Galloway Farms, Inc. v. U.S.

Citation834 F.2d 998
Decision Date02 December 1987
Docket NumberNo. 87-1458,87-1458
PartiesGALLOWAY FARMS, INC., Julian C. Galloway, Elsie Galloway, James T. Galloway, and Marilyn Galloway, Plaintiffs-Appellants, v. The UNITED STATES of America, Richard E. Lyng, Secretary of Agriculture, and John Block, Secretary of Agriculture, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals for the Federal Circuit

Marlyn S. Jensen, P.C., Osceola, Iowa, argued for plaintiffs-appellees.

Julie Zatz, Dept. of Justice, Washington, D.C., argued for defendants-appellees. With her on brief, were Richard K. Willard, Asst. Atty. Gen., Christopher D. Hagen, U.S. Atty. and Paul F. Figley.

Before ARCHER, Circuit Judge, NICHOLS, Senior Circuit Judge, and MAYER, Circuit Judge.

NICHOLS, Senior Circuit Judge.

The Eighth Circuit transferred this appeal to the Federal Circuit pursuant to the provisions of 28 U.S.C. Sec. 1631 (1987). We affirm the district court's dismissal of appellants' claims which was based on jurisdictional defects and substantive meritlessness in unstated proportions.


Appellants are the owners of a family-run farm in Iowa producing various wheat, other grain and farm products. In 1980, President Jimmy Carter imposed a grain embargo on the Soviet Union--pursuant to the authority vested in the President under the Export Administration Act of 1979, 50 U.S.C.App. Secs. 2401 et seq. (1980)--in response to the U.S.S.R.'s invasion of Afghanistan. Appellants claimed severe losses due to the implementation of the embargo (Joint Appendix, hereinafter J.A., at 78) and to adverse weather conditions. They applied for disaster relief from various authorized government agencies and all their applications were denied. (J.A. at 47-51) Appellants then attempted to obtain relief from other government entities, each attempt resulting in ultimate denials. They assert they were further harmed because the Department of Agriculture assessed the cost of producing grain incorrectly and so reported to Congress.

Following their failure to obtain relief, appellants filed suit on January 14, 1985, in the Southern District of Iowa against the United States and two Secretaries of Agriculture, one a former holder of the office, alleging several violations of various statutes and constitutional rights, basing jurisdiction on: (1) the Little Tucker Act (LTA) as to uncompensated takings, 28 U.S.C. Sec. 1346(a)(2) (1982); (2) the Federal Tort Claims Act, 28 U.S.C. Sec. 1346(b); (3) a breach of the Secretary of Agriculture's general duties and negligent and ultra vires performance of other duties; (4) unlawful revocation of the Economic Stabilization Act; and (5) intentional infliction of emotional distress. * They claimed money damages in amounts largely exceeding the LTA $10,000 jurisdictional ceiling, and there does not seem to be any claim for prospective relief in the case. After hearings in the district court, Judge W.C. Stuart summarily dismissed plaintiffs' claims. He did not provide a fully reasoned opinion, only oral remarks from the bench. Clearly he did not consider any cause of action was stated. He thought plaintiffs' main problem they failed to overcome was the absence of sufficient waiver of sovereign immunity to meet their needs.

Upon dismissal, plaintiffs appealed the decision, in toto, to the Eighth Circuit. After the filing of the appeal, plaintiffs' motion was granted, transferring the case to the Federal Circuit.


The most important issue at hand is whether the Federal Circuit has jurisdiction to consider this appeal in its entirety or must transfer all or parts of it to some other court.


The applicable waivers of sovereign immunity are the "Little Tucker Act," 28 U.S.C. Sec. 1346(a)(2) and the Tort Claims Act which follows in section (b). No others are invoked or need be considered despite the length of the list of statutes appellants say were violated. Federal Circuit jurisdiction is predicated upon 28 U.S.C. Sec. 1295(a)(2) (1982) stating that all cases based in whole or in part on the Little Tucker Act, come on appeal exclusively before the Federal Circuit. United States v. Hohri, --- U.S. ----, 107 S.Ct. 2246, 2253, 96 L.Ed.2d 51 (1987). The Eighth Circuit transferred the entire case here, including its counts sounding in tort, because of the Hohri interpretation. Tucker Act claims must be brought in either a federal district court or the United States Claims Court depending on the amount of damages asserted. Justice Powell states the factors used to determine the appropriate forum for such claims:

[T]he * * * Act grants the United States Claims Court jurisdiction of similar claims without regard to the amount of the claim. 28 U.S.C. Sec. 1491(a)(1). Thus, Tucker Act claims for more than $10,000 can be brought only in the United States Claims Court. Claims for less than $10,000 generally can be brought either in a Federal District Court or in the United States Claims Court.

Id., 107 S.Ct. at 2249 n. 1.

The statute is designed to limit district court, not Claims Court, jurisdiction by amount. A claim such as we have here under the LTA for more than $10,000 brought in district court fails to accord the district court jurisdiction because it contravenes the express language of the statute. Under similar circumstances this court recently held:

[T]he district court had no jurisdiction over her suit. In her complaint, Bragg asserted that the district court's jurisdiction was based on federal question jurisdiction, 28 U.S.C. Sec. 1331 (1982), and, with respect to her monetary claims, admits that she is relying on the Tucker Act, 28 U.S.C. Sec. 1346(a)(2). Under 28 U.S.C. Sec. 1346(a)(2), however, the district court loses jurisdiction which it shares with the Claims Court once plaintiff's claim exceeds $10,000. * * * In view of the amount of her claim, the district court was without subject matter jurisdiction, * * *.

Bragg v. Keohane, 820 F.2d 402, 403 (Fed.Cir.1987). See also Bray v. United States, 785 F.2d 989, 994 (Fed.Cir.1986).

This court has the authority to determine the subject-matter jurisdiction of the district court. Id. We determine that the district court had no subject-matter jurisdiction over the LTA claims. This does not apply, however, to the Tort Claims Act claim as the court clearly would have jurisdiction over a properly pleaded Tort Claims Act claim.

Regardless, however, of fatal jurisdictional imperfections under some counts, justice requires, in certain instances, that other claims be placed before an appellate tribunal having jurisdiction pursuant to the transfer provisions of section 1631. See Williams v. Department of Army, 715 F.2d 1485, 1491 (Fed.Cir.1983) (whether Federal Circuit may entertain appeal of its part of a mixed issue MSPB appeal which could be bifurcated where Congress intends another part embodying discrimination claims to be decided elsewhere); see also Hempstead County & Nevada County Project v. U.S. Environmental Protection Agency, 700 F.2d 459, 463 (8th Cir.1983). Section 1631 provides in pertinent part:

Whenever a civil action is filed in a court as defined in section 610 of this title 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 court in which the action or appeal could have been brought * * *.

28 U.S.C. Sec. 1631.

The phrase "if it is in the interest of justice" relates to claims which are nonfrivolous and as such should be decided on the merits. Zinger Construction Co. v. United States, 753 F.2d 1053, 1055 (Fed.Cir.1985). Frivolous claims include "spurious and specious arguments" and "distortion and disregard of the record and opposing authorities, [which] indicate plainly that the present appeal does not rest on the razor's edge of frivolity, but falls clearly on the side of the frivolous." Devices for Medicine, Inc. v. Boehl, 822 F.2d 1062, 1068, 3 USPQ2d 1288, 1294 (Fed.Cir.1987). Other circuits have succinctly defined frivolous claims or appeals as those which involve "legal points not arguable on their merits," Caldwell v. Palmetto State Savings Bank of S.C., 811 F.2d 916, 919 (5th Cir.1987); Sturgeon v. Airborne Freight Corp., 778 F.2d 1154, 1161 (5th Cir.1985); Olympia Co. v. Celotex Corp., 771 F.2d 888, 893 (5th Cir.1985), or those whose disposition is obvious. Reliance Insurance Co. v. Sweeney Corporation, Maryland, 792 F.2d 1137 1138 (D.C.Cir.1986); Gattuso v. Pecorella, 733 F.2d 709, 710 (9th Cir.1984); Johnson v. Allyn & Bacon, Inc., 731 F.2d 64, 74 (1st Cir.), cert. denied, 469 U.S. 1018, 105 S.Ct. 433, 83 L.Ed.2d 359 (1984). In the language of courts, frivolity does not imply levity, and is not inconsistent with a litigant's belief that he has been wronged and ought to have a remedy.

This court itself has determined how to handle such claims in Zinger Construction Co. v. United States. In Zinger, this court lacked jurisdiction over an appeal from the Armed Services Board of Contract Appeals, but held, after examining the merits, that:

It is evident after all the attention given to Zinger's claim that there is no merit to it. Pursuant to discretion vested in this court by 28 U.S.C. Sec. 1631 (1982), we should transfer the case to the United States Claims Court if we find that to do so would be in the "interest of justice." On this record, we cannot so find. [Emphasis supplied.]

Id. at 1055. See also Bray, 785 F.2d at 994.

Possible transfers under section 1631 of part of the case, the Tucker Act claim, to the Claims Court or of other parts, those cognizable under the Tort Claims Act to the Eighth Circuit, are the only alternatives to plain and simple affirmance. The whole case could not be sent to any one court. Courts have exercised their section 1631 transfer powers but not usually, or preferably, in the form of bifurcation of...

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