FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JERRY MCGUIRE, 

No. 06-15812 Plaintiff-Appellant,

D.C. No.

v.  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
COUNSEL

Robert M. Cook; Phoenix, Arizona; David A. Domina and

James F. Cann, Omaha, Nebraska, for the appellant. 

16740 MCGUIRE v. UNITED STATES
Sue Ellen Wooldridge, Assistant Attorney General, Richard

G. Patrick, Assistant U.S. Attorney, Phoenix, Arizona; Elizabeth A. Peterson, Katherine J. Barton, Attorneys, Department

of Justice, Environment & Natural Resources Division, Washington, 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 district 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 Colorado 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 commencing 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. 

MCGUIRE v. UNITED STATES 16741
A BIA canal running east to west bisected the Leased Property, 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 property 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 investments. 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 December 23, 1998 asking the BIA to explore alternatives to removing the bridge because the tenants needed the bridge to access

the farm land. 

Anspach replied to the Tribe on December 24, 1998. Anspach 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

16742 MCGUIRE v. UNITED STATES
5, 1999, Anspach sent the first of three letters to McGuire giving him written notice that the bridge would be removed in

January 2000 because it was deemed to be unsafe and unauthorized. 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 specifications, for a new bridge and apply for a crossing permit. See attached; Reference to 25 CFR, Ch. 171.9

Structures.” 

A copy of the regulations was included with the letter. Anspach directed McGuire to contact Ted Henry, Irrigation Systems 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 provided 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. 

MCGUIRE v. UNITED STATES 16743
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 Anspach’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 condemnation 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 immunity 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 Circuit’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 economy and not unduly burdening McGuire. Finally, the court

1McGuire’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. 

16744 MCGUIRE v. UNITED STATES
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. Following 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 recommendations. The court agreed with the bankruptcy court that

the government’s actions could qualify as a “regulatory taking,” but held that McGuire’s claim was not ripe for review

because the government never denied an application for a permit 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 jurisdictional 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 takings 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 regulations effects a taking of a property interest is not ripe until the

government entity charged with implementing the regulations

MCGUIRE v. UNITED STATES 16745
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 decision from the government, “ ‘it is impossible to tell whether

the land [retains] any reasonable beneficial use or whether

[existing] expectation interests [have] been destroyed.’ ” MacDonald, 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 sufficiently complied with the permitting system as practiced by

the BIA. BIA regulations in effect at the time permitted a private 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 specifications, 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,

2We 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 objection is characterized, it is clear that McGuire sufficiently complied with

BIA practice and the objection is without merit. 

16746 MCGUIRE v. UNITED STATES
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 decision to the Western Regional Office of the BIA, which upheld

Anspach’s decision. In short, McGuire did everything reasonably 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 application 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

MCGUIRE v. UNITED STATES 16747
Island, 533 U.S. 606, 622 (2001). Here, McGuire took “reasonable 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 doctrine of sovereign immunity bars the district court and bankruptcy 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 “satisfies 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).

3Although 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 transferring 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 transferee court must be able to hear the matter upon transfer.”). Although the

ripeness question in this case is arguably prudential, rather than jurisdictional, judicial economy and courtesy to transferee courts dictates that we

resolve threshold issues first before invoking the transfer statute. This consideration 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. 

16748 MCGUIRE v. UNITED STATES
[6] Whether the district court had jurisdiction over

McGuire’s takings claim requires us to consider the two principal 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 jurisdiction 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 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. § 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 Washington, D.C., to litigate before the Court of Federal Claims,

MCGUIRE v. UNITED STATES 16749
while large claims remained centralized at the seat of the government so that department heads would be better able to protect 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 Constitution’ 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 frequently referred to as “exclusive,” but “that court’s jurisdiction 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

16750 MCGUIRE v. UNITED STATES
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 federal 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 original but not exclusive jurisdiction of all civil proceedings 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 bankruptcy.” 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 statute 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

4Quality Tooling brought a contract claim against the United States,

pursuant to the Tucker Act and Contract Disputes Act of 1978, 41 U.S.C.

MCGUIRE v. UNITED STATES 16751
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 Constitution . . . .” 28 U.S.C. § 1491(a)(1). The Supreme Court has

required that “[a] waiver of the Federal Government’s sovereign 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 “unequivocal expression” of consent to suit in federal district

court. Indeed, if anything, the Tucker Act unequivocally limits 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 entertained the government’s interlocutory appeal pursuant to 28 U.S.C.

§ 1292(d)(4). Id. at 1571-72. 

16752 MCGUIRE v. UNITED STATES
jurisdiction over Tucker Act claims for $10,000 or less. The

Little Tucker Act “effects . . . [an] explicit waiver” of sovereign 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 preclude 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 sovereign immunity in three circumstances: (1) where the substantive authority for the cause of action arises from the

Bankruptcy Code itself; (2) for compulsory counterclaims

against government claims; and (3) for permissive counterclaims 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 sovereign 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 Congress’ 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 (internal 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

MCGUIRE v. UNITED STATES 16753
arrangements is the creation of exclusive Federal Circuit jurisdiction 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 district 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 sovereign, 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 necessity 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.;

16754 MCGUIRE v. UNITED STATES
see also Quality Tooling, 47 F.3d at 1581-83 (Schall, J., dissenting) (discussing Minnesota and Shaw in detail). 

[13] The Quality Tooling majority distinguished Shaw and

Minnesota on the ground that those cases involved the question of state court jurisdiction over the federal government,

whereas here both courts involved “are creatures of the federal 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 pursue his takings action in the Court of Federal Claims without

bankruptcy court approval, his suit would have been subject

MCGUIRE v. UNITED STATES 16755
to dismissal for lack of standing. Thus, although the Court of

Federal Claims has exclusive jurisdiction to entertain the merits 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 litigated 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 INSTRUCTIONS.

16756 MCGUIRE v. UNITED STATES