McGuire v. United States ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JERRY MCGUIRE,  No. 06-15812
Plaintiff-Appellant,
v.  D.C. No.
CV-05-02694-JAT
UNITED STATES OF AMERICA,
OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
Argued and Submitted
February 15, 2008—San Francisco, California
Filed December 24, 2008
Before: Sidney R. Thomas and Jay S. Bybee, Circuit Judges,
and Frederic Block,* District Judge.
Opinion by Judge Thomas
*The Honorable Frederic Block, Senior United States District Judge for
the Eastern District of New York, sitting by designation.
16737
16740 MCGUIRE v. UNITED STATES
COUNSEL
Robert M. Cook; Phoenix, Arizona; David A. Domina and
James F. Cann, Omaha, Nebraska, for the appellant.
MCGUIRE v. UNITED STATES 16741
Sue Ellen Wooldridge, Assistant Attorney General, Richard
G. Patrick, Assistant U.S. Attorney, Phoenix, Arizona; Eliza-
beth A. Peterson, Katherine J. Barton, Attorneys, Department
of Justice, Environment & Natural Resources Division, Wash-
ington, D.C., for the appellee.
OPINION
THOMAS, Circuit Judge:
This appeal presents the question of whether district courts
have jurisdiction to entertain a bankruptcy debtor’s Tucker
Act claims. We conclude that the Tucker Act’s sovereign
immunity waiver is limited to suits filed in the United States
Court of Federal Claims. We reverse the judgment of the dis-
trict court and remand with instructions to transfer the action
to the Court of Federal Claims, which is the appropriate venue
for takings claims in excess of $10,000.
I
Jerry McGuire is an experienced farmer with a degree in
agronomy and agricultural economics from the University of
Arizona. In 1994, McGuire entered into a lease with the Colo-
rado River Indian Tribe (“the Tribe”) for 1,355.97 acres of
farmland (“Leased Property”) on the Tribe’s reservation near
Parker, Arizona. The lease was for a ten-year period com-
mencing on January 1, 1995 and expiring on December 31,
2004. McGuire was required to pay the Tribe $226,411.92 per
year, subject to an appraisal for the years 2000 through 2004.
Because the Leased Property was land held in trust for the
Tribe by the United States, the lease required the approval of
the United States Bureau of Indian Affairs (“BIA”). Allen
Anspach, Superintendent of the Colorado River Agency of the
BIA, approved the lease on June 13, 1996.
16742 MCGUIRE v. UNITED STATES
A BIA canal running east to west bisected the Leased Prop-
erty, dividing the property into a northern half and southern
half. At the time the lease was executed, a bridge crossed the
BIA canal providing access to the north portion of the prop-
erty from Mohave Road, the main road that runs from Parker,
Arizona to Interstate Highway 10. The bridge was constructed
by a former tenant sometime in the 1960’s and was made of
wood with round concrete piers or bulkheads underneath. The
bridge provided the most common and easiest access to the
northern portion.
McGuire planted and maintained alfalfa on most of the
Leased Property. McGuire made substantial investments
towards harvesting the alfalfa crop, purchasing tractors, other
farming equipment, trucks, seed, labor, laser leveling, tillage,
herbicides and fertilizer. In total, McGuire invested roughly
$1,225,300 at the outset of the lease. McGuire acquired a
long-term and short-term/revolving loan to finance his invest-
ments. From 1995 through 1999, McGuire timely paid his
lease payment and water bills every year.
In summer 1998, Anspach verbally informed McGuire that
the BIA was going to remove the bridge because it was
unsafe. On December 9, 1998, after meeting with McGuire,
the Tribe sent a letter to the BIA stating that removal of the
bridge would severely limit access to farming lands and
decrease the value of the land. The Tribe asked for time to
work out a solution. The Tribe sent a second letter on Decem-
ber 23, 1998 asking the BIA to explore alternatives to remov-
ing the bridge because the tenants needed the bridge to access
the farm land.
Anspach replied to the Tribe on December 24, 1998. Ans-
pach stated that the bridge would be removed in early 2000
because the bridge was not legally authorized under 25 C.F.R.
§ 171.9 and because the BIA believed the bridge was unsafe.
Anspach recommended that the farmers either reroute access
or develop a new bridge approved by the BIA. On February
MCGUIRE v. UNITED STATES 16743
5, 1999, Anspach sent the first of three letters to McGuire giv-
ing him written notice that the bridge would be removed in
January 2000 because it was deemed to be unsafe and unau-
thorized. The letter stated:
“If you should decide that you need to bridge the
canal in order to operate your farm you may submit
to the Agency Superintendent plans, with specifica-
tions, for a new bridge and apply for a crossing per-
mit. See attached; Reference to 25 CFR, Ch. 171.9
Structures.”
A copy of the regulations was included with the letter. Ans-
pach directed McGuire to contact Ted Henry, Irrigation Sys-
tems Manager, if he had any questions.
During 1999, McGuire contacted Henry and Jeff Hinkins,
Supervisory General Engineer, and discussed the bridge with
them on several occasions. At trial, McGuire recounted one
instance in which he drew a sketch of a design for a new
bridge with Hinkins, and Hinkins said he was going to discuss
it with Anspach. McGuire was told on several occasions by
BIA staff that any decision concerning the bridge could only
be made by Anspach. McGuire called Anspach throughout the
year, but never spoke with Anspach or received a return
phone call from him. During this time, BIA staff never pro-
vided McGuire with a permit form or formal application for
a bridge permit.
In October 1999, McGuire retained local counsel and filed
a complaint in tribal court against BIA for the impending
removal of the bridge. The complaint alleged that removal of
the bridge would be illegal, would breach the lease between
McGuire and the Tribe and would take his leasehold. The
BIA declined to appear in tribal court. McGuire also appealed
Anspach’s decision within the BIA to the Western Regional
Office, which upheld Anspach’s decision. McGuire did not
take the appeal any higher within the BIA.
16744 MCGUIRE v. UNITED STATES
Anspach sent McGuire two additional letters on August 25,
1999 and November 12, 1999 stating that the bridge would be
removed in January 2000 and that McGuire could apply for
a permit for a new bridge in accordance with 25 C.F.R.
§ 171.9. On November 12, 1999 — the same date as Ans-
pach’s last letter to McGuire — the BIA blocked the bridge.
The bridge was dismantled and removed in January 2000.
Although the northern portion of the Leased Property could
be reached by a few other routes, none were reasonable means
of access for McGuire’s farming equipment. McGuire and his
haulers attempted to access the northern portion in a variety
of ways, but none proved successful. McGuire subsequently
tried to renegotiate the lease with the Tribe, but the Tribe was
unwilling to lower the lease payment or decrease the amount
of Leased Property to only include the southern portion.
McGuire could not generate enough revenue to make the
lease payment from the income from the southern portion
alone, and defaulted on his lease in 2000.
McGuire filed for Chapter 11 bankruptcy relief on June 5,
2001. On November 13, 2001, he filed this inverse condemna-
tion action against the United States in bankruptcy court,
seeking $2 million in compensation.1 The United States
moved to dismiss for lack of jurisdiction on sovereign immu-
nity grounds. On December 9, 2002, the bankruptcy court
issued “Findings and Recommendations.” The court held that
the Tucker Act, 28 U.S.C. § 1491, waived the government’s
immunity to suit in district court, relying on the Federal Cir-
cuit’s decision in Quality Tooling v. United States, 47 F.3d
1569 (Fed. Cir. 1995). The court found that it should maintain
jurisdiction over the action in the interests of judicial econ-
omy and not unduly burdening McGuire. Finally, the court
1
McGuire’s complaint originally included several additional claims and
defendants, but he proceeded only under the inverse condemnation theory.
The United States was substituted as the sole defendant, replacing the
other defendants named in the complaint.
MCGUIRE v. UNITED STATES 16745
held that the proceeding was not a “core proceeding” and
therefore it should report its findings and recommendations to
the district court for action under 28 U.S.C. § 157(c). On July
11, 2003, the district court adopted the bankruptcy court’s
“Findings and Recommendations” and denied the United
States’ motion to dismiss.
The district court remanded the case to bankruptcy court
for trial, which was conducted on April 14 and 15, 2005. Fol-
lowing trial, the bankruptcy court issued “Proposed Findings
of Fact and Conclusions of Law,” in which the court found
that the United States had committed a regulatory taking of
McGuire’s leasehold interest and recommended an award of
$1,132,059.60 in damages — the fair market value of the
lease on the entire property for the remaining five years of the
lease.
The district court rejected the bankruptcy court’s recom-
mendations. The court agreed with the bankruptcy court that
the government’s actions could qualify as a “regulatory tak-
ing,” but held that McGuire’s claim was not ripe for review
because the government never denied an application for a per-
mit to construct a new bridge. This timely appeal followed.
We review the district court’s conclusions of law de novo
and its findings of fact for clear error. Lim v. City of Long
Beach, 217 F.3d 1050, 1054 (9th Cir. 2000). We review juris-
dictional issues in bankruptcy de novo. In re Mantz, 343 F.3d
1207, 1211 (9th Cir. 2003).
II
[1] The district court erred in holding that McGuire’s tak-
ings claim was not ripe for review because he never applied
for a permit to develop a new bridge. The Supreme Court has
held that “a claim that the application of government regula-
tions effects a taking of a property interest is not ripe until the
government entity charged with implementing the regulations
16746 MCGUIRE v. UNITED STATES
has reached a final decision regarding the application of the
regulations to the property at issue.” Williamson Planning
Comm’n v. Hamilton Bank, 473 U.S. 172, 186 (1985). A court
must know “the nature and extent of permitted development
before adjudicating the constitutionality of the regulations that
purport to limit it.” MacDonald v. County of Yolo, 477 U.S.
340, 351 (1986). Until a property owner obtains a final deci-
sion from the government, “ ‘it is impossible to tell whether
the land [retains] any reasonable beneficial use or whether
[existing] expectation interests [have] been destroyed.’ ” Mac-
Donald, 477 U.S. at 349 (quoting Williamson Planning
Comm’n, 473 U.S. at 190 n. 11). Additionally, because “the
very existence of a permit system implies that permission may
be granted,” “[o]nly when a permit is denied and the effect of
the denial is to prevent ‘economically viable’ use of the land
in question can it be said that a taking has occurred.” United
States v. Riverside Bayview Homes, 474 U.S. 121, 127 (1985).
[2] To the extent that the ripeness requirements developed
in these land use development cases apply to the case at bar,2
we hold that McGuire’s takings claim is ripe because he suffi-
ciently complied with the permitting system as practiced by
the BIA. BIA regulations in effect at the time permitted a pri-
vate party to apply for a permit to build a bridge or crossing
for private use at the party’s own expense by obtaining the
approval of the “Officer-in-Charge.” 25 C.F.R. § 171.9(c)
(1999). The BIA sent three letters to McGuire prior to the
removal of the bridge, all of which informed McGuire that he
could apply for a permit by submitting “plans, with specifica-
tions, for a new bridge and apply for a crossing permit” to
Anspach. However, in practice, the Colorado River Agency of
the BIA did not follow a formal permitting process. At trial,
2
We note that the government’s argument that McGuire was required to
submit a formal permit application might be better characterized as an
exhaustion argument or a defense to liability. Regardless of how the objec-
tion is characterized, it is clear that McGuire sufficiently complied with
BIA practice and the objection is without merit.
MCGUIRE v. UNITED STATES 16747
Anspach explained that a property owner who wants to put in
a bridge typically approaches the BIA and says:
“We’d like to put a bridge here. And can you help
us come up with some plans and specs?” Or “Here
are my proposed plans and specs. What do you
think?” And then we have our engineers and staff
look at it and go from there.
Anspach testified that he had never personally received a
written proposal during his tenure at the BIA.
[3] McGuire followed the prevailing practice by contacting
the BIA on a number of occasions during 1999. Following the
instructions in the BIA’s letters, McGuire discussed the
bridge removal and plans for a new bridge several times with
Henry and Hinkins. McGuire testified that on one occasion he
drew a sketch of a design for a new bridge with Hinkins.
McGuire repeatedly attempted to reach Anspach by phone,
but never received a call back.
During this time, McGuire tried a variety of additional
strategies to maintain access to the Leased Property: he
enlisted the help of the Tribe, who sent two letters to the BIA
on McGuire’s behalf requesting that the BIA not remove the
bridge and try to work out an alternative solution; he retained
local counsel and filed suit against the BIA in tribal court, but
the BIA declined to appear; and he appealed Anspach’s deci-
sion to the Western Regional Office of the BIA, which upheld
Anspach’s decision. In short, McGuire did everything reason-
ably within his power to prevent removal of the bridge and,
when those efforts proved ineffective, to build a new one.
[4] The government’s position thus amounts to the claim
that the mere fact McGuire did not submit a formal applica-
tion for a bridge permit renders his takings claim unripe.
However, “[r]ipeness doctrine does not require a landowner to
submit applications for their own sake.” Palazzolo v. Rhode
16748 MCGUIRE v. UNITED STATES
Island, 533 U.S. 606, 622 (2001). Here, McGuire took “rea-
sonable and necessary steps to allow” the BIA to exercise its
“full discretion in considering development plans for the
property.” Id. at 620-21. No further purpose would have been
served by filing a formal application for a bridge permit.
Accordingly, McGuire’s takings claim is ripe for review.3
III
Although McGuire’s suit is ripe for adjudication, the doc-
trine of sovereign immunity bars the district court and bank-
ruptcy courts from hearing the merits of his takings claim.
[5] “It is well settled that the United States is a sovereign,
and, as such, is immune from suit unless it has expressly
waived such immunity and consented to be sued. Such waiver
cannot be implied, but must be unequivocally expressed.
Where a suit has not been consented to by the United States,
dismissal of the action is required . . . . [because] the existence
of such consent is a prerequisite for jurisdiction.” Gilbert v.
Da Grossa, 756 F.2d 1455, 1458 (9th Cir. 1985) (internal
quotation marks and citations omitted). Unless McGuire “sat-
isfies the burden of establishing that its action falls within an
unequivocally expressed waiver of sovereign immunity by
Congress, it must be dismissed.” Dunn & Black v. United
States, 492 F.3d 1084, 1088 (9th Cir. 2007).
3
Although we conclude in Section II that sovereign immunity barred the
district and bankruptcy courts from hearing the merits of the claim, we
reach the question of ripeness because we consider it a predicate to trans-
ferring the case to the Court of Federal Claims, as we do in Section V. See
Hose v. INS, 180 F.3d 992, 995-96 (9th Cir. 1999) (en banc) (“In order for
a case to be transferred pursuant to the federal transfer statute, the trans-
feree court must be able to hear the matter upon transfer.”). Although the
ripeness question in this case is arguably prudential, rather than jurisdic-
tional, judicial economy and courtesy to transferee courts dictates that we
resolve threshold issues first before invoking the transfer statute. This con-
sideration is particularly applicable in this case because ripeness formed
the basis of the district court’s decision, and it would be inappropriate to
transfer a case that we did not consider ripe for adjudication.
MCGUIRE v. UNITED STATES 16749
[6] Whether the district court had jurisdiction over
McGuire’s takings claim requires us to consider the two prin-
cipal federal statutes authorizing suit against the United
States: the Tucker Act and the Little Tucker Act. The Tucker
Act provides a waiver of sovereign immunity and for jurisdic-
tion in the Court of Federal Claims for certain claims brought
against the United States:
The United States Court of Federal Claims shall
have jurisdiction to render judgment upon any claim
against the United States founded either upon the
Constitution, or any Act of Congress or any regula-
tion of an executive department, or upon any express
or implied contract with the United States, or for liq-
uidated or unliquidated damages in cases not sound-
ing in tort.
28 U.S.C. § 1491(a)(1). The Little Tucker Act provides a
waiver of sovereign immunity and for concurrent district
court jurisdiction over:
[a]ny . . . civil action or claim against the United
States, not exceeding $ 10,000 in amount, founded
either upon the Constitution, or any Act of Congress,
or any regulation of an executive department, or
upon any express or implied contract with the United
States, or for liquidated or unliquidated damages in
cases not sounding in tort.
28 U.S.C. § 1346(a)(2). Read together, these statutes provide
for jurisdiction solely in the Court of Federal Claims for
Tucker Act claims seeking more than $10,000 in damages,
and concurrent district court jurisdiction over claims seeking
$10,000 or less. United States v. Hohri, 482 U.S. 64, 67 n.1
(1987). “The legislative intent in granting concurrent district
court jurisdiction over claims of less than $10,000 was to
relieve small claimants of the expense of traveling to Wash-
ington, D.C., to litigate before the Court of Federal Claims,
16750 MCGUIRE v. UNITED STATES
while large claims remained centralized at the seat of the gov-
ernment so that department heads would be better able to pro-
tect the government’s interests.” Moore’s Federal Practice 3d
§ 105.25[1][a]; Shaw v. Gwatney, 795 F.2d 1351, 1355-56
(8th Cir. 1986).
[7] McGuire’s takings claim falls within the scope of the
Tucker Act. A takings claim is the type of claim founded on
the Constitution for which the Tucker Act grants jurisdiction
in the Court of Federal Claims. Eastern Enters. v. Apfel, 524
U.S. 498, 520 (1998) (“[A] claim for just compensation under
the Takings Clause must be brought to the Court of Federal
Claims in the first instance, unless Congress has withdrawn
the Tucker Act grant of jurisdiction in the relevant statute.”);
Reg’l Rail Reorganization Act Cases, 419 U.S. 102, 126
(1974); United States v. Causby, 328 U.S. 256, 267 (1946)
(“If there is a taking, the claim is ‘founded upon the Constitu-
tion’ and within the jurisdiction of the Court of Claims to hear
and determine.”). McGuire claimed $2,000,000 in damages,
well in excess of the $10,000 jurisdictional amount. Thus
McGuire could have brought his takings claim in the Court of
Federal Claims.
[8] But that is not the end of our inquiry, as a claim that
falls under the Tucker Act does not necessarily have to be
brought in the Court of Federal Claims. The Tucker Act’s
grant of jurisdiction to the Court of Federal Claims is fre-
quently referred to as “exclusive,” but “that court’s jurisdic-
tion is ‘exclusive’ only to the extent that Congress has not
granted any other court authority to hear the claims that may
be decided by the Claims Court.” Bowen v. Massachusetts,
487 U.S. 879, 910 n.48 (1988). “[C]ourts have referred to the
Tucker Act’s grant of exclusive jurisdiction as a shorthand
way of recognizing that Congress has waived sovereign
immunity for [authorized] claims only for actions brought in
the Court of Federal Claims.” Doe v. Tenet, 329 F.3d 1135,
1141 n.3 (9th Cir. 2003), rev’d on other grounds, 554 U.S. 1(2005). “ ‘[J]urisdiction under the Tucker Act is not exclusive
MCGUIRE v. UNITED STATES 16751
where other statutes independently confer jurisdiction and
waive sovereign immunity.’ ” In re Liberty Constr., 9 F.3d
800, 801 (9th Cir. 1993) (quoting Pacificorp v. Federal
Energy Regulatory Comm’n, 795 F.2d 816, 826 (9th Cir.
1985) (Wallace, J., concurring)).
[9] Thus, the Tucker Act does not preclude district court
jurisdiction over McGuire’s takings claim, so long as there is
an independent waiver of sovereign immunity and grant of
federal district court jurisdiction. The statutory basis for fed-
eral district court jurisdiction in this case is founded not on
the Tucker Act, but on the Bankruptcy Code. The Bankruptcy
Code provides:
. . . notwithstanding any Act of Congress that confers
exclusive jurisdiction on a court or courts other than
the district courts, the district courts shall have origi-
nal but not exclusive jurisdiction of all civil proceed-
ings arising under title 11, or arising in or related to
cases under title 11.
28 U.S.C. § 1334(b). A civil proceeding is “related to” a title
11 case if “the outcome of the proceeding could conceivably
have any effect on the estate being administered in bankrupt-
cy.” In re Feitz, 852 F.2d 455, 457 (9th Cir. 1988) (emphasis
removed) (internal quotations and citation omitted).
McGuire’s takings claim undisputably falls under this broad
grant of jurisdiction.
[10] While § 1334(b) provides a statutory basis for district
court jurisdiction in this case, there is no corresponding stat-
ute that provides a waiver of sovereign immunity. The district
court held that the Tucker Act provided the government’s
consent to suit in district court, relying primarily on Quality
Tooling v. United States, 47 F.3d 1569 (Fed. Cir. 1995).
There, the Federal Circuit held that a bankruptcy debtor4
4
Quality Tooling brought a contract claim against the United States,
pursuant to the Tucker Act and Contract Disputes Act of 1978, 41 U.S.C.
16752 MCGUIRE v. UNITED STATES
could bring a contract claim against the federal government in
a district court sitting in bankruptcy because the Tucker Act
broadly “waives the government’s immunity from suit on its
contracts in any court to which Congress grants jurisdiction to
hear the claim.” Id. at 1575. Because § 1334(b) “give[s] the
district court sitting in bankruptcy plenary authority over the
bankrupt’s estate and all claims by or against it,” id. at 1573,
the Federal Circuit concluded that the district court could
properly exercise jurisdiction over the contract dispute.
[11] We cannot agree that the Tucker Act generally waives
sovereign immunity for suits outside the Court of Federal
Claims. The Tucker Act provides that the “Court of Federal
Claims shall have jurisdiction to render judgment upon any
claim against the United States founded . . . upon the Consti-
tution . . . .” 28 U.S.C. § 1491(a)(1). The Supreme Court has
required that “[a] waiver of the Federal Government’s sover-
eign immunity must be unequivocally expressed in statutory
text, and will not be implied.” Lane v. Pena, 518 U.S. 187,
192 (1996) (internal citations omitted). Additionally, “the
Government’s consent to be sued must be construed strictly
in favor of the sovereign, and not enlarged . . . beyond what
the language requires.” United States v. Nordic Village, 503
U.S. 30, 34 (1992) (internal quotations and citations omitted).
Here, the statutory text of the Tucker Act is far from an “un-
equivocal expression” of consent to suit in federal district
court. Indeed, if anything, the Tucker Act unequivocally lim-
its claims like McGuire’s to the Court of Federal Claims.
[12] This view is reinforced by the language in the Little
Tucker Act that expressly provides for federal district court
§ 609, in the Court of Federal Claims. Id. at 1571. While the claim was
pending, Quality petitioned for Chapter 11 relief. Quality’s contract claim
was subsequently moved to the Northern District of Alabama, sitting in
bankruptcy. After the government’s motion to transfer the contract dispute
back to the Court of Federal Claims was denied, the Federal Circuit enter-
tained the government’s interlocutory appeal pursuant to 28 U.S.C.
§ 1292(d)(4). Id. at 1571-72.
MCGUIRE v. UNITED STATES 16753
jurisdiction over Tucker Act claims for $10,000 or less. The
Little Tucker Act “effects . . . [an] explicit waiver” of sover-
eign immunity to such suits in district court. Army & Air
Force Exch. Serv. v. Sheehan, 456 U.S. 728, 734 (1982). The
express inclusion of concurrent district court jurisdiction in
the Little Tucker Act suggests that Congress intended to pre-
clude district court jurisdiction over claims in excess of
$10,000.
The inclusion of specific waivers of sovereign immunity in
the Bankruptcy Code buttresses our conclusion. Section 106
of the Bankruptcy Code waives the federal government’s sov-
ereign immunity in three circumstances: (1) where the sub-
stantive authority for the cause of action arises from the
Bankruptcy Code itself; (2) for compulsory counterclaims
against government claims; and (3) for permissive counter-
claims capped by a set-off limitation. See 11 U.S.C. § 106(a)-
(c); Quality Tooling, 47 F.3d at 1583 (Fed. Cir. 1995) (Schall,
J., dissenting). The district court did not find a waiver of sov-
ereign immunity based on any of these provisions, nor does
it appear that any apply to McGuire’s takings claim. The
express, specific waivers in § 106 suggest that Congress did
not intend to broadly consent to suit in bankruptcy court for
any claim that falls under the Tucker Act. Additionally, these
express waivers would be unnecessary if Congress, through
the Tucker Act, broadly consented to suit in federal district
court.
We also observe that Quality Tooling is at odds with Con-
gress’ intent in creating the Federal Circuit to address the
“special need for nationwide uniformity” in areas of law
encompassed by the Tucker Act. Hohri, 482 U.S. at 71 (inter-
nal quotations and citation omitted). While the Little Tucker
Act permits suits in district court for damages claims of
$10,000 or less, an appeal on such claims is assigned to the
Federal Circuit — the same court that hears appeals of Tucker
Act claims from the Court of Federal Claims. See 28 U.S.C.
§ 1295(a)(2). “A conspicuous feature of these judicial
16754 MCGUIRE v. UNITED STATES
arrangements is the creation of exclusive Federal Circuit juris-
diction over every appeal from a Tucker Act or nontax Little
Tucker Act claim.” Hohri, 482 U.S. at 72-73. Thus Quality
Tooling is contrary to Congress’ goal of creating uniformity
in the law that affects the federal government (although,
admittedly, this concern does not apply with much force to
claims like McGuire’s, which are frequently brought in dis-
trict court outside the bankruptcy context).
There is nothing unusual about our conclusion that the
Tucker Act effects a limited waiver of sovereign immunity in
the Court of Federal Claims. In other contexts, the Supreme
Court has recognized that a waiver of sovereign immunity can
be forum-specific: “[I]t rests with Congress to determine not
only whether the United States may be sued, but in what
courts the suit may be brought.” Minnesota v. United States,
305 U.S. 382, 388 (1939); see also Hercules, Inc. v. United
States, 516 U.S. 417, 422 (1996) (“The United States, as sov-
ereign, is immune from suit save as it consents to be sued . . .
and the terms of its consent to be sued in any court define that
court’s jurisdiction to entertain the suit.”) (internal quotations
omitted). In Minnesota, 305 U.S. at 389-90, the Supreme
Court held that a statute providing that Indian lands in which
the United States had an interest could be condemned granted
permission for states to sue the United States with respect to
such lands, but that the waiver was limited to suit in federal
district court. Similarly, in United States v. Shaw, 309 U.S.
495, 501-02 (1940), the Supreme Court held that a Michigan
probate court did not have jurisdiction over a cross-claim
against the United States in an amount greater than necessary
as a set-off, which was authorized by statute. The Court
observed that a number of policy concerns supported Shaw’s
position: the preference for a single adjudication, the neces-
sity of a complete examination of the cross-claim, and that the
government had voluntarily injected itself into the probate
proceeding. Id. at 502. It nonetheless concluded that “[i]t is
not our right to extend the waiver of sovereign immunity
more broadly than has been directed by the Congress.” Id.;
MCGUIRE v. UNITED STATES 16755
see also Quality Tooling, 47 F.3d at 1581-83 (Schall, J., dis-
senting) (discussing Minnesota and Shaw in detail).
[13] The Quality Tooling majority distinguished Shaw and
Minnesota on the ground that those cases involved the ques-
tion of state court jurisdiction over the federal government,
whereas here both courts involved “are creatures of the fed-
eral sovereign.” 47 F.3d at 1577. While that distinction may
have some relevance to immunity analysis, see id. at 1577 n.9,
it does not alter the ordinary practice of narrowly construing
waivers of immunity. Here, like in Shaw, there are a number
of practical considerations that weigh in favor of district court
jurisdiction over McGuire’s takings claim. However, because
the government has not unequivocally waived its sovereign
immunity to suit in district court for claims like McGuire’s,
the district court erred by concluding it had jurisdiction to try
the merits of the Tucker Act claims.
IV
[14] Our conclusion that the Court of Federal Claims is the
proper court to entertain the merits of McGuire’s takings
claims does not mean that the district and bankruptcy courts
have no jurisdictional role. To the contrary, “[t]he district
court in which the bankruptcy case is commenced obtains
exclusive in rem jurisdiction over all of the property in the
estate.” Hong Kong and Shanghai Banking Corp., Ltd. v.
Simon (In re Simon), 153 F.3d 991, 996 (9th Cir. 1998). A
chose in action is property of the bankruptcy estate pursuant
to 11 U.S.C. § 541(a)(1). City & County of San Francisco v.
PG & E Corp., 433 F.3d 1115, 1126 (9th Cir. 2006). For this
reason, only bankruptcy trustees, debtors-in-possession, or
bankruptcy court authorized entities have standing to sue on
behalf of the estate. Estate of Spirtos v. One San Bernardino
County Superior Court Case Numbered SPR 02211, 443 F.3d
1172, 1175 (9th Cir. 2006). If McGuire had attempted to pur-
sue his takings action in the Court of Federal Claims without
bankruptcy court approval, his suit would have been subject
16756 MCGUIRE v. UNITED STATES
to dismissal for lack of standing. Thus, although the Court of
Federal Claims has exclusive jurisdiction to entertain the mer-
its of a Tucker Act claim brought by a bankruptcy debtor, the
cause of action belongs to the bankruptcy estate and is subject
to bankruptcy court jurisdiction. These circumstances are not
unusual. Many state law claims of bankruptcy debtors are liti-
gated outside bankruptcy court. However, in the usual course,
any money judgment obtained in such an action is property of
the bankruptcy estate. Therefore, although the bankruptcy and
district court do not have jurisdiction to hear the merits of the
Tucker Act claims, the cause of action still forms part of the
bankruptcy estate and the management thereof is subject to
bankruptcy court jurisdiction.
V
The final issue is procedural—whether this action should
be dismissed or transferred. If a court lacks jurisdiction over
a federal civil action, “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.” Puri v. Gonzales, 464 F.3d 1038, 1042 (9th
Cir. 2006) (quoting 28 U.S.C. § 1631). Given the uncontested
district court jurisdiction over the bankruptcy, coupled with
authority from the Federal Circuit Court of Appeals indicating
that the district court had jurisdiction over the Tucker Act
claim, we conclude it would be in the interest of justice to
transfer the action to the Court of Federal Claims, rather than
dismissing it.
[15] Therefore, we reverse the judgment of the district
court and remand this case with instructions that this action be
transferred to the Court of Federal Claims pursuant to 28
U.S.C. § 1631.
REVERSED AND REMANDED WITH INSTRUC-
TIONS.