The Court concluded, “We believe the inference is strong, given that disability retirement decisions were not included in this enumeration of exceptions, that Congress did not intend for such decisions to fall outside the all-encompassing provisions of section 7703(b)(2)” 470 U.S. at 795. Similarly, at the conclusion of its analysis of the language and legislative history of 5 U.S.C. § 7703(b)(1) and 28 U.S.C. § 1295(a)(9), the Supreme Court again stated, “Accordingly, we conclude that MSPB decisions concerning retirement disability claims are reviewable in the first instance by the Federal Circuit pursuant to the jurisdictional grants in 5 U.S.C. § 7703(b)(1) and 28 U.S.C. § 1295(a)(9).” 470 U.S. at 799; see also Grossman v. Commissioner of Internal Revenue, 687 F. Supp. 1401 (N.D. Cal. 1987), aff'd, 852 F.2d 1289 (9th Cir. 1988) (because of statutory preemption, “the district court does not have any jurisdiction to review civil service annuity claims.”)

Randall, 95 F.3d at 346 (citing 28 U.S.C. § 1295(a)(2)). “The provision of 28 U.S.C. § 1295(a)(2) is mandatory and cannot be waived by the parties, because it relates to the subject matter jurisdiction of this court.” Randall, 95 F.3d at 346.

14 Until that court determines that Mr. Hara is an “annuitant,” he cannot be eligible for enrollment in the FEHB. See 5 U.S.C. § 7703(b)(1); 28 U.S.C. § 1295(a)(9). B. Plaintiffs Gill and Letourneau Lack Standing to Make any Claim Regarding OPM’s Flexible Spending Arrangement Program Plaintiff Nancy Gill complains of her inability to use her flexible spending account for the medical expenses of her spouse, plaintiff Marcelle Letourneau (Doc.

As the Federal Circuit stated in Semiconductor 5 Any appeal of this matter would go before the Federal Circuit. 28 U.S.C. § 1295(a)(1). Case 1:17-cv-00056-TCB Document 18-1 Filed 05/31/17 Page 13 of 28 9 Energy, “inequitable conduct before the PTO cannot qualify as an act of mail fraud or wire fraud for purposes of the predicate act requirement.”

6 6 Pursuant to the Federal Courts Improvement Act, 28 U.S.C. § 1295, et seq., the United States Court of Appeals for the Federal Circuit has appellate jurisdiction in all cases arising under the "Big" and "Little" Tucker Acts. 28 U.S.C. 1295(a)(1)-(2). Accordingly, its rulings in Tucker Act cases should be followed by this Court.

First, the Government was contractually 7 This motion relies on precedent from the United States Court of Appeals for the Federal Circuit because the Federal Circuit has exclusive jurisdiction over appeals in which any part of a district court’s decision was based on the Little Tucker Act. See 28 U.S.C. § 1295(a)(2). Case 5:16-cv-00066-MFU Document 21 Filed 01/26/17 Page 19 of 26 Pageid#: 215 20 obligated to pay Mr. Flora at the rates provided in his contract.

First, the Government was contractually 7 This motion relies on precedent from the United States Court of Appeals for the Federal Circuit because the Federal Circuit has exclusive jurisdiction over appeals in which any part of a district court’s decision was based on the Little Tucker Act. See 28 U.S.C. § 1295(a)(2). Case 5:16-cv-00067-MFU Document 21 Filed 01/26/17 Page 19 of 26 Pageid#: 200 20 obligated to pay Mr. Flora at the rates provided in his contract.

In Tucker Act cases, this Court is bound by decisions of the Federal Circuit, which has “exclusive jurisdiction … of an appeal from a final decision of a district court of the United States … based, in whole or in part, on section 1346 of this title [including Little Tucker Act].” 28 U.S.C. § 1295(a)(2). Furthermore, in Gonzalez, the plaintiff based her Tucker Act claim on an implied contract that incorporated “Air Force regulations.”

The Federal Circuit’s jurisdiction extends only to cases “arising under” a federal33 patent statute. 28 U.S.C. §§ 1295(a)(1), 1338(a). A case “arises under” federal patent law only if “a well-pleaded complaint establishes that either federal patent law creates the cause of action or that the plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal patent law.”

However, unlike Motorola, this is a patent case, and Federal Circuit law controls. 28 U.S.C. § 1295. There appears to be a significant split in the circuits on this issue.