United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 11-2502

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Maynard Bernard; Florine Bernard, *

*

Plaintiffs - Appellants, *

* Appeal from the United States

v. * District Court for the

* District of South Dakota. 

United States Department of the Interior;*

Secretary of Department of Interior; *

Board of Indian Hearings and Appeals; *

Great Plains Regional Director of the *

Bureau of Indian Affairs, *

*

Defendants - Appellees, *

*

Grady Renville, *

*

Defendant. *

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Submitted: March 14, 2012

 Filed: April 6, 2012

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Before MURPHY and GRUENDER, Circuit Judges, and ROSS, District Judge. 1

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MURPHY, Circuit Judge.

The Honorable John A. Ross, United States District Judge for the Eastern 1

District of Missouri, sitting by designation.
Maynard Bernard decided to develop some of the Indian trust land he owned

on the Sisseton Wahpeton Reservation in a project planned with his cousin Grady

Renville. Bernard and Renville consulted a Bureau of Indian Affairs (BIA) realty

officer about how to proceed. She advised Bernard to sign a gift deed to convey the

entire property to himself and Renville asjoint tenants with the right of survivorship. 

The agency subsequently denied a request by Bernard and his wife Florine to set

aside the deed. After an unsuccessful administrative appeal the Bernards brought an

action in federal district court against the United States Department of the Interior

(the Department) seeking review of the agency decision and money damages for

breach of trust. The Bernards later amended their complaint to eliminate the damage

claim and subsequently settled with Renville, who agreed to deed back some of the

land. After the district court affirmed the administrative decision and dismissed the

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Bernards' action, they moved to alter the judgment, seeking transfer of their damage

claimto the Court of Federal Claims (CFC). The district court denied the motion, and

the Bernards appeal. We affirm.

I.

Bernard owned approximately 45.5 acres of land held in trust by the United

States for his benefit on the Sisseton Wahpeton Indian Reservation in South Dakota. 

Maynard and Florine Bernard are both members of the Sisseton Wahpeton Tribe. In

2004 Bernard entered into an agreement with his second cousin Renville to develop

the section of Bernard's land that abutted Pickerel Lake and to share profits from the

sale of individual lots. Renville was to provide the capital for this development. 

The Honorable Charles B. Kornmann, United States District Judge for the

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District of South Dakota.

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Bernard obtained permission from the Sisseton Wahpeton Tribal Council to take the

lakefront acres out of trust.

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Bernard and Renville met with realty officer Carol Jordan at the BIA office in

Sisseton in April 2004. Bernard states that the purpose of the meeting was to make

arrangements to have the land taken out of trust. Jordan stated at her deposition that

she advised them to leave the land in trust status and wait to obtain a fee patent until

development was completed in order to avoid tax consequences. She also suggested

use of a gift deed so that Renville could "protect whatever monetary interest that he

was going to be putting into the project." She further suggested a joint tenancy with

the right of survivorship because the two men had verbally agreed that they would

"take care of each other's families." Renville filled out a gift deed application for

Bernard because he apparently had some vision problems. 

The application stated that Bernard intended to gift convey 45.5 acres to

himself and Renville in a joint tenancy with the right of survivorship. The reason

listed for the conveyance was "joint business venture." The application also indicated

that Bernard waived his right to an appraisal. He signed the application, and on April

20 Jordan brought a gift deed to the Bernards' house, where Maynard and his wife

Florine both signed it. The BIA superintendent approved the deed in May 2004, and

it was subsequently recorded.

Bernard contends that he had not understood that he gift deeded his land to

Renville. He claims thatJordan misrepresented the effect ofsigning the deed and that

he thought he was signing a mortgage. According to Bernard, Jordan never

mentioned anything about a gift conveyance. Instead she assured him that the

arrangement was temporary and that no deed would ever be filed. Jordan testified at

Bernard originally requested permission to take out 10 acres; however a

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survey later revealed that the amount of lakefront land was approximately 17 acres.

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her deposition that she told the Bernards that the gift conveyance was going to be a

"temporary situation" because Renville had orally agreed to reconvey to Bernard the

land not intended for development. Jordan also stated in an affidavit that she

explained the nature of a joint tenancy and a right of survivorship to Bernard and

Renville.

Several months after the deed was signed, the development plan fell apart. 

According to Bernard, his relationship with Renville deteriorated, the project "failed

dismally," and Renville stopped working on it withoutrelinquishing his interest in the

land. Renville claims to have spent approximately $200,000 developing the land. 

The Bernards allege that they did not receive a copy of the gift deed until June

2004, after the deed had already received final approval fromthe BIA superintendent.

They wrote to the superintendent alleging that the agency had breached its fiduciary

duty by misrepresenting the effect of signing the deed. The superintendent denied

their request to set aside the deed, stating that he did not have the authority to do so. 

The Bernards appealed to the regional director, adding that the BIA had violated its

own regulations in approving the gift deed. The regional director affirmed the

decision not to rescind the deed, concluding that agency procedures had been

followed, thatJordan had explained the nature of the gift conveyance, and thatJordan

had observed that Bernard was "capable of understanding everything that was

explained."

The Bernards appealed to the Interior Board of Indian Appeals (IBIA), which

affirmed the regional director's decision. The Board concluded that no violation of

agency regulations had occurred which might render the deed void. The Board did

not reach the merits of the Bernards' breach of trust claims, stating that it had no

authority to grant the requested relief of declaring the gift deed null and void based

on an alleged breach of trust. See Maynard & Florine Bernard v. Acting Great Plains

Reg'l Dir., 46 I.B.I.A. 28 (2007).

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In October 2008 the Bernards brought this action against the Department

seeking review of the IBIA's decision not to set aside the deed, as well as money

damages for breach of "fiduciary duty and trust responsibility." The complaint

alleged that the BIA had breached its fiduciary duty by failing to explain the effect

of signing a gift deed, misrepresenting it as only a "temporary arrangement," and

unduly influencing the Bernards to sign it. They asserted jurisdiction under the

Administrative Procedure Act (APA), 5 U.S.C. §§ 701–706, as well as the Tucker

Act, 28 U.S.C. § 1491(a)(1). The Tucker Act provides that the CFC has exclusive

jurisdiction over non tort claims for money damages against the United States in

excess of $10,000. Id.; See Weeks Const., Inc. v. Oglala Sioux Hous. Auth., 797 F.2d

668, 675 (8th Cir. 1986).

The Department moved to dismiss the Bernards' complaint in January 2009,

arguing that the claim for money damages deprived the district court of jurisdiction

under the APA and that the CFC had exclusive jurisdiction over claims against the

United Statesfor money damages in excess of $10,000. The Bernards amended their

complaint in response, eliminating their request for money damages and the

jurisdictional reference to the Tucker Act and adding Renville as a defendant. They

subsequently clarified that they were "seeking APA review [of the IBIA decision not

to set aside the deed] and not money damages" and acknowledged that any money

damages claim "would be required to be brought in the [CFC]."

In February 2011 the district court ordered the Bernards and Renville to

mediate their land dispute. They subsequently reached a settlement in which the

parties agreed to split the proceeds from the sale of the 17 acres abutting the lake that

had been intended for development, and Renville agreed to return the remaining acres

to the Bernards. The Department of the Interior was not a party to the settlement

agreement.

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The district court affirmed the IBIA decision in March 2011, concluding that

it was not arbitrary, capricious, an abuse of discretion, or otherwise contrary to the

law. See 5 U.S.C. § 706(2)(A). It also concluded that since the BIA had not "passed

upon any question of breach oftrustresponsibilities," administrative remedies had not

been exhausted on those claims and it had no jurisdiction to consider them. The

district court commented that "[n]o competent lawyer would have permitted the

parties to proceed as they did," but that Jordan "did exactly what the plaintiffs

requested and there is no evidence of the employee holding herself out as a lawyer or

even a real estate agent." It stated that while establishing a joint tenancy was

"certainly unwise and dangerous," it was unfortunately not an "unfamiliar situation

where lay people undertake activities without legal advice . . . without foreseeing the

trouble to come 'down the road'" and that the parties "expected lawyers and a court

to unravel their casual and reckless doings." The district court entered an order

dismissing the case.

The Bernards then filed a motion to alter the judgment under Federal Rules of

Civil Procedure 59(e) and 60. They sought to have their money damages claim

against the United States for breach of trust transferred to the CFC, citing the federal

transfer statute, 28 U.S.C. § 1631. The district court denied the motion. It concluded

that while transfer might be in the "interest of justice," the Bernards had not met the

other requirements for transfer under § 1631 because they had abandoned their

Tucker Act claim for money damages in 2009. Thus "there were no claims pending

for money damages or for claimed breach of trust" at the time it had dismissed the

action. It also noted that the six year statute of limitations for CFC claims "may well

have expired," and that the Supreme Court's interpretation of 28 U.S.C. § 1500 in

United States v. Tohono O'Odham Nation, 131 S. Ct. 1723 (2011), provided further

support for the denial of the Bernards' motion. Section 1500 bars CFC jurisdiction

when the plaintiff has a suit against the United States "for or in respect to" the same

claim pending in another court.

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TheBernards appeal the denial ofthe motion to alter the judgment, arguing that

they had not abandoned their breach of trust claim, that neither the statute of

limitations nor Tohono prevent transfer, and that transfer would be in the interest of

justice.

II.

We review the district court's denial of the Bernards' Rule 59(e) motion to alter

the judgment for an abuse of discretion. Twin City Constr. Co. of Fargo v. Turtle 4

Mountain Band of Chippewa Indians, 911 F.2d 137, 139 (8th Cir. 1990). We will

find an abuse of discretion only if the district court's judgment "was based on clearly

erroneous factual findings or erroneous legal conclusions." Margolies v. McCleary,

Inc., 447 F.3d 1115, 1125 (8th Cir. 2006) (citation omitted).

In their motion to alter the judgment the Bernards asked the district court to

transfer their money damages claim to the CFC, noting that the six year statute of

limitations would prevent them from simply refiling that claim there. See 28 U.S.C.

§ 2501. The transfer statute provides:

Whenever a civil action is filed in 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 at the time it was filed or

noticed, and the action or appeal shall proceed as if it had been filed in

or noticed for the court to which it is transferred on the date upon which

it was actually filed in or noticed for the court from which it is

transferred.

Although the Bernards' motion to alter the judgment cited both Rule 59(e) and

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Rule 60, their attorney stated at oral argument that the motion was intended under

Rule 59(e), not Rule 60.

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Id. The district court concluded the requirements for transfer under § 1631 were not

met and denied the motion.

We conclude that the requirements for transfer under § 1631 were not met in

this case. Several years before the district court entered its final judgment, the

Bernards abandoned their claim for money damages under the Tucker Act by

amending their complaint to eliminate all reference to that claim. They clarified

several timesthat there was no longer a claim for money damages and acknowledged

that they understood that any such claim had to be brought in the CFC. Because there

was no money damages claim pending at the time the district court entered its final

judgment in March 2011, there was no action which the district court could have

transferred under § 1631. See In re Wireless Tel. Fed. Cost Recovery Fees Litig., 396

F.3d 922, 928 (8th Cir. 2005) ("[A]n amended complaint supercedes an original

complaint and rendersthe original complaint without legal effect.");Rogers v. United

States, 26 Cl. Ct. 1023, 1029 (1992) (court may not transfer claim under § 1631 if not

alleged in complaint). The district court thus did not abuse its discretion in denying

the Bernards' motion to alter the judgment.

The Bernards urge the court to look at the original complaint instead of the

amended complaint to find that their money damages claim still existed for the

purposes of transfer. They cite removal cases where a court ordered a party to amend

a complaint or the decision to amend was "otherwise involuntary." In such cases the

court then looks to the original complaint to determine whether removal to federal

court was proper. E.g. In re Atlas Van Lines, Inc., 209 F.3d 1064, 1067 (8th Cir.

2000). The Bernards offer no authority indicating that the involuntariness exception

to the amended complaint rule applies outside of the removal context, and we

conclude that it is not applicable here.

Even if the money damages claim had still been pending at the time of

dismissal, transfer in this case would have been prohibited by 28 U.S.C. § 1500. That

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statute provides that the CFC "shall not have jurisdiction of any claim for or in

respect to which the plaintiff . . . has pending in any other court any suit or process

against the United States." The Federal Circuit has clarified that § 1500 prevents

transfer to the CFC of a claim filed in the district court simultaneously with another

claim which the statute considers to be the same. United States v. Cnty. of Cook, Ill.,

170 F.3d 1084, 1091 (Fed. Cir. 1999). This is because the transfer statute directs that

the transferred action "shall proceed as if it had been filed in . . . the court to which

it is transferred on the date upon which it was actually filed in . . . the court from

which it is transferred." 28 U.S.C. § 1631. The Bernards do not dispute that their

APA claim and their Tucker Act claim for money damages are "for or in respect to"

the same claim for purposes of § 1500. See United States v. Tohono O'Odham

Nation, 131 S. Ct. 1723, 1731 (2011) ("Two suits are for or in respect to the same

claim, precluding jurisdiction in the CFC, if they are based on substantially the same

operative facts, regardless of the relief sought in each suit."). Thus, even if the

Bernards had not withdrawn their damage claim, transfer would not have been

permitted because the APA claim would have been considered "pending" and § 1500

would have barred CFC jurisdiction. 170 F.3d at 1091. 

We recognize that the facts of this case are troubling. Apparently on her own

initiative, the BIA realty officer advised Bernard to sign a gift deed conveying half

of his interest in his entire property to Renville in a joint tenancy with the right of

survivorship. In addition she told Bernard that this would be only a "temporary"

arrangement based on Renville's alleged oral assurances, and she permitted Bernard

to waive appraisal of his land before the transfer. She also allowed Renville to fill out

the gift deed application, apparently because Bernard's eyesight was so bad he could

not do it himself. 

TheBernards do not challenge the district court's decision on the merits oftheir

APA claim, however, and they were not left completely without a remedy. Through

a settlement with Renville, they received half of the proceeds from the sale of the

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property originally intended for the joint venture and Renville deeded back the

remaining acres.

III.

We conclude that the district court did not abuse its discretion by denying the

motion to alter the judgment to transfer the money damages claim to the CFC since

the Bernards had withdrawn that claim several years before final judgment was

entered. Accordingly, the judgment of the district court is affirmed.

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