The opinion
NICHOLS, Judge,
concurring:
I concur in the opinion and the judgment. However, I feel constrained to state my view that the point made in Part C really subsumes all the rest, egregious as are the other errors in the decision below. 28 U.S.C. § 2409a is a waiver of the sovereign immunity of the United States and a consent to suits in the U. S. District Courts to resolve title disputes in which the United States may be embroiled. Previously, the only remedy was by suit on a taking theory under 28 U.S.C. § 1491 in the Court of Claims. See Bourgeois v. United States, 212 Ct.Cl. 32 , 545 F.2d 727 (1976), and the government still denied that the taking theory was validly applied in that context. The new provision was sought by the government largely with the hope of obtaining the option, if the claimant won, of accepting the property in issue, and paying for it, or rejecting it, whereas under 28 U.S.C. § 1491 the government, losing, found itself the owner willy-nilly, obliged willy-nilly to pay just compensation. A waiver of sovereign immunity and consent to be sued must be construed strictly and cannot be extended by implication, United States v. Testan, 424 U.S. 392 , 96 S.Ct. 948 , 47 L.Ed.2d 114 (1976); United States v. Jones, 131 U.S. 1 , 9 S.Ct. 669 , 33 L.Ed. 90 (1889). The reservation to the government of possession and control during the course of the litigation is clearly a limitation on the consent to be sued, which the district court lacks jurisdiction to override. That it did undertake so to override was, therefore, an ultra vires act, that could not be made more so by being erroneous, as it was, on other grounds also. A court cannot have less jurisdiction than none at all.