 United States Court of Appeals for the Federal Circuit

                                         05-1494


                              RONALD J. WOPSOCK,
                   LUKE J. DUNCAN, and CASSANDRA KOCHAMP,

                                                       Plaintiffs-Appellants,

                                            v.

            MILLICENT MAXINE NATCHEES, in her individual capacity and
        in her official capacity as Chairperson of the Tribal Business Committee
           of the Ute Indian Tribe of the Uintah and Ouray Indian Reservation,
     T. SMILEY ARROWCHIS, in his individual capacity and in his official capacity
                   as Vice-Chairman of the Tribal Business Committee,
    O. ROLAND MCCOOK, SR., in his individual capacity and in his official capacity
                      as a member of the Tribal Business Committee,
      RICHARD JENKS, JR., in his individual capacity and in his official capacity
                      as a member of the Tribal Business Committee,
                         JOHN P. JURRIS, and SUSAN HAMMER,

                                                       Defendants-Appellees,

                                           and

                 DIRK KEMPTHORNE, Secretary of the Interior,
      JAMES CASON, Associate Deputy Secretary, Department of the Interior,
    ALLEN ANSPACH, in his official capacity as Acting Regional Director, Western
                    Regional Office, Bureau of Indian Affairs,
     CHESTER D. MILLS, in his individual capacity and in his official capacity as
        Superintendent, Uintah and Ouray Agency, Bureau of Indian Affairs,
               and WAYNE NORDWALL, in his individual capacity,

                                                       Defendants-Appellees.



        David W. Scofield, Peters Scofield Price, P.C., of Salt Lake City, Utah, argued for
plaintiffs-appellants.

      Charles L. Kaiser, Davis Graham & Stubbs LLP, of Denver, Colorado, argued for
defendants-appellees, Millicent Maxine Natchees, et al. With him on the brief was
Charles A. Breer.
                                         2


       John A. Bryson, Attorney, Appellate Section, Environment & Natural Resources
Division, United States Department of Justice, of Washington, DC, argued for
defendants-appellees, Dirk Kempthorne, Secretary of the Interior, et al. With him on the
brief were Matthew J. McKeown, Deputy Assistant Attorney General, and William B.
Lazarus, Attorney.

Appealed from: United States District Court for the District of Utah

Judge Ted Stewart
United States Court of Appeals for the Federal Circuit


                                      05-1494


                            RONALD J. WOPSOCK,
                 LUKE J. DUNCAN, and CASSANDRA KOCHAMP,

                                                    Plaintiffs-Appellants,

                                         v.

           MILLICENT MAXINE NATCHEES, in her individual capacity and
       in her official capacity as Chairperson of the Tribal Business Committee
          of the Ute Indian Tribe of the Uintah and Ouray Indian Reservation,
    T. SMILEY ARROWCHIS, in his individual capacity and in his official capacity
                  as Vice-Chairman of the Tribal Business Committee,
   O. ROLAND MCCOOK, SR., in his individual capacity and in his official capacity
                     as a member of the Tribal Business Committee,
      RICHARD JENKS, JR., in his individual capacity and in his official capacity
                     as a member of the Tribal Business Committee,
                        JOHN P. JURRIS, and SUSAN HAMMER,

                                                    Defendants-Appellees,

                                        and

                 DIRK KEMPTHORNE, Secretary of the Interior,
      JAMES CASON, Associate Deputy Secretary, Department of the Interior,
    ALLEN ANSPACH, in his official capacity as Acting Regional Director, Western
                    Regional Office, Bureau of Indian Affairs,
     CHESTER D. MILLS, in his individual capacity and in his official capacity as
        Superintendent, Uintah and Ouray Agency, Bureau of Indian Affairs,
               and WAYNE NORDWALL, in his individual capacity,

                                                    Defendants-Appellees.

                         ___________________________

                         DECIDED: July 11, 2006
                         ___________________________


Before RADER, SCHALL, and BRYSON, Circuit Judges.
BRYSON, Circuit Judge.

       Ronald Wopsock, Luke Duncan, and Cassandra Kochamp brought this action in

the United States District Court for the District of Utah against several officials of the Ute

Indian Tribe and others associated with them (“the tribal defendants”), and against

several federal officials, including the Secretary of the Interior (“the federal defendants”).

The district court granted the tribal defendants’ motion to dismiss the complaint and the

federal defendants’ motion for summary judgment. The plaintiffs appealed to this court.

Because we conclude that this court lacks jurisdiction over the plaintiffs’ appeal, we

transfer the case to the United States Court of Appeals for the Tenth Circuit.

                                              I

       This case arises from a dispute within the Ute Indian Tribe concerning

membership on the Tribe’s Business Committee (the Tribe’s governing body) and the

rules and procedures for election to the Business Committee. Mr. Wopsock and Mr.

Duncan are members of the Tribe who previously served as elected members of the

Business Committee. Ms. Kochamp is a member of the Tribe who initiated a petition to

recall certain members of the Business Committee.

       While Mr. Wopsock and Mr. Duncan were serving on the Business Committee,

the Tribe entered into a financial consulting agreement with defendant John Jurrius.

Concerned about Mr. Jurrius’s subsequent management of the Tribe’s assets, Mr.

Wopsock and Mr. Duncan filed an action in the district court against the Bureau of

Indian Affairs (“BIA”) and several BIA officials, charging them with breach of their




05-1494                                       2
fiduciary obligations to the Tribe.1 Shortly thereafter, the Business Committee passed

two resolutions to expel Mr. Wopsock and Mr. Duncan from the Committee. The

Business Committee then enacted Ordinance 03-002, which barred any member who

had been expelled from the Business Committee from running as a candidate for

election to the Committee for a period of four years. Meanwhile, Mary Carol Jenkins

began circulating a petition to recall defendant Millicent Maxine Natchees, the

Chairperson of the Business Committee.          The Business Committee then enacted

Ordinance 03-004, which imposed additional requirements on recall petitions.              Ms.

Jenkins’s recall petition was rejected for failing to comply with the new requirements.

      On October 30, 2003, local BIA Superintendent Chester D. Mills approved

Ordinances 03-002 and 03-004. In letters to both Superintendent Mills and BIA

Western Division Director Wayne Nordwall, the plaintiffs appealed that approval.

Superintendent Mills subsequently vacated his approval, explaining that “my approval of

these two ordinances was not required by law, and in fact might be seen as an intrusion

on the sovereignty of the Tribe.” Director Nordwall similarly concluded that “the

Superintendent’s approval action was not needed and had no effect on the validity or




      1
                On September 29, 2004, the district court dismissed that action without
prejudice, finding that “[n]one of the laws under which Plaintiffs seek relief provides a
private right of action against the United States, its agencies or officials.” Wopsock v.
Nordwall, No. 2:03-CV-826 (D. Utah). The district court also concluded that the
plaintiffs’ claims under the Administrative Procedure Act (“APA”) were not ripe. Id. In
an unpublished decision, the Tenth Circuit affirmed. Wopsock v. Nordwall, No. 04-4296
(10th Cir. May 4, 2006).



05-1494                                     3
invalidity of the resolution.” Director Nordwall thus dismissed the plaintiffs’ appeals.

The plaintiffs appealed those decisions to the Interior Board of Indian Appeals (“IBIA”).2

       On August 3, 2004, the plaintiffs filed their first amended complaint, which

included a total of eight counts. Count 5, of particular relevance here, alleged that the

tribal defendants violated the Indian Civil Rights Act (“ICRA”) by abridging the plaintiffs’

rights to due process, equal protection, and freedom of speech. Count 5 also alleged

that the federal defendants had breached their fiduciary duties by “fail[ing] to decline to

recognize” the tribal defendants’ actions, in violation of the Indian Reorganization Act

(“IRA”), the ICRA, and the Administrative Procedure Act (“APA”). Under count 5, the

plaintiffs sought declaratory and injunctive relief, as well as an award of money

damages, pursuant to 28 U.S.C. § 1346(a)(2) (“the Little Tucker Act”), in the amount of

$10,000 to each plaintiff.

       Before the district court, the plaintiffs sought a temporary restraining order or a

preliminary injunction that would prevent the tribal defendants from enforcing or

recognizing Ordinance 03-002.       The plaintiffs expressed their concern that, in the

absence of the requested relief, Mr. Wopsock and Mr. Duncan would be precluded from

seeking office in the Tribe’s April 2005 election. The district court denied the request,



       2
              On January 6, 2006, after the district court had entered judgment in this
case, the IBIA dismissed both of the plaintiffs’ appeals for lack of standing. The IBIA
explained that “Appellants’ injury appears to have been caused solely by elected
officials from Appellants’ own Tribe” and that there is “no basis for Appellants’
contention that the injury they claim to have suffered was caused by the Regional
Director, or that by Federal law he was somehow obliged to address it.” Jenkins v. W.
Reg’l Dir., 42 IBIA 106, 114 (2006). The IBIA further concluded that “when the Regional
Director dismissed Appellants’ appeal below, in response to a specific request from the
Tribe that he do so on the basis of mootness, his dismissal was correct and for that




05-1494                                      4
and the plaintiffs appealed. The Tenth Circuit concluded that it lacked jurisdiction over

the plaintiffs’ interlocutory appeal because 28 U.S.C. § 1295 “provides the Federal

Circuit with exclusive jurisdiction in appeals from final decisions if the district court’s

jurisdiction ‘was based, in whole or in part, on 28 U.S.C. section 1346.’” Wopsock v.

Natchees, No. 05-4033 (10th Cir. Mar. 22, 2005) (transfer order). The Tenth Circuit

therefore transferred the plaintiffs’ interlocutory appeal to this court.

        On April 7, 2005, this court issued an order denying the plaintiffs’ motion for an

injunction pending appeal. On May 17, 2005, both parties stipulated to dismissal of the

plaintiffs’ appeal of the district court’s order, explaining that the Tribe’s April 2005

election had occurred and that the plaintiffs’ request for injunctive relief was therefore

moot.    On May 22, 2005, we granted the joint motion and dismissed the plaintiffs’

interlocutory appeal. Wopsock v. Natchees, No. 05-1298 (Fed. Cir. May 25, 2005).

        Thereafter, the district court dismissed all eight counts of the first amended

complaint. The district court reasoned that it lacked jurisdiction over counts 1 through 7

because it “cannot reach plaintiffs’ claims without first interpreting tribal law over which it

lacks jurisdiction.” Citing Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir. 1993), and

Brown v. Reardon, 770 F.2d 896, 905-06 (10th Cir. 1985), the court also explained that

it failed “to find any allegation that any harm suffered by plaintiffs was motivated by

invidious, class-based animus,” as is required to maintain a claim under 42 U.S.C.

§ 1985(3).




reason [the] controversy over the Superintendent’s purported approval of Ordinance No.
03-002 remains moot today.” Wopsock v. W. Reg’l Dir., 42 IBIA 117, 121-22 (2006).


05-1494                                        5
       The district court then provided additional reasons for dismissing the plaintiffs’

claims. The court concluded that the plaintiffs’ claims were not properly within the

scope of the IRA because that statute is “not triggered by the mere fact a tribal election

is being held or a purported change in the tribal constitution is alleged by individual tribal

members.” Rather, the court held, the IRA is only triggered “by an appropriate request

by a tribe for federal involvement.”      The court further noted that the IRA does not

impose upon the federal defendants the affirmative duties asserted by the plaintiffs.

The district court observed that the plaintiffs “point to no aspect of tribal or federal law

that requires the federal government to act but rather attempt to extend the law to

create such duties.”

       The district court also noted that neither the tribal defendants nor the federal

defendants had waived their sovereign immunity. Furthermore, the court observed that

the plaintiffs had failed to exhaust both their federal remedies and their tribal remedies.

The court explained that the plaintiffs’ administrative claims were still pending before the

IBIA and that the plaintiffs had failed to appeal their challenge against Ordinance 03-002

to the tribal appellate court and had never challenged Ordinance 03-004 in any tribal

court. In those circumstances, the court ruled, dismissal was appropriate.

       Finally, the district court addressed the plaintiffs’ motion for leave to amend. The

court explained that “[v]irtually contemporaneously with this Court’s hearing on the

motions to dismiss and for summary judgment, plaintiffs moved . . . to file a second

amended complaint.” The court found that the “facts and claims sought to be asserted

. . . were known to plaintiffs when they filed their earlier complaints” and that “[p]laintiffs’

amendments appear to be an attempt to avoid both this Court’s prior rulings and




05-1494                                        6
arguments raised by defendants.”        The court therefore denied leave to amend the

complaint.

                                              II

       This court has “exclusive jurisdiction . . . 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 [28 U.S.C.] section 1346.” 28 U.S.C. § 1295(a). As a result, “the question

whether we have jurisdiction in this case . . . depends on whether the jurisdiction of the

district court in this case was based, at least in part, on the Little Tucker Act.” Doe v.

United States, 372 F.3d 1308, 1311-12 (Fed. Cir. 2004) (citing United States v. Hohri,

482 U.S. 64, 72 (1987)).

       In the Tucker Act, 28 U.S.C. § 1491, and the Little Tucker Act, 28 U.S.C.

§ 1346(a)(2), Congress waived sovereign immunity for certain actions for monetary

relief against the United States. Doe, 372 F.3d at 1312. Yet, as the Supreme Court has

noted, the Tucker Act “does not create any substantive right enforceable against the

United States for money damages.’”         United States v. Mitchell, 445 U.S. 535, 538

(1980) (“Mitchell I”).   Consequently, a court must consider “whether the source of

substantive law can fairly be interpreted as mandating compensation by the Federal

Government for the damages sustained.” United States v. Mitchell, 463 U.S. 206, 216

(1983) (“Mitchell II”); see also United States v. White Mountain Apache Tribe, 537 U.S.

465, 472 (2003) (discussing Mitchell II’s “fair interpretation rule” and stating that “[i]t is

enough . . . that a statute creating a Tucker Act right be reasonably amenable to the

reading that it mandates a right of recovery in damages” and that “a fair inference will

do”); Samish Indian Nation v. United States, 419 F.3d 1355, 1364 (Fed. Cir. 2005).




05-1494                                       7
       Moreover, the question whether a statute can fairly be interpreted as money-

mandating is one that directly bears on the issue of jurisdiction. In Fisher v. United

States, 402 F.3d 1167, 1171-72 (Fed. Cir. 2005) (en banc), we held that a court “should

entertain and decide the jurisdictional and merits test in . . . [a] single step . . . in which

the trial court determines both the question of whether the statute provides the predicate

for its jurisdiction, and lays to rest . . . the question of whether the statute on its merits

provides a money-mandating remedy.”3 In other words, because a court is always

responsible for its own jurisdiction, a court that entertains a complaint alleging a Tucker

Act claim must determine at the outset whether the statute relied upon is one that is

money-mandating. Id. at 1173. In the event that the court concludes that the source of

substantive law does not meet the “money-mandating test,” the court must dismiss the

claim for lack of jurisdiction because “the absence of a money-mandating source [is]

fatal to the court’s jurisdiction under the Tucker Act.” Id.

       In United States v. Navajo Nation, 537 U.S. 488, 503 (2003), the Supreme Court

addressed the “money-mandating test” by comparing Mitchell I, in which the Court

concluded that the statute at issue (the Indian General Allotment Act) was not money-

mandating, to Mitchell II, in which the Court found that the relevant timber management

statutes could be interpreted as money-mandating. In doing so, the Court focused on

the degree to which the statutes in each case created a trust relationship between the




       3
             In Fisher, we overruled Gollehon Farming v. United States, 207 F.3d 1373
(Fed. Cir. 2000), which had prescribed a two-step approach to the money-mandating
issue: (1) the plaintiff need only make a non-frivolous allegation that the statute may be
interpreted as money-mandating to satisfy jurisdiction and (2) if it was subsequently
decided that the statute was not money-mandating, the court would dismiss for failure to
state a claim upon which relief could be granted. See Fisher, 402 F.3d at 1172-73.


05-1494                                       8
United States and the respondents. The Court observed that the statute in Mitchell I

“created only a limited trust relationship . . . that does not impose any duty upon the

Government to manage timber resources,” while the statute in Mitchell II, “clearly give[s]

the Federal Government full responsibility to manage Indian resources and land for the

benefit of the Indians.” Navajo Nation, 537 U.S. at 504-05. The Court thus explained

that, for purposes of determining whether a particular claim falls within the Tucker Act,

“Mitchell I and Mitchell II . . . instruct [that] a Tribe must identify a substantive source of

law that establishes specific fiduciary or other duties, and allege that the Government

has failed faithfully to perform those duties.” Id. at 506. The Court then addressed the

statute at issue in Navajo Nation (the Indian Mineral Leasing Act (“IMLA”)) and found

that the IMLA “simply requires Secretarial approval” and that “[u]nlike the ‘elaborate’

provisions before the Court in Mitchell II,” the “Secretary is neither assigned a

comprehensive managerial role nor . . . expressly invested with responsibility to secure

the needs and best interests of the Indian owner and his heirs.” Id. at 507-08 (internal

quotation marks omitted). The Court therefore concluded that “no provision of the IMLA

or its regulations contains any trust language with respect to coal leasing” and rejected

the respondent’s claim for compensation. Id. at 508. Compare Navajo Nation, 537 U.S.

at 508, with White Mountain Apache Tribe, 537 U.S. at 475 (finding the statute in

question to be money-mandating because it provides that “Fort Apache [is] ‘held by the

United States in trust for the White Mountain Apache Tribe’” and because “elementary

trust law . . . confirms the commonsense assumption that a fiduciary actually

administering trust property may not allow it to fall into ruin on his watch”).




05-1494                                       9
       The plaintiffs in this case seek money damages pursuant to the Little Tucker Act

as compensation for the federal defendants’ alleged breach of the fiduciary duties

created by the IRA, the ICRA and the APA. The IRA, however, cannot fairly be

interpreted as mandating compensation by the federal government for the injury claimed

by the plaintiffs. Like the statute at issue in Navajo Nation, the IRA does not grant the

Secretary a “comprehensive managerial role”; rather, it simply requires the Secretary to

“call and hold an election . . . after the receipt of a tribal request.” See 25 U.S.C. §

476(c). In this manner, the IRA invests primary responsibility with the Tribe, not the

Secretary. In fact, the Supreme Court has stated that “[t]he overriding purpose of [the

IRA] was to establish machinery whereby Indian tribes would be able to assume a

greater degree of self-government, both politically and economically.”           Morton v.

Mancari, 417 U.S. 535, 542 (1974). Moreover, as the Tenth Circuit has explained in

distinguishing Mitchell II: “Indian tribes have a right to self-government . . . [and] . . .

while the Department may be required by statute or tribal law to act in intratribal

matters, it should act so as to avoid any unnecessary interference with a tribe’s right to

self-government.” Wheeler v. U. S. Dep’t of the Interior, Bureau of Indian Affairs, 811

F.2d 549, 553 (10th Cir. 1987); see also Nero v. Cherokee Nation of Okla., 892 F.2d

1457, 1465 (1989) (distinguishing Mitchell II by finding that “no statute or regulation

requires Department involvement in Cherokee election disputes; rather, . . . federal law

precludes Department action”). Consequently, the IRA does not serve as the requisite

money-mandating statute needed to establish jurisdiction under the Little Tucker Act.

       The ICRA and the APA do not fulfill that role either. The ICRA is directed not at

the federal government, but rather at Indian tribes. See 25 U.S.C. § 1302 (“No Indian




05-1494                                     10
tribe in exercising powers of self-government shall . . . .”). Thus it does not impose

duties upon the federal government or its officials. Finally, the APA does not authorize

an award of money damages at all; to the contrary, section 10(a) of the APA, 5 U.S.C. §

702, specifically limits the Act to actions “seeking relief other than money damages.”

      Under Fisher, without a source of substantive law that can fairly be interpreted as

mandating compensation, the Little Tucker Act did not give the district court jurisdiction

to consider the plaintiffs’ claim for money damages.        Because the district court’s

jurisdiction over this case was not based in part on the Little Tucker Act, we lack

jurisdiction over this appeal. See Doe, 372 F.3d at 1317 (finding that the Federal Circuit

lacked appellate jurisdiction because the “case was not one that was based on the Little

Tucker Act at the outset, and it never became one through the passage of time or the

unfolding of events”); see also 28 U.S.C. § 1295(a)(2).

      When we lack jurisdiction, we are “authorized by statute to transfer the case to

‘any other court in which the action or appeal could have been brought at the time it was

filed or noticed.’” Doe, 372 F.3d at 1317 (quoting 28 U.S.C. § 1631). To be sure, in a

previous appeal, the Tenth Circuit transferred this case to us. In such situations, the

Supreme Court has advised us that law-of-the-case principles should be applied so as

to avoid “a perpetual game of jurisdictional ping-pong.”     Christianson v. Colt Indus.

Operating Corp., 486 U.S. 800, 818 (1988). It is well established, however, that law-of-

the-case principles do not bar a court from departing from earlier rulings when there is

“an intervening change of controlling legal authority, or [a showing that] the prior

decision is clearly incorrect and its preservation would work a manifest injustice.” Toro

Co. v. White Consol. Indus., 383 F.3d 1326, 1336 (Fed. Cir. 2004); see also 18B




05-1494                                    11
Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and

Procedure § 4478 (2d ed. 2002). In this case, the Tenth Circuit’s earlier transfer of the

plaintiffs’ interlocutory appeal occurred almost simultaneously with our en banc decision

in Fisher, in which we overruled prior precedent under which the Tenth Circuit’s transfer

decision would have been correct. Thus, this is a case in which there has been a

change in the law and in which it is now quite clear that we lack jurisdiction over this

appeal. We therefore consider it to be in the interest of justice to transfer the present

appeal to the appropriate appellate tribunal for further proceedings. Because this case

was appealed from a final judgment of the United States District Court for the District of

Utah, we direct that the appeal be transferred to the United States Court of Appeals for

the Tenth Circuit.

       Each party shall bear its own costs for this appeal.

                                    TRANSFERRED.




05-1494                                     12
