
    Eugene C. SMALLS, Plaintiff-Appellant, v. Gordon R. ENGLAND, Secretary of the Navy; et al., Defendants— Appellees.
    No. 01-15827.
    D.C. No. CV-98-00908-SPK Hawaii.
    United States Court of Appeals, Ninth Circuit.
    Nov. 7, 2002.
    Before BROWNING, KOZINSKI and BERZON, Circuit Judges.
   ORDER

The unpublished memorandum disposition filed on July 29, 2002 is withdrawn.

Because we are unable to determine the basis on which the district court exercised subject matter jurisdiction, we remand to the district court for the limited purpose of clarifying whether it exercised jurisdiction under 28 U.S.C. § 1331 and the waiver of sovereign immunity in § 702 of the Administrative Procedure Act, or under the Little Tucker Act, 28 U.S.C. § 1346(a)(2), or under both.

The appeal is held in abeyance. Appellant shall notify this court within 7 days of the district court’s clarification order.

Appellant’s petition for rehearing en banc is denied as moot.  