Union Pacific Railroad v. United States Ex Rel. U.S. Army Corps of Engineers ( 2011 )

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not binding precedent, except under the doctrines of law of the case, res judicata,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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