concurring in the result in part and dissenting in part:
Though I do not join the court’s opinion, I agree with its conclusion that plaintiffs have not shown themselves entitled to monetary relief from the general funds of the Treasury which are necessarily involved in any suit here under the Tucker Act — and I accept much of the opinion’s reasoning to that effect.1
But (as the majority says) "Johnson and Aetna’s position is not without substantial equity,” and the Department of Housing and Urban Development (HUD) may be liable to them out of the contract retainages, unpaid progress payments, and other separate funds still in the possession and control of that agency. This suit was originally brought in the District Court against HUD (and private entities). Under the statute, the Secretary of HUD is expressly *167"authorized, in his official capacity, to sue and be sued in any court of competent jurisdiction, State or Federal.” 12 U.S.C. § 1702 (1976) (part of the National Housing Act). This is a broad consent-to-suit, F.H.A. v. Burr, 309 U.S. 242, 245 (1940); United Electric Corp. v. United States, 227 Ct.Cl. 236, 239, 647 F.2d 1082, 1084, cert. denied, 454 U.S. 863 (1981), which reaches at least the funds in the possession and control of HUD. F.H.A. v. Burr, supra, 309 U.S. at 250; Marcus Garvey Square, Inc. v. Winston Burnett Const. Co., 595 F.2d 1126, 1131 (9th Cir. 1979); Trans-Bay Eng’rs & Builders, Inc. v. Hills, 551 F.2d 370, 382-83 (D.C. Cir. 1976). As the majority recognizes, in a suit against HUD under this general waiver of immunity the tribunal is authorized to apply principles of non-consensual equitable restitution, of tort law, and of contracts implied-in-law — all of which are excluded from this court’s jurisdiction under the Tucker Act. See United Electric Corp. v. United States, supra, 227 Ct.Cl. at 240, 647 F.2d at 1084-85; Trans-Bay Engineers, supra, 551 F.2d at 380-83. If plaintiffs prove their case, they might well be able to recover from HUD at least the unpaid progress payments and retainages, and perhaps more. See Trans-Bay Engineers, supra.
The District Court in California apparently thought that it had no jurisdiction against HUD under the Ninth Circuit’s decision in Marcus Garvey Square, supra. But that case may well be significantly different on the very point of whether HUD had separate funds of its own from which recovery could be allowed. There, the Secretary of HUD did not take assignment of the undisbursed amounts but specifically directed that the principal of the mortgage be reduced by the undisbursed funds. See Marcus Garvey Square, supra, 595 F.2d at 1131. That fact — that in those circumstances the undisbursed funds no longer constituted separate HUD funds — was the direct foundation for the Ninth Circuit’s holding that that suit could not be maintained against HUD. Ibid. Here, on the other hand, the undisbursed funds (so far as we really know) may well have been assigned to HUD along with the rest of the Building Loan Agreement, the mortgage, all the other credit instruments and the related documents. The record is not at all clear. In my view, therefore, Marcus Garvey Square does not *168necessarily exclude the District Court from jurisdiction over this case, and the District Court is in a better position to determine the true facts.2 In Trans-Bay Engineers, supra, the District of Columbia Circuit (per Leventhal J.) assumed jurisdiction and conditionally granted relief against HUD in a case not far from this one.
Accordingly, I would retransfer this case under 28 U.S.C. § 1506 (1976) back to the District Court in the hope that that court will reconsider its jurisdiction against HUD under 12 U.S.C. § 1702. See Peoples Apparel, Ltd. v. United States and City of Council Bluffs, Iowa, 226 Ct. Cl. 515 (1980), retransferring case to District Court), and Nathan Smith v. Unites States, below.
The court correctly holds that Article VII of the construction contract bars the contractor’s claim of a mechanic’s lien for which just compensation might have to be paid. Johnson’s petition makes various claims that he was improperly induced (by others than the Government) to agree to this provision, but I think it clear from his own allegations that he knew that he was agreeing to this clause (and its meaning) even though he may have thought that he would not in the end be monetarily injured by its inclusion.
In Marcus Garvey Square the Ninth Circuit said: "If it should appear that the Secretary’s reduction of the principal obligation, either by a general rule of policy or by action in a particular case, was done solely for the purpose of depriving the District Court of jurisdiction, then that action would be ignored for the purpose of determining jurisdiction.” 595 F.2d at 1132, n.3. In the present case we have no knowledge at all why Pacific claimed benefits for less than the original loan amount, and very little information on what funds were actually assigned to HUD.