Britell v. U.S.

• Decision Date: 28 January 2003
• Docket Number: No. 02-1944.,02-1944.
• Citation: 318 F.3d 70
• Parties: Maureen M. BRITELL, Plaintiff, Appellee, v. UNITED STATES of America, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

318 F.3d 70

Maureen M. BRITELL, Plaintiff, Appellee, v. UNITED STATES of America, Defendant, Appellant.

No. 02-1944.

United States Court of Appeals, First Circuit.

Heard December 4, 2002.

Decided January 28, 2003.

Robert M. Loeb, Appellate Staff, Civil Division, United States Department of Justice, with whom Robert D. McCallum, Jr., Assistant Attorney General, Michael J. Sullivan, United States Attorney, Gregory G. Katsas, Deputy Assistant Attorney General, and Eric D. Miller, Attorney, were on brief, for appellant.

John H. Henn, with whom Jessica M. Silbey, Seth Nesin, Foley Hoag LLP, Simon Heller, Brigitte Amiri, and The Center for Reproductive Law & Policy were on brief, for appellee.

Before SELYA, Circuit Judge, FARRIS,^* Senior Circuit Judge, and HOWARD, Circuit Judge.

SELYA, Circuit Judge.

The parties — who agree on little else — mutually acknowledge that the appeal in this case was improvidently taken to this court and that we lack jurisdiction over it. The question remains, however, whether we should dismiss the appeal (thus leaving the district court's judgment intact) or transfer it to the proper venue (the Court of Appeals for the Federal Circuit). For the reasons that follow, we hold that dismissal would not be in the interest of justice (and, accordingly, grant the government's motion to transfer).

I. Background

At this stage of the proceedings, the intricacies of the underlying action are of only peripheral interest. We therefore sketch the facts and the travel of the case, urging readers who hunger for more exegetic detail to consult the lower court's opinions. See Britell v. United States, 204 F.Supp.2d 182 (D.Mass.2002) (Britell II); Britell v. United States, 150 F.Supp.2d 211 (D.Mass.2001) (Britell I).

Early in the term of her pregnancy, plaintiff-appellee Maureen M. Britell, the wife of an Air National Guard officer, learned that the fetus she carried was anencephalic. Given the grim prognosis,¹ Britell elected to have her pregnancy terminated. The procedure was performed at New England Medical Center (NEMC), a renowned Boston teaching hospital.

Britell maintained her health care coverage through the Civilian Health and Medical Program of the Uniformed Services (CHAMPUS), a government plan that provides medical benefits for dependents of military personnel. After a NEMC physician performed the abortion that Britell requested, NEMC submitted a claim to CHAMPUS. In accordance with federal law, see 10 U.S.C. § 1093(a) (reprinted in the appendix); 32 C.F.R. § 199.4(e)(2) (same), CHAMPUS refused to pay for the cost of the abortion. Britell paid NEMC and then brought suit against the United States for $4,507.05, claiming, inter alia, that the denial of coverage violated her constitutional rights.

The district court granted summary judgment in Britell's favor, concluding that "there [was] no rational, legitimate state interest in denying coverage" for abortion services in the circumstances of this case. Britell II, 204 F.Supp.2d at 185. The government filed a timely notice of appeal with this court. The parties fully briefed the case, and we scheduled oral argument for December 4, 2002.

Approximately two weeks before the date set for oral argument, the government awoke to the fact that the United States Court of Appeals for the Federal Circuit had exclusive jurisdiction over appeals in cases based in whole or in part on 28 U.S.C. § 1346 (the so-called Little Tucker Act). See 28 U.S.C. § 1295(a)(2) (reprinted in the appendix). Based upon this belated realization, the government moved to transfer the appeal under 28 U.S.C. § 1631 (reprinted in the appendix), a statute that authorizes a court faced with a want of jurisdiction either to dismiss the proceeding before it or, in the alternative, to transfer that proceeding to a court of proper competence if doing so "is in the interest of justice." Britell opposed a transfer and asked instead that we dismiss the appeal outright. On December 4, 2002, we heard oral argument on the question of transfer versus dismissal.

II. Analysis

We subdivide our discussion of the pending motion into three segments. We begin with the question of appellate jurisdiction. We then parse the transfer statute and, finally, apply it.

A. Appellate Jurisdiction

Because federal courts are courts of limited jurisdiction, each case must come within some articulable grant of jurisdiction. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Such grants may be either constitutional or statutory in nature. Id. However, jurisdiction cannot be conferred upon a federal court by waiver, consent, or collusion of the parties. Irving v. United States, 162 F.3d 154, 161 (1st Cir.1998) (en banc).

In this instance, the record reveals beyond hope of contradiction that we lack jurisdiction to decide the merits of the government's appeal. Britell's complaint premised the district court's jurisdiction, in relevant part, on 28 U.S.C. § 1346(a). That statute — reprinted in the appendix — grants district courts jurisdiction (with exceptions not apposite here) over non-tort civil actions or claims against the United States, not exceeding $10,000 in amount, whether founded upon the Constitution, a federal statute or regulation, or a contract. Because Britell's case fits comfortably within those contours, the United States District Court for the District of Massachusetts had original jurisdiction over it.

This brings us to the appeal. Although most district court judgments are appealable to the court of appeals for the circuit in which the district court sits, see 28 U.S.C. § 1291, that pattern does not always obtain. There are several exceptions, one of which is pertinent here. By statute, the United States Court of Appeals for the Federal Circuit has exclusive jurisdiction over "an[y] appeal from a final decision of a district court of the United States ... if the jurisdiction of that court was based, in whole or in part, on [28 U.S.C. § 1346]...." 28 U.S.C. § 1295(a)(2). While that statute contains some wiggle room, see id., no way around its jurisdictional mandate applies in the circumstances at hand. Consequently, deciding this appeal is the exclusive prerogative of the Federal Circuit.

B. The Transfer Statute

From what we already have written, it is readily evident that this court lacks jurisdiction over the merits of the instant appeal. In such circumstances, Congress has granted federal courts limited authority to transfer an action or appeal to a federal court of competent jurisdiction. The controlling statute reads in pertinent part:

Whenever a civil action is filed in a court... or an appeal, including a petition for review of administrative action, is noticed for or filed with such a court and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such [federal] court in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it was transferred.

28 U.S.C. § 1631.

Although the grant of authority is clear, the guidance provided by the text of the statute appears somewhat contradictory. On the one hand, Congress's use of the word "shall" in section 1631 seemingly dictates a preference for transfer in all cases that could have been brought in some other federal court.² See, e.g., Webster's Third New Int'l Dictionary 2085 (1993) (stating that "shall" typically is "used in laws ... to express what is mandatory"). On the other hand, section 1631 contains a qualifying phrase — "if it is in the interest of justice" — and that qualifier seems to call for a balancing of the equities (and, thus, to make the transfer decision discretionary). We reconcile this tension by examining the text, structure, and history of section 1631. See United States v. Charles George Trucking Co., 823 F.2d 685, 688 (1st Cir.1987). In the end, we conclude that Congress intended to create a presumption — albeit a rebuttable one — in favor of transfer.

The existence of the presumption is easily discerned. Congress's use of the phrase "shall ... transfer" in section 1631 persuasively indicates that transfer, rather than dismissal, is the option of choice. The legislative history likewise points to a presumption in favor of transfer. Congress adopted legislation, now codified as section 1631, in the wake of a case in which the District of Columbia Circuit acknowledged an ambiguity involving which of two courts had appellate jurisdiction, and, although it affirmed a dismissal for want of jurisdiction, it directed that the appellant be permitted to file a petition for reconsideration with the proper authority. Investment Co. Inst. v. Bd. of Govs. of the Fed. Reserve Sys., 551 F.2d 1270, 1282-83 (D.C.Cir. 1977). The court suggested that, in the future, counsel would do well "to file petitions in both courts ... if there is any doubt." Id. at 1282. Judge Leventhal, in a powerful concurring opinion, urged "enactment of a general statute permitting transfer between district courts and courts of appeals in the interest of justice." Id. at 1283 (Leventhal, J. concurring).

In response to the concerns raised by Judge Leventhal, Congress enacted section 1631. Congress crafted the statute to achieve two closely related goals. First, it sought to ensure that "a litigant [does not] find himself without a remedy because of a lawyer's error or a technicality of procedure [that results from] uncertainty in some statutes regarding which court has review authority." S.Rep. No. 97-275, at 11 (1982), reprinted in 1982 U.S.C.C.A.N. 11, 21. Second it sought to prevent duplicitous litigation that would prove "wasteful and costly." Id. The conclusion that...