S.Ct. 2957, 2963, 92 L.Ed.2d 250 (1986).
. Chabal, 822 F.2d at 356-57.
. Shaw, 795 F.2d at 1355.
. Goble v. Marsh, 684 F.2d 12, 15-16 (D.C.Cir.1982).
. See, e.g., Goble, 684 F.2d at 15; Stone v. United States, 683 F.2d 449, 451 (D.C.Cir.1982); Sutcliffe Storage & Warehouse Co. v. United States, 162 F.2d 849, 852-53 (1st Cir.1947); United States v. Johnson, 153 F.2d 846, 848 (9th Cir.1946).
. See Zumerling v. Devine, 769 F.2d 745, 748-49 (Fed.Cir.1985); Stone, 683 F.2d at 451.
. See, e.g., Keller v. Merit Sys. Protection Bd., 679 F.2d 220, 222-23 (11th Cir.1982) (explaining proposition and citing many supporting cases).
. See Gower v. Lehman, 799 F.2d 925, 928-29 (4th Cir.1986).
. 28 U.S.C. § 1491(a)(2).
Concurrence Opinion
concurring in result.
I agree that this case should be transferred to the Claims Court. Because the majority, however, has fundamentally misconstrued binding precedent, I concur only in the result reached by the majority.
In Bard, a patent licensee appealed a district court decision dismissing the licensee’s declaratory judgment action. 716 F.2d at 875-76, 219 USPQ at 199. On appeal, this court considered whether it had authority to decide if the district court’s jurisdiction rested on the patent laws. Id. at 877, 219 USPQ at 200. The court concluded that it had such authority for two reasons. First, it stated that it had inherent power to determine its own jurisdiction. Id. Because the Federal Circuit had jurisdiction only if the district court’s jurisdiction rested on the patent laws, the court could inquire into the basis of the district court’s jurisdiction. Second, the court held that our jurisdictional statute, 28 U.S.C. § 1295 (1982), gave us exclusive authority to determine if the district court actually had jurisdiction under the patent laws. Id. at 877-78, 219 USPQ at 200-01. It cannot be seriously argued that this construction of section 1295 was an unnecessary part of the decision.
In interpreting section 1295, the court in Bard relied on legislative history revealing that Congress intended the courts to construe section 1295 in a manner consistent with promoting national uniformity in patent, Little Tucker Act, and other areas entrusted to the Federal Circuit. Bard, 716 F.2d at 877-78, 219 USPQ at 200. Referring to this legislative history, the court stated that “Congress intended this court to have the exclusive authority under § 1295 to decide the issue, necessarily an integral part of a case, whether a district court has jurisdiction [under the patent laws].” Id. at 878, 219 USPQ at 201.
This decision is binding precedent that we can reject only if sitting in banc. South Corp. v. United States, 690 F.2d 1368, 1370 n. 2 (Fed.Cir.1982). The reasoning in Bard, moreover, governs this case. It is clear that Congress wanted national uniformity in the adjudication of Little Tucker Act claims. The jurisdictional aspects of Little Tucker Act claims, however, are inextricably linked to the merits of the claims. For example, the jurisdictional question presented here — whether Smith stated a valid Little Tucker Act claim when the amount of damages grew during the course of litigation to exceed $10,000 — is an essential aspect on the merits of his claim. In view of the congressional intent to promote uniformity in Little Tucker Act caselaw, it is inconceivable that Congress could have intended the twelve regional circuits, along with this court, to determine such questions independently. Such a situation would offer the potential for the development of thirteen different interpretations of the matter. For these reasons, I would hold that we have exclusive appellate authority to determine whether a district court’s jurisdiction is based on the Little Tucker Act.
The Supreme Court’s decision in United States v. Hohri, — U.S. -, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987) supports this conclusion. There the Court held that section 1295 granted us exclusive jurisdiction over a mixed appeal consisting of an issue within our jurisdiction and an issue outside of our jurisdiction. Id. at 2253. In arriving at this decision, the Court explicitly stated that section 1295 should be read broadly because of the congressional intent to promote national uniformity in the areas of the law entrusted to the Federal Circuit’s jurisdiction. Id. at 2251-52. This holding is ample support for the broad reading of section 1295 that I propose.
A court has the power to revisit prior decisions of its own or of a coordinate court in any circumstance, although as a rule courts should be loathe to do so in the absence of extraordinary circumstances such as where the initial decision was “clearly erroneous and would work a manifest injustice.”
At -, 108 S.Ct. at 2178 (quoting Arizona v. California, 460 U.S. 605, 618 n. 8, 103 S.Ct. 1382, 1391 n. 8, 75 L.Ed.2d 318 (1983)).
The Supreme Court recognized that the doctrine of the law of the case must bow when the prior decision was clearly erroneous. To my mind, any prior jurisdictional decision in a transferred case inconsistent with the statutory construction I propose would fall into the “clearly erroneous” category, and consequently, would not be binding on the court. As a practical matter, furthermore, this court will not face a law of the case jurisdictional question denying our jurisdiction because the issue will arise only when another circuit has recognized our jurisdiction and transferred the case to us. For these reasons, I do not see how Colt hinders us from holding that we have exclusive appellate threshold jurisdiction in Little Tucker Act appeals.
Although I recognize that the Eighth Circuit’s decision in Shaw v. Gwatney, 795 F.2d 1351 (8th Cir.1986) and the Third Circuit’s decision in Chabal v. Reagan, 822 F.2d 349 (3d Cir.1987) are to the contrary, I must respectfully disagree. Both Shaw, 795 F.2d at 1356, and Chabal, 822 F.2d at 357, involved back pay claims against the government that accrued to exceed $10,000. In Shaw, the Eighth Circuit determined that it could decide whether a district court’s jurisdiction rested on the Little Tucker Act because it had inherent power to determine its own jurisdiction and to supervise the exercise of jurisdiction by the district courts below it. Shaw, 795 F.2d at 1353 n. 2. The Third Circuit in Chabal made the same decision by invoking the “overarching principle that requires us continually to inquire into our own jurisdiction because as courts of limited jurisdiction we cannot act without assuring ourselves of the statutory predicate for such action.” Chabal, 822 F.2d at 355.
The equitable powers on which the Eighth and Third Circuits based their decisions, nonetheless, must yield to statutory directive. For the reasons already given, I would hold that section 1295 directs only the Federal Circuit to decide whether a district court’s jurisdiction rests on the Little Tucker Act.
My position does not go so far as to deny that the regional circuits may determine whether the Little Tucker Act is fairly at issue. Cf. Hill v. Department of the Air Force, 796 F.2d 1469, 1470-71 (Fed.Cir.1986) (holding that although Federal Circuit has no jurisdiction to reach merits of discrimination claim, the court must determine threshold question of whether non-frivolous discrimination claim is at issue in appeal). Under my analysis, if a regional circuit concluded the Little Tucker Act was not at issue, it would decide the case. If it ruled the Act was at issue, it would transfer the case to us.
Because the majority miscontrues binding precedent that should lead it to conclude that only the Federal Circuit has the power to determine whether the district court’s jurisdiction rested on the Little Tucker Act, I concur only in the result.