       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                 ______________________

 LUMMI TRIBE OF THE LUMMI RESERVATION,
   WASHINGTON, LUMMI NATION HOUSING
    AUTHORITY, HOPI TRIBAL HOUSING
   AUTHORITY, FORT BERTHOLD HOUSING
               AUTHORITY,
            Plaintiffs-Appellants

        FORT PECK HOUSING AUTHORITY,
                   Plaintiff

                            v.

                   UNITED STATES,
                   Defendant-Appellee
                 ______________________

                       2018-1720
                 ______________________

   Appeal from the United States Court of Federal Claims
in No. 1:08-cv-00848-RHH, Senior Judge Robert H.
Hodges, Jr.
                ______________________

                Decided: October 9, 2019
                ______________________

    JEFFREY S. RASMUSSEN, Fredericks Peebles and Patter-
son LLP, Louisville, CO, argued for plaintiffs-appellants.
Also represented by JOHN FREDERICKS, III, Fredericks Law
2                               LUMMI TRIBE v. UNITED STATES




Firm LLC, Mandan, ND.

    STEVEN JOHN GILLINGHAM, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for defendant-appellee. Also
represented by JOSEPH H. HUNT; PERRIN WRIGHT, United
States Department of Housing and Urban Development,
Washington, DC.
                 ______________________

    Before O’MALLEY, REYNA, and CHEN, Circuit Judges.
REYNA, Circuit Judge.
    Lummi Tribe of the Lummi Reservation, Washington,
and three Native American housing authorities appeal
from an order of the United States Court of Federal Claims
dismissing their case. Because the dismissal erroneously
included claims that have not yet been adjudicated, we re-
verse and remand.
                        BACKGROUND
     This appeal is the latest of over ten years of efforts by
appellants Lummi Tribe of the Lummi Reservation, Wash-
ington, Lummi Nation Housing Authority, Hopi Tribal
Housing Authority, and Fort Berthold Housing Authority
(collectively, “Lummi”) to receive federal housing grant
funds under the Native American Housing Assistance and
Self-Determination Act of 1996 (“NAHASDA”). The back-
ground of this dispute was recounted in detail in our opin-
ion issued the first time this case was appealed to this
court. See Lummi Tribe of the Lummi Reservation, Wash-
ington v. United States, 870 F.3d 1313, 1315–17 (Fed. Cir.
2017), cert. denied sub nom. Lummi Tribe of the Lummi
Reservation v. United States, 139 S. Ct. 64 (2018). We re-
cite here only those facts that are relevant to this appeal.
    Congress enacted NAHASDA to establish an annual
block grant system by which Native American tribes
LUMMI TRIBE v. UNITED STATES                              3



receive funding to provide affordable housing to their mem-
bers. See 25 U.S.C. §§ 4101, 4111. The annual amount of
funding is calculated using a regulatory formula that is
based in part on the number of housing units owned and
operated by beneficiary tribes. Id. § 4152(b)(1). After cal-
culating the allocation, the United States Department of
Housing and Urban Development (“HUD”) disburses
NAHASDA grant funds among beneficiary tribes each
year. Id. § 4151.
    On November, 26, 2008, Lummi filed suit against the
United States in the United States Court of Federal Claims
(“Claims Court”), alleging that HUD miscalculated its allo-
cation formula and improperly withheld NAHASDA funds
to which Lummi was entitled. Lummi asserted a claim un-
der NAHASDA, as well as claims for breach of funding
agreements, breach of fiduciary duty, and breach of trust.
Lummi also asserted an illegal exaction claim based on
HUD’s failure to make certain factual findings and to pro-
vide Lummi with a hearing prior to withholding the grant
funds. On December 17, 2010, the government moved to
dismiss Lummi’s claims for lack of subject-matter jurisdic-
tion, arguing that NAHASDA was not a money-mandating
statute as required for jurisdiction under the Tucker Act.
See Lummi Tribe, 870 F.3d at 1316–17 (citing United
States v. Mitchell, 463 U.S. 206, 217 (1983) and United
States v. Testan, 424 U.S. 392, 398 (1976)).
    The Claims Court denied the government’s motion, in-
terpreting NAHASDA “as mandating the payment of com-
pensation by the government.” Id. at 1316 (citing Lummi
Tribe of the Lummi Reservation v. United States, 99 Fed.
Cl. 584, 594 (2011)). On September 30, 2015, after consid-
ering the parties’ supplemental briefing, the Claims Court
issued an order reaffirming its prior decision that it pos-
sessed subject-matter jurisdiction over Lummi’s
NAHASDA claim, but rejecting Lummi’s illegal exaction
claim. Id. at 1317 (citing Order, Lummi Tribe of the Lummi
Reservation v. United States, No. 08-848C (Fed. Cl. Sept.
4                              LUMMI TRIBE v. UNITED STATES




30, 2015), ECF No. 121 (“September 30 Order”)). On July
8, 2016, we granted the government’s petition for permis-
sion to file an interlocutory appeal of the Claims Court’s
September 30 Order on subject-matter jurisdiction.
    On appeal, we considered the government’s “single af-
firmative argument” that the Claims Court erred in finding
NAHASDA to be a money-mandating statute, and there-
fore the Claims Court was without jurisdiction over
Lummi’s NAHASDA claim. Id. We concluded that
NAHASDA was not a money-mandating statute because it
does not provide for money damages. Id. at 1318–19. We
explained that Lummi was instead seeking “larger strings-
attached NAHASDA grants,” which was a form of equitable
relief over which the Claims Court lacked jurisdiction. Id.
at 1319. We noted that “any such claim for relief under
NAHASDA would necessarily be styled in the same fash-
ion” because “the statute does not authorize a free and clear
transfer of money.” Id. (emphasis omitted). We also re-
jected Lummi’s reliance on its illegal exaction claim as an
alternative basis for jurisdiction, explaining that because
the grant funds at issue were never in Lummi’s possession
or control, that claim was invalid as a matter of law. Id.
Having concluded that the Claims Court lacked jurisdic-
tion over Lummi’s NAHASDA and illegal exaction claims,
we vacated the Claims Court’s September 30 Order and in-
structed the Claims Court “to dismiss this action for lack of
subject-matter jurisdiction.” Id. at 1320. Our mandate is-
sued on January 12, 2018. The Claims Court dismissed the
case on January 19, 2018.
    Lummi appeals from this dismissal. We have jurisdic-
tion under 28 U.S.C. § 1295(a)(3).
                        DISCUSSION
              I. Dismissal of Lummi’s Case
   We review the scope of our mandate and a trial court’s
compliance with it de novo. SUFI Network Servs., Inc. v.
LUMMI TRIBE v. UNITED STATES                                5



United States, 817 F.3d 773, 779 (Fed. Cir. 2016) (citing
Cardiac Pacemakers, Inc. v. St. Jude Med., Inc., 576
F.3d 1348, 1355 (Fed. Cir. 2009)). The mandate rule in-
structs that we do not reconsider issues that were implic-
itly or explicitly decided on a prior appeal. TecSec, Inc. v.
Int’l Bus. Machines Corp., 731 F.3d 1336, 1341–42 (Fed.
Cir. 2013). An issue was implicitly decided if it was “nec-
essary to our disposition of the appeal.” Laitram Corp. v.
NEC Corp., 115 F.3d 947, 952 (Fed. Cir. 1997). “Unless
remanded by this court, all issues within the scope of the
appealed judgment are deemed incorporated within the
mandate and thus are precluded from further adjudica-
tion.” Retractable Techs., Inc. v. Becton Dickinson & Co.,
757 F.3d 1366, 1371 (Fed. Cir. 2014) (quoting Engel Indus.,
Inc. v. Lockformer Co., 166 F.3d 1379, 1383 (Fed. Cir.
1999)). A mandate is only “controlling as to matters within
its compass,” and a trial court on remand “is free as to other
issues.” Sprague v. Ticonic Nat. Bank, 307 U.S. 161, 168
(1939) (citing In re Sanford Fork & Tool Co., 160 U.S. 247,
256 (1895)).
     On appeal, Lummi argues that the Claims Court erred
by dismissing its independent claims for breach of contract,
breach of fiduciary duty, and breach of trust. 1 Resolution
of this issue turns on whether these claims were within the
scope of our prior mandate. We conclude that they were
not.
    The prior interlocutory appeal in this case was framed
by the Claims Court’s September 30 Order, which decided
only two issues: whether NAHASDA was money mandat-
ing and whether HUD’s failure to provide Lummi with a
hearing constituted a per se illegal exaction. See J.A. 41–
42 (September 30 Order at 4–5); see also J.A. 60–61 (Order


    1   The government concedes that Lummi’s complaint
included these breach claims. Appellee’s Br. 3 (citing
J.A. 32–35).
6                              LUMMI TRIBE v. UNITED STATES




at 2–3, Lummi Tribe of the Lummi Reservation, Washing-
ton v. United States, No. 2016-124 (Fed. Cir. June 8, 2016),
ECF No. 9) (granting the government’s petition for permis-
sion to appeal the September 30 Order “that reaffirmed
[the Claims Court’s] prior ruling that NAHASDA is money-
mandating . . . [and] addressed and rejected [Lummi’s] ar-
gument that HUD’s failure to afford a hearing alone enti-
tled them to the return of monies on their illegal exaction
claim”). Accordingly, the scope of our review in the prior
appeal was limited to Lummi’s claim under NAHASDA and
its illegal exaction claim. Our prior opinion, which “may be
consulted to ascertain what was intended by [the court’s]
mandate,” Sanford, 160 U.S. at 256, likewise addressed
only those two claims, see Lummi Tribe, 870 F.3d at 1317–
19. Nor did we resolve Lummi’s breach of contract, breach
of fiduciary duty, and breach of trust claims by “necessary
implication,” because resolving those claims was not neces-
sary to our conclusions that NAHASDA is not a money-
mandating statute or that funds not in Lummi’s possession
or control could not be illegally exacted. See Laitram, 115
F.3d at 951–52. Lummi’s breach of contract, breach of fi-
duciary duty, and breach of trust claims were therefore not
within the scope of our prior mandate.
   The government argues that we should reject Lummi’s
appeal, raising three primary arguments in support. We
address each in turn.
    First, the government argues that Lummi’s appeal is
barred by the mandate rule because our prior instruction
to “dismiss this action” resolved the “dispositive jurisdic-
tional issue for the complaint in its entirety.” Appellee’s
Br. 8–9. We disagree. As explained above, our prior man-
date resolved only the question of the Claims Court’s juris-
diction over Lummi’s NAHASDA and illegal exaction
claims. We had no occasion to consider the entirety of
Lummi’s complaint. The parties did not address Lummi’s
remaining claims in their merits briefing. In certifying its
September 30 Order for interlocutory appeal, the Claims
LUMMI TRIBE v. UNITED STATES                                  7



Court stated that Lummi asserted only two claims: “(1) a
violation of NAHASDA’s money mandate; and (2) an illegal
exaction claim based on HUD’s failure to provide a hear-
ing.” J.A. 53. Thus, whereas this court’s order could be
read to mean that all claims raised before the Claims Court
were to be dismissed, our mandate “to dismiss this action”
necessarily referred to only those claims that were pre-
sented to us—the NAHASDA and illegal exaction claims.
See Laitram, 115 F.3d at 952 (“It is incorrect to conclude
that we decided issues not only undecided on the merits by
the trial court . . . , and thus on appeal unripe, but also nei-
ther presented to us nor discussed in our opinion, nor nec-
essary to our disposition of the appeal.”).
    Second, the government argues that Lummi waived its
claims for breach of contract, breach of fiduciary duty, and
breach of trust by not raising those arguments in the prior
appeal. Appellee’s Br. 9–10. The government contends
Lummi was required to do so because it asserts that those
claims were within the scope of the Claims Court’s Septem-
ber 30 Order. Id. This argument is meritless. As we ex-
plained, the scope of the Claims Court’s September 30
Order was limited to deciding whether the Claims Court
possessed jurisdiction over Lummi’s claim under
NAHASDA and its illegal exaction claim, and those were
the only issues on which we permitted the government’s
interlocutory appeal. See J.A. 41–42, 60–61. Lummi had
no prior opportunity to present its arguments on its re-
maining claims, and we will not close the courthouse doors
on unadjudicated issues.
    Lastly, the government argues that this court already
resolved Lummi’s breach of contract, breach of fiduciary
duty, and breach of trust claims by denying Lummi’s peti-
tion for rehearing in the prior appeal, which mentioned
those claims. Appellee’s Br. 10–11. It is well settled, how-
ever, that a decision to deny rehearing does not resolve the
merits of those arguments made in the petition for rehear-
ing that are not material to the court’s initial resolution of
8                                 LUMMI TRIBE v. UNITED STATES




the appeal. See Exxon Chem. Patents, Inc. v. Lubrizol
Corp., 137 F.3d 1475, 1480 (Fed. Cir. 1998). Because re-
solving Lummi’s breach of contract, breach of fiduciary
duty, and breach of trust claims was not necessary to our
resolution of the government’s prior interlocutory appeal,
our denial of Lummi’s rehearing request “does not carry a
presumption of rejection on the merits” of those claims. Id.
    In light of the foregoing, we conclude that because nei-
ther the Claims Court nor this court previously adjudicated
Lummi’s breach of contract, breach of fiduciary duty, and
breach of trust claims, the Claims Court erred by dismiss-
ing Lummi’s entire case.
                  II. Transfer Under § 1631
     Lummi next argues that the Claims Court erred by not
considering whether to transfer its dismissed claims to a
district court in the Tenth Circuit pursuant to 28 U.S.C.
§ 1631. Section 1631 provides in relevant part that when
a “court finds that there is a want of jurisdiction, the court
shall, if it is in the interest of justice, transfer [a civil] ac-
tion or appeal to any other such court . . . in which the ac-
tion or appeal could have been brought at the time it was
filed or noticed.” 28 U.S.C. § 1631 (2012). A case may only
be transferred to a court that has jurisdiction to decide it.
Jan’s Helicopter Serv., Inc. v. F.A.A., 525 F.3d 1299, 1303
(Fed. Cir. 2008).
    Lummi contends that the Claims Court was required
to consider sua sponte whether transfer of its dismissed
claims was in the interest of justice, even though Lummi
did not request such a transfer. Lummi relies on cases
from the Sixth and Ninth Circuits, which have held that a
trial court must consider transfer as an alternative to dis-
missal for lack of jurisdiction even if a request for transfer
is not made. Appellant’s Br. 14–16 (citing Jackson v. L &
F Martin Landscape, 421 F. App’x 482, 484 (6th Cir. 2009)
and Taylor v. Soc. Sec. Admin., 842 F.2d 232, 233 (9th Cir.
1988)). Unlike our sister circuits, we have not yet decided
LUMMI TRIBE v. UNITED STATES                                9



this question. See Tex. Peanut Farmers v. United States,
409 F.3d 1370, 1375 n.7 (Fed. Cir. 2005). We conclude that
on the record before us, 2 the Claims Court should consider
in the first instance whether to transfer Lummi’s
NAHASDA claim pursuant to § 1631.
     In opposing Lummi’s arguments on the issue of trans-
fer, the government asserts that this court already consid-
ered whether to transfer Lummi’s case and declined to do
so by denying Lummi’s petition for rehearing in the prior
appeal. Appellee’s Br. 12–13. As explained above, we re-
ject this argument because our denial of Lummi’s petition
for rehearing did not resolve the merits of the transfer ar-
gument. See Exxon, 137 F.3d at 1479–80. The government
also argues that transfer is not warranted because no court
in the Tenth Circuit possesses jurisdiction over Lummi’s
NAHASDA claim in view of the Tenth Circuit’s finding that
any “monetary remedy available in the district court was
limited to a specific year’s grant appropriation, and the rel-
evant year’s appropriations were likely exhausted.” Appel-
lee’s Br. 13–14 (citing Modoc Lassen Indian Hous. Auth. v.
United States Dep’t of Hous. & Urban Dev., 881 F.3d 1181,
1196 (10th Cir. 2017)). The government conflates subject-
matter jurisdiction with the district court’s ability to fash-
ion appropriate relief. Determining whether specific ap-
propriated funds have been exhausted does not affect the




    2    We particularly note our prior recognition of the
government’s inconsistent jurisdictional arguments made
to this court and the Tenth Circuit. See Lummi Tribe, 870
F.3d at 1319 (citing the “opposite position” taken by the
government in Modoc Lassen Indian Hous. Auth. v. United
States Dep’t of Hous. & Urban Dev., 864 F.3d 1212 (10th
Cir. 2017)). Any transferee court would now have the ben-
efit of our analysis in the prior appeal, and would be able
to consider the government’s dual positions.
10                              LUMMI TRIBE v. UNITED STATES




jurisdictional question in this case, 3 and Modoc never
states that a district court in the Tenth Circuit lacks juris-
diction over claims for specific performance under
NAHASDA.
                    III. Reconsideration
    Lastly, Lummi requests that we reconsider our prior
decision on its NAHASDA claim, and apply judicial estop-
pel to prevent the government from challenging the Claims
Court’s jurisdiction over that claim. Appellant’s Br. 12.
Lummi argues that this case presents exceptional circum-
stances that warrant an exception to the mandate rule to
avoid the manifest injustice that would result if the gov-
ernment’s inconsistent arguments to this court and to the
Tenth Circuit were to deprive both the Claims Court and
the district court of jurisdiction to resolve Lummi’s
NAHASDA claim. Id.; Reply Br. 7–8 (citing Tronzo v. Bi-
omet, Inc., 236 F.3d 1342, 1349 (Fed. Cir. 2001)). We do not
need to decide if these circumstances are exceptional
enough for us to revisit our prior decision. Although we are
sympathetic to Lummi’s boxed-in position, principles of ju-
dicial estoppel cannot create subject-matter jurisdiction
where none exists. Dunklebarger v. Merit Sys. Prot. Bd.,
130 F.3d 1476, 1480 (Fed. Cir. 1997) (“It is well settled that


     3  The Tenth Circuit in Modoc remanded the case for
the district court to determine whether “HUD had the rel-
evant funds at its disposal.” 881 F.3d at 1198–99. On re-
mand, the district court did not resolve this factual
question, finding it moot in light of further proceedings in
a companion case. See Tlingit-Haida Reg’l Hous. Auth. v.
United States Dep’t of Hous. & Urban Dev., No. 08-CV-
00451-RPM, 2018 WL 4103495, at *5 (D. Colo. Aug. 21,
2018). If the Claims Court determines that transfer of
Lummi’s NAHASDA claim is warranted under § 1631, the
transferee court will have an opportunity to make factual
findings on this issue.
LUMMI TRIBE v. UNITED STATES                              11



no action of the parties can confer subject-matter jurisdic-
tion on a tribunal and that the principles of estoppel do not
apply to vest subject-matter jurisdiction where Congress
has not done so.” (citing Ins. Corp. of Ireland v. Compagnie
des Bauxites de Guinee, 456 U.S. 694, 702 (1982))). In ad-
dition, as discussed above, district courts in the Tenth Cir-
cuit still possess jurisdiction to hear Lummi’s NAHASDA
claim.
                       CONCLUSION
     We have considered Lummi’s remaining arguments
and find them unpersuasive. We conclude that the Claims
Court erred by dismissing Lummi’s claims for breach of
contract, breach of fiduciary duty, and breach of trust be-
cause those claims were not included in the scope of our
prior mandate and were not previously adjudicated. We
also conclude that the Claims Court should consider in the
first instance whether transfer of Lummi’s NAHASDA
claim under § 1631 would serve the interests of justice. We
therefore reverse the Claims Court’s order dismissing
Lummi’s case, and remand for further proceedings con-
sistent with this opinion.
            REVERSED AND REMANDED
                           COSTS
    Each party shall bear its own costs.
