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Aleut Tribe v. United States

March 17, 1983

THE ALEUT TRIBE, APPELLANT,
v.
THE UNITED STATES, APPELLEE



Bennett, Smith, and Nies, Circuit Judges. Nies, Circuit Judge, concurring.

Bennett

BENNETT, Circuit Judge.

This is an appeal from a judgment of the United States Claims Court.*fn* The proceeding below involved two claims. In Count I, the Aleut Tribe contended that the United States had breached the Treaty of Cession, March 30, 1867, United States-Russia, 15 Stat. 539. In Count II, the Aleut Tribe contended that the United States had breached its duty to deal fairly and honorably with the Tribe. The trial judge granted the government's motion to dismiss in Count I (the breach-of-treaty claim), but denied the government's motion to dismiss in Count II (the fair-and-honorable-dealings claim). The Aleut Tribe appealed, requesting that we review the trial judge's decision as to both counts.*fn1 Although the Aleut Tribe's request for review might have been within the jurisdiction of the former United States Court of Claims, we hold that it is not, at the present time, within the appellate jurisdiction of this court, the United States Court of Appeals for the Federal Circuit. Thus, for the reasons that follow, we dismiss the Aleut Tribe's appeal for lack of appellate jurisdiction.

I. History of Docket No. 369.

This case began in 1951 when the Aleut Tribe (Tribe) filed a petition with the Indian Claims Commission. The Tribe alleged (1) that it had been deprived of land, hunting and fishing grounds, and other rights, (2) that the United States had breached the Treaty of Cession, March 30, 1867, United States-Russia, 15 Stat. 539, and (3) that the United States had breached its duty to deal fairly and honorably with the Tribe.

Since 1951, the Indian Claims Commission and the former United States Court of Claims have considered various procedural and substantive issues involving the Aleut Tribe's claims in Docket No. 369. For purposes of this appeal, however, it is only necessary to consider the history of Docket No. 369 since 1980.

In 1980, the government filed a motion in the Court of Claims (to which the case was transferred) to dismiss the claims in Docket No. 369 for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. At that time, the claims remaining in Docket No. 369 were (1) the breach-of-treaty claim, and (2) the fair-and-honorable-dealings claim. By an order of December 12, 1980, the Court of Claims remanded the government's motion to the trial judge for a recommended decision under Rule 54(a) of the Court of Claims,*fn2 which permitted the court to refer dispositive motions to the trial division for a recommended decision. (Under Court of Claims Rule 52(a), motions to dismiss were considered dispositive motions.)

On September 9, 1982, the trial judge issued his recommended decision pursuant to Rule 54(a). He recommended that the government's motion to dismiss the Tribe's breach-of-treaty claim be granted, but that the government's motion to dismiss the Tribe's fair-and-honorable-dealings claim be denied.

On October 1, 1982, before the Court of Claims could review the trial judge's recommended decision, the Court of Claims and the Court of Customs and Patent Appeals were abolished by the Federal Courts Improvement Act of 1982, Pub. L. No. 97-164, § 402, 96 Stat. 25, 57. In their place, Congress created the United States Court of Appeals for the Federal Circuit (which inherited substantially all of the appellate jurisdiction of the two abolished courts), and the United States Claims Court (a new Article I trial forum that inherited the trial jurisdiction of the Court of Claims). See S. REP. NO. 275, 97th Cong., 2d Sess. 2-3 (1981).

All cases that were pending before the Court of Claims on October 1, 1982, in which a report on the merits had been filed by the trial division, or in which there was pending a request for review, and upon which the court had not acted, were transferred to the new United States Court of Appeals for the Federal Circuit. See Federal Courts Improvement Act of 1982, § 403(a), 96 Stat. 57-58.

On October 4, 1982, this court (the United States Court of Appeals for the Federal Circuit) directed the judges of the United States Claims Court to enter judgments corresponding to the recommended decisions that were transferred to this court under the Federal Courts Improvement Act. As a result, on October 8, 1982, Judge Willi entered a judgment in accordance with his opinion of September 9, 1982.*fn3 The same day, the Aleut Tribe filed a request for review of the trial judge's decision under Rule 54(b)(3)*fn4 of the former United States Court of Claims. This request for review would, in the past, have been sufficient under the statutes and rules governing the jurisdiction of the Court of Claims. But, as stated earlier, this appeal is not before the Court of Claims; it is before the United States Court of Appeals for the Federal Circuit. It is thus necessary to determine whether the Tribe's appeal is within the jurisdiction of this court. It is our duty to raise this issue even though the parties have not made jurisdiction an issue in this case. See, e.g., Montgomery Ward & Co. v. Zenith Radio Corp., 69 C.C.P.A. 96, 673 F.2d 1254, 1258 n.7 (CCPA 1982); Columbus Coated Fabrics v. Industrial Commission, 498 F.2d 408 (6th Cir. 1974); Public Employees Union Local No. 1279 v. Alabama, 453 F.2d 922 (5th Cir. 1972); Diamond Shamrock Oil & Gas Corp. v. Commissioner of Revenues, Arkansas, 422 F.2d 532 (8th Cir. 1970).

II. Jurisdiction To Review Decisions of the United States Claims Court.

As stated earlier, section 403(a) of the Federal Courts Improvement Act provides for the transfer of certain pending cases from the Court of Claims to the Court of Appeals for the Federal Circuit. Apparently, both parties are under the impression that this provision is a jurisdictional basis for appeal. The purpose of section 403(a), however, was merely to provide for the orderly disposition of cases pending before the Court of Claims on October 1, 1982, by transferring the trial division's recommended decisions upon which the court had not acted from the docket of the Court of Claims to our docket. See S. REP. NO. 275, supra, at 32. We do not believe that this provision was also intended necessarily to transfer jurisdiction. Our jurisdiction over decisions of the Claims Court is limited by sections 124, 125, and 127(a) of the Federal Courts Improvement Act of 1982, 96 Stat. 36-38 (amending 28 U.S.C. § 1291 (1976), with remainder to be codified at 28 U.S.C. §§ 1292(c), 1292(d)(2), 1295(a)(3)). These sections permit us to review final decisions and certain interlocutory decisions of the Claims Court. We do not believe that Congress intended the transfer provisions of section 403 to broaden the jurisdictional grants even for the limited purpose of reviewing recommended decisions of the Court of Claims' trial division that were pending on October 1, 1982. Thus, any case transferred to our court by section 403(a) of the Federal Courts Improvement Act is subject to the jurisdictional limitations contained in that Act.

One of the purposes of our order of October 4, 1982, which directed the judges of the Claims Court to enter judgments in accordance with their recommended decisions that were transferred to this court, was to put parties on notice that their appeals would be from a decision of the United States Claims Court, and would not be appeals from a recommended decision of the trial division of the Court of Claims. Therefore, any jurisdictional defects in ...


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