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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-50436
_______________
ROTHE DEVELOPMENT CORPORATION,
Plaintiffs-Appellants,
VERSUS
UNITED STATES DEPARTMENT OF DEFENSE
and
UNITED STATES DEPARTMENT OF THE AIR FORCE,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________
October 27, 1999
Before JOLLY, SMITH, and WIENER,
(1995). The district court agreed and granted
Circuit Judges.
summary judgment for defendants.
JERRY E. SMITH, Circuit Judge:
For the first time on appeal, and well into
the briefing process, the government moves to
Rothe Development Corporation
dismiss the appeal for want of appellate
("Rothe"), a contractor, alleges that the United
jurisdiction, or in the alternative to transfer the
States Department of Defense and the Depart-
appeal to the United States Court of Appeals
ment of the Air Force violated its right to
for the Federal Circuit. Because we conclude
equal protection under the Fifth Amendment
that, under 28 U.S.C. § 1295(a)(2), we do not
when it awarded a contract to a higher bidder,
have jurisdiction, we transfer the appeal to the
International Computers and Telecommunica-
Federal Circuit.
tions, Inc., because of the race of ICT's
owner, who is of Korean descent. Rothe seeks
The United States enjoys sovereign
injunctive and declaratory relief and monetary
immunity from suit, which immunity can be
damages to compensate it for bid preparation
waived only by act of Congress.1 Such waiver
costs, and attorney's fees. The government
claims that its race-based preference program
under 10 U.S.C. § 2323 satisfies the strict
1 See United States v. Testan, 424 U.S. 392,
scrutiny standard required under Adarand
398 (1976); United States v. Mitchell, 463 U.S.
Constructors, Inc. v. Peña, 515 U.S. 200
(continued...)

"must be unequivocally expressed in statutory
Constitution, or any Act of Congress, or
text . . . [and] will be strictly construed, in
any regulation of an executive
terms of its scope, in favor of the sovereign."
department, or upon any express or
Lane v. Peña, 518 U.S. 187, 192 (1996).
implied contract with the United States,
or for liquidated or unliquidated
A waiver as to injunctive reliefSSbut not
damages in cases not sounding in tort.4
monetary damagesSScan be found in § 702 of
the Administrative Procedure Act, which
28 U.S.C. § 1346(a)(2).
permits parties "suffering legal wrong because
of agency action" to file an "action in a court
Assuming that Rothe's action for monetary
of the United States seeking relief other than
damages arises under the Tucker ActSSan
money damages." 5 U.S.C. § 702.2 We can
issue we discuss belowSSthe district court
only presume that Rothe brings its action for
properly exercised original jurisdiction.
injunctive relief under § 702, for its complaint
Appellate jurisdiction, however, is conferred
fails to cite any legal source giving district
not on this court, but on the Federal Circuit,
courts that power.
for the Act confers exclusive appellate
jurisdiction on that court over cases in which
We similarly are left in the dark as to the
district court jurisdiction is "based, in whole or
basis for Rothe's claim for monetary damages.
in part," on § 1346(a)(2). See 28 U.S.C. §
As with its claim for injunctive relief, we must
1295(a)(2).
find a basis for Rothe's damages action to
determine whether sovereign immunity has
Rothe would prefer a partial dismissal or
been waived. In the district court, Rothe
transfer to the Federal Circuit, limited to the
sought refuge in the Tucker Act, which waives
appeal of its claim for bid preparation costs,
sovereign immunity to suit for monetary
but the plain language of § 1295(a)(2) does
damages on a wide variety of claims. See
not permit such bifurcation, for, as we have
United States v. Mitchell, 463 U.S. 206, 212-
said, all that is required to trigger exclusive
16 (1983). Specifically, the Act confers on
appellate jurisdiction in the Federal Circuit is
district courts original jurisdiction, concurrent
for jurisdiction in the district court to have
with that of the Court of Federal Claims, over
been "based, in whole or in part," on
§ 1346(a)(2). Id. Thus, even had Rothe
[a]ny . . . civil action or claim against the
appealed only the denial of injunctive relief,
United States, not exceeding $ 10,000 in
the basis of district court jurisdiction would
amount,3 founded either upon the
(...continued)
(...continued)
206, 215-26 (1983).
claims is exclusive in the United States Court of
Appeals for the Federal Circuit. See 28 U.S.C.
2 See Sheehan v. Army & Air Force Exch.
§ 1295(a)(3).
Serv., 619 F.2d 1132, 1139 (5th Cir. 1980), rev'd
on other grounds, 456 U.S. 813 (1981) ("The
4 The Tucker Act does not cover torts; that is
1976 amendment [to § 702] waives sovereign
the purpose of the FTCA. See 28 U.S.C.
immunity for actions against federal government
§§ 1346(b), 2674. See also Carlson v. Green,
agencies, seeking nonmonetary relief, if the agency
446 U.S. 14, 28 n.1 (1980) (Powell, J., concurring)
conduct is otherwise subject to judicial review.").
(noting that the FTCA "is not a federal remedial
scheme at all, but a waiver of sovereign immunity
3 Where such claims exceed $10,000 in amount,
that permits an injured claimant to recover
original jurisdiction vests exclusively in the United
damages against the United States where a private
States Court of Federal Claims. See 28 U.S.C.
person `would be liable to the claimant in
§ 1491(a)(1). Appellate jurisdiction over such
accordance with the law of the place where the act
(continued...)
or omission occurred.'").
2

have been the same.5
courts have already recognized an implied
right of action against federal officials in the
Now, on appeal, Rothe denies that its
Constitution itself, for violations of equal
complaint is premised on the Tucker Act.
protection under the Fifth Amendment. See
Presumably, it hopes to find another statutory
Davis v. Passman, 442 U.S. 228, 242-43
vehicle for its damages claim, one that must
(1979). The "founded upon the Constitution"
also include an express, unequivocal waiver of
clause of the Tucker Act has been limited to
sovereign immunity. What that vehicle would
apply only to the Takings Clause, however,
be, outside the Tucker Act, is far from evident,
because only that clause contemplates payment
however, and Rothe offers precious little
by the federal government.6 Nor is
guidance on how otherwise it might recover.
this limitation likely to be of
To the contrary, the Tucker Act appears to
much help to Rothe, for any
provide for Rothe's claim.
attempt to justify recovery
against the federal government
The Act is a jurisdictional statute. Because
on a constitutional theory
it does not pro vide an independent right of
action, courts must look elsewhere for a
source. See United States v. Testan, 424 U.S.
392, 400 (1976). The Act covers such a broad
6 As the Claims Court has said,
range o f actions that it seems fruitless for
It is well settled, that [under the Tucker Act,
Rothe to base its action anywhere else, given
the Court of Federal Claims] has no
the facts of this case.
jurisdiction over claims based upon the Due
Process and Equal Protection guarantees of
Two possibilities for Tucker Act recovery
the Fifth Amendment, because these
come to mind. Pleaded as an "equal
constitutional provisions do not obligate the
protection" claim, Rothe's suit, at first blush,
Federal Government to pay money
seems to fit squarely within the "founded . . .
damages. . . . Thus, in order to fall within
upon the Constitution" prong of the Tucker
the jurisdiction of this Court, the plaintiffs
Act. See 28 U.S.C. § 1346(a)(2). After all,
must establish that their claims are based on
a constitutional provision, statute, or
regulation that can be fairly interpreted as
mandating compensation by the Federal
5 See also United States v. Hohri, 482 U.S. 64,
Government for the damages they sustained.
69 n. 3 (1987) (stating in dictum that "bifurcation
is inappropriate" because the "language of
Bellamy v. United States, 7 Cl. Ct. 720, 723
§ 1295(a)(2) discusses jurisdiction over an appeal
(Cl. Ct. 1985) (citations omitted). See also
`in a case,' not over an appeal from resolution of `a
Carruth v. United States, 627 F.2d 1068, 1081
claim'"); Brant v. Cleveland Nat'l Forest Serv.,
(Ct. Cl. 1980); Montoya v. United States,
843 F.2d 1222, 1224 (9th Cir. 1988) (stating that
22 Cl. Ct. 568, 570 (Cl. Ct. 1991). In fact, "courts
"even the non-Tucker Act claims must be appealed
have uniformly held that jurisdiction under the
to the Federal Circuit"); Williams v. Secretary of
`founded upon the constitution' grant of the Tucker
the Navy, 787 F.2d 552, 558 (Fed. Cir. 1986)
Act is limited to claims under the `takings clause'
("Presence of additional allegations . . . does not
of the Fifth Amendment." Clark v. Library of
divest [Federal Circuit] of its constitutionally
Congress, 750 F.2d 89, 103 n. 31 (D.C. Cir.
granted jurisdiction of the entire case . . . . To hold
1984); see also Testan, 424 U.S. at 401 (noting
to the contrary would defeat the purposes of
that takings cases are permitted under the Tucker
Congress."); Professional Managers' Ass'n v.
Act because Takings Clause is self-executing).
United States, 761 F.2d 740, 743-44 (D.C. Cir.
There was a brief flirtation with allowing First
1985) (holding that "transfer of appeals to the
Amendment claims under the Tucker Act, see, e.g.,
Federal Circuit even in cases where a district
Jackson v. United States, 192 Ct. Cl. 765, 428
court's jurisdiction was `primarily' based on some
F.2d 844 (Ct. Cl. 1970), but the Federal Circuit
jurisdictional grant other than the Tucker Act" is
has since embraced the takings-clause-only-
"compelled by the plain language of" §
approach. See United States v. Connolly, 716
1295(a)(2)).
F.2d 882, 886-87 (Fed. Cir. 1983).
3

outside the Tucker Act would
run squarely afoul of the Act's
unambiguous language.
The government characterizes Rothe's
claim as one arising out of an "implied contract
with the United States," another trigger for the
Tucker Act. See 28 U.S.C. § 1346(a)(2). In
support, the government cites a number of
cases that establish "an implied-in-fact contract
to treat a bid honestly and fairly." See
Coflexip & Servs., Inc. v. United States,
961 F.2d 951, 952-53 (Fed. Cir. 1992).
Where a breach of such implied contract has
occurred, "an unsuccessful bidder on a
Government contract may recover its proposal
preparation costs." Id. Thus, Rothe's theory
may be that to infect the bidding process with
unconstitutional race-consciousness, thereby
denying equal protection, would be unfair,
thereby triggering the Tucker Act's waiver of
sovereign immunity through its implied
contract clause.7 It is up to the Federal Circuit
to locate Rothe's claim within a particular
provision of the Tucker Act.8
In summary, because we conclude that
appellate jurisdiction is wanting in this court
under 28 U.S.C. § 1295(a)(2), the appeal is
TRANSFERRED to the United States Court
of Appeals for the Federal Circuit.9
7 The "implied contract" provision is not
limitless, however; it confers Tucker Act
jurisdiction over contracts implied in fact, but not
contracts implied in law. See Mitchell, 463 U.S. at
218; Bembenista v. United States, 866 F.2d 493,
496-97 (D.C. Cir. 1989).
8 But see Adarand, 515 U.S. at 210 (stating
that "we express no view, however, as to whether
sovereign immunity would bar" monetary relief for
violation of Equal Protection Clause to compensate
for loss of contract).
(...continued)
9 Specifically, we dispose of the outstanding
stay pending appeal is CARRIED WITH THE
motions as follows: Defendants' motion to dismiss
CASE. Plaintiff's alternative motion to dismiss the
the appeal is DENIED. Defendants' alternative
appeal only to the extent that it is based in part on
motion to transfer the appeal to the United States
the Little Tucker Act is DENIED. Plaintiff's
Court of Appeals for the Federal Circuit is
alternative motion to transfer the appeal to the
GRANTED. Defendants' motion to vacate the
United States Court of Appeals for the Federal
(continued...)
Circuit is GRANTED.
4