# United Stat es Court of Appeals For the First C ircuit

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 Sta tes A ttorney, 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 , Brigitt e Amir i , and The Center for Reproductive Law & Policy were on brief, for appellee.

January 28, 2003

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

(or, if not, shortly thereafter). The Merck Manual of Diagnosis andTherapy 2222 (Mark H. Beer s, M. D. & Robert Berkow, M.D. eds. -2- SELYA, Circuit Judge . The parties — who agree on little else — mutually acknowledge that the appeal in this case was improvidentlytaken t o t his 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 f or the Federal Circuit). For the reasons that follow, we hold that dismissal would not be in the interest of justic e (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 t herefore sketch th e facts an d the travel of the case, urging readers who hu nger 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 ).

Earlyin the term of her pregnancy, plaintif f-ap pellee Maureen M. Britell, the wife of an Air National Guard officer, learnedthat the fetus she carried was anencephalic. Given the grimprognosis, 1 Britell elected to have her pregnancy terminated.1999). -3-

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) (reprintedin the appendix); 32 C.F.R. § 199.4(e)(2) (sa me), 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 cove rage " 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.

A pproximatelytwo weeks before the date set for ora l argument, the government awoke to the fact that the United States Court of Appeals for the Federal Circuit had exclusive jurisdiction-4-

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) (reprintedin the appendix). Based upon this belated realization, the government movedto transfer the appeal under 28 U.S.C. § 1631 (reprintedin the appendix), a statute that authorizes a court facedwith 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 doi ng so "is in the interest of justice." Britell opposed a transfer and asked instead that we dismis s 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 pendi ng m otion into three segments. We begin with the question of appellate jurisdiction. We then parse the transfer sta tut e 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

s tatutoryin nature. Id. However, jurisdiction can not b e-5-

conferredupon 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 2 8 U .S.C. § 1346(a). That statute — reprinted in the appendix — grants district courts jurisdiction (wi th ex ceptions not apposite here) over non-tort civil action s 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 comfortablywithin those contours, the United States District Court for the District of Massachuse tts had original jurisdiction over it. This brings us to the appeal. Althoug h m ost district court judgments are appealable to the court of appeals for the circ uit in whi ch the district court sits, see 28 U.S.C. § 1291, that pattern does not always obtain. There are several exceptions,

one of which i s pe rtinent 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 UnitedStates . . . if the jurisdiction of that court was based, in whole or in part, on [28 U.S.C. § 1346] . . . ." 28 U.S.C. §-6-

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 Fromwhat 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 limitedauthority 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 .

. . o r an appeal, including a petition for review of administrative action, is noticed for or filed with such a court and that court fi n ds that there is a want of jurisdiction, th e court shall, if it is in the intere st o f 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 notic ed, and the action or ap peal shall proceed as if it had been filed in or noticed for the court to which it is transferredon the d at e upon which it was actually filed in or noticed for t he court from which it was transferred. 28 U.S.C. § 1631.

Although the grant of au thor ity is clear, the guidance providedby the text of the statute appears somewhat contradictory. On the one hand, Congress's use of the word "shall" in section 16312 The universe of courts to which section 16 31 applies is

delimited by 28 U.S.C. § 610 (reprinted in the appendix). -7- seemingly dictates a preference for transfer in all cases that

c ouldhave been brought in some other federal court. 2 See , e.g. , Webster's Third New Int'l Dictiona ry 2 085 (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 UnitedStates 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 re but table one — in favor of transfer. The existence of the presumption i s easily discerned. Congress's use of the phrase "shall . . . transfer" in section 1631 persuasivelyindicates that transfer, rather than dismissal, is the option of choice. The legislative history likewise points to a presumption in favor of transfer. Congress adopted le gisl ation,

now codifiedas sect ion 1631, in the wake of a case in which the District of Columbia Circuit ackno wled ged an ambiguity involving which of two courts had appellate jurisdiction, and, alt hough it affirmeda dismissal for want of jurisdiction, it directed that the-8-

appellant be permittedto 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. C ir. 1977). The court suggested that, in the future, counsel woulddo well "to file petitions in both courts . . . if there is any doubt." Id. at 1282. Judge Levent hal , in a powerful concurring opinion, urged "enactment of a general sta tut e permitting transfer between district courts and courts of appeals in the interest of justice." Id. at 1283 (Leventhal, J. concurring).

In response to the c once rns raised by Judge Leventhal, Congress enacted s ect ion 1631. Congress crafted the statute to achieve two closely relatedgoals. 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] uncertaintyin 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 statutoryimpr eci sion and lawyers' errors. It also offers a practical alternative to the prophylactic, but inordinately wasteful, precaution of double filing. Last — but far from least-9-

— reading section 1631 to create such a presumption furthers the salutarypolicy favoring the resolution of ca ses on the merits. See , e.g. , Am. Alliance Ins. Co. v. Eagle Ins. Co. , 92 F.3d 57, 61 (2dCir. 1996); Teamsters, Chauffeurs, Warehousemen & Helpers Union

v. Superline Transp. Co. , 953 F.2d 17, 19 (1st Cir. 1992). Put another way, transfer is presump ti vely preferable because the dismissal of an action or appeal that might thrive elsewhere is not only resource-wast ing bu t 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 insertedlanguage specifically designedto ensure that transfer would not be automatic; it conditionedtransfer 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 administrat ion of justice would be better servedby dismis sal. See Horsley v. Johnson , 197 F.3d 134, 136 (5th Cir. 1999 ); se e 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-10-

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 bene fit th e proponent, e.g. , Janicki Logging Co. v. Mateer , 42 F.3d 561, 566-67 (9th Cir. 1994), impose

an unwarrantedhardship 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 suc h fact ors, 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 naturallyfrom the language of section 1631, which directs the putative transferor court to d ete rmine if "the action or appeal couldhave 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, requi res at least a preliminaryevaluation of the parties' positions). If, for example, an action or appeal has obvious merit and the filing periodhas expired, dismissal — even dismissal without prejudice —-11-

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 wi ll pul l 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 a t bar . We start with a presumption in favor of transfer — a presumption that is heightened by our knowledge that the appeal periodhas run (and, therefore, that dismissal will leave the government without any effective means of obt aining judicial review of the district court's judgment).

Our examination o f the record furnishes no compelling rebuttal to this presumption. Despite B rite ll's insinuations to the contrary, we have no reason to believe that the government actedin bad faith. It had nothing to gain — and much to lose — by filing its notice of appeal in the w rong court. Moreover, the gove rnment exercised due diligence once it discovered its error. Finally, Britell will suffer only incidental inconvenience from a3 This 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 plai ntiff is "the master of the complaint." Cat erp illar Inc. v. Williams , 482 U.S. 386, 398-99 (1987) . Thu s, 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. -12- transfer — the need for refiling her brief and the frustration of waiting a few more months before the litigation is res olv ed. Inconvenience of this sort simply does not a mount 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; th at 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-13-

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 decid ing which course of action to follow. Seiter , 173 F .3d a t 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 notwithstand ing her lawyer's bevue. S. Rep. No. 97-275, at 11 (1982), reprinted in 1982 U.S.C.C.A.N. at 21 . This ca se 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 UnitedStates Court of Appeals for the Federal Circuit. Given the totality of the circumstances, the interest of justi ce s upports, rather than contradicts, such a course of action.

The government's motion to transfer is granted, and the Clerkof this court is directed to tak e th e necessary steps to effectuate the prompt transfer of the appeal to the United States Court of Appeals for the Federal Circuit .-14- 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-15-

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.