Fisherman's Harvest, Inc. v. Pbs & J

• Decision Date: 21 June 2007
• Docket Number: No. 2006-1208.,2006-1208.
• Citation: 490 F.3d 1371
• Parties: FISHERMAN'S HARVEST, INC., C. Joe Nelson, Jr., Doris Mae Nelson, Vanessa Jo Nelson Vallejo, Vickie Jo Nelson Salazar, and Nelson Plaintiffs Fisherman's Harvest, Inc., Plaintiffs-Appellants, and Childress Seafood, Inc., W.F. Childress, and Alton Lee Kelly, Plaintiffs-Appellants, v. PBS & J (formerly known as Espey, Huston & Associates, Inc.), Defendant, and Bertucci Contracting Corporation, Defendant, and Luhr Brothers, Inc., Defendant, and Bradley Industrial Textiles, Inc., Defendant-Appellee, and Nicolon Corporation (also known as Ten Cate Nicolon), Defendant-Appellee, and Huston & Associates, Inc., Defendant, and Weeks Marine, Inc., Defendant/Third Party Plaintiff-Appellee, v. United States Army Corps of Engineers, Third Party Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

490 F.3d 1371

FISHERMAN'S HARVEST, INC., C. Joe Nelson, Jr., Doris Mae Nelson, Vanessa Jo Nelson Vallejo, Vickie Jo Nelson Salazar, and Nelson Plaintiffs Fisherman's Harvest, Inc., Plaintiffs-Appellants, and Childress Seafood, Inc., W.F. Childress, and Alton Lee Kelly, Plaintiffs-Appellants, v. PBS & J (formerly known as Espey, Huston & Associates, Inc.), Defendant, and Bertucci Contracting Corporation, Defendant, and Luhr Brothers, Inc., Defendant, and Bradley Industrial Textiles, Inc., Defendant-Appellee, and Nicolon Corporation (also known as Ten Cate Nicolon), Defendant-Appellee, and Huston & Associates, Inc., Defendant, and Weeks Marine, Inc., Defendant/Third Party Plaintiff-Appellee, v. United States Army Corps of Engineers, Third Party Defendant-Appellee.

No. 2006-1208.

United States Court of Appeals, Federal Circuit.

June 21, 2007.

Paul W. O'Finan, Paul W. O'Finan Law Office, of Houston, TX, argued for Childress Seafood, Inc., et al, and for all plaintiffs-appellants. With him on the brief for Fisherman's Harvest, Inc., et al, was David E. Bernsen, of Beaumont, TX.

Paul G. Preston, The Preston Law Firm, L.L.P., of Houston, TX, for defendant-appellee, Bradley Industrial Textiles, Inc. With him on the brief was Devon H. Decker.

Jill A. Schaar, Locke Liddell & Sapp LLP, of Houston, TX, for defendant-appellee, Nicolon Corporation (also know as Ten Cate Nicolon).

Kenneth G. Engerrand, Brown Sims, P.C., of Houston, TX, argued for defendant/third party plaintiff-appellee.

David D'Alessandris, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for third party defendant-appellee. With him on the brief were Peter D. Keisler, Assistant Attorney General, and Patricia M. McCarthy, Assistant Director.

Before NEWMAN, LINN, and MOORE, Circuit Judges.

Opinion for the court filed by Circuit Judge LINN. Dissenting opinion filed by Circuit Judge NEWMAN.

LINN, Circuit Judge.

This case involves alleged damage to oyster growers due to dredging operations and requires us to interpret the scope of jurisdiction provided by 28 U.S.C. § 1497 and the availability of 28 U.S.C. § 1404(a) for transfers to the United States Court of Federal Claims. The appellants, which we refer to collectively as the oyster growers, appeal from the portion of a judgment by the United States District Court for the Southern District of Texas transferring the oyster growers' claims against private contractors to the Court of Federal Claims. Fisherman's Harvest, Inc. v. Weeks Marine, Inc., 401 F.Supp.2d 745 (S.D.Tex.2005) ("Transfer Decision"). Because there was not a "want of jurisdiction" in the district court over the oyster growers' private tort action, and because 28 U.S.C. § 1404(a) does not provide for transfers from a district court to the Court of Federal Claims, we reverse the transfer of the oyster growers' claims and remand.

I. BACKGROUND

The oyster growers are the owners or beneficial owners of oyster leases in Galveston Bay and Trinity Bay, Texas, and of businesses involved in the harvesting, processing, and sale of oysters in Smith Point, Texas. The oyster growers allege that their oyster leases and businesses suffered damage as a consequence of maintenance dredging and widening in the Trinity River and maintenance dredging in the channel at Smith Point (the "dredging projects"). The United States Army Corps of Engineers ("Army Corps of Engineers") initiated the dredging projects and involved Weeks Marine, Inc. and the other defendants as contractors, subcontractors, and suppliers (collectively, the "private contractors"). According to the oyster growers, the private contractors' negligent design and implementation of the dredging project caused geotubes and breakwater barriers to fail, resulting in a continuous discharge of silt, sediments, and other toxic materials onto the oyster leases.

The oyster growers filed suit against the private contractors in federal district court, alleging federal question and diversity jurisdiction. On June 23, 2005, Weeks Marine filed a third-party complaint against the Army Corps of Engineers, alleging a contractual right to contribution and indemnity. Neither the oyster growers' complaint nor the third-party complaint against the government asserted a cause of action derived from 28 U.S.C. § 1497.¹

The Army Corps of Engineers moved to dismiss the third-party complaint for lack of jurisdiction, asserting that the Court of Federal Claims has exclusive jurisdiction over Weeks Marine's claim for contribution and indemnification based on 28 U.S.C. §§ 1491(a) and 1497. Weeks Marine responded to the motion to dismiss with a motion to transfer the entire case— including the oyster growers' claims against the private contractors—to the Court of Federal Claims based on 28 U.S.C. §§ 1404(a) and 1631. The district court concluded that under 28 U.S.C. § 1497, the Court of Federal Claims had exclusive jurisdiction over Weeks Marine's third-party complaint against the Army Corps of Engineers. Transfer Decision, 401 F.Supp.2d at 747-49. The district court also noted that nothing in section 1497 prohibited transferring the oyster growers' claims against the private contractors and reasoned that the interests of judicial economy and justice favored a transfer of the entire case. Id., 401 F.Supp.2d at 748. Accordingly, the district court granted Weeks Marine's motion to transfer.

The oyster growers appeal from the district court's order to transfer their negligence claims against the private contractors to the Court of Federal Claims and allege that we have jurisdiction pursuant to 28 U.S.C. § 1292(d)(4)(A).²

II. DISCUSSION

A. Appellate Jurisdiction

Generally, a transfer order is interlocutory and thus not appealable unless incident to a final judgment or as a certified question pursuant to 28 U.S.C. § 1292(b). However, under 28 U.S.C. § 1292(d)(4)(A), this court "shall have 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 Court of Federal Claims under section 1631 of this title."

Here, in the context of examining the oyster growers' claims, the district court cited only to 28 U.S.C. §§ 1404(a) and 1497 as bases for transferring the oyster growers' claims to the Court of Federal Claims. Transfer Order, 401 F.Supp.2d at 748. The district court's analysis preceding that citation discussed section 1497, determined that section 1497 gave the Court of Federal Claims exclusive jurisdiction over the third-party complaint, and concluded that the third-party complaint should be transferred under 28 U.S.C. § 1631. See id., 401 F.Supp.2d at 747-49. Section 1631 provides that when a 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 court in which the action or appeal could have been brought at the time it was filed or noticed." Although section 1631 is not cited in the district court's analysis of the oyster growers' claims, implicit in its citation to section 1497 is a determination that it lacked jurisdiction over those claims as well. We are therefore satisfied that the district court's order transferring the oyster growers' claims was made pursuant to section 1631 and that we have jurisdiction over the appeal.

B. Transfer to Cure Want of Jurisdiction

Section 1631 provides that when a 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 court in which the action or appeal could have been brought at the time it was filed or noticed." 28 U.S.C. § 1631. The statute requires the transferor court to determine both that it lacks jurisdiction and that the transferee court possesses jurisdiction. Because such a determination is jurisdictional, we give a district court's decision to transfer a case to the Court of Federal Claims plenary review. United States v. County of Cook, Ill., 170 F.3d 1084, 1087 (Fed.Cir.1999); James v. Caldera, 159 F.3d 573, 578 (Fed. Cir.1998).

Here, the district court transferred the oyster growers' claims against the private contractors without engaging in the analysis required by section 1631. Specifically, the district court failed to determine whether it lacked jurisdiction or whether the Court of Federal Claims possessed jurisdiction over the oyster growers' claims. The oyster growers filed an action against the private contractors for negligence; Weeks Marine's subsequent third-party complaint against the government does nothing to change the jurisdictional inquiries presented by that action. See 6 Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure §§ 1442, 1444 (2d ed.1990) ("Of course, when there is no subject-matter jurisdiction over the original action between plaintiff and defendant, it cannot be created by adding a third-party claim over which there is jurisdiction."). Implicit in the district court's transfer is that 28 U.S.C. § 1497 resolves the section 1631 inquiries in favor of transferring the oyster growers' claims. Whether the jurisdictional grant provided by section 1497 supports such a transfer is a matter of pure statutory interpretation that we review de novo. Merck & Co. v. Kessler, 80 F.3d 1543, 1549 (Fed.Cir.1996).

Section 1497 creates jurisdiction in the Court of Federal Claims over actions for damages to oyster growers, and provides:

The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim for damages to oyster growers on private or leased lands or bottoms arising from dredging operations or use of machinery and equipment in making river and harbor improvements authorized by Act of Congress.

28 U.S.C. § 1497 (emphasis added). As framed by the parties, the...