               NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not
               citable as precedent. It is a public record.

      United States Court of Appeals for the Federal Circuit
                                          04-1206

                                    JULIAN VARGAS,

                                                  Plaintiff-Appellant,

                                             v.

                                     UNITED STATES

                                                  Defendant-Appellee.

                              _______________________

                              DECIDED: February 23, 2005
                              _______________________

Before LOURIE, Circuit Judge, ARCHER, Senior Circuit Judge, and DYK, Circuit Judge.

ARCHER, Senior Circuit Judge.

       Julian Vargas (“Vargas”) appeals the denial by the United States District Court

for the Eastern District of Washington of his motion to transfer this case to the United

States Court of Federal Claims pursuant to 28 U.S.C. § 1631. Vargas v. United States,

No. CS-01-0064-WFN (E.D. Wash., July 15, 2003) (“Order”). We conclude that the

district court has subject matter jurisdiction over Vargas’s non-tort claims under the Little

Tucker Act, because Vargas unequivocally waived recovery in excess of $10,000 for

those claims and cannot now repudiate that waiver. Accordingly, the judgment of the

district court is affirmed.

       Vargas filed a complaint in district court pursuant to the Federal Tort Claims Act

(“FTCA”) alleging negligence against the United States for damage to his property
resulting from an earthen dam break. The court granted Vargas leave to file a second

amended complaint asserting three causes of action: (1) a claim under the FTCA; (2) a

claim for a taking under the Fifth Amendment; and (3) a claim of breach of trust. The

district court later dismissed Vargas’s FTCA claim, leaving only the non-tort Little Tucker

Act claims.   Vargas v. United States, No. CS-01-0064-WFN (E.D. Wash., Jan. 23,

2003). Additionally, the court noted that the limitation on recovery of these claims was

$10,000. Id. at 9-10. Several months later, Vargas filed a motion to transfer these

claims to the Court of Federal Claims. The district court denied this motion based on its

finding that Vargas had previously waived any recovery greater than $10,000 on his

non-tort claims and that Vargas could not repudiate this waiver.

       Vargas      now    appeals,     and     we    have     jurisdiction   pursuant      to

28 U.S.C. § 1292(d)(4)(A).

       We review a district court’s decision whether to transfer a case to the Court of

Federal Claims for lack of subject matter jurisdiction de novo, because it is jurisdictional.

See James v. Caldera, 159 F.3d 573, 578 (Fed. Cir. 1998). However, we review the

trial court’s decision on the waiver issue for an abuse of discretion. United States v.

Ziegler Bolt and Parts Co., 111 F.3d 878, 883 (Fed. Cir. 1997).

       Vargas’s waiver of any recovery greater than $10,000 with respect to his non-tort

claims is clear.   Indeed, in his motion to transfer Vargas states that he wishes to

repudiate his waiver:

       The damages corresponding to the taking claim under the Fifth
       Amendment and the cause of action for violation of the trust duty based on
       the Indian Trust doctrine far exceed the Little Tucker Act Jurisdictional
       amount. Plaintiff is no longer waiving his right to recover damages in
       excess of $10,000 for these claims since his tort claim has been
       dismissed.



04-1206                                      2
(emphasis added). As such, Vargas has admitted that he waived his right to recover

damages greater than $10,000 for his non-tort claims. Additionally, we agree with the

district court that Vargas’s waiver “was clearly expressed and was memorialized in

numerous Court Orders.” Order at 5.

       Finally, we cannot say that the district court abused its discretion in determining

that repudiation of Vargas’s waiver was impermissible. As noted by the district court, in

deciding on the government’s motion to dismiss Vargas’s takings claims, the court

denied the government’s motion based entirely on Vargas’s waiver of recovery of

damages in excess of $10,000, see Vargas v. United States, No. CS-01-0064-WFN

(E.D. Wash., May 17, 2002), and litigation in this case proceeded for more than a year.

Order at 5. Vargas elected to waive any recovery greater than $10,000 for his non-tort

claims, and, in return, he was given the opportunity to litigate in the district court. It was

only after the district court dismissed the FTCA claims that Vargas sought to withdraw

the waiver. As the district court stated “[t]he waiver may not be disclaimed because the

Plaintiff experienced an adverse ruling.” Id. We conclude that the district court did not

abuse its discretion in refusing to permit Vargas to undo this choice simply because he

did not like the result of the litigation.

       Accordingly, because the district court has subject matter jurisdiction over this

action due to Vargas’s waiver, transfer to the Court of Federal Claims is not permitted.

Cruz-Aguilera v. I.N.S., 245 F.3d 1070, 1074 (9th Cir. 2001) (explaining that transfer

under 28 U.S.C. § 1631 is appropriate if three conditions are met: “(1) the transferring

court lacks jurisdiction; (2) the transferee court could have exercised jurisdiction at the

time the action was filed; and (3) the transfer is in the interests of justice”).



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