NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

LUMMI TRIBE OF THE LUMMI RESERVATION, 

WASHINGTON, LUMMI NATION HOUSING 

AUTHORITY, HOPI TRIBAL HOUSING 

AUTHORITY, FORT BERTHOLD HOUSING 

AUTHORITY,

Plaintiffs-Appellants

FORT PECK HOUSING AUTHORITY,

Plaintiff

v.

UNITED STATES,

Defendant-Appellee

______________________

2018-1720

______________________

Appeal from the United States Court of Federal Claims

in No. 1:08-cv-00848-RHH, Senior Judge Robert H. 

Hodges, Jr.

______________________

Decided: October 9, 2019

______________________

JEFFREY S. RASMUSSEN, Fredericks Peebles and Patterson LLP, Louisville, CO, argued for plaintiffs-appellants. 

Also represented by JOHN FREDERICKS, III, Fredericks Law 
2 LUMMI TRIBE v. UNITED STATES

Firm LLC, Mandan, ND. 

 STEVEN JOHN GILLINGHAM, Commercial Litigation 

Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also 

represented by JOSEPH H. HUNT; PERRIN WRIGHT, United 

States Department of Housing and Urban Development, 

Washington, DC.

 ______________________

Before O’MALLEY, REYNA, and CHEN, Circuit Judges.

REYNA, Circuit Judge.

Lummi Tribe of the Lummi Reservation, Washington,

and three Native American housing authorities appeal 

from an order of the United States Court of Federal Claims 

dismissing their case. Because the dismissal erroneously

included claims that have not yet been adjudicated, we reverse and remand.

BACKGROUND

This appeal is the latest of over ten years of efforts by 

appellants Lummi Tribe of the Lummi Reservation, Washington, Lummi Nation Housing Authority, Hopi Tribal 

Housing Authority, and Fort Berthold Housing Authority

(collectively, “Lummi”) to receive federal housing grant 

funds under the Native American Housing Assistance and 

Self-Determination Act of 1996 (“NAHASDA”). The background of this dispute was recounted in detail in our opinion issued the first time this case was appealed to this 

court. See Lummi Tribe of the Lummi Reservation, Washington v. United States, 870 F.3d 1313, 1315–17 (Fed. Cir. 

2017), cert. denied sub nom. Lummi Tribe of the Lummi 

Reservation v. United States, 139 S. Ct. 64 (2018). We recite here only those facts that are relevant to this appeal.

Congress enacted NAHASDA to establish an annual 

block grant system by which Native American tribes 
LUMMI TRIBE v. UNITED STATES 3

receive funding to provide affordable housing to their members. See 25 U.S.C. §§ 4101, 4111. The annual amount of 

funding is calculated using a regulatory formula that is 

based in part on the number of housing units owned and 

operated by beneficiary tribes. Id. § 4152(b)(1). After calculating the allocation, the United States Department of 

Housing and Urban Development (“HUD”) disburses 

NAHASDA grant funds among beneficiary tribes each 

year. Id. § 4151.

On November, 26, 2008, Lummi filed suit against the 

United States in the United States Court of Federal Claims 

(“Claims Court”), alleging that HUD miscalculated its allocation formula and improperly withheld NAHASDA funds 

to which Lummi was entitled. Lummi asserted a claim under NAHASDA, as well as claims for breach of funding 

agreements, breach of fiduciary duty, and breach of trust. 

Lummi also asserted an illegal exaction claim based on 

HUD’s failure to make certain factual findings and to provide Lummi with a hearing prior to withholding the grant 

funds. On December 17, 2010, the government moved to 

dismiss Lummi’s claims for lack of subject-matter jurisdiction, arguing that NAHASDA was not a money-mandating 

statute as required for jurisdiction under the Tucker Act. 

See Lummi Tribe, 870 F.3d at 1316–17 (citing United 

States v. Mitchell, 463 U.S. 206, 217 (1983) and United 

States v. Testan, 424 U.S. 392, 398 (1976)).

The Claims Court denied the government’s motion, interpreting NAHASDA “as mandating the payment of compensation by the government.” Id. at 1316 (citing Lummi 

Tribe of the Lummi Reservation v. United States, 99 Fed. 

Cl. 584, 594 (2011)). On September 30, 2015, after considering the parties’ supplemental briefing, the Claims Court 

issued an order reaffirming its prior decision that it possessed subject-matter jurisdiction over Lummi’s 

NAHASDA claim, but rejecting Lummi’s illegal exaction 

claim. Id. at 1317 (citing Order, Lummi Tribe of the Lummi 

Reservation v. United States, No. 08-848C (Fed. Cl. Sept. 
4 LUMMI TRIBE v. UNITED STATES

30, 2015), ECF No. 121 (“September 30 Order”)). On July 

8, 2016, we granted the government’s petition for permission to file an interlocutory appeal of the Claims Court’s 

September 30 Order on subject-matter jurisdiction.

On appeal, we considered the government’s “single affirmative argument” that the Claims Court erred in finding 

NAHASDA to be a money-mandating statute, and therefore the Claims Court was without jurisdiction over 

Lummi’s NAHASDA claim. Id. We concluded that 

NAHASDA was not a money-mandating statute because it 

does not provide for money damages. Id. at 1318–19. We 

explained that Lummi was instead seeking “larger stringsattached NAHASDA grants,” which was a form of equitable 

relief over which the Claims Court lacked jurisdiction. Id.

at 1319. We noted that “any such claim for relief under 

NAHASDA would necessarily be styled in the same fashion” because “the statute does not authorize a free and clear 

transfer of money.” Id. (emphasis omitted). We also rejected Lummi’s reliance on its illegal exaction claim as an 

alternative basis for jurisdiction, explaining that because 

the grant funds at issue were never in Lummi’s possession 

or control, that claim was invalid as a matter of law. Id. 

Having concluded that the Claims Court lacked jurisdiction over Lummi’s NAHASDA and illegal exaction claims, 

we vacated the Claims Court’s September 30 Order and instructed the Claims Court “to dismiss this action for lack of 

subject-matter jurisdiction.” Id. at 1320. Our mandate issued on January 12, 2018. The Claims Court dismissed the 

case on January 19, 2018.

Lummi appeals from this dismissal. We have jurisdiction under 28 U.S.C. § 1295(a)(3).

DISCUSSION

I. Dismissal of Lummi’s Case

We review the scope of our mandate and a trial court’s 

compliance with it de novo. SUFI Network Servs., Inc. v. 
LUMMI TRIBE v. UNITED STATES 5

United States, 817 F.3d 773, 779 (Fed. Cir. 2016) (citing 

Cardiac Pacemakers, Inc. v. St. Jude Med., Inc., 576 

F.3d 1348, 1355 (Fed. Cir. 2009)). The mandate rule instructs that we do not reconsider issues that were implicitly or explicitly decided on a prior appeal. TecSec, Inc. v. 

Int’l Bus. Machines Corp., 731 F.3d 1336, 1341–42 (Fed. 

Cir. 2013). An issue was implicitly decided if it was “necessary to our disposition of the appeal.” Laitram Corp. v. 

NEC Corp., 115 F.3d 947, 952 (Fed. Cir. 1997). “Unless 

remanded by this court, all issues within the scope of the 

appealed judgment are deemed incorporated within the 

mandate and thus are precluded from further adjudication.” Retractable Techs., Inc. v. Becton Dickinson & Co., 

757 F.3d 1366, 1371 (Fed. Cir. 2014) (quoting Engel Indus., 

Inc. v. Lockformer Co., 166 F.3d 1379, 1383 (Fed. Cir. 

1999)). A mandate is only “controlling as to matters within 

its compass,” and a trial court on remand “is free as to other 

issues.” Sprague v. Ticonic Nat. Bank, 307 U.S. 161, 168 

(1939) (citing In re Sanford Fork & Tool Co., 160 U.S. 247, 

256 (1895)).

On appeal, Lummi argues that the Claims Court erred 

by dismissing its independent claims for breach of contract, 

breach of fiduciary duty, and breach of trust.1 Resolution 

of this issue turns on whether these claims were within the 

scope of our prior mandate. We conclude that they were 

not.

The prior interlocutory appeal in this case was framed 

by the Claims Court’s September 30 Order, which decided 

only two issues: whether NAHASDA was money mandating and whether HUD’s failure to provide Lummi with a 

hearing constituted a per se illegal exaction. See J.A. 41–

42 (September 30 Order at 4–5); see also J.A. 60–61 (Order

 

1 The government concedes that Lummi’s complaint 

included these breach claims. Appellee’s Br. 3 (citing 

J.A. 32–35). 
6 LUMMI TRIBE v. UNITED STATES

at 2–3, Lummi Tribe of the Lummi Reservation, Washington v. United States, No. 2016-124 (Fed. Cir. June 8, 2016), 

ECF No. 9) (granting the government’s petition for permission to appeal the September 30 Order “that reaffirmed 

[the Claims Court’s] prior ruling that NAHASDA is moneymandating . . . [and] addressed and rejected [Lummi’s] argument that HUD’s failure to afford a hearing alone entitled them to the return of monies on their illegal exaction 

claim”). Accordingly, the scope of our review in the prior 

appeal was limited to Lummi’s claim under NAHASDA and 

its illegal exaction claim. Our prior opinion, which “may be 

consulted to ascertain what was intended by [the court’s]

mandate,” Sanford, 160 U.S. at 256, likewise addressed 

only those two claims, see Lummi Tribe, 870 F.3d at 1317–

19. Nor did we resolve Lummi’s breach of contract, breach 

of fiduciary duty, and breach of trust claims by “necessary 

implication,” because resolving those claims was not necessary to our conclusions that NAHASDA is not a moneymandating statute or that funds not in Lummi’s possession 

or control could not be illegally exacted. See Laitram, 115 

F.3d at 951–52. Lummi’s breach of contract, breach of fiduciary duty, and breach of trust claims were therefore not 

within the scope of our prior mandate.

The government argues that we should reject Lummi’s 

appeal, raising three primary arguments in support. We 

address each in turn.

First, the government argues that Lummi’s appeal is 

barred by the mandate rule because our prior instruction 

to “dismiss this action” resolved the “dispositive jurisdictional issue for the complaint in its entirety.” Appellee’s 

Br. 8–9. We disagree. As explained above, our prior mandate resolved only the question of the Claims Court’s jurisdiction over Lummi’s NAHASDA and illegal exaction 

claims. We had no occasion to consider the entirety of 

Lummi’s complaint. The parties did not address Lummi’s 

remaining claims in their merits briefing. In certifying its 

September 30 Order for interlocutory appeal, the Claims 
LUMMI TRIBE v. UNITED STATES 7

Court stated that Lummi asserted only two claims: “(1) a 

violation of NAHASDA’s money mandate; and (2) an illegal 

exaction claim based on HUD’s failure to provide a hearing.” J.A. 53. Thus, whereas this court’s order could be 

read to mean that all claims raised before the Claims Court 

were to be dismissed, our mandate “to dismiss this action” 

necessarily referred to only those claims that were presented to us—the NAHASDA and illegal exaction claims. 

See Laitram, 115 F.3d at 952 (“It is incorrect to conclude 

that we decided issues not only undecided on the merits by 

the trial court . . . , and thus on appeal unripe, but also neither presented to us nor discussed in our opinion, nor necessary to our disposition of the appeal.”).

Second, the government argues that Lummi waived its 

claims for breach of contract, breach of fiduciary duty, and 

breach of trust by not raising those arguments in the prior 

appeal. Appellee’s Br. 9–10. The government contends 

Lummi was required to do so because it asserts that those 

claims were within the scope of the Claims Court’s September 30 Order. Id. This argument is meritless. As we explained, the scope of the Claims Court’s September 30 

Order was limited to deciding whether the Claims Court 

possessed jurisdiction over Lummi’s claim under 

NAHASDA and its illegal exaction claim, and those were 

the only issues on which we permitted the government’s

interlocutory appeal. See J.A. 41–42, 60–61. Lummi had 

no prior opportunity to present its arguments on its remaining claims, and we will not close the courthouse doors 

on unadjudicated issues.

Lastly, the government argues that this court already 

resolved Lummi’s breach of contract, breach of fiduciary 

duty, and breach of trust claims by denying Lummi’s petition for rehearing in the prior appeal, which mentioned

those claims. Appellee’s Br. 10–11. It is well settled, however, that a decision to deny rehearing does not resolve the 

merits of those arguments made in the petition for rehearing that are not material to the court’s initial resolution of 
8 LUMMI TRIBE v. UNITED STATES

the appeal. See Exxon Chem. Patents, Inc. v. Lubrizol 

Corp., 137 F.3d 1475, 1480 (Fed. Cir. 1998). Because resolving Lummi’s breach of contract, breach of fiduciary 

duty, and breach of trust claims was not necessary to our

resolution of the government’s prior interlocutory appeal, 

our denial of Lummi’s rehearing request “does not carry a 

presumption of rejection on the merits” of those claims. Id.

In light of the foregoing, we conclude that because neither the Claims Court nor this court previously adjudicated 

Lummi’s breach of contract, breach of fiduciary duty, and 

breach of trust claims, the Claims Court erred by dismissing Lummi’s entire case.

II. Transfer Under § 1631

Lummi next argues that the Claims Court erred by not 

considering whether to transfer its dismissed claims to a 

district court in the Tenth Circuit pursuant to 28 U.S.C. 

§ 1631. Section 1631 provides in relevant part that when 

a “court finds that there is a want of jurisdiction, the court 

shall, if it is in the interest of justice, transfer [a civil] 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.” 28 U.S.C. § 1631 (2012). A case may only 

be transferred to a court that has jurisdiction to decide it. 

Jan’s Helicopter Serv., Inc. v. F.A.A., 525 F.3d 1299, 1303 

(Fed. Cir. 2008).

Lummi contends that the Claims Court was required 

to consider sua sponte whether transfer of its dismissed 

claims was in the interest of justice, even though Lummi 

did not request such a transfer. Lummi relies on cases

from the Sixth and Ninth Circuits, which have held that a 

trial court must consider transfer as an alternative to dismissal for lack of jurisdiction even if a request for transfer 

is not made. Appellant’s Br. 14–16 (citing Jackson v. L & 

F Martin Landscape, 421 F. App’x 482, 484 (6th Cir. 2009) 

and Taylor v. Soc. Sec. Admin., 842 F.2d 232, 233 (9th Cir. 

1988)). Unlike our sister circuits, we have not yet decided 
LUMMI TRIBE v. UNITED STATES 9

this question. See Tex. Peanut Farmers v. United States, 

409 F.3d 1370, 1375 n.7 (Fed. Cir. 2005). We conclude that 

on the record before us,2 the Claims Court should consider 

in the first instance whether to transfer Lummi’s 

NAHASDA claim pursuant to § 1631.

In opposing Lummi’s arguments on the issue of transfer, the government asserts that this court already considered whether to transfer Lummi’s case and declined to do 

so by denying Lummi’s petition for rehearing in the prior 

appeal. Appellee’s Br. 12–13. As explained above, we reject this argument because our denial of Lummi’s petition 

for rehearing did not resolve the merits of the transfer argument. See Exxon, 137 F.3d at 1479–80. The government 

also argues that transfer is not warranted because no court 

in the Tenth Circuit possesses jurisdiction over Lummi’s 

NAHASDA claim in view of the Tenth Circuit’s finding that 

any “monetary remedy available in the district court was 

limited to a specific year’s grant appropriation, and the relevant year’s appropriations were likely exhausted.” Appellee’s Br. 13–14 (citing Modoc Lassen Indian Hous. Auth. v. 

United States Dep’t of Hous. & Urban Dev., 881 F.3d 1181, 

1196 (10th Cir. 2017)). The government conflates subjectmatter jurisdiction with the district court’s ability to fashion appropriate relief. Determining whether specific appropriated funds have been exhausted does not affect the 

 

2 We particularly note our prior recognition of the 

government’s inconsistent jurisdictional arguments made 

to this court and the Tenth Circuit. See Lummi Tribe, 870 

F.3d at 1319 (citing the “opposite position” taken by the 

government in Modoc Lassen Indian Hous. Auth. v. United 

States Dep’t of Hous. & Urban Dev., 864 F.3d 1212 (10th 

Cir. 2017)). Any transferee court would now have the benefit of our analysis in the prior appeal, and would be able 

to consider the government’s dual positions.
10 LUMMI TRIBE v. UNITED STATES

jurisdictional question in this case,3 and Modoc never 

states that a district court in the Tenth Circuit lacks jurisdiction over claims for specific performance under 

NAHASDA.

III. Reconsideration

Lastly, Lummi requests that we reconsider our prior 

decision on its NAHASDA claim, and apply judicial estoppel to prevent the government from challenging the Claims 

Court’s jurisdiction over that claim. Appellant’s Br. 12. 

Lummi argues that this case presents exceptional circumstances that warrant an exception to the mandate rule to 

avoid the manifest injustice that would result if the government’s inconsistent arguments to this court and to the 

Tenth Circuit were to deprive both the Claims Court and 

the district court of jurisdiction to resolve Lummi’s

NAHASDA claim. Id.; Reply Br. 7–8 (citing Tronzo v. Biomet, Inc., 236 F.3d 1342, 1349 (Fed. Cir. 2001)). We do not 

need to decide if these circumstances are exceptional 

enough for us to revisit our prior decision. Although we are 

sympathetic to Lummi’s boxed-in position, principles of judicial estoppel cannot create subject-matter jurisdiction 

where none exists. Dunklebarger v. Merit Sys. Prot. Bd., 

130 F.3d 1476, 1480 (Fed. Cir. 1997) (“It is well settled that 

 

3 The Tenth Circuit in Modoc remanded the case for 

the district court to determine whether “HUD had the relevant funds at its disposal.” 881 F.3d at 1198–99. On remand, the district court did not resolve this factual 

question, finding it moot in light of further proceedings in 

a companion case. See Tlingit-Haida Reg’l Hous. Auth. v. 

United States Dep’t of Hous. & Urban Dev., No. 08-CV00451-RPM, 2018 WL 4103495, at *5 (D. Colo. Aug. 21, 

2018). If the Claims Court determines that transfer of 

Lummi’s NAHASDA claim is warranted under § 1631, the 

transferee court will have an opportunity to make factual 

findings on this issue.
LUMMI TRIBE v. UNITED STATES 11

no action of the parties can confer subject-matter jurisdiction on a tribunal and that the principles of estoppel do not 

apply to vest subject-matter jurisdiction where Congress 

has not done so.” (citing Ins. Corp. of Ireland v. Compagnie 

des Bauxites de Guinee, 456 U.S. 694, 702 (1982))). In addition, as discussed above, district courts in the Tenth Circuit still possess jurisdiction to hear Lummi’s NAHASDA 

claim.

CONCLUSION

We have considered Lummi’s remaining arguments 

and find them unpersuasive. We conclude that the Claims 

Court erred by dismissing Lummi’s claims for breach of 

contract, breach of fiduciary duty, and breach of trust because those claims were not included in the scope of our 

prior mandate and were not previously adjudicated. We 

also conclude that the Claims Court should consider in the 

first instance whether transfer of Lummi’s NAHASDA 

claim under § 1631 would serve the interests of justice. We 

therefore reverse the Claims Court’s order dismissing 

Lummi’s case, and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED

COSTS

Each party shall bear its own costs.