                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                   November 10, 2011
                             FOR THE TENTH CIRCUIT
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court

    UNION PACIFIC RAILROAD
    COMPANY,

                Plaintiff-Appellant,

    v.                                                     No. 11-7016
                                                 (D.C. No. 6:06-CV-00094-KEW)
    THE UNITED STATES OF                                   (E.D. Okla.)
    AMERICA, ex rel., THE U.S. ARMY
    CORPS OF ENGINEERS,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before TYMKOVICH, Circuit Judge, BRORBY, Senior Circuit Judge, and
EBEL, Circuit Judge.



         In a prior appeal in this case, we reversed the district court’s judgment in

favor of Union Pacific Railroad Company. We remanded to the district court with

instructions to dismiss Union Pacific’s breach-of-contract claim without prejudice



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
for lack of jurisdiction. On remand, Union Pacific filed a motion seeking transfer

of the claim to the Court of Federal Claims under 28 U.S.C. § 1631. The district

court denied the motion and this appeal followed. Exercising our jurisdiction

pursuant to 28 U.S.C. § 1291, we affirm.

      We review for abuse of discretion the district court’s denial of the motion

to transfer. Trujillo v. Williams, 465 F.3d 1210, 1222-23 (10th Cir. 2006). The

district court gave several reasons for denying the motion, but explained that “of

most concern to this court . . . is the inescapable conclusion that a transfer would

fly in the face of the direct instruction of the Tenth Circuit in its Order and

mandate.” Aplt. App. at A85. We agree with the district court.

      The “mandate rule” requires a district court to “comply strictly with the

mandate rendered by the reviewing court.” Huffman v. Saul Holdings Ltd.

P’Ship, 262 F.3d 1128, 1132 (10th Cir. 2001). Our mandate stated: “We

REVERSE the judgment of the district court and REMAND (1) for dismissal

without prejudice of Union Pacific’s negligent-breach-of-contract claim for lack

of jurisdiction and (2) for entry of judgment in favor of the United States on

Union Pacific’s negligent-inspection-and-maintenance claim.” Union Pac. R.R.

Co. v. United States ex rel. U.S. Army Corps of Eng’rs, 591 F.3d 1311, 1322

(10th Cir. 2010). Our mandate language did not give any discretion to the district

court on remand, but instead gave a specific instruction to dismiss without

prejudice the breach-of-contract claim. Cf. Huffman, 262 F.3d at 1132-33

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(concluding that district court had violated the mandate rule when it awarded

appeal-related attorney fees after this court had denied such fees).

        The mandate rule is not jurisdictional, and there are exceptions to the rule.

See id. at 1133.

        [A] district court may deviate from the mandate under exceptional
        circumstances, including (1) a dramatic change in controlling legal
        authority; (2) significant new evidence that was not earlier obtainable
        through due diligence but has since come to light; or (3) if blatant
        error from the prior . . . decision would result in serious injustice if
        uncorrected.

Id. (internal quotations omitted). None of those conditions, however, exist in this

case.

        Moreover, Union Pacific could have sought relief prior to the mandate

being issued. In the previous appeal, Union Pacific could have asked this court to

transfer the breach-of-contract claim to the Court of Federal Claims in the event

that the government was successful in challenging the district court’s jurisdiction.

Or, Union Pacific could have sought panel rehearing to seek transfer relief after

this court’s decision was filed but before the mandate issued.

        We note that Union Pacific’s reply brief states “[t]o the extent that Union

Pacific should have properly sought transfer to the Court of Federal Claims by

way of a request to alter or clarify this Court’s mandate, Union Pacific would

seek leave to do so under 10th Cir. R. 41.2.” Aplt. Reply Br. at 8. This was

neither the appropriate time or way to make such a request.


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      Instead of asking the district court to transfer the case after remand, Union

Pacific should have filed a timely motion in this court to recall the mandate. It

has now been over a year since the mandate issued.

      When a motion to recall the mandate is tendered for filing more than
      one year after issuance of the mandate, the clerk shall not accept the
      motion for filing unless the motion states with specificity why it was
      not filed sooner. The court will not grant the request unless the
      movant has established good cause for the delay in filing the motion.

10th Cir. R. 41.2. Union Pacific’s request in its reply brief is not the proper way

to seek to recall the mandate; instead, Union Pacific should have filed a separate

motion requesting relief. See id. In any event, Union Pacific has failed to show

good cause for its delay in seeking such relief, and we deny its request.

      The district court acted in accordance with our mandate in denying Union

Pacific’s transfer motion. Accordingly, we AFFIRM the district court’s decision.


                                                     Entered for the Court



                                                     David M. Ebel
                                                     Circuit Judge




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