(1998) (citing Oneida Indian Nation ofN.Y. v. County ofOneida, 414 U.S. 661,666 (1974)); see also 18A Charles Alan Wright et al.. Federal Practice & Procedure: Jurisdiction 2d § 4436, at 160 (1981) ('Tederal-question jurisdiction cannot be created by asserting a claim that is obviously without merit or wholly frivolous."). The preclusive effect of a dismissal for lack of federal question jurisdiction is no different from one for failure to state a claim. "Whichever label is applied by the first court, the dismissal rests on a determination that federal law does not create the right asserted. That issue is precluded from further inquiry." Id. at 161.
While plaintiff does not acknowledge the D.C. Circuit's en bane decision in Murray, he acknowledges and concedes that the Supreme Court in Marsh "declared . . . that use of and payment to legislative chaplains does not violate the Establishment Clause." Compl. ^ 14. Plaintiff claims, however, that Marsh was wrongly decided, has produced untoward consequences, and "has been overruled," presumably by implication, by general statements of law in recent Supreme Court opinions that are allegedly "inconsistent" or in "direct[j conflict" with the holding in Marsh. Id. ^ 15-48.
Even if plaintiff were correct (and he is not) that "statements" in recent Supreme Court opinions are "inconsistent" or in "direct conflict^" with Marsh, id. ^16-18, this Court lacks the power to overrule Supreme Court and D.C. Circuit decisions. "Needless to say, only [the Supreme] Court may overrule one of its precedents." Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd., 460 U.S. 533, 535 (1983) (per curiam) (reversing court of appeals' decision that "doubt[ed]" whether Supreme Court precedent was "good law"). In fact, in a recent case also arising under the Establishment Clause, the Supreme Court emphatically instructed lower courts against accepting the argument plaintiff makes here (Agostini v. Felton, 521 U.S. 203, 237 (1997)):
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