Free Joint Preliminary Status Report - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) ____________________________________) THE SALT RIVER PIMA-MARICOPA INDIAN COMMUNITY,

Case No. 06-943L Judge Lawrence M. Baskir Electronically filed: May 11, 2007

APPENDIX TO PARTIES' JOINT PRELIMINARY STATUS REPORT PURSUANT TO APPENDIX A, RCFC

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TABLE OF AUTHORITIES FEDERAL CASES PAGE

Salt River Pima-Maricopa Indian Community v. United States, 231 Ct. Cl.1057 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Salt River Pima-Maricopa Indian Community v. United States, 26 Cl. Ct. 201 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44 FEDERAL STATUTES AND REGULATIONS 28 U.S.C. § 1500 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 OTHER AUTHORITIES Complaint (12-29-2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

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Page 1 28 U.S.C.A. § 1500

Effective: [See Text Amendments] United States Code Annotated Currentness Title 28. Judiciary and Judicial Procedure (Refs & Annos) Part IV. Jurisdiction and Venue (Refs & Annos) Chapter 91. United States Court of Federal Claims (Refs & Annos) § 1500. Pendency of claims in other courts The United States Court of Federal Claims shall not have jurisdiction of any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United States or any person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, directly or indirectly under the authority of the United States. CREDIT(S) (June 25, 1948, c. 646, 62 Stat. 942; Apr. 2, 1982, Pub.L. 97-164, Title I, § 133(e) (1), 96 Stat. 40; Oct. 29, 1992, Pub.L. 102-572, Title IX, § 902(a)(1), 106 Stat. 4516.) HISTORICAL AND STATUTORY NOTES Revision Notes and Legislative Reports 1948 Acts. Based on Title 28, U.S.C., 1940 ed., § 260 (Mar. 3, 1911, c. 231, § 154, 36 Stat. 1138 [Derived from R.S. § 1067] ). Words "or in the Supreme Court on appeal therefrom" were omitted as unnecessary. Changes were made in phraseology. 1982 Acts. Senate Report No. 97-275, see 1982 U.S. Code Cong. and Adm. News, p. 11. 1992 Acts. House Report No. 102-1006 and Statement by President, see 1992 U.S. Code Cong. and Adm. News, p. 3921. Amendments 1992 Amendments. Pub.L. 102-572, § 902(a)(1), substituted "United States Court of Federal Claims" for "United States Claims Court". 1982 Amendments. Pub.L. 97-164 substituted "United States Claims Court" for "Court of Claims". Effective and Applicability Provisions 1992 Acts. Amendment by Title IX of Pub.L. 102-572 effective Oct. 29, 1992, see section 911 of Pub.L. 102-572 , © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

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Page 2 28 U.S.C.A. § 1500 set out as a note under section 171 of this title. 1982 Acts. Amendment by Pub.L. 97-164 effective Oct. 1, 1982, see section 402 of Pub.L. 97-164, set out as a note under section 171 of this title. LAW REVIEW COMMENTARIES Section 1500 and the Jurisdictional Pitfalls of Federal Government Litigation. Paul Frederic Kirgis, 47 American U. L. R. 301 (1997). LIBRARY REFERENCES American Digest System Federal Courts 1145.

Key Number System Topic No. 170B. Corpus Juris Secundum CJS Federal Courts § 810, Claims Against United States. RESEARCH REFERENCES ALR Library 129 ALR, Fed. 1, Construction and Application of National Childhood Vaccine Injury Act (42 U.S.C.A. §§ 300aa et seq.). 106 ALR 1241, Right to Set-Off, Counterclaim, or Recoupment Against the United States or a Sovereign Foreign State. Encyclopedias 58 Am. Jur. Proof of Facts 3d 81, Denial of Wetland Permit as Basis for Landowner's Regulatory Taking Claim. Am. Jur. 2d Eminent Domain § 820, Concurrent Actions; Consolidation or Suspension of Proceedings. Am. Jur. 2d Federal Courts § 2313, Effect of Pendency of Claims in Other Courts; Generally. Am. Jur. 2d Federal Courts § 2314, Effect of Pendency of Claims in Other Courts; Generally -- Where Prior Claim Seeks Relief Other Than Relief Sought in Court of Federal Claims. Am. Jur. 2d Federal Courts § 2315, Effect of Pendency of Claims in Other Courts; Generally -- When is a Claim "Pending". Am. Jur. 2d Federal Courts § 2317, Transfer of Case; Court of Federal Claims to District Court -- District Court to Court of Federal Claims. Am. Jur. 2d Federal Tax Enforcement § 938, Concurrent Jurisdiction. © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

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Page 3 28 U.S.C.A. § 1500 Forms Federal Procedural Forms § 18:58, Effect of Pendency of Claims in Other Courts. 8 West's Federal Forms § 13121, Introduction. 8 West's Federal Forms § 13141, Claims Over Which the Court of Federal Claims Lacks Jurisdiction. Treatises and Practice Aids Casey Federal Tax Practice § 11:74, Jurisdiction. Emp. Discrim. Coord. Analysis of Federal Law § 107:12, Federal Employment Suits. Federal Procedure, Lawyers Edition § 19:94, Where Prior Claim Sought Relief Not Available in Court of Federal Claims. Federal Procedure, Lawyers Edition § 19:95, When is a Claim "Pending". Federal Procedure, Lawyers Edition § 19:97, District Court to Court of Federal Claims. Federal Procedure, Lawyers Edition § 14:218, Concurrent Actions; Consolidation or Suspension of Proceedings. Federal Procedure, Lawyers Edition § 19:102, Statute of Limitations -- Tolling. Federal Procedure, Lawyers Edition § 39:1139, Effect of Pending Action on Same Issues in Federal District Court. Federal Procedure, Lawyers Edition § 48:1307, Concurrent Jurisdiction. Mertens: Law of Federal Income Taxation § 58A:69, Jurisdiction of United States Claims Court. Mertens: Law of Federal Income Taxation § 58A:71, Limitations on Jurisdiction of Claims Court. West's Federal Administrative Practice § 678, Choice of Forum. West's Federal Administrative Practice § 809, Dual Litigation: Same Claim Pending in Another Court. West's Federal Administrative Practice § 819, Jurisdiction Concurrent With United States District Courts; Transfer of Jurisdiction. 14 Wright & Miller: Federal Prac. & Proc. § 3657, Statutory Exceptions to Sovereign Immunity-Actions Under the Tucker Act. 14 Wright & Miller: Federal Prac. & Proc. § 3658, Statutory Exceptions to Sovereign Immunity-Actions Under the Federal Tort Claims Act: General Procedural Requirements. 17 Wright & Miller: Federal Prac. & Proc. § 4101, The Claims Court. 17 Wright & Miller: Federal Prac. & Proc. § 4102, The Tax Court. 18 Wright & Miller: Federal Prac. & Proc. § 4403, Policies and Sources of Res Judicata. © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

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Page 4 28 U.S.C.A. § 1500 15A Wright & Miller: Federal Prac. & Proc. § 3914.7, Finality-Orders Prior to Trial-Partial Dismissal. NOTES OF DECISIONS Condemnation and eminent domain claims, similarity of claims 11 Contract claims, similarity of claims 12 Counterclaims, similarity of claims 10 Courts within section 4 Declaratory relief, similarity of claims 13 Discretion of court 2 Dismissal of action, pending in other court 6 Dismissal of Court of Federal Claims action 22 Forfeiture claims, similarity of claims 14 Indemnification claims, similarity of claims 15 Indian claims, similarity of claims 16 Injunctive relief, similarity of claims 17 Miscellaneous claims, similarity of claims 20 Necessity of objections to jurisdiction 24 Pending in other court 5-8 Pending in other court - Generally 5 Pending in other court - Dismissal of action 6 Pending in other court - Stay of action 7 Pending in other court - Time of pendency 8 Persons acting under authority of United States 21 Purpose 1 Res judicata 25 Similarity of claims 9-20 Similarity of claims - Generally 9 Similarity of claims - Condemnation and eminent domain claims 11 Similarity of claims - Contract claims 12 Similarity of claims - Counterclaims 10 Similarity of claims - Declaratory relief 13 Similarity of claims - Forfeiture claims 14 Similarity of claims - Indemnification claims 15 Similarity of claims - Indian claims 16 Similarity of claims - Injunctive relief 17 Similarity of claims - Miscellaneous claims 20 Similarity of claims - Tax claims 18 Similarity of claims - Tort claims 19 Stay of action, pending in other court 7 Stay of Court of Federal Claims action 23 Suit or process within section 3 Tax claims, similarity of claims 18 Time of pendency, pending in other court 8 Tolling of limitations 26 Tort claims, similarity of claims 19 1. Purpose © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

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Page 5 28 U.S.C.A. § 1500 Purpose of statute barring Court of Federal Claims from exercising jurisdiction when same claim is pending in district court was to force plaintiffs to choose between pursuing their claims in the Court of Claims or in another court and to prevent the United States from having to litigate and defend against the same claim in both courts. Harbuck v. U.S., C.A.Fed.2004, 378 F.3d 1324, rehearing and rehearing en banc denied, certiorari denied 125 S.Ct. 1386, 543 U.S. 1153, 161 L.Ed.2d 118, rehearing denied, rehearing denied 125 S.Ct. 1831, 544 U.S. 993, 161 L.Ed.2d 758. Federal Courts 1145 This section declaring that Court of Claims [now United States Court of Federal Claims] shall not have jurisdiction of any claim to which plaintiff has pending in any other court any suit or process against United States was designed to require an election between two forums both of which could presumably grant same type of relief, but was not intended to compel claimants to elect, at their peril, between prosecuting their claim in Court of Claims and in another tribunal and, once claim has been rejected by another court for lack of jurisdiction, there is no basis for dismissal of claim in Court of Claims. Brown v. U.S., Ct.Cl.1966, 358 F.2d 1002, 175 Ct.Cl. 343. Federal Courts 1144 Purpose of statute which prohibits simultaneous dual litigation against United States in claims court and another court is to coerce selection of forum so that United States is not compelled to defend simultaneous actions in different courts. Richland-Lexington Airport Dist. v. Atlas Properties, Inc., D.S.C.1994, 854 F.Supp. 400. Federal Courts 1145 Purpose of this section, providing that Court of Claims [now United States Court of Federal Claims] shall not have jurisdiction of any claim for which plaintiff has pending in any other court any suit or process against United States or any person acting under authority of United States, was to require election between suit in Court of Claims against United States and one brought in another court against agent of the United States. National Cored Forgings Co. v. U.S., Ct.Cl.1955, 132 F.Supp. 454, 132 Ct.Cl. 11. Federal Courts 1145 Purpose of this section was to prohibit the filing and prosecution of the same claims against the United States in two courts at same time. Frantz Equipment Co. v. U.S., Ct.Cl.1951, 98 F.Supp. 579, 120 Ct.Cl. 312. The purpose of statute depriving Court of Federal Claims of jurisdiction over any claim against the United States with respect to which the plaintiff has an action pending in any other court is to prohibit the filing and prosecution of the same claims against the United States in two courts at the same time. Bailey v. U.S., Fed.Cl.2000, 46 Fed.Cl. 187. Federal Courts 1139 2. Discretion of court Words "shall not" in 28 U.S.C.A. § 1500, which provides that United States Claims Court [now United States Court of Federal Claims] does not have jurisdiction of any claim in respect to which plaintiff has pending in any other court against any person who was acting under authority of United States, are an absolute bar depriving court of any discretion, whatsoever, when duplicative claims are filed. Hill v. U.S., Cl.Ct.1985, 8 Cl.Ct. 382. Federal Courts 1145 3. Suit or process within section Petition for writ of certiorari was a "process" against the government within meaning of statute prohibiting dual litigation against United States in Claims Court [now United States Court of Federal Claims] and another court. UNR Industries, Inc. v. U.S., C.A.Fed.1992, 962 F.2d 1013, certiorari granted 113 S.Ct. 373, 506 U.S. 939, 121 L.Ed.2d 285, affirmed 113 S.Ct. 2035, 508 U.S. 200, 124 L.Ed.2d 118. Federal Courts 1146 Even though lessor had filed, in condemnation proceeding, answer attacking government's right to condemn for © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

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Page 6 28 U.S.C.A. § 1500 period covered by lease, pendency of condemnation proceeding did not deprive Court of Claims [now United States Court of Federal Claims] of jurisdiction of lessor's claim against government for alleged breach of lease. Meyer v. U.S., Ct.Cl.1957, 150 F.Supp. 314, 138 Ct.Cl. 86. Federal Courts 1145 Under this section, counterclaim by partnership for amount due on contract whereby partnership undertook to do reconstruction of heavy equipment for the United States which was filed in suit by United States against partnership for excess profits, was suit or process against United States which precluded maintenance of claim on such contract. Frantz Equipment Co. v. U.S., Ct.Cl.1951, 98 F.Supp. 579, 120 Ct.Cl. 312. A proceeding pending in the Court of Appeals for the District of Columbia to review the determination of the Tax Court determining that it had no jurisdiction of plaintiff's suit to recover amount allegedly unlawfully withheld by the government as result of renegotiation of war contracts is a "suit against United States or person acting under its authority" within this section withholding in such case, jurisdiction of the Court of Claims [now United States Court of Federal Claims]. Maguire Industries v. U.S., Ct.Cl.1949, 86 F.Supp. 905, 114 Ct.Cl. 687, certiorari denied 71 S.Ct. 36, 340 U.S. 809, 95 L.Ed. 595. Federal Courts 1083; Federal Courts 1145 Property purchasers' participation in judicial sale proceedings did not make purchasers parties to that action, so as to deprive Claims Court [now United States Court of Federal Claims] of jurisdiction over purchasers' action seeking damages for alleged title problems and condition of property purchased at sale, pursuant to statute providing that Claims Court shall not have jurisdiction of any claim with respect to which plaintiff or his assignee has pending in any other court any suit or process against United States, where purchasers did not file independent suit in district court or seek to intervene in action pending there until United States filed motion to dismiss purchasers' Claims Court action, and purchasers never participated in any proceedings before district court leading to its determination awarding all proceeds of sale of properties to United States. Levy v. U.S., Cl.Ct.1986, 10 Cl.Ct. 602. Federal Courts 1145 4. Courts within section Court of Federal Claims could not take jurisdiction over claim against United States, where plaintiff had same claim on same date in Eastern District of Virginia. Richmond, Fredericksburg & Potomac R. Co. v. U.S., C.A.Fed.1996, 75 F.3d 648. Federal Courts 1145 Public contractor's claim filed in Claims Court [now United States Court of Federal Claims] and assigned to same judge was pending in "any other" court when contractor appealed dismissal of claim as premature, for purposes of jurisdictional statute depriving Claims Court of jurisdiction of any claim for which plaintiff has pending in any other court any suit or process against the United States. Scott Aviation v. U.S., Cl.Ct.1991, 23 Cl.Ct. 573. Abatement And Revival 7 Where a plaintiff suing in the Court of Claims [now United States Court of Federal Claims] has pending in court of appeals a petition covering the same claim as that contained in the petition in the Court of Claims, Court of Claims is deprived of jurisdiction of the suit under this section. Hobbs v. U.S., Ct.Cl.1964, 168 Ct.Cl. 646, 143 U.S.P.Q. 425. Federal Courts 1145 5. Pending in other court--Generally The "filing" of the same claim simultaneously in the district court and the Court of Federal Claims by operation of statute permitting court without jurisdiction to transfer civil action to a court in which the action could have been brought when it was filed deprives the latter court of jurisdiction pursuant to statute barring Court of Federal Claims from exercising jurisdiction when same claim is pending in district court. Harbuck v. U.S., C.A.Fed.2004, 378 F.3d 1324, rehearing and rehearing en banc denied, certiorari denied 125 S.Ct. 1386, 543 U.S. 1153, 161 L.Ed.2d 118, rehearing denied, rehearing denied 125 S.Ct. 1831, 544 U.S. 993, 161 L.Ed.2d 758. Federal Courts © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

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Page 7 28 U.S.C.A. § 1500 1145 Plaintiff's alleged failure to serve the United States with a summons or complaint in district court case did not nullify filing of district court complaint for purposes of statute precluding jurisdiction in the Court of Federal Claims if the same claim is pending in another court. Forsgren v. U.S., Fed.Cl.2006, 73 Fed.Cl. 135. Federal Courts 1145 When determining whether a claim is "pending" for purposes of statute divesting the Court of Federal Claims of jurisdiction over a claim against the United States which is pending in another court, the Court of Federal Claims follows the longstanding principle that the jurisdiction of the Court depends upon the state of things at the time of the action brought. Heritage Minerals, Inc. v. U.S., Fed.Cl.2006, 71 Fed.Cl. 710. Federal Courts 1145 Where a party appeals the decision of a district court before filing here, the claim before the appellate court is pending for purposes of statute divesting the Court of Federal Claims of jurisdiction over a claim against the United States which is pending in another court. Heritage Minerals, Inc. v. U.S., Fed.Cl.2006, 71 Fed.Cl. 710. Federal Courts 1145 Court of Federal Claims lacked jurisdiction over fraud claim against the United States, where at time suit was filed, plaintiff had fraud claim against the United States pending in federal district court which was based on the same operative facts, and which sought the same monetary relief as claim filed in the Court of Federal Claims. Whyte v. U.S., Fed.Cl.2004, 59 Fed.Cl. 493. Federal Courts 1145 Court of Federal Claims lacked jurisdiction over Indian tribe's claim that the government violated its rights by denying it federal benefits and services under 38 different statutes, where tribe had a prior claim pending in district court which was based on the same operative facts, and which sought the same monetary relief. Samish Indian Nation v. U.S., Fed.Cl.2003, 58 Fed.Cl. 114, affirmed in part, reversed in part and remanded 419 F.3d 1355. Federal Courts 1081 Pending wrongful foreclosure action against the Federal Deposit Insurance Corporation (FDIC) in federal district court barred mortgagor's subsequent action against the United States in the Court of Federal Claims, under jurisdictional statute; actions were based upon the same operative facts surrounding foreclosure and sought same monetary relief, and defendants were identical inasmuch as the FDIC was "acting or professing to act, directly or indirectly under the authority of the United States." Davis v. U.S., Fed.Cl.1993, 30 Fed.Cl. 201. Court of Federal Claims lacked jurisdiction over former federal employee's action alleging violations of Back Pay Act, where employee had pending suit in federal district court alleging employment discrimination, both cases arose from same operative facts, and both cases sought lost employment pay and benefits during same time period. Agustin v. U.S., C.A.Fed.2004, 92 Fed.Appx. 786, 2004 WL 434156, Unreported, rehearing and rehearing en banc denied, certiorari denied 125 S.Ct. 52, 543 U.S. 815, 160 L.Ed.2d 21. Federal Courts 1145 6. ---- Dismissal of action, pending in other court Where plaintiff's claim for just compensation for alleged taking of their property for public use was dismissed in federal district court on jurisdictional grounds, no appeal was taken and period for appeal had expired, Court of Claims [now United States Court of Federal Claims] in which claim identical in substance had been filed did not lack jurisdiction because of this section declaring that Court of Claims shall not have jurisdiction of any claim for or in respect to which plaintiff has pending in any other court any suit or process against United States. Brown v. U.S., Ct.Cl.1966, 358 F.2d 1002, 175 Ct.Cl. 343. Federal Courts 1144 Statute divesting the Court of Federal Claims of jurisdiction where an identical claim against the United States is pending in another court did not preclude the Court from exercising jurisdiction over claims against the United © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

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Page 8 28 U.S.C.A. § 1500 States that had been dismissed by federal district court and not yet appealed, as those claims were no longer "pending" in the district court. Young v. U.S., Fed.Cl.2004, 60 Fed.Cl. 418. Federal Courts 1145 When earlier filed district court case is finally dismissed before Claims Court [now United States Court of Federal Claims] entertains and acts on motion to dismiss brought pursuant to Tucker Act provision stating that Claims Court does not have jurisdiction of any claim pending in any other court, that section does not bar Claims Court jurisdiction, even though dismissal may have occurred after filing in Claims Court; provision, however, can be invoked if Government can show that earlier filed suit is still pending at time Claims Court entertains and acts on jurisdictional question. Glick v. U.S., Cl.Ct.1992, 25 Cl.Ct. 435. Federal Courts 1145 There is no provision that a suit in the Court of Claims [now United States Court of Federal Claims] against the United States may be prosecuted if the suit in another court against an agent of the United States is dismissed by final adjudication upon the merits. British American Tobacco Co. v. U.S., Ct.Cl.1939, 89 Ct.Cl. 438, certiorari denied 60 S.Ct. 974, 310 U.S. 627, 84 L.Ed. 1398. Courts 521 Motion in Court of Claims [now United States Court of Federal Claims] to dismiss petition on ground that suit brought in district court, though dismissed, was still a pending suit within the meaning of former § 260 of this title was denied. McKinney v. U.S., Ct.Cl.1926, 62 Ct.Cl. 180, certiorari denied 47 S.Ct. 108, 273 U.S. 716, 71 L.Ed. 855. 7. ---- Stay of action, pending in other court Statute depriving Claims Court [now United States Court of Federal Claims] of jurisdiction over claim as to which the plaintiff has an action "pending" against the United States in another court includes cases which have been filed but stayed. Johns-Manville Corp. v. U.S., C.A.Fed.1988, 855 F.2d 1556, certiorari denied 109 S.Ct. 1342, 489 U.S. 1066, 103 L.Ed.2d 811. Federal Courts 1145 In inverse condemnation case, Claims Court [now United States Court of Federal Claims] was not required to dismiss later added count based on resurvey/border dispute for lack of jurisdiction because that same issue was currently pending, although stayed, before other federal district courts, though stay of action on the additional count would be appropriate. Fadem v. U.S., Cl.Ct.1987, 13 Cl.Ct. 328. Action 69(5); Eminent Domain 290 8. ---- Time of pendency, pending in other court Later-filed Federal Tort Claims Act (FTCA) action in district court did not divest Court of Federal Claims of its earlier-established jurisdiction over Contract Disputes Act (CDA) action allegedly involving same claims. Hardwick Bros. Co. II v. U.S., C.A.Fed.1995, 72 F.3d 883, on remand 36 Fed.Cl. 347. Federal Courts 1145 Under statute prohibiting simultaneous dual litigation against United States in claims court and another court, if same claim is filed in another court after complaint is filed in Claims Court [now United States Court of Federal Claims] claims court is by that action divested of jurisdiction, regardless of when the court memorializes fact by order of dismissal. UNR Industries, Inc. v. U.S., C.A.Fed.1992, 962 F.2d 1013, certiorari granted 113 S.Ct. 373, 506 U.S. 939, 121 L.Ed.2d 285, affirmed 113 S.Ct. 2035, 508 U.S. 200, 124 L.Ed.2d 118. Federal Courts 1146 Plaintiff's unsuccessful attempt to amend declaratory judgment complaint in district court to include claim for money damages did not cause that money damages claim to be pending at time plaintiff's previously filed Claims Court [now United States Court of Federal Claims] action for money damages based on same operative facts was filed as would require Claims Court to dismiss action; no money damages claim was pending in district court at time Claims Court action was filed. Boston Five Cents Sav. Bank, FSB v. U.S., C.A.Fed.1988, 864 F.2d 137, © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

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Page 9 28 U.S.C.A. § 1500 rehearing denied, rehearing in banc declined. Federal Courts 1145

Government was not required to file action under section 231 et seq. of Title 31 to recover amounts paid contractor under alleged fraudulent progress payment vouchers in Court of Claims [now United States Court of Federal Claims] which was hearing contractor's appeal from General Services Administration Board of Contract Appeals' decision affirming default termination of government contract and Government's bringing of false claims action in district court did not preclude Government from asserting in Court of Claims counterclaim against contractor for amounts paid pursuant to alleged fraudulent vouchers. Universal Fiberglass Corp. v. U.S., Ct.Cl.1976, 537 F.2d 393, 210 Ct.Cl. 206. United States 130(3) Words "shall not have jurisdiction" in this section pertain solely to the acquiring or taking of jurisdiction by Court of Claims [now United States Court of Federal Claims] when same plaintiff already has pending in any other court another suit on same claim. Tecon Engineers, Inc. v. U.S., Ct.Cl.1965, 343 F.2d 943, 170 Ct.Cl. 389, certiorari denied 86 S.Ct. 545, 382 U.S. 976, 15 L.Ed.2d 468. Where suit by plaintiff against the United States was pending in federal district court on claims identical with the claims in action by plaintiff against the United States in the Court of Claims [now United States Court of Federal Claims], petition would be dismissed by the Court of Claims under this section, though purpose of plaintiff in filing action in Court of Claims was to protect itself against running of statute of limitation should district court deny jurisdiction. Wessel, Duval & Co. v. U.S., Ct.Cl.1954, 124 F.Supp. 636, 129 Ct.Cl. 464. Federal Courts 1145 Question whether same claims were pending in United States District Court for purposes of statute divesting Court of Federal Claims of jurisdiction over a claim against the United States if the same claim is pending in any other court had to be determined at time at which suit was originally filed in the Court of Federal Claims, and not when amended complaint was filed, as amended complaint related back to date of original filing. Hall v. U.S., Fed.Cl.2006, 2006 WL 3093979. Federal Courts 1145 The question of whether another claim is "pending" for purposes of the statute precluding jurisdiction in the Court of Federal Claims if the same claim is pending in another court is determined at the time at which the suit in the Court of Federal Claims is filed. Forsgren v. U.S., Fed.Cl.2006, 73 Fed.Cl. 135. Federal Courts 1145 Pursuant to transfer statute, federal employee's Title VII claim filed in district court and her Equal Pay Act claim filed in district court at the same time and transferred to the Court of Federal Claims were pending at the same time for purposes of statute barring Court of Federal Claims from exercising jurisdiction when same claim is pending in another court, notwithstanding that district court failed to transfer Equal Pay Act claim for two years. De Leon v. U.S., Fed.Cl.2005, 69 Fed.Cl. 336. Federal Courts 1145 Statute divesting the Court of Federal Claims of jurisdiction of "any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United States" was not applicable to same-day filings in the Court of Federal Claims and district court, where complaint was filed in the Court of Federal Claims several hours earlier than the complaint filed in district court, and thus there was no claim pending in district court at time of filing in the Court of Federal Claims. Breneman v. U.S., Fed.Cl.2003, 57 Fed.Cl. 571, affirmed 97 Fed.Appx. 329, 2004 WL 1153329, certiorari denied 125 S.Ct. 670, 543 U.S. 1021, 160 L.Ed.2d 497. Federal Courts 1145 Statute ousting the Court of Federal Claims from jurisdiction when the same matter is already pending in district court was applicable to preclude jurisdiction, even though district court transferred taking claim to the Court of Federal Claims, because on date of filing in the Court of Federal Claims there was still pending in the district court a tort claim with the same operative facts as the taking claim. Vaizburd v. U.S., Fed.Cl.2000, 46 Fed.Cl. 309. Federal Courts 1145 © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

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Page 10 28 U.S.C.A. § 1500 For purpose of statute precluding the Court of Federal Claims from exercising jurisdiction over a claim against the United States pending in any other court, the operative date of filing in the Court of Federal Claims, in case of action transferred by district court, was not the date of transfer, but the date the action was filed in the transferring court. Spodek v. U.S., Fed.Cl.1999, 44 Fed.Cl. 32. Federal Courts 1139 Statute which provides that Claims Court [now United States Court of Federal Claims] does not have jurisdiction of claim for or in respect to which plaintiff has pending in any other court any suit or process against United States does not apply when plaintiff first files claim in claims court and subsequently files same claim in another court. Clark v. U.S., Cl.Ct.1990, 19 Cl.Ct. 220. Federal Courts 1144 Court of Federal Claims did not have subject matter jurisdiction over claimant's complaint against United States, where claimant filed complaint containing same or similar claims in federal district court on same day she filed complaint in Court of Federal Claims. Frasier v. U.S., C.A.Fed.2003, 67 Fed.Appx. 594, 2003 WL 21058267, Unreported. Federal Courts 1141 9. Similarity of claims--Generally For purpose of determining whether plaintiff who files action in the Court of Federal Claims has another suit pending in another court with respect to the same claim, thus depriving the Court of Federal Claims of jurisdiction, comparison of two cases turns on whether the other suit is based on essentially the same operative facts as the Court of Federal Claims action, at least if there is some overlap in the relief requested. Keene Corp. v. U.S., U.S.1993, 113 S.Ct. 2035, 508 U.S. 200, 124 L.Ed.2d 118. Federal Courts 1145 For purposes of statute under which Court of Federal Claims lacks jurisdiction "of any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United States," different relief sought means different claims, which in turn means that statute is inapplicable. Dico, Inc. v. U.S., C.A.Fed.1995, 48 F.3d 1199. Federal Courts 1145 Under statute declaring that Court of Federal Claims shall not have jurisdiction of any claim as to which plaintiff or assignee has pending in any other court any suit or process against the United States, definition of "claim" is that claim pending in another court must arise from the same operative facts and must seek the same relief. Loveladies Harbor, Inc. v. U.S., C.A.Fed.1994, 27 F.3d 1545. Federal Courts 1145 For purposes of this section depriving Claims Court [now United States Court of Federal Claims] of jurisdiction over any "claim" in respect to which the plaintiff has a pending action in another court against the United States "claim" is defined by the facts, not the legal theories. Johns-Manville Corp. v. U.S., C.A.Fed.1988, 855 F.2d 1556, certiorari denied 109 S.Ct. 1342, 489 U.S. 1066, 103 L.Ed.2d 811. Federal Courts 1145 A "claim" for purposes of the statute precluding exercise of jurisdiction by the Court of Federal Claims when the same claim against the United States is pending in another court is defined by whether the same underlying facts apply to each suit. Chapman Law Firm Co. v. U.S., Fed.Cl.2006, 72 Fed.Cl. 14. Federal Courts 1145 For a claim to be precluded the Court of Federal Claims under statute divesting the Court of jurisdiction over a claim against the United States which is pending in another court, the claim pending in another court must arise from the same operative facts, and must seek the same relief. Heritage Minerals, Inc. v. U.S., Fed.Cl.2006, 71 Fed.Cl. 710. Federal Courts 1145 Identity of claims for purposes of statute prohibiting simultaneous identical litigation against the United States in the Court of Federal Claims and another court is construed broadly, such that a core of operative facts in common, even when different legal theories underlie the two actions, triggers the statute, and deprives the Court of Federal Claims of jurisdiction. Lan-Dale Co. v. U.S., Fed.Cl.2004, 60 Fed.Cl. 299. Federal Courts 1145 © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

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Page 11 28 U.S.C.A. § 1500 For the Court of Federal Claims to be precluded from hearing a claim under statute precluding the Court from exercising jurisdiction over a claim against the United States pending in any other court, the claim pending in the other court must arise from the same operative facts, and must seek the same relief. Spodek v. U.S., Fed.Cl.1999, 44 Fed.Cl. 32. Federal Courts 1139 For purpose of statute precluding United States Claims Court [now United States Court of Federal Claims] jurisdiction of claims pending in any other court against United States, suit in tort and contract can be same claim or cause of action, irrespective of theory of relief urged, if it arises with respect to same operative facts, even if contract claim, because of value, could not have been maintained in district court. Dwyer v. U.S., Cl.Ct.1985, 7 Cl.Ct. 565. Federal Courts 1145 10. ---- Counterclaims, similarity of claims Civil action by United States in district court was not transferred to Court of Claims [now United States Court of Federal Claims] by filing by government of counterclaim, which was based upon same claim, in action by corporation for money allegedly due under contracts. Frantz Equipment Co. v. U.S., Ct.Cl.1952, 105 F.Supp. 490, 122 Ct.Cl. 622. Federal Courts 1158 Claims Court [now United States Court of Federal Claims] lacked jurisdiction over contract claim, where claim was virtually identical to plaintiff's counterclaim filed previously in bankruptcy court and both sought essentially the same relief. Boston Shipyard Corp. v. U.S., Cl.Ct.1986, 9 Cl.Ct. 450. Federal Courts 1145 11. ---- Condemnation and eminent domain claims, similarity of claims District court action in which railroad sought declaration that it had right to develop property free of any restrictive covenant did not preclude Court of Federal Claims from taking jurisdiction in railroad's action seeking money damages for breach of contract and taking under Fifth Amendment, since suits did not seek same relief. Richmond, Fredericksburg & Potomac R. Co. v. U.S., C.A.Fed.1996, 75 F.3d 648. Federal Courts 1145 Statute divesting the Court of Federal Claims of jurisdiction over a claim against the United States which is pending in another court was not applicable to divest the Court of jurisdiction over taking claim based on installation and maintenance of ground-water monitoring wells on portion of property contaminated by releases of liquid waste from adjacent naval airfield, on ground that district court case pending on appeal asserted same claim; district court suit was based on the contamination of the property, not the subsequent installation of the wells, and it did not seek the same relief. Heritage Minerals, Inc. v. U.S., Fed.Cl.2006, 71 Fed.Cl. 710. Federal Courts 1145 Statute barring jurisdiction by Court of Federal Claims over claims "for or in respect to" which plaintiff has pending in another court suit against United States did not divest court of jurisdiction in action seeking request for compensation due to alleged improper taking under Fifth Amendment, despite pendency in district court of request for declaratory and injunctive relief based on same operative facts, notwithstanding catchall phrases requesting costs and any other appropriate relief or any other relief which may have been just and necessary; type of relief sought in the two complaints was distinguishable. Marks v. U.S., Fed.Cl.1995, 34 Fed.Cl. 387, affirmed 116 F.3d 1496, rehearing denied, in banc suggestion declined, certiorari denied 118 S.Ct. 852, 522 U.S. 1075, 139 L.Ed.2d 753. Federal Courts 1145 Court of Federal Claims would not set aside judgment in owners' takings claim arising out of Surface Mining Control and Reclamation Act, notwithstanding federal government's contention that Court of Federal Claims lacked jurisdiction as owners' citizens' action to compel exchange of coal tracts was pending in another court; Court of Appeals for Federal Circuit found in previous appeal in case that Court of Federal Claims jurisdiction, owners' © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

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Page 12 28 U.S.C.A. § 1500 claims for just compensation and for exchange of coal tracts did not arise out of same set of operative facts, and, at time judgment was entered, case calling jurisdiction into question had not yet been decided. Whitney Benefits, Inc. v. U.S., Fed.Cl.1994, 31 Fed.Cl. 116. Eminent Domain 262(2); Federal Courts 1121 Plaintiff's quiet title action pending in federal court when plaintiff filed action in court of federal claims for inverse condemnation divested federal court of claims of jurisdiction under statute providing that Court of Federal Claims shall not have jurisdiction of any claim in respect to which plaintiff has pending in any other court any suit against United States; the two actions were based on same underlying facts. Donnelly v. U.S., Fed.Cl.1993, 28 Fed.Cl. 62 . Federal Courts 1145 Taking claim in Court of Federal Claims and later mandamus action in district court, seeking to require Secretary of Agriculture to complete road access permitting process in timely manner, arose out of the same occurrence, the regulatory prohibition of motorized access to plaintiff's property; thus, Court of Federal Claims lacked subject matter jurisdiction after mandamus action was filed despite contention that the facts of the two cases were "mutually exclusive" in that determination of taking or no taking by one court would leave no issues for the other. Cascade Development Co., Inc. v. U.S., Fed.Cl.1993, 27 Fed.Cl. 595, vacated 47 F.3d 1184. Federal Courts 1146 Statute divesting Claims Court [now United States Court of Federal Claims] of jurisdiction over claims against the United States where plaintiff has prior pending suit in another court did not preclude Claims Court from retaining jurisdiction of a just compensation claim while relief was sought in district court as to equitable claims arising from the same subject matter. Froudi v. U.S., Cl.Ct.1991, 22 Cl.Ct. 290, reconsideration denied 22 Cl.Ct. 647. Federal Courts 1145 Claims Court [now United States Court of Federal Claims] would retain jurisdiction over eminent domain claim that was also the subject of mandatory counterclaim pending in federal district court; though the same operative facts were involved, district court would not necessarily be able to award full monetary relief. Webb & Associates, Inc. v. U.S., Cl.Ct.1990, 19 Cl.Ct. 650. Federal Courts 1145 An inverse condemnation action had to be dismissed by the Claims Court [now United States Court of Federal Claims] for lack of jurisdiction due to the plaintiff's contemporaneous filing of a complaint under the Federal Tort Claims Act in district court arising from the same set of operative facts and seeking the same type of relief, even though the result of the dismissal was to deny the plaintiff the opportunity to fully recover damages they may have suffered as result of government action. National Union Fire Ins. Co. v. U.S., Cl.Ct.1989, 19 Cl.Ct. 188. Federal Courts 1145 In an action for just compensation for the taking of gold mines where the Supreme Court subsequently decided the claim adversely to plaintiff and plaintiff seeks to amend its petition to claim a refund of interest which it had to pay on its loan from the Reconstruction Finance Corporation during the period of the shutdown of its mines, and where a similar claim against the Reconstruction Finance Corporation is pending in another court, this court is deprived of jurisdiction under this section. Brinker-Johnson Co. v. U.S., Ct.Cl.1959, 144 Ct.Cl. 489. Federal Courts 1145 12. ---- Contract claims, similarity of claims Statute divesting the Court of Federal Claims of jurisdiction to hear claims when a plaintiff has a pending similar lawsuit against the United States in any other court was not applicable to divest the Court of jurisdiction to hear pre-bid protest filed by contractor, on ground that contractor had filed similar suit in district court; suits were not based on the same operative facts since district court suit was based on rulemaking by contracting agency, and suits did not seek the same relief. Fire-Trol Holdings, LLC v. U.S., Fed.Cl.2005, 65 Fed.Cl. 32. Federal Courts 1145 © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

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Page 13 28 U.S.C.A. § 1500 Under statute precluding concurrent jurisdiction, Court of Federal Claims lacked jurisdiction over contractor's complaint that government "reverse engineered" part it supplied in violation of contracts and non-disclosure agreements, and wrongfully disclosed technical data to other contractors, where complaint alleged substantially the same operative facts as those alleged in contractor's prior complaint pending in the United States District Court for the Central District of California. HiRel Connectors, Inc. v. U.S., Fed.Cl.2006, 70 Fed.Cl. 239. Federal Courts 1145 Statute prohibiting simultaneous identical litigation against United States in the Court of Federal Claims and another court was applicable to deprive Court of jurisdiction over suit by contractor against the United States seeking specific performance of settlement agreement, and damages for breach thereof, where contractor filed similar, related action on the same day in district court which arose from the same operative facts and which sought the same relief of specific performance and damages, albeit contractor did not demand a sum certain as it did in suit filed in the Court of Federal Claims. Lan-Dale Co. v. U.S., Fed.Cl.2004, 60 Fed.Cl. 299. Federal Courts 1145 Issue preclusion did not bar second action on government logging contract, disputing contracting officer's unilateral decision to delete area where northern spotted owl nest was discovered from contract, in that dismissal of first suit was affirmed based solely on statute precluding jurisdiction of any claim another suit by logging company was pending in district court; determination on contract dispute was not "necessary and essential" to previous judgment. Janicki Logging Co., Inc. v. U.S., Fed.Cl.1996, 36 Fed.Cl. 338, affirmed 124 F.3d 226. Judgment 724 Court of Federal Claims was not precluded from hearing action seeking monetary damages for Federal Deposit Insurance Corporation's (FDIC) breach of contract by virtue of claim in another court arising from same operative facts, where other suit sought equitable forms of relief such as declaratory judgment and accounting. Slattery v. U.S., Fed.Cl.1996, 35 Fed.Cl. 180. Federal Courts 1145 Surety's maintenance of appeal in Court of Appeals did not act as jurisdictional bar to claimant's suit against United States in Court of Federal Claims arising out of same operative facts since contractor was not "plaintiff" in surety's suit and, in fact, was named defendant; statutory jurisdictional bar was inapplicable even if federal court rendered favorable judgment for surety from which contractor would clearly benefit; moreover, some operative facts and requests for relief differed so as to preclude contractor's and surety's claims from being deemed similar. Marshall Associated Contractors, Inc. v. U.S., Fed.Cl.1994, 31 Fed.Cl. 809. Federal Courts 1145 Surety's maintenance of appeal in Court of Appeals did not act as jurisdictional bar to claimant's suit against United States in Court of Federal Claims arising out of same operative facts since contractor was not "plaintiff" in surety's suit and, in fact, was named defendant; statutory jurisdictional bar was inapplicable even if federal court rendered favorable judgment for surety from which contractor would clearly benefit; moreover, some operative facts and requests for relief differed so as to preclude contractor's and surety's claims from being deemed similar. Marshall Associated Contractors, Inc. v. U.S., Fed.Cl.1994, 31 Fed.Cl. 809. Federal Courts 1145 Pending suit in district court raising constitutional claims and challenges to federal statutes was not "same claim" for purposes of statutory bar to jurisdiction by Court of Federal Claims in Navy shipbuilding contract dispute consisting only of contractual claim. McDermott Inc. v. U.S., Fed.Cl.1994, 30 Fed.Cl. 332. Court of Federal Claims lacked subject matter jurisdiction over claims by borrower and guarantor against FDIC for breach of covenants of good faith and fair dealing and breach of financing agreement where claims were same as those asserted as defenses and counterclaims in suit brought by FDIC in the district court; fact that compulsory counterclaim rule required that claims to be asserted in district court did not allow Court of Federal Claims to extend its jurisdiction after borrower appealed district court's dismissal. Hulsey v. U.S., Fed.Cl.1993, 28 Fed.Cl. 75 . Federal Courts 1145 © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

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Page 14 28 U.S.C.A. § 1500 Claims Court [now United States Court of Federal Claims] would not dismiss action brought by winners of competition to design war memorial alleging breach of contract on ground that designers had filed case in federal district court against agency sponsoring competition and architectural/engineering firm which was to build memorial given that law on statute limiting Claims Court's jurisdiction when there are pending federal cases was unsettled and district court had rejected designers' argument which was raised in Claims Court. Lucas v. U.S., Cl.Ct.1992, 25 Cl.Ct. 298. Federal Courts 1139 Claims Court [now United States Court of Federal Claims] would not retain jurisdiction over breach of contract and Wherry Military Housing Act claims, as Tort Claims Act counterclaim pending in federal district court involved the same set of operative facts and the same relief was available. Webb & Associates, Inc. v. U.S., Cl.Ct.1990, 19 Cl.Ct. 650. Federal Courts 1145 United States Claims Court [now United States Court of Federal Claims] had jurisdiction to review Armed Services Board of Contract Appeals decisions which deferred any hearing on merits of plaintiff's claim against United States, notwithstanding pendency of Italian civil court action for monetary damages arising from same underlying facts. Cantieri Rovina v. U.S., Cl.Ct.1986, 10 Cl.Ct. 634. United States 73(15) For purposes of 28 U.S.C.A. § 1500, which provides that Claims Court [now United States Court of Federal Claims] lacks jurisdiction when duplicative claims are filed, claim involved in pending sex discrimination action in district court by discharged female army reservist was the same as that pending before the claims court, notwithstanding that relief sought in district court requested declaration that defendants unlawfully discriminated against reservist because of her sex, where the reservist was basically alleging gender based discrimination in employment of breach of contract in both actions, and each action requested essentially the same type of relief. Hill v. U.S., Cl.Ct.1985, 8 Cl.Ct. 382. Federal Courts 1145 Claims Court [now United States Court of Federal Claims] lacked jurisdiction over claims against Farmers Home Administration for breach of contract arising out of its failure to discover defects in home constructed with rural housing loan where the claims had first been filed in federal district court and, to avoid statute of limitations problems, case would be transferred back to district court. Martin v. U.S., Cl.Ct.1985, 7 Cl.Ct. 287. Federal Courts 1145; Federal Courts 1158 13. ---- Declaratory relief, similarity of claims Pendency of action by former classified civil service employee in a United States district court for reinstatement and a declaratory judgment that his discharge was wrongful did not affect jurisdiction of Court of Claims [now United States Court of Federal Claims] over suit to recover back salary from date of allegedly wrongful removal. Camero v. U. S., Ct.Cl.1965, 345 F.2d 798, 170 Ct.Cl. 490, supplemented 375 F.2d 777, 179 Ct.Cl. 520. Federal Courts 1145 Action by trustee for landlord brought in federal district court against mortgagee for a declaration of her rights pursuant to mortgage indenture between the parties and asking court to determine that continued occupancy of building by government, which had leased building, without payment of rent, rendered it and its agents trespassers and justified termination of lease by trustee and recovery of possession of the premises, did not under this section bar subsequent suit brought by trustee in Court of Claims [now United States Court of Federal Claims] against government, as lessee of building, for damages for alleged breach of lease. Meyer v. U.S., Ct.Cl.1958, 159 F.Supp. 333, 141 Ct.Cl. 537. Abatement And Revival 4 14. ---- Forfeiture claims, similarity of claims Statute depriving Court of Federal Claims of jurisdiction over any claim against the United States with respect to which the plaintiff has an action pending in any other court was not applicable to bar suit brought by criminal © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

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Page 15 28 U.S.C.A. § 1500 defense attorney for breach of contract to transfer to him shares of stock owned by client which were forfeited in criminal proceeding; operative facts in breach of contract claim were not the same as those in criminal case and associated forfeiture and accounting for expenses reviews. Bailey v. U.S., Fed.Cl.2000, 46 Fed.Cl. 187. Federal Courts 1141 Automobile leasing company's action in federal district court challenging administrative forfeiture of one of its automobiles by agents of United States Drug Enforcement Administration precluded company from seeking monetary relief under Tucker Act in connection with same forfeiture in Claims Court [now United States Court of Federal Claims]; operative facts and money damages sought were identical, and only difference between two claims was absence in Claims Court action of alternative relief of automobile's return. Marshall Leasing, Inc. v. U.S., Cl.Ct.1987, 13 Cl.Ct. 368. Federal Courts 1145 15. ---- Indemnification claims, similarity of claims Claims Court [now United States Court of Federal Claims] lacked jurisdiction over asbestos manufacturer's suit seeking indemnification from United States for amounts that it had paid or may have been liable to pay to individuals in settlement claims for injuries allegedly caused by exposure to asbestos-containing products, in view of earlier-filed action and third-party actions pending in district courts and involving same operative facts. Keene Corp. v. U.S., Cl.Ct.1987, 12 Cl.Ct. 197, affirmed 855 F.2d 1556, certiorari denied 109 S.Ct. 1342, 489 U.S. 1066, 103 L.Ed.2d 811. Federal Courts 1145 16. ---- Indian claims, similarity of claims Where claims before Indian Claims Commission and claims before Court of Claims [now United States Court of Federal Claims], and issues involved in the claims, were similar if not identical, Court of Claims would, in view of its appellate jurisdiction over final determinations of the Commission, suspend further proceedings in Court of Claims, thus leaving Commission free to determine in first instance the questions raised, including scope of Commission's own jurisdiction. Gila River Pima-Maricopa Indian Community v. U.S., Ct.Cl.1956, 140 F.Supp. 776, 135 Ct.Cl. 180. Federal Courts 1102 Cherokee Nation's district court action arising out of construction of river navigation system did not involve same "claim" as action challenging Government's alleged breach of fiduciary duty by failure to survey tribal lands, failure to evict trespassers, and general mismanagement and, therefore, Claims Court [now United States Court of Federal Claims] had jurisdiction over breach of fiduciary duty claims. Cherokee Nation of Oklahoma v. U.S., Cl.Ct.1990, 21 Cl.Ct. 565. Abatement And Revival 8(2) Indian students' tort claim against United States to recover for sexual molestation and assault by white teacher at school owned and operated by United States was pending suit that precluded Claims Court [now United States Court of Federal Claims] from exercising jurisdiction over students' subsequently filed claim for violating treaty provision that required United States to cause offender to be arrested and punished and to reimburse injured persons, if bad person among whites, subject to authority of United States, commits wrong against Indian; treaty claim arose from same set of facts surrounding firing and supervising of teacher. Benally v. U.S., Cl.Ct.1987, 14 Cl.Ct. 8. Federal Courts 1145 17. ---- Injunctive relief, similarity of claims Suit in district court challenging denial of wetlands fill permit by the Army Corps of Engineers did not present same "claim" as that presented in Court of Federal Claims arising from the same denial, and thus latter court was not deprived of jurisdiction, even granting that the two suits arose from the same operative facts, and though both referred to a "taking" and sought relief "declaring" that action of the government was improper, as the suits prayed for distinctly different relief in that full relief could have been granted in district court by mandatory injunction and © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

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Page 16 28 U.S.C.A. § 1500 in Court of Federal Claims by money damages, without either "declaring" anything; prayers for relief conveyed requests different from formal declaration under Declaratory Judgment Act and "taking" reference in district court suit was ruled to be without significance. Loveladies Harbor, Inc. v. U.S., C.A.Fed.1994, 27 F.3d 1545. Federal Courts 1145 Though Claims Court [now United States Court of Federal Claims] had jurisdiction concurrent with that of the district courts over section 1491 of this title government contract claim for injunctive relief prior to awarding of such contract, once suit was filed in federal district court, Claims Court was precluded from exercising jurisdiction; hence, Claims Court could not accommodate district court order, made without dismissing the district court action, the plaintiffs file duplicate action in Claims Court seeking the same relief as that sought in district court, and Claims Court complaint would accordingly be dismissed. National Steel and Shipbuilding Co. v. U.S., Cl.Ct.1985, 8 Cl.Ct. 274. Federal Courts 1145 Where bidder on government contract which had been "set aside" for small business had previously filed action in district court challenging Small Business Administration determination that it was not qualified bidder, such action was pending when bidder filed complaint in Claims Court [now United States Court of Federal Claims], and same injunctive and declaratory relief was sought in each case, Claims Court had no jurisdiction to proceed in matter. A.C. Seeman, Inc. v. U.S., Cl.Ct.1984, 5 Cl.Ct. 386. Federal Courts 1145 A suit for restoration of position is an entirely different cause of action than a suit for back pay and plaintiff is not barred by this section, from asserting a claim for salary in the Court of Claims [now United States Court of Federal Claims] while a suit for injunctive relief is pending in the district court or court of appeals. Casman v. U.S., Ct.Cl.1956, 135 Ct.Cl. 647. Federal Courts 1135 18. ---- Tax claims, similarity of claims Pursuant to jurisdictional statute barring parallel proceedings against the United States, Court of Federal Claims lacked subject matter jurisdiction over income tax refund claims involving 1987 and 1988 tax years, where taxpayers appealed Bankruptcy Court's determination of their income tax liabilities for those years, and appeal was pending when taxpayers filed their complaint in the Court of Federal Claims. Snyder v. U.S., Fed.Cl.2005, 63 Fed.Cl. 762. Federal Courts 1145 Pendency of tax claims in other courts as of date of filing complaint in Court of Federal Claims prevented Court of Federal Claims from exercising jurisdiction over case, where, in all three cases, taxpayer alleged that Internal Revenue Service (IRS) agents' actions in administering income tax lien and seizing her property violated her due process rights and taxpayer sought same relief in form of money damages against government. Sanders v. U.S., Fed.Cl.1995, 34 Fed.Cl. 38, appeal dismissed 77 F.3d 502. Federal Courts 1145 Secured party's claim against United States based on conduct of Internal Revenue Service (IRS) with respect to levies on collateral in form of accounts receivable was based on same operative facts and was same as pending district court claim to recover levied funds from United States Postal Service (USPS); thus, Court of Federal Claims lacked subject matter jurisdiction. Allstate Financial Corp. v. U.S., Fed.Cl.1993, 29 Fed.Cl. 366. Federal Courts 1145 Claims Court [now United States Court of Federal Claims] lacked jurisdiction over tax refund suit over which district court retained jurisdiction. Johnson City Medical Center Hosp. v. U.S., Cl.Ct.1990, 20 Cl.Ct. 515. Federal Courts 1145 19. ---- Tort claims, similarity of claims Claims court [now United States Court of Federal Claims] did not have jurisdiction over claims of asbestos © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

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Page 17 28 U.S.C.A. § 1500 products suppliers and manufacturers against United States, seeking indemnification against liabilities incurred in personal injury suits brought against them by shipyard workers exposed to asbestos, where claims involving same underlying facts were pending in other courts at time indemnity claims were filed in claims court. UNR Industries, Inc. v. U.S., C.A.Fed.1992, 962 F.2d 1013, certiorari granted 113 S.Ct. 373, 506 U.S. 939, 121 L.Ed.2d 285, affirmed 113 S.Ct. 2035, 508 U.S. 200, 124 L.Ed.2d 118. Federal Courts 1146 When a plaintiff has a tort claim p