and 146 are “alternative and mutually exclusive” (quoting Hemphill Co. v. Coe, 121 F.2d. 897, 898 (D.C.Cir. 1941))); Cleveland Trust Co. v. Berry, 99 F.2d 517, 521 (6th Cir.1938) (noting that an appellant “could not be deprived of its right to file a bill in equity except by its own election to appeal to the [appellate court]”); Jensen v. Lorenz, 92 F.2d 992, 994-95 (D.C.Cir.1937) (“It is evident that Congress intended to require an election by the party as between the two remedies offered to him ... and that when such election is made by the litigant it.is to be final.”); Bakelite Corp. v. Nat’l Aniline & Chem. Co., 83 F.2d 176, 177 (2d Cir.1936) (noting it “cannot be doubted” the statutes provide alternative remedies); Walther v. Vanderveer, 20 C.C.P.A. 922, 64 F.2d 540, 541 (1933) (<HOLDING>). Thus, an election of § 146 review would
holding that when the district court dismissed rather than transferred a case not within its jurisdiction and a party appealed that dismissal the circuit court could consider only the propriety of the dismissal on appeal and determining that the circuit court lacked jurisdiction on appeal to consider the merits of the action holding that the appellate court had jurisdiction to hear the interlocutory appeal on a restraining order and the district court retained jurisdiction to proceed with the trial holding that the case must be dismissed for lack of appellate jurisdiction where notice of appeal was untimely holding that because parties elected to bring the case to the appellate court in the first instance the appeal could not then be dismissed just to confer jurisdiction upon the district court to determine the issues holding that issues not raised before the district court cannot be asserted for the first time on appeal