*1 action, only but after the has been site IV. CONCLUSION on the NPL. Section 9620 con- included The district court lacked to any language authorizing tains no remedial hear OSI’s RCRA citizen suit claim while if the not activity site is listed on NPL. facility federal remedial action was undisputed It OU-1 site has not ongoing. Because the remaining aspects placed only been on NPL. The lan- appeal merit, of OSI’s are without guage remedial authorizing actions such district grant summary court’s judg- language § sites is found in ment is enough which is broad to be read as an AFFIRMED. actions, authorization for all remedial re- gardless upon the land which the action Therefore, place.

takes we hold the Air OU-1,

Force’s remedial action for a feder- facility NPL,

al on the listed “se- § subject

lected under” and is to 9613(h).

jurisdictional § bar of The dis-

trict court hear lacked to OSI’s SERVICE, JAN’S HELICOPTER RCRA citizen suit while remediation is INC., Plaintiff-Appellant, ongoing. See Alabama v. 871 F.2d EPA at 1560. v. 9613(h) § Our view of facili- federal FEDERAL AVIATION comports ties not listed on the NPL with ADMINISTRATION, the view the Circuit. Pollack Seventh Defendant-Appellee. Defense, v. Dep’t U.S. Cir.2007). (7th 525-27 other Cir- Americopters, LLC, Plaintiff-Appellant, jurisdictional cuit to address the bar for federal facilities and source of authori-

ty Administration, for remedial actions the Ninth Circuit Federal Aviation Project, Ord Fort Toxics Inc. v. Defendant-Appellee. Califor- EPA, (9th Cir.1999), nia 189 F.3d 828 Nos. 2007-1411. which held challenges federal site clean- 9613(h)’s ups § not subject juris- were Appeals, United States bar. dictional As the court in Pollack Federal Circuit.

noted, however, distinguish- Fort Ord is April facility able because there the federal Pollack, listed on NPL. F.3d at facility

526.2 aWhere federal is not listed NPL,

on the only language authorizing

remedial removal actions found in 9604;

§ subject such are actions therefore 9613(h) jurisdictional § bar of be-

cause remediation is “selected under 9613(h). § 9604.” bar, 9613(h)'s question nothing 2. We do not have before us the facility whether remedial action on a federal opinion should be read to decide the NPL was listed on the would "selected issue. under” 9620 and thus not *2 LINN, DYK, PROST, Before Judges. Circuit Opinion court filed Circuit Judge Judge DYK. Circuit PROST *3 in part. dissents DYK, Judge. Circuit Appellants Helicopter Service, Jan’s Inc. (“Jan’s”) (“Ameri- and Americopters, LLC copters”), appeal from decisions of the Dis- trict Court transferring of Guam their against appellee Federal Aviation (“FAA”) Administration to the United States Court of Federal Claims under 28 (2000). Appellants are seeking money damages the Unit- $10,000 ed in alleged excess of for regulatory takings. Therefore Act, 1491(a)(1), 28 U.S.C. court that could have jurisdiction over their claims is the Court of Federal Claims. We affirm the order of the District transferring Court of Guam appellants’ claims to that court.

BACKGROUND Jan’s and Americopters both were en- gaged helicopter-related in businesses in Guam until in 2002. Jan’s was the busi- by of transporting helicopters ness air- plane Airport from Guam International rental and in lease customers Micronesia. Americopters provided sightseeing helicop- Guam, ter rides to using tourists LLP, P. David Ledger, Carlsmith Ball of a roof restaurant as a takeoff and land- Guam, of Hagatna, argued plaintiff- ing Appellants allege site. that actions appellant in Appeal Nos. 2007-1410 and the FAA in 2002 forced them to cease 2007-1411. him on With briefs operations. July alleges Jan’s Elyze J. McDonald. Zeigler, employee Lewis I. an FAA Francisco, Chadwick, sent e-mail

Kyle Counsel, message E. San an Senior Trial Branch, Airport to the Guam authori- Litigation Commercial Divi- International Civil sion, Justice, directing airport ties to halt Department United States Jan’s DC, of Washington, argued flight operations its air- transport for defendant- appellee Appeal authority operate. craft did not have Nos. 2007-1410 and 9, 2002, him August 2007-1411. With on the airport briefs was On authorities de- Davidson, transport Jeanne E. Director. nied Jan’s aircraft access to the allege complaints these allegedly appellants as a result taxiway, airport employee, A FAA unanswered. Zeigler’s second went email. Balton, subsequently informed P. Monroe Americop- February Jan’s “it that, finding,” preliminary “a Jan’s separate but similar com- ters each filed Zeigler’s conclusion appears that Mr. Guam, District al- plaints airport J.A. at 67. Guam accurate.” Jan’s FAA’s actions violated its leging on September issued a notice authorities a viola- regulations own “constituted that, Balton’s stating based on Amendment of due V process tion finding, re- airport would preliminary and there- the United States Constitution air- using transport from its strict Jan’s fore, taking prop- an illegal [appellants’] or out activity commercial air craft “for *4 op- of erty,” seeking and restoration their Airport.” of our Id. at pursuant “civil erating authority, penalties that Americopters alleges on June .16],” money §§ and to C.F.R. [14 13.15— Kanae, employee an FAA Clarence damages alleged the vio- for constitutional Honolulu, a formal written state- issued Complaint Americopters, lations. at its directing Americopters ment to cease (D.Guam FAA, filed LLC v. No. 03-00005 flight rooftop its heli- operations because 18, 2003); Complaint see Feb. also and not meet copter-pad was unsafe did Serv., FAA, Helicopter Inc. v. No. Jan’s design applicable requirements. (D.Guam 4, 2003). filed On 03-00002 Feb. Americopters responded and Both Jan’s FAA, motion the court dis- the district by seeking to the FAA’s actions various complaints the for lack of missed review, including forms of administrative The court held that com- requesting hearings filing and formal relating claims to FAA’s alleged The or plaints with the FAA. FAA denied regulations could violations of its requests. to of respond failed to each these petitions agency filed as for or- review 19, 2002, in a sent to September On letter Ap- ders with the Ninth Circuit Court of counsel, appellants’ the FAA 46110(a), § pursuant to 49 peals, that to hear- appellants were not entitled that and the constitutional claims were 13.20(b), § ings because under C.F.R. “inescapably intertwined with” review procedures that forth the regulation “sets agency orders. requesting hearings for the FAA where Americopters original pe- Jan’s and filed compliance, has issued orders of cease and for un- titions review the FAA’s orders orders, denial, desist orders of and other 46110(a) in the Ninth der Circuit orders,” and orders issued “[n]o such were also of their appealed dismissal respect operations [appel-

with Ninth Circuit. Ninth 85; Americopters lants].” J.A. Jan’s appellants Circuit criticized both and the at 79. This letter also J.A. stated procedural government for the confusion. aware that appellants [14 “should be Americop- The court Jan’s and stated § com- apply C.F.R. does not 13.5] in a ters “now find themselves sort of com- Administrator or plaints netherworld, procedural largely limbo plaints against employees acting FAA FAA,” making because of id., scope employment,” within the their agency’s legal positions inconsistent as to filed suggested complaints formal availability of the administra- review of regulation under that would therefore be actions, appellants tive also noted that but Appellants unsuccessful. nonetheless filed by taking to this mess their complaints agency formal “contributed with letter; § this receiving wrong litigating 14 C.F.R. 13.5 after own turns case.” FAA, Americopters, LLC to transfer the cases under 28 U.S.C. (9th Cir.2006). peti- Addressing appellants seeking were review, for the court held that be- tions money damages from the United were more petitions cause the filed much $10,000 excess of and therefore the Court final sixty days purported than after the jurisdic- Federal Claims had exclusive issued, they were were therefore orders Act, tion under the Tucker 28 U.S.C. untimely. (finding Id. at 733 no reason- § 1491. In separate nearly but identical grounds delay). The able for Ninth Cir- issued on day, decisions the same the dis- cuit affirmed the district court’s dismissal trict court did not address the Rule claims, of the administrative review ex- 12(b)(6) motions, because it held that Zeigler that “if the Email and plaining of both transfer proper actions was Kanae Letter final orders ... are section 1631. The court found that Ameri- [providing the petition proce- review copters and alleging Jan’s were takings preempts district court con- dure] from claims, based on the Ninth Circuit’s de- sidering they these claims. But if are not scription of the constitutional claims as final, then the Administrative Procedure “taking claims” and on the complaints’ ci- (‘APA’) bars the district from court Amendment, tation to the Fifth and that hearing jurisdiction.” the case for lack of *5 damages the sought in were excess of 704). § (citing at 735 As to Id. 5 U.S.C. $10,000. Because the district court found the district dismissal of court’s the consti- jurisdiction that it lacked over the claims however, claims, tutional the held court Act, under the Little ju- Tucker and that the doc- “inescapably intertwined” risdiction would in proper be the Court of trine, prevent at- designed to collateral Act, Federal Claims under the Tucker the agency preserve tacks on orders and to the granted district court appellee’s motions to 46110(a), jurisdictional of limitation section the transfer actions under 28 U.S.C. not apply did in this case. court The § 1631. explained pend- there “[b]ecause is no Americopters timely Jan’s and appealed FAA ing order and because there no were the transfer orders to court. We have previous agency determinations on pursuant 28 U.S.C. merits, supports no foundation notion ” 1292(d)(4)(A). § Id. ‘intertwining.’ of at 738. Ninth The Circuit therefore reversed the dismissal DISCUSSION the constitutional claims and remanded those claims to the 1631, § district court. Id. Under 28 U.S.C. when a civil action is filed in federal district remand, On Americopters Jan’s and court that lacks over the ac containing filed amended each complaints, tion, shall, court in “the if it is the interest single seeking damages claim “viola- for justice, transfer ... any such action process tions due under Amendment V other court in such which the action ... United States Constitution could been brought have at the time it was therefore, illegal taking an of [appellants’] filed.” We review a court’s district deci property.” Americopters 10-11; J.A. at sion to transfer a case Court of J.A. Jan’s at 11. The FAA filed motions to Claims without deference. James complaints dismiss the amended Caldera, (Fed.Cir. 12(b)(6) 159 F.3d 578 Federal Rule of Civil Procedure 1998). may A case be transferred under takings claims, for failure to state 1631 appellants to a court that has sub did not concede the lawful- ject government’s ness matter Souders v. conduct. The S.C. Autk, FAA also filed motions the alternative Pub. Serv. F.3d 497 1307 1304

(Fed.Cir.2007). S.Ct. propriety The of the dis (1998); Alan this case 14 Charles decision to transfer L.Ed.2d trict court’s subject H. depends on lack & Edward Wright, therefore Arthur R. Miller Court of jurisdiction in District matter Federal Practice and Procedure Cooper, (“Actions (3d 1998) the existence of Guam and § ed. on [Tucker of Federal in the Court exceeding $10,000, except suits Act] Harvest, Inc. v. Fisherman’s Claims. See admiralty, brought the Court must (Fed.Cir. J, 490 PBS & Claims.”). of Federal 2007). Plainly, the District Court Guam commonly provision statutory The appellants’ lacked over amend jurisdic- known as the Tucker confers complaints were complaints.1 ed “to of Federal Claims tion on the Court against agency an United brought judgment upon any render entirely and were based on upon the States founded either Amendment of U.S. Constitution. Fifth Constitution, Congress.” 28 any or Act of noted, appellants As the district court each 1491(a)(1). provision, Another U.S.C. $10,000 money well over dam sought Act, grants Tucker known as Little government.2 ages from the federal jurisdiction with district courts concurrent Therefore, ju the concurrent district court Claims for claims of Federal Little provided risdiction exceeding against the United States “not Orr, Smith v. Act was available. See $10,000 in amount” and “founded either (Fed.Cir.1988) (“The Constitution, any Act of upon the Con- Little Tucker amount of claim under the 1346(a)(2). gress.” The Su- Act, purposes, based this court have preme Court and *6 by a recovery sought actual acts implication that “the obvious of these ”). to claim.... pursuant that Congress the Court of is that intended of Because the District Guam Court jurisdic- have ‘exclusive Federal Claims to claims, jurisdiction appellants’ lacked over any judgment upon tion to render proper transfer under section 1631 was money dam- the United States for jurisdiction in the long as existed Court $10,000 ages exceeding ei- that is founded As we in Federal Claims. noted Gonzales Constitution, any ther Act of upon ” Agency, & & Gonzales Bonds Insurance Christopher Village, L.P. v. Congress.’ Sec., (Fed. Dep’t v. Homeland States, Inc. 1319, F.3d 1332 United 360 Enters, (Fed.Cir.2007), Cir.2004) 940 “we must be satisfied Apfel, E. v. 524 jurisdiction 520, 2131, court has 498, 141 that transferee U.S. S.Ct. L.Ed.2d 118 Enters, (1998)); E. v. to Id. at issue Apfel, 451 see also hear case.” 944. The merely applica argue court’s Appellants 1. that Ninth Circuit held it reviewed district "inescapably of the intertwined” doc District Court of had tion Guam Law the case therefore jurisdiction over constitutional trine. does their claims, apply to the of whether the Court of of law the issue and that the doctrine jurisdiction of reconsidering Federal Claims has exclusive us from that case therefore bars appellants’ claims. jurisdiction. See v. Colt court’s Christianson 800, 816, Corp., Operating 486 U.S. 108 Indus. 2166, (1988). According 100 L.Ed.2d 811 Howev S.Ct. exhibits with the FAA's to filed er, transfer, seeking Americopters the Ninth Circuit did not address whether motions to $94,890.37 by appellants seeking damages sought damages, the amount of in Jan’s $30,600 required that case be to the to cover lease an alter- transferred at least its aircraft, Claims, charges plus than heard in insurance Court of Federal rather native Act; under the Little Tucker aircraft. district court

1305 fall appellants’ requirement therefore is whether such involved situations jurisdiction where the terms of the Tucker Act’s waiv- was founded within on the “arising III, immunity, language even if under” of Article sovereign er those Const, 2, 1, § Ill, which, U.S. art. el. claims are frivolous on the merits.3 turn, in the “arising reflected under” I language of 28 1331.4 There is outset, At we jurisdiction note that no such limit on the of the Claims, suggests that a substantial federal Court of dissent which does not jurisdiction depend question “arising essential on the under” clause of III, Steel Co. v. Citizens a Article III or 1331, citing Article but rather on a Environment, 83, 89, Better separate U.S. 523 118 clause in Article III that author- (1998). See izes 1003, jurisdiction 210 S.Ct. 140 L.Ed.2d all over “controversies to 1310-11. But Steel Co. which Op. Diss. party,” United States is a U.S. Const, Ill, 2, I,5 Supreme recognizing other Court cases art. cl. and on 28 U.S.C. suggest Court”); appears The dissent within whether of the District 30, requires 31, 3, parte Poresky, nonfrivo- Ex U.S. 290 54 S.Ct. presented (1933) ("In lous claim on the is not merits 78 L.Ed. 152 the absence of diver- respectfully disagree. Appel- this case. We sity citizenship, it essential alleged regulatory claims are lants' based on question that a substantial federal should be by the‘government, and Lavine, violations our cases presented.”), quoted Hagans v. 415 premised 1372, have "made clear that a claim on a U.S. 39 L.Ed.2d 577 regulatory violation not state a (1974). does claim for Raisins, States, taking.” v. Lion Inc. United context, Supreme Even in this (Fed.Cir.2005); F.3d see also suggested has the substantial federal Energy, Rith Inc. v. not, fact, question requirement may (on (Fed.Cir.2001) petition for re- compelled. Wyman, See Rosado hearing) (stating "complaints about the 404, 90 S.Ct. L.Ed.2d 442 wrongfulness [government of the conduct] are (1970) (calling "the view that an insubstantial properly presented ... not in the context of question federal not confer does Therefore, claim”). takings [a] there is a sub- ... analytically ancient than maxim more question stantial here as frivolousness sound”); Bell, U.S. S.Ct. 773 appellants’ light disposi- *7 of claims. In of our (“The accuracy calling ju of these dismissals we tion need not decide the issue of whether questioned.”); risdictional has been see also merits, the claims are the frivolous on which County Corp. Suthoff, Indus. Dev. v. 454 Yazoo a determination best left the Court of 1157, 1032, U.S. 102 S.Ct. 71 L.Ed.2d 316 Federal Claims in the instance. first (1982) J., (Rehnquist, dissenting from denial certiorari) (noting apparent of an conflict be Hood, 678, 682-83, 4. See Bell v. 327 U.S. 66 substantiality requirement, tween the when 773, (1946) (noting S.Ct. 90 L.Ed. 939 that "a jurisdictional inquiry, cast as a and Fed. may suit sometimes be dismissed for want of 12). R.Civ.P. alleged where the claim under the clearly appears Although Supreme Constitution or Court in statutes Williams v. federal immaterial,” States, 553, 751, holding plain- to be but that the United 289 U.S. 53 S.Ct. 77 (1933), adequately finding original had that "show[n] tiff the matter L.Ed. 1372 court, controversy Court arose under Constitution of Claims was not an Article III of ”) added); United (emphases grant juris- stated that see this constitutional of County, applied only also Oneida Indian v. Oneida diction when the Nation United States York, 661, 666-67, 772, Zdanok, plaintiff, New 414 U.S. 94 was a S.Ct. in Glidden Co. v. 370 (1974) 530, 1459, (finding L.Ed.2d 39 73 that "the com- U.S. 8 82 S.Ct. L.Ed.2d 671 (1962), controversy recognized plaint arising “only asserted a Justice Harlan that Constitution, laws, sovereign th[e] or treaties of the Unit- sense” that waiver of immunity required ed States” because of a federal before a suit can be its assertion still right judi- “cannot be said be so insubstantial maintained Ill's extension “is Article of controversy competence as not federal ... to involve a cial over controversies to which ted) Testan, 424 v. United States 1491(a)(1), confers which 400, 948, 392, L.Ed.2d 114 96 S.Ct. “any claim U.S. Claims for the Court of Federal (1976)). either States founded against the United Constitution, any or Act of Con-

upon the Mitchell, that In the Court found of an executive any regulation gress had of Federal Claims Court any of are not aware department.”6 We at regulations because statutes authority controver- that Supreme Court “clearly fiduciary obli- establish[ed] issue lan- upon” the “founded falling under sies manage- in the gations the Government 1491(a)(1) require guage 28 U.S.C. operation of Indian lands and ment and Rather, the showing of nonfrivolousness. resources,” and therefore concluded requirements jurisdictional “fairly interpreted be as man- they could 1491(a)(1) differently. evolved have compensation by the Gov- dating those alleged ernment” for the breach of that,

We have 226, fiduciary obligations. 463 U.S. not create a sub- Tucker Act itself does go 2961. The did not on to S.Ct. Court action, “in come order to stantive cause a non- plaintiffs consider whether the had jurisdictional reach and within the had frivolous claim that such a breach Act, Tucker must waiver occurred; rather, it stated that because identify a source of substantive separate of stat- plaintiffs alleged had violations right money dam- law creates regulations fairly that could be utes States, v. ages.” Fisher money-mandating, interpreted being Cir.2005) (Fed. (en 1167, 1172 in rele- banc juris- has Court of Claims therefore “[t]he part). Supreme on several vant Court alleged [plaintiffs’] diction over occasions has addressed the Id. at breaches of trusts.” 103 S.Ct. Act, clearly scope of Tucker and has (footnote omitted).7 Mitchell, it. v. defined United States 2961, 77 L.Ed.2d 103 S.Ct. again In a subsequent case (1983), explained that “[t]he the Court un- addressed the standards damages money one for must be Act. In der United States Tribe, and the claim- against the United Apache White Mountain U.S. (2003), ant must that the source of demonstrate 123 S.Ct. 155 L.Ed.2d 40 fairly relies upon enough substantive law he ‘can the Court made clear “[i]t interpreted compensation mandating creating be ... that a statute a Tucker Act reasonably for the dam- the read- right Federal Government amenable to ” right recovery it ages ing sustained.’ Id. 103 S.Ct. that mandates (internal damages.” citation and footnote omit- Id. at *8 party a to the district cer- the United Slates is ineffective rent in courts for jurisdiction over which it is a money damages against confer suits to tain suits the United 563-65, defendant.” Id. at 82 S.Ct. 1459 States. (plurality opinion). inter- Glidden has been preted overruling aspect that of Williams. Nation, Navajo 7. See also United States v. 537 States, 65, & See v. United 595 F.2d 69 Ortiz 1079, L.Ed.2d 60 U.S. 123 S.Ct. 155 (1st Cir.1979); n. 6 see H. Fal- also Richard ("To claim, (2003) litigable a a tribal state lon, Jr., Shapiro, & Daniel J. Meltzer David L. plaintiff rights-creating must invoke a source Hart and The Courts and Wechsler's fairly interpret- of substantive law that 'can be (5th System The Federal ed.2003). & n. 1 280-81 compensation mandating by the Federal ed as ") damages Government for the sustained.' Mitchell, 218, U.S. at S.Ct. Nearly 463 103 language appears in 28 6. identical 1345(a)(2), 2961). provides which concur-

1307 requirement that a requiring The Court found statute from Mitchell that a Apache military post the former to be money-mandating Fort source law be “for the by damage sustained,” 217, held trust United States for 463 U.S. at Apache Mountain Tribe did create White S.Ct. that source must also be rea- sonably The held right. reading Court that to “[t]he such amenable that the ... statutory language expressly plaintiff defines is plaintiffs “within the class of fiduciary relationship,” “the that fact entitled to recover the statute if the by property occupied United elements a cause of are action estab- sup- to a expressly States is trust lished.” 487 F.3d at 876.8 an obligation a fair inference that to ports Thus, if the test described in Mitchell property preserve improvements and White Mountain satisfied and the incumbent on the United as trus- plaintiff has a made nonfrivolous assertion tee.” Id. at 123 S.Ct. 1126. Hav- that it is within plaintiffs the class of enti- ing plaintiffs alleged concluded tled money-mandat- to recover under the money-mandating source for their claim source, ing the Court of Federal Claims government, the Court deter- jurisdiction. juris- has There is no further mined that the Court of Federal Claims requirement dictional that plaintiff make jurisdiction over at had that claim. See id. the additional allegation nonfrivolous that 479, 123 1126. The S.Ct. Court made clear it is entitled to relief under the relevant perti- that the merits the claim were not Rather, money-mandating source. as the jurisdictional inquiry. nent to the id. See Fisher, panel explained in “the conse- at 476 n. S.Ct. quence of a ruling ... court that plaintiffs case not fit does within the scope Fisher, following White Moun ... simply plaintiff the source this: tain, explicitly the en banc court overruled loses on the for failing merits state a previous approach, our out in set Gollehon claim on which relief can be granted.” 402 States, Farming v. United F.3d at 1175-76. (Fed.Cir.2000). In held Gollehon court under the Tucker re Act principle This was illustrated In re quired “a nonfrivolous claim for relief.” (Fed.Cir. States, 463 F.3d 1328 Id. 1379. In Fisher we 2006). case, in that a former jurisdiction under the if Tucker Act exists bankruptcy alleged judge, that his failure statute, regulation, or constitutional reappointed be violation of Judi provision that is the basis for the com regulations, cial Conference and asserted fairly interpreted “can plaint as man 153(a) for 28 U.S.C. Tucker basis dating compensation by the Federal Gov Act Id. at 1331. We held sustained,” damage ernment 153(a) money- satisfied the Mitchell, U.S. at mandating test of Mitchell and White “reasonably amenable the read Therefore, Id. Mountain. at 1334. ing that it right recovery mandates Federal Claims had Mountain, damages,” White U.S. though even “it Fisher, S.Ct. See clear [plaintiffs] from the face of [was] County, at 1173. In Greenlee Arizona complaint that does not come within [he] *9 (Fed.Cir. 153(a).” 487 871 United F.3d the of at reach Id. 2007), Fisher, that, we explained Applying consistent with our we decision held previously We have re- Brodowy that this entitled to relief under the statute.” States, 1370, quirement plaintiff (Fed. is satisfied when makes v. F.3d United 482 1375 Cir.2007). [plaintiffs] "a non-frivolous assertion that are

1308 if of the elements under the statute Claims should of Federal the Court that If are the Rule of action established. complaint under cause the dismissed have money-mandating, not the 12(b)(6) upon a claim statute to state for failure jurisdic- than Claims lacks granted, rather Court of Federal could be relief which 12(b)(1) subject tion, lack of be for lack and the dismissal should Rule under Id.) also v. jurisdiction. see Doe matter jurisdiction. of (Fed. States, F.3d inquiry this initial com- Only after Cir.2006) of (holding that the Court Feder- pleted the Court Federal Claims and of dismissing for lack of erred in al Claims does over the case it takes had identified a plaintiffs when specific plain- the consider facts ha but d not es- statute money-mandating on determine “whether the case to tiff’s entitled to relief they that were tablished within plaintiffs] claim [the f[alls] facts statute). that under the the terms statutes.” of as well principle County,

We reaffirmed at 876 Greenlee F.3d 1172) (footnote the County. There we affirmed Fisher, at Greenlee 402 F.3d and omitted) of a Federal dismissal (emphasis Claims’s add- Court internal citations 12(b)(6). ed). Al- claim under Rule Tucker Act the statute at issue was Because argued the government that though reading the that reasonably amenable to a it for lack of have dismissed plaintiffs court should money-mandating and emphasized: we jurisdiction, plaintiffs the class entitled were within recovery if a cause of to statute brought a claim is [W]hen established, Act, action were Court Fed- of Federal the Court Claims Tucker properly the case eral Claims dismissed whether the statute first consider must upon for failure to state claim" which In money-mandating. regulation it may granted relief when determined so, Claims doing Court plaintiffs could not under that recover whether the is within asks to Id. at 880.9 plaintiffs entitled recover statute. the class here, man in a of federal habeas urges that our decision standard handful 9. The dissent squarely In presumably decisions in re United never ad [it had] and our cases ... since Greenlee, issue, inconsistent with Mo- are most assumed ha[d] dressed States, (Fed.Cir. v. United 404 F.3d applicability Chapman den of the standard on 2005). light habeas, en banc decision in In of our to the issue free address [it was] Moden, Fisher, we to read as the merits''); decline Nat’l Ins. Co. v. United Am. does, determining plaintiff's that a (Fed.Cir.2007) dissent as a whole must be nonfrivolous (stating an had that when earlier case in Consistent establish performance question volved a about a bond Fisher, holding we Moden with read payment surety, of a the court's discussion allega- plaintiff must a nonfrivolous make surety unnecessary to the deci bond “was plaintiffs the class of tion that it is within sion,” Claims and the Court of Federal cor money-mandat- under the entitled recover Am., dicta); Boeing rectly it as N. Inc. treated ing source of law. Roche, (Fed.Cir.2002) (“Under precedent we are our established not event, statements, quoted any the court's by Northrop allocability on the issue bound dicta, dissent, page 4 are and we are the CAS under the CAS standards since issue them, court did not not bound opin argued nor in our neither discussed possibility that under consider the Fisher Indeed, ion.”). opinion’s failure to con allegation on the merits of the nonfrivolous surprising, because the sider this issue is required. was not See Brecht v. Abra claim hamson, it, simply government did not raise but ar (1993) inability make gued plaintiffs' out a (noting 123 L.Ed.2d 353 claim on although "applied Chap inverse condemnation had successful *10 determining FAA, whether the Court Americopters, 03-00005, LLC v. No. jurisdiction, (D.Guam of Federal Claims has all May 11, WL *3 2007) (“The required determination that Plaintiff is alleging a takings claim is upon money-mandating founded claim.”); Serv.,. Helicopter Jan’s Inc. v. plaintiff source and the has made a non- FAA, No. 1.430680, WL *3 allegation that frivolous it is within the (D.Guam 2007) (“The May Plaintiff is class of plaintiffs entitled to recover under claim.”).10 alleging takings -It is undis- the money-mandating source. There is no puted that the Takings Clause of the Fifth further requirement that the Amendment is a money-mandating source court determine whether the additional al for .purposes jurisdiction. of Tucker Act legations of the complaint state a nonfrivo- Moden, See 404 F.3d at 1341. Because the lous claim on the A contrary merits. rule Mitchell and White tests are Mountain seriously would Congress’s undermine de satisfied, and because appellants, having cision to vest the Federal Claims alleged taking property their by the with exclusive over claims government, are within the plain- class of against the United seeking money tiffs entitled recovery if a takings claim $10,000 damages exceeding and founded established, the District Court of Guam on the Constitution a federal statute. correctly decided that the Court of Feder- erroneously Claims filed in the district al subject Claims had matter courts could be transferred to the appellants’ over complaints. Court of Federal Claims once the district Appellants’ contentions about the lawful- court had examined the merits to ascertain ness or authorization of government’s whether the claim was frivolous or sub actions, while relevant to whether appel- stantial, a Congress task which entrusted takings lants’ claims will be successful on (in instance) exclusively the first to a court merits, their do not affect the specially created for that purpose. of the Court of Federal Claims to consider

II those claims. See DeV-Rio Drilling Pro- grams, Inc. v. United Appellants’ first amended com1 (Fed.Cir.1998) 1358, 1362 (analyzing argu- plaints in this alleged case “violations ments about the gov- authorization process due under Amendment V ernment actions as an issue of whether therefore, United States Constitution and taking had stated a claim on which illegal an taking [appellants’] property.” relief granted, could be not as an issue of Americopters 10-11; J.A. at Jan’s J.A. at jurisdiction). Because ap- complaints Takings invoke the pellants’ complaints contain Amendment, Clause of nonfrivolous the Fifth and both allegations they fall protected the District within a Court Guam and the Ninth Amendment, Circuit understood class under the Fifth appellants allege takings claims. Court of Americopters, See Federal Claims has F.3d at 738 (describing the consider remaining complaints con those under the Tuck- claims”); stitutional claims “takings er Act. deprived merits the Court of Federal money-mandating Claims Process Clause is not these circumstances. We need not address because, court, argument like the district government argues

10. The that the claim for complaint asserting we construe the a tak- relief seeking compen- should be construed as claim, ings despite its infelicitous reference to Clause, sation under the Due Process rather process. due Clause, Takings than the and that the Due *11 within plaintiffs the class of entitled to

III is money-mandating the under recover above, the District Court explained As source.1 jurisdiction over lacked plainly of Guam appel- takings claims. Because appellants’ First, resolution of this nonfrivolous gov- claims the asserting lants are present question required not in the money-mandating pro- on a ernment based argue government does not case. The seeking the Constitution vision of plaintiffs’ takings are frivolous $10,000, damages in excess money they not be transferred to should ju- has exclusive Federal Claims Court of Claims, long of Federal claims. those Therefore over risdiction pro- are not as due the claims construed properly trans- of Guam District Court 31:36-50, Arg. cess claims.2 See Oral that court under 28 claims to ferred the 33:13-54, http://www.cafc. available it for leave the Court 1631. We U.S.C. uscourts.gov/oralarguments/mp3/2007- in the first instance to Claims of Federal Additionally, parties 1410.mp3. while appellants have stated whether address v. questioned were about Fisher takings claims on which relief regulatory argument, at oral this issue not may granted. nor party, raised either briefed or by the it before or dis- raised considered CONCLUSION (Fed.Cir.2005). trict 402 F.3d 1167 court. reasons, the foregoing decision For the Second, majority affirmed. has not satisfacto- District Court of Guam of the rily why determination of AFFIRMED jurisdiction in the Court COSTS gener- Federal differs that of Claims from al question federal No costs. relating the dismissal

PROST, Judge, dissenting-in- Circuit frivolous claims for lack of part. Supreme Court has indicated that a may if district court lack majority opinion join

I Part III of ‘clearly appears “claim to be immaterial affirming in the result and concur solely purpose and made for the of obtain- from the United States District transfer ing or where such a claim is of Guam to the Court for District ” wholly insubstantial and frivolous.’ Steel I Court of Federal Claims. United States Env’t, Co. Citizens Better 523 U.S. join majority Parts I and II of the do not for L.Ed.2d 118 S.Ct. however, they foreclose opinion, (1998) Hood, Bell v. claims for lack of of frivolous dismissal (1946)). 90 L.Ed. 939 upon if the claim is founded “[djismissal has money-mandating explained, and the As the Court plaintiff source allegation subject-matter jurisdiction a nonfrivolous that it lack of be- has made ("In requirement Majority Op. determining ther at 1309 court See allegations whether the additional determine ju- whether the Court of Claims has complaint state of the a nonfrivolous claim on risdiction, required all is a that is determina- merits.”). upon money- the claim founded tion that mandating source and the has made explained by majority, plaintiffs' 2. As allegation that it is within the a nonfrivolous present properly claims in case are con- plaintiffs claims, class of entitled takings process recover due strued as Majority Op. at n. 10. money-mandating There is no fur- claims. See source. *12 (2) source,” inadequacy of the federal plaintiff cause of and “the has made a proper only claim when claim is is ‘so allegation nonfrivolous that it is within the insubstantial, implausible, by foreclosed plaintiffs class of entitled to recover under Court, prior decisions of this or otherwise the money-mandating source.” Majority completely devoid of merit as not to in- Op. at Beyond these require- two ” controversy.’ volve a federal Id. “[tjhere ments, it concludes that is no fur- County Oneida Indian Nation N.Y. v. requirement ther Oneida, court determine whether the additional al- (1974)); 39 L.Ed.2d 73 see also Moden v. legations of the complaint state a nonfrivo- (Fed. States, lous claim analy- on the merits.” Id. This Cir.2005) (same). majority The has cer- appears sis in my view to be inconsistent tainly why, not shown the Tucker Moden, with the court’s decision in Act, we should foreclose the dismissal Moden, In decided one claims for lack of that are so Fisher, month after provided: this court frivolous or insubstantial as to not involve Here parties dispute do not that the controversy. a federal Takings Clause of the Fifth Amendment Third, majority opinion correctly Thus, is money-mandating. to the ex- notes, Fisher, following “[i]n White Moun- tent the Modens have a nonfrivolous tain, explicitly the en banc court overruled takings claim upon founded the Fifth previous our in approach, set out Gollehon Amendment, Farming v. United 207 F.3d 1373 Tucker Act is proper. (Fed.Cir.2000).” Majority Op. at 1307. government argues The neither Contrary by majori- to the suggestion the Modens’ claim is frivolous nor ar- however, ty, I do not read Fisher as hav- insubstantial, gues that it implausi- is so ing resolved the issue of whether a non- ble, by decisions, prior foreclosed or oth- required frivolous claim for relief is completely erwise devoid of merit as not Rather, Tucker Act See id. controversy. to involve a federal And I overruling step read Fisher as the two argument while at oral the United Gollehon, approach, in set out for address- repeatedly refused to concede ing the issue of whether a source is mon- case, proper is it Fisher, ey-mandating. See 402 F.3d at clearly is. Moden, 1172-73. As we short, ... we have “Fisher addressed how the Court of Fed- case, address the merits of this as did eral Claims should determine whether the Claims, the Court of Federal because statute, provision, regu- ‘Constitutional ” the Modens’ claim is neither frivolous money-mandating.’ lation is one that insubstantial, implausible, nor so fore- case, present 404 F.3d at 1341. In the decisions, by prior closed or otherwise Moden, however, parties “the do not completely devoid of merit as not to dispute that the Takings Clause of the controversy. involve a federal Fifth money-mandating.” Amendment Thus, Id. at 1341-42. proper Id. the Fisher issue of the approach determining whether a source majority attempts disregard Mo- money-mandating present is not here. (1) by “reading] holding den Moden as must make a nonfrivolous

Finally, for the Court of Federal Claims allegation that it is within the class of jurisdiction, majority to have would (1) only require plaintiffs entitled to recover under determination that: “the (2) law,” upon money-mandating money-mandating claim is founded source statements the relevant claiming that MANSFIELD, Sr., R. Jack dicta, we are not bound

Moden “are Claimant-Appellant, not consid- them, the court did a non- that under Fisher possibility er the merits of the on the allegation frivolous Secretary PEAKE, M.D., James B. Majority Op. at required.”3 *13 Affairs, Respondent- Veterans First, simply disagree I with 1308-09 n. 9. Appellee. It does reading of Moden. majority’s require- claim nonfrivolous not confine the No. 2007-7282. analysis. plaintiffs” a “class of ment Appeals, States Court by the Second, contrary suggestion Federal Circuit. ad- expressly court majority, the Moden portion opin- in the of the Fisher dresses May 2008. claim re- discussing the nonfrivolous ion jurisdiction. The Moden quirement

court determined claim was a nonfrivolous

proper because court’s

asserted, noting that the Fisher addresses another

jurisdictional discussion (i.e., how to determine whether

issue Moden, 404 money-mandating).

source is record, sum, I would

In on this based juris- lack dismissal for

not foreclose money- point claims that to a

diction of but are frivolous or “so

mandating source

insubstantial, implausible, foreclosed decisions,

prior completely or otherwise involve a federal

devoid of merit as not to Therefore, respectful- I

controversy.” Id.

ly dissent-in-part. majority Even if the is correct its support its claim that the Moden court 09 n. 9. changed the did not consider whether Fisher government did not raise this claim that the requirement, majority nonfrivolous Moden, we note that the same cir- issue in opinion’s that "the failure consider states present case where cumstance exists in the surprising, gov- this issue is not because the party neither raised this issue. Majority at 1308- ernment did not raise it.”