Ferdinand Oliveira v. United States, 734 F.2d 760, 11th Cir. (1984)
Ferdinand Oliveira v. United States, 734 F.2d 760, 11th Cir. (1984)
2d 760
Background
2
On November 27, 1978, the F.E.A.A. affirmed Oliveira's removal. It found the
charge of insubordination supported by a preponderance of the evidence and
that consideration of the two previous disciplinary actions was proper as
additional support for the removal.
On July 19, 1979, the Office of Appeals Review of the Merit Systems
Protection Board (formerly the F.E.A.A.) (Board) denied Oliveira's petition for
reconsideration, at which point his administrative remedies were exhausted.
Oliveira filed his original complaint in the district court on February 20, 1980
alleging discrimination, requesting back pay in excess of $10,000, and
reinstatement. Jurisdiction was based, in part, on 28 U.S.C. Sec. 1346. Upon
motion of the United States, the court dismissed the complaint with leave to
amend.
Issue
9
The United States raised at oral argument and for the first time the issue of
whether this court or the Federal Circuit has jurisdiction over Oliveira's appeal.
The United States asserts that because the district court's jurisdiction was based
in whole or in part on 28 U.S.C. Sec. 1346(a)(2),1 the Federal Circuit has
exclusive jurisdiction under 28 U.S.C. Sec. 1295(a)(2).2 We agree.
11
The Federal Courts Improvement Act of 1982, Pub.L. No. 97-164, 96 Stat. 25,
amended 28 U.S.C. by adding Sec. 1295(a)(2). That section grants exclusive
jurisdiction to the Federal Circuit over appeals from final decisions of district
courts in certain cases, commonly called "Little Tucker Act" cases, the
jurisdiction of the district court in those cases being based, "in whole or in
part," on 28 U.S.C. Sec. 1346(a)(2). See, e.g., Spagnola v. Stockman, Director
of OMB, 732 F.2d 908, 909, note 1 (Fed.Cir.1984). That grant of exclusive
appellate jurisdiction applies to all cases like this, except those in which a
notice of appeal was filed in a district court before October 1, 1982 (the
effective date of the Act). 28 U.S.C. Sec. 171 note (Transitional Provision).3
12
It is clear from the record that the district court's jurisdiction was based at least
in part on 28 U.S.C. Sec. 1346(a)(2)4 and that Oliveira filed his notice of appeal
in the district court on March 28, 1983. Under 28 U.S.C. Secs. 1295(a)(2), the
appeal should have been taken to the Federal Circuit rather than to this court.
13
The statute, 28 U.S.C. Sec. 1631,5 provides that under such circumstances, and
in the interest of justice, this court shall not dismiss the appeal but shall transfer
it to the Federal Circuit. See, Heisig v. United States, 719 F.2d 1153
(Fed.Cir.1983) (appeal to the D.C. Circuit transferred to the Federal Circuit);
Corwin v. Lehman, 724 F.2d 1577 (Fed.Cir.1984) (Federal Circuit has
exclusive jurisdiction over appeal transferred from D.C. Circuit); Spagnola v.
Stockman, Director of OMB, supra ("Little Tucker Act" appeal transferred from
D.C. Circuit to Federal Circuit).6 Our determination to transfer raises no
implication respecting our view on the merit or lack of merit in the appeal.
Conclusion
14
Because this court has no jurisdiction over this appeal, we transfer it under 28
U.S.C. Sec. 1631 to the United States Court of Appeals for the Federal Circuit.
15
TRANSFERRED.
Honorable Howard T. Markey, Chief Judge, U.S. Court of Appeals for the
Federal Circuit, sitting by designation
Sec. 1295. Jurisdiction of the United States Court of Appeals for the Federal
Circuit
(a) The United States Court of Appeals for the Federal Circuit shall have
exclusive jurisdiction--...
(2) of an appeal from a final decision of a district court of the United States, the
United States District Court for the District of the Canal Zone, the District
Court of Guam, the District Court of the Virgin Islands, or the District Court for
the Northern Mariana Islands, if the jurisdiction of that court was based, in
whole or in part, on section 1346 of this title, except that jurisdiction of an
appeal in a case brought in a district court under section 1346(a)(1), 1346(b),
1346(e), or 1346(f) of this title or under section 1346(a)(2) when the claim is
founded upon an Act of Congress or a regulation of an executive department
providing for internal revenue shall be governed by sections 1291, 1292, and
1294 of this title;
"(e) Any case in which a notice of appeal has been filed in a district court of the
United States prior to the effective date of this Act [Oct. 1, 1982] shall be
decided by the court of appeals to which the appeal was taken."
4
Jurisdiction over at least one count in each of Oliveira's original and amended
complaints was based on 28 U.S.C. Sec. 1346