United States Court of Appeals

For the First Circuit

No. 02-1944

MAUREEN M. BRITELL,

Plaintiff, Appellee,

v.

UNITED STATES OF AMERICA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

 Selya, Circuit Judge,

Farris,* Senior Circuit Judge,

and Howard, Circuit Judge.

Robert M. Loeb, Appellate Staff, Civil Division, United States

Department of Justice, with whom Robert D. McCallum, Jr., Assistant

Attorney General, Michael J. Sullivan, United States Attorney,

Gregory G. Katsas, Deputy Assistant Attorney General, and Eric D.

Miller, Attorney, were on brief, for appellant.

John H. Henn, with whom Jessica M. Silbey, Seth Nesin, Foley

Hoag LLP, Simon Heller, Brigitte Amiri, and The Center for

Reproductive Law & Policy were on brief, for appellee.

January 28, 2003

________________

*Of the Ninth Circuit, sitting by designation.
1Anencephalia is a rare condition, usually fatal before birth

(or, if not, shortly thereafter). The Merck Manual of Diagnosis

and Therapy 2222 (Mark H. Beers, M.D. & Robert Berkow, M.D. eds.

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SELYA, Circuit Judge. The parties — who agree on little

else — mutually acknowledge that the appeal in this case was

improvidently taken to this court and that we lack jurisdiction

over it. The question remains, however, whether we should dismiss

the appeal (thus leaving the district court's judgment intact) or

transfer it to the proper venue (the Court of Appeals for the

Federal Circuit). For the reasons that follow, we hold that

dismissal would not be in the interest of justice (and,

accordingly, grant the government's motion to transfer).

I.

Background

At this stage of the proceedings, the intricacies of the

underlying action are of only peripheral interest. We therefore

sketch the facts and the travel of the case, urging readers who

hunger for more exegetic detail to consult the lower court's

opinions. See Britell v. United States, 204 F. Supp. 2d 182 (D.

Mass. 2002) (Britell II); Britell v. United States, 150 F. Supp. 2d

211 (D. Mass. 2001) (Britell I).

Early in the term of her pregnancy, plaintiff-appellee

Maureen M. Britell, the wife of an Air National Guard officer,

learned that the fetus she carried was anencephalic. Given the

grim prognosis,1 Britell elected to have her pregnancy terminated.
1999).

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The procedure was performed at New England Medical Center (NEMC),

a renowned Boston teaching hospital.

Britell maintained her health care coverage through the

Civilian Health and Medical Program of the Uniformed Services

(CHAMPUS), a government plan that provides medical benefits for

dependents of military personnel. After a NEMC physician performed

the abortion that Britell requested, NEMC submitted a claim to

CHAMPUS. In accordance with federal law, see 10 U.S.C. § 1093(a)

(reprinted in the appendix); 32 C.F.R. § 199.4(e)(2) (same),

CHAMPUS refused to pay for the cost of the abortion. Britell paid

NEMC and then brought suit against the United States for $4,507.05,

claiming, inter alia, that the denial of coverage violated her

constitutional rights.

The district court granted summary judgment in Britell's

favor, concluding that "there [was] no rational, legitimate state

interest in denying coverage" for abortion services in the

circumstances of this case. Britell II, 204 F. Supp. 2d at 185.

The government filed a timely notice of appeal with this court.

The parties fully briefed the case, and we scheduled oral argument

for December 4, 2002.

Approximately two weeks before the date set for oral

argument, the government awoke to the fact that the United States

Court of Appeals for the Federal Circuit had exclusive jurisdiction
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over appeals in cases based in whole or in part on 28 U.S.C. § 1346

(the so-called Little Tucker Act). See 28 U.S.C. § 1295(a)(2)

(reprinted in the appendix). Based upon this belated realization,

the government moved to transfer the appeal under 28 U.S.C. § 1631

(reprinted in the appendix), a statute that authorizes a court

faced with a want of jurisdiction either to dismiss the proceeding

before it or, in the alternative, to transfer that proceeding to a

court of proper competence if doing so "is in the interest of

justice." Britell opposed a transfer and asked instead that we

dismiss the appeal outright. On December 4, 2002, we heard oral

argument on the question of transfer versus dismissal.

II.

Analysis

We subdivide our discussion of the pending motion into

three segments. We begin with the question of appellate

jurisdiction. We then parse the transfer statute and, finally,

apply it.

A.

Appellate Jurisdiction

Because federal courts are courts of limited

jurisdiction, each case must come within some articulable grant of

jurisdiction. Steel Co. v. Citizens for a Better Env't, 523 U.S.

83, 101 (1998). Such grants may be either constitutional or

statutory in nature. Id. However, jurisdiction cannot be
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conferred upon a federal court by waiver, consent, or collusion of

the parties. Irving v. United States, 162 F.3d 154, 161 (1st Cir.

1998) (en banc).

In this instance, the record reveals beyond hope of

contradiction that we lack jurisdiction to decide the merits of the

government's appeal. Britell's complaint premised the district

court's jurisdiction, in relevant part, on 28 U.S.C. § 1346(a).

That statute — reprinted in the appendix — grants district courts

jurisdiction (with exceptions not apposite here) over non-tort

civil actions or claims against the United States, not exceeding

$10,000 in amount, whether founded upon the Constitution, a federal

statute or regulation, or a contract. Because Britell's case fits

comfortably within those contours, the United States District Court

for the District of Massachusetts had original jurisdiction over

it.

This brings us to the appeal. Although most district

court judgments are appealable to the court of appeals for the

circuit in which the district court sits, see 28 U.S.C. § 1291,

that pattern does not always obtain. There are several exceptions,

one of which is pertinent here. By statute, the United States

Court of Appeals for the Federal Circuit has exclusive jurisdiction

over "an[y] appeal from a final decision of a district court of the

United States . . . if the jurisdiction of that court was based, in

whole or in part, on [28 U.S.C. § 1346] . . . ." 28 U.S.C. §
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1295(a)(2). While that statute contains some wiggle room, see id.,

no way around its jurisdictional mandate applies in the

circumstances at hand. Consequently, deciding this appeal is the

exclusive prerogative of the Federal Circuit.

B.

The Transfer Statute

From what we already have written, it is readily evident

that this court lacks jurisdiction over the merits of the instant

appeal. In such circumstances, Congress has granted federal courts

limited authority to transfer an action or appeal to a federal

court of competent jurisdiction. The controlling statute reads in

pertinent part:

Whenever a civil action is filed in a court .

. . or an appeal, including a petition for

review of administrative action, is noticed

for or filed with such 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 [federal] 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 was transferred.

28 U.S.C. § 1631.

Although the grant of authority is clear, the guidance

provided by the text of the statute appears somewhat contradictory.

On the one hand, Congress's use of the word "shall" in section 1631
2The universe of courts to which section 1631 applies is

delimited by 28 U.S.C. § 610 (reprinted in the appendix).

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seemingly dictates a preference for transfer in all cases that

could have been brought in some other federal court.2 See, e.g.,

Webster's Third New Int'l Dictionary 2085 (1993) (stating that

"shall" typically is "used in laws . . . to express what is

mandatory"). On the other hand, section 1631 contains a qualifying

phrase — "if it is in the interest of justice" — and that qualifier

seems to call for a balancing of the equities (and, thus, to make

the transfer decision discretionary). We reconcile this tension by

examining the text, structure, and history of section 1631. See

United States v. Charles George Trucking Co., 823 F.2d 685, 688

(1st Cir. 1987). In the end, we conclude that Congress intended to

create a presumption — albeit a rebuttable one — in favor of

transfer.

The existence of the presumption is easily discerned.

Congress's use of the phrase "shall . . . transfer" in section 1631

persuasively indicates that transfer, rather than dismissal, is the

option of choice. The legislative history likewise points to a

presumption in favor of transfer. Congress adopted legislation,

now codified as section 1631, in the wake of a case in which the

District of Columbia Circuit acknowledged an ambiguity involving

which of two courts had appellate jurisdiction, and, although it

affirmed a dismissal for want of jurisdiction, it directed that the
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appellant be permitted to file a petition for reconsideration with

the proper authority. Investment Co. Inst. v. Bd. of Govs. of the

Fed. Reserve Sys., 551 F.2d 1270, 1282-83 (D.C. Cir. 1977). The

court suggested that, in the future, counsel would do well "to file

petitions in both courts . . . if there is any doubt." Id. at

1282. Judge Leventhal, in a powerful concurring opinion, urged

"enactment of a general statute permitting transfer between

district courts and courts of appeals in the interest of justice."

Id. at 1283 (Leventhal, J. concurring).

In response to the concerns raised by Judge Leventhal,

Congress enacted section 1631. Congress crafted the statute to

achieve two closely related goals. First, it sought to ensure that

"a litigant [does not] find himself without a remedy because of a

lawyer's error or a technicality of procedure [that results from]

uncertainty in some statutes regarding which court has review

authority." S. Rep. No. 97-275, at 11 (1982), reprinted in 1982

U.S.C.C.A.N. 11, 21. Second it sought to prevent duplicitous

litigation that would prove "wasteful and costly." Id. The

conclusion that transfer, rather than dismissal, is the option of

choice is consistent with the formulation of these goals.

So read, section 1631 protects litigants against both

statutory imprecision and lawyers' errors. It also offers a

practical alternative to the prophylactic, but inordinately

wasteful, precaution of double filing. Last — but far from least
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— reading section 1631 to create such a presumption furthers the

salutary policy favoring the resolution of cases on the merits.

See, e.g., Am. Alliance Ins. Co. v. Eagle Ins. Co., 92 F.3d 57, 61

(2d Cir. 1996); Teamsters, Chauffeurs, Warehousemen & Helpers Union

v. Superline Transp. Co., 953 F.2d 17, 19 (1st Cir. 1992). Put

another way, transfer is presumptively preferable because the

dismissal of an action or appeal that might thrive elsewhere is not

only resource-wasting but also justice-defeating. See CruzAguilera v. INS, 245 F.3d 1070, 1074 (9th Cir. 2001).

Even though there is a presumption in favor of transfer,

the text of the statute compels the conclusion that the presumption

is rebuttable. After all, Congress inserted language specifically

designed to ensure that transfer would not be automatic; it

conditioned transfer in any particular case on a finding that such

a course of action "is in the interest of justice." 28 U.S.C. §

1631. Only if an inquiring court determines that a transfer is not

in the interest of justice is the presumption rebutted.

Thus, even though transfer is the option of choice, an

inquiring court must undertake case-specific scrutiny to ferret out

instances in which the administration of justice would be better

served by dismissal. See Horsley v. Johnson, 197 F.3d 134, 136

(5th Cir. 1999); see also Am. Alliance, 92 F.3d at 61 (observing

that "abuses of process may be prevented by enforcing those

defaults that arise from egregious or deliberate conduct"). Given
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the language of the statute, we are confident that Congress wanted

courts to exempt from the transfer mandate those cases in which

transfer would unfairly benefit the proponent, e.g., Janicki

Logging Co. v. Mateer, 42 F.3d 561, 566-67 (9th Cir. 1994), impose

an unwarranted hardship on an objector, e.g., id. at 566, or unduly

burden the judicial system, e.g., Phillips v. Seiter, 173 F.3d 609,

610-11 (7th Cir. 1999). In conducting its inquiry into the

presence or absence of such factors, a putative transferor court

must consider the totality of the circumstances. See Liriano v.

United States, 95 F.3d 119, 122-23 (2d Cir. 1996).

Among other things, this responsibility obligates the

court to engage in whole-record review. This obligation flows

naturally from the language of section 1631, which directs the

putative transferor court to determine if "the action or appeal

could have been brought at the time it was filed or noticed" in any

other federal court. 28 U.S.C. § 1631. Common sense suggests

that, in order to comply with this directive, the court must

examine the complete record.

This intuition is reinforced by the fact that the

interest of justice analysis necessarily involves considerations of

judicial administration (and, therefore, requires at least a

preliminary evaluation of the parties' positions). If, for

example, an action or appeal has obvious merit and the filing

period has expired, dismissal — even dismissal without prejudice —
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would frustrate one of the principal objectives of section 1631.

See Ross v. Colo. Outward Bound Sch., 822 F.2d 1524, 1526-27 (10th

Cir. 1987). The flip side of the coin is that if an action or

appeal is fanciful or frivolous, it is in the interest of justice

to dismiss it rather than to keep it on life support (with the

inevitable result that the transferee court will pull the plug).

See Seiter, 173 F.3d at 610-11 (reasoning that a case that "is a

sure loser" should be dismissed rather than transferred). Either

way, a look at the merits is indicated.

C.

The Case at Bar

Against this backdrop, we turn to the case at bar. We

start with a presumption in favor of transfer — a presumption that

is heightened by our knowledge that the appeal period has run (and,

therefore, that dismissal will leave the government without any

effective means of obtaining judicial review of the district

court's judgment).

Our examination of the record furnishes no compelling

rebuttal to this presumption. Despite Britell's insinuations to

the contrary, we have no reason to believe that the government

acted in bad faith. It had nothing to gain — and much to lose — by

filing its notice of appeal in the wrong court. Moreover, the

government exercised due diligence once it discovered its error.

Finally, Britell will suffer only incidental inconvenience from a
3This aspect of Britell's argument prompts us to note that the

government is not the only party who should be expected to know the

jurisdictional rules. The plaintiff is "the master of the

complaint." Caterpillar Inc. v. Williams, 482 U.S. 386, 398-99

(1987). Thus, Britell was chargeable with knowledge that, by

invoking 28 U.S.C. § 1346 as the basis of the district court's

jurisdiction, any appeal would have to be heard in the Federal

Circuit.

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transfer — the need for refiling her brief and the frustration of

waiting a few more months before the litigation is resolved.

Inconvenience of this sort simply does not amount to the kind of

prejudice that would justify the outright dismissal of an action or

appeal. See Janicki Logging, 42 F.3d at 566.

In an effort to blunt the force of this reasoning,

Britell argues that this case involves only a small amount of

money; that the government, which should be expected to possess

special expertise with regard to the operation of the Little Tucker

Act, created the jurisdictional glitch;3 and that, therefore, the

interest of justice would be served by ending the matter here and

now. We do not agree with this assessment.

It is nose-on-the-face plain that the decision below has

ramifications far beyond its impact on this particular dispute.

The decision undermines an Act of Congress and, in the bargain,

invalidates part of a major program administered by the Executive

Branch of the federal government. What is more, its correctness

seems, at first blush, to be a matter over which reasonable jurists

could disagree. It follows that appellate review of the district
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court's decision may well prove important from the standpoint of

public policy. That is a significant factor in the decisional

calculus: a court holding the levers of section 1631 should

consider the consequences of both transfer and dismissal in

deciding which course of action to follow. Seiter, 173 F.3d at

610-11 (citing Christianson v. Colt Indus. Operating Corp., 486

U.S. 800, 819 (1988)).

We need go no further. Congress enacted section 1631 in

part to protect a litigant's remedy notwithstanding her lawyer's

bevue. S. Rep. No. 97-275, at 11 (1982), reprinted in 1982

U.S.C.C.A.N. at 21. This case is a paradigmatic example of the

type of situation that the statute was designed to address.

Consequently, we hold that this appeal should be transferred to the

United States Court of Appeals for the Federal Circuit. Given the

totality of the circumstances, the interest of justice supports,

rather than contradicts, such a course of action.

The government's motion to transfer is granted, and the

Clerk of this court is directed to take the necessary steps to

effectuate the prompt transfer of the appeal to the United States

Court of Appeals for the Federal Circuit.
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STATUTORY APPENDIX

The following statutory and regulatory provisions are relevant to

this opinion.

____________________

10 U.S.C. § 1093(a) (1994 & Supp. 1999). Performance of

abortions: restrictions

Funds available to the Department of Defense may not be used to

perform abortions except where the life of the mother would be

endangered if the fetus were carried to term.

____________________

32 C.F.R § 199.4(e)(2) (2002). Basic program benefits.

Abortion. The statute under which CHAMPUS operates prohibits

payment for abortions with one single exception--where the life

of the mother would be endangered if the fetus were carried to

term. Covered abortion services are limited to medical services

and supplies only. Physician certification is required attesting

that the abortion was performed because the mother's life would

be endangered if the fetus were carried to term. Abortions

performed for suspected or confirmed fetal abnormality (e.g.,

anencephalic) or for mental health reasons (e.g., threatened

suicide) do not fall within the exceptions permitted within the

language of the statute and are not authorized for payment under

CHAMPUS.

____________________

28 U.S.C. § 610 (2000). Courts defined

As used in this chapter the word "courts" includes the courts of

appeals and district courts 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,

the United States Court of Federal Claims, and the Court of

International Trade.

____________________

28 U.S.C. § 1295(a)(2) (2000). Jurisdiction of the United States

Court of Appeals for the Federal Circuit
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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 . . ., 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.

____________________

28 U.S.C. § 1346(a)(2) (2000). United States as defendant

The district courts shall have original jurisdiction, concurrent

with the United States Court of Federal Claims, of:

* * *

(2) Any other 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, except that the district courts

shall not have jurisdiction of any civil action or claim against

the United States founded upon any express or implied contract

with the United States or for liquidated or unliquidated damages

in cases not sounding in tort which are subject to sections

8(g)(1) and 10(a)(1) of the Contract Disputes Act of 1978. For

the purpose of this paragraph, an express or implied contract

with the Army and Air Force Exchange Service, Navy Exchanges,

Marine Corps Exchanges, Coast Guard Exchanges, or Exchange

Councils of the National Aeronautics and Space Administration

shall be considered an express or implied contract with the

United States.

____________________

28 U.S.C. § 1631 (2000). Transfer to cure want of jurisdiction

Note: the pertinent text of this statute is reproduced

in the body of the court's opinion, and, therefore, is not

reprinted here.