Free Motion to Dismiss - Rule 12(b)(1) - District Court of Federal Claims - federal

Case 1:06-cv-00937-LAS

Document 21-5

Filed 08/01/2008

Page 1 of 30

EXHIBIT 3

QUESTIONS PRESENTED

Under 28 U.S.C. 1500, the Court of Federal Claims

lacks subject matter jurisdiction over "any claim for or in respect to which the plaintiff * * * has pending
in any other court any suit or process against the
United States" or its agents. The questions presented

are: 1. Whether Section 1500 applies if a plaintiff is unable to pursue all its legal theories in a single
action.

2. Whether Section 1500 applies if the plaintiff
simultaneously litigates a dispute in the Court of

Case 1:06-cv-00937-LAS

Federal Claims and another court, but terminates the
other action before the Court of Federal Claims rules

on a motion to dismiss for lack of jurisdiction. 3. Whether the decision in this case should apply
to petitioner.

Document 21-5 Filed 08/01/2008 Page 2 of 30

(i)

T'ABLE OF CONTENTS

Page
Opinions below ..................................................................... 1

Jurisdiction ........................................................................... 2
Statutory provision involved .............................................. 2

Statement: 1. District Court litigation ,.....................,.................... 3
a. Pennsylvania ....................................................... 3 b. New York ............................................................ 3 c. District of Columbia.......................................... 4

Case 1:06-cv-00937-LAS Document 21-5

2. Court of Federal Claims liigation ......................... 4
a. Keene I ,................................................................ 4 b. Keene II ............................................................... 4 3. The Section 1500 motions ........................................ 5 4. The court of appeals' decisions ............................... 6 a. The panel decision ............................................... 6

b. The en banc decision .......................................... 7
Summary of argument "........................................................ 10 Argument:
i. Section 1500 bars simultaneous litigation of a

dispute in the Court of Federal Claims and

another court ........................................................... 14
A. Section 1500 provides that the Court of Fed-

eral Claims lacks jurisdiction if the plaintiff has a related action pending in another
court ..................................................................... 14 B. The purpose of Section 1500 is to bar plain-

Filed 08/01/2008

tiffs from suing the United States or its
agents in the Court of Federal Claims and

another court .................................................... 17

C. Section 1500 is not limited to legal theories
that must be liigated in a single action
under principles of claim preclusion ............. 21

Page 3 of 30

(ii)

Argument-Continued: Page
Casès-Continued :
Christianson v. Colt Indus. Operating Corp'., 486

IV

v

Page
32

D. Section 1500 does not permit a plaintiff to
U.S. 800 (1988)

engage in simultaneous litigation against the

United States as long as the second action is terminated before the Court of Federal

Corona Coal Co. v. United States, 263 U.S. 537
De La Rama S.S. Co. v. United States, 344 U.S.

Claims rules on a motion to dismiss.............. 29

(1924) ..............................................8, 12, 15, 16, 28, 38, 39
32
15

E. The jurisdictional bar of Section 1500 does

not depend on the order in which a plain-

tiff's actions are filed ......................................... 36

386 (1953) ............................................................... Estate of Cowart v. Nicklas Drilling Co., 112 S.Ct.
2589 (1992) ..............................................................

F. The courts are not free to disregard clear

Firestone Tire & Rubber Co. v. Risjord, 449 U.S.
Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222 (1957)
Frantz Equip. Co. v. United States, 1'20 C1. Ct. 314

statutory language to avoid harsh results,

368 (1981) .......................................................9, 13,41,42
30
35
4
6
6

and Section 1500 is not as harsh as petitioner

and its amici suggest ........................................ 39

Case 1:06-cv-00937-LAS

II. The doctrines of non-retroactivity and equitable

tollng do not apply in this case ............................. 41 A. Non-retroactivity is inappropriate in this

GAF Corp. v. United States:

(1951) ......................................................................

case ....................................................................... 41

B. Equitable tollng is inappropriate in this

818 F.2d 901 (D.C. Cir. 1987) 19 C1. Ct. 490 (1990) ............................................

case ....................................................................... 43

923 F.2d 947 (Fed. Cir. 1991), cert. denied,
112 S. Ct. 965 (1992)....................................

Conclusion....................................................................... ...... 46

Griffth V. Kentucky, 479 U.S. 314 (1987)
Hallstrom v. Tillamook County, 493 U.S. 20

Document 21-5
42

T'ABLE OF AUTHORITIES

(1989) .......................................................................
Hill v. United States, 8 C1. Ct. 38'2 (1985)

Cases:

33

Hossein v. United States, 218 Ct. C1. 727 (1978)....
Insurance Corp. of Ireland v. Compagnie des

16,27
34
Bauxites de Guinee, 456 U.S. 694 (1982)............ 32

Allied Materials & Equipment Co. v. United States, 210 ct. C1. 714 (1976)............................ 27

Boston Five Cents- Savings Bank v. United States,

864- F.2d 137 (Fed. Cir. 1988) ............................. 27

Irwin v. Veterans Admin., 111 S. Ct. 453 (1990).. 33, 43,
44

British American Tobacco Co., 89 Ct. C1. 438

Filed 08/01/2008

Brown v. United States, 358 F.2d 1002 (Ct. C1.

(1931), cert. denied, 310 U.S. 627 (1940) ........ 25,34

1966) ...........................................................8, 34, 35, 36, 40

James B. Beam Distilling Co. v. Georgia, 111 S. Ct. 2439 (1991) ............................................................. 42-43 Japanese War Notes Claimants Ass'n v. United
States, 373 F.2d 356 (Ct. C1.), cert. denied, 389

Budinich v. Becton Dickinson & Co., 486 U.S. 196 (1988) ....................................................................... 41,42

U.S. 971 (1967) .......-............................................... 44
Johns-Manville Corp. v. United States, 855 F'.2d

Cas

man v. United States, 135 Ct. C1. 647 (1956) ..._ 8,26,

Catawba Indian Tribe of South Carolina V. United

27,28,36,40

1556 (Fed. Cir. 1988), cert. denied, 489 U.s.
1066, (1989) ...................................5,15,23,24,25,26,44
Keene Corp. v. United States:

States, No. 92-5018 (Fed. Cir. Jan. 6, 1993) ........ 44

Page 4 of 30

Chevron Oil Co. v. Huson, 404 U.S. 97 (1971) ........ 43

700 F.2d 836 (2d Cir. 1983), cert. denied,
464 U.S. 864 (1983) ...................................... 4

Case 1:06-cv-00937-LAS
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11u tIlt ~1tprtmt QInurt nf tIlt 1!uittb ~tutl!1
OCTOBER TERM, 1992

No.

92-166

KEENE CORPORATION, PETITIONER

v.
UNITED STATES OF AMERICA

Case 1:06-cv-00937-LAS

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

Document 21-5

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The en banc opinion of the court of appeals (Pet.

App. AI-A34) is reported at 962 F.2d 1013. The
¡ i

opinion of the Court of Federal Claims 1 (Pet. App.

Filed 08/01/2008

EI-E27) is reported at 17 Cl. Ct. 146.
J

1 Effective October 29, 1992, Congress renamed the United
j

States Claims Court the "United States Court of Federal Claims." See Court of Federal Claims Technical and Proce-

dural Improvements Act of 1992, Pub. L. No. 102-572, §:§ 902,

911, 106 Stat. 4516, 4520. Throughout this brief, we refer
to the court by its new name.
1 i i 1

Page 7 of 30

(1 )

¡ ¡ oj ¡

2
3
l.District Court Litigation

JURISDICTION

The judgment of the court of appeals was entered

a. Pennsylvania. In June 1979, petitioner filed a

on April 23, 1992. The petition for a writ of certiorari was filed on July 22, 1992, and was granted

third-party complaint against the United States in
Miller v. Johri-Manville Prods. Corp., No. 78-1283E

on October 19, 1992. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254 (1) .

tribution for any tort liabilty that it might incur for
injuries caused by the plaintiff's exposure to asbestos while working for a private company that performed work for the United States N avypursuant to a government contract. Pet. App. IL-I3. In May 1980, the

(W.D. Pa.). Petitioner sought indemnification or con-

STATUTORY PROVISION INVOLVED'

Section 1500 of Title 28, U.S. Code, provides:

The United States Court of Federal Claims shall

Case 1:06-cv-00937-LAS

not have jurisdiction of any claim for or in re-

spect to which th~ plaintiff or his assignee has

court granted petitioner's motion to dismiss its thirdparty complaint without prejudice. Pet. App. E15.

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

b. New York. In January 1980, petitioner filed an omnibus tort action against the United States in
the United States District Court for the Southern

suit or process arose, was, in respect thereto,

Document 21-5

acting or professing to act, directly or indirectly under the authority of the United States.

District of New York. Keene Corp. v. United States, No. 80-Civ.-0401GLG. Petitioner sought to recover from the United States amounts that it had paid or
expected to pay to some 14,000 asbestos tort claimants

STATEMENT

who were exposed to asbestos while working at naval
shipyards or for private companies acting under con-

Petitioner manufactured and sold products containing asbestos. From 1979 to 1987, petitioner liti-

gated separate civil actions against the United States

tract for the United States Navy. In addition, petitioner asserted that the federal government's recoupment of payments under the Federal Employees Com-

in three district courts and in the Court of Federal Claims. In each action, petitioner sought reimbursement for its liabilty to workers injured as a result

pensation Act, 5 U.S.C. 1500 (FECA), was a taking
of petitioner's property without just compensation

Filed 08/01/2008

yards or for private companies

of exposure to asbestos while working at naval shipunder contract to the

United States N avy.2

in violation of the Fifth Amendment. See J.A. 6-39. On September 30, 1981, the district court dismissed
the action, primarily on the ground that petitioner's

2 Petitioner's lawsuits were part of massive liigation against the United States over asbestos claims. At its height,

Page 8 of 30

the government was being sued in some 3,000 cases and faced potential liabilty in excess of $40 bilion. The Department of

administrative tort claims against the United States failed to satisfy the requirements of the Federal Tort Claims Act (FTCA), 28 U.S.C. 2675(a). The court
also held that it lacked jurisdiction to decide peti-

Justice created a special 35-Iawyer section within its Civil

Division solely to defend this litigation.

tioner's takings claims. J.A. 41-57. The court of

4
5

appeals affrmed the district court's ruling, Keene
F12.
3. The Section 1500 Motions

Corp. v. Un~ted States, 700 F.2d 836 (2d Cir.), and

tioner reiterated its claim that the government's re-

this Court denied certiorari, 464 U.S. 864 (1983).

c. District of Columbia. In July 1982, after the

coupmentof payments under FECA was a taking of property without just compensation. Pet. App. Fl-

district court in the Southern District of New York had rejected petitioner's tort claims, petitioner brought

a second omnibus tort action against the United States

a. In February 1987, the United States filed a
motion in the Court of Federal Claims pursuant to 28
U.S.C. 1500 to dismiss petitìoner's Tucker Act com-

plaints, and similar complaints brought by several
other asbestos manufacturers, for lack of subject

Case 1:06-cv-00937-LAS

in the United States District Court for the District of Columbia. In July 1984, the district court held that petitioner was attempting to relitigate issues decided in the New York litigation, and that consequently principles of issue preclusion required dismissal of the action. Keene Corp. v. United States,

matter jurisdiction. The government contended that
the Court of Federal Claims lacked jurisdiction be-

591 F. Supp. 1340, 1345-1349 (D.D.C. 1984). The

court of appeals affrmed the district court;s ruling.

GAF Corp. v. United States, 818 F.2d 901, 912-916

(D.C. Cir. 1987).

cause petitioner and the other claimants had district court suits involving the same dispute pending at the same time they were litigating their actions in the
Court of Federal Claims.

Document 21-5

2. Court of FederalCláims Litigation

a. Keene I. In December 1979-while petitioner's

third-party complaint in Miller was pending-petitioner filed an action against the United States in

the Court of Federal Claims under the Tucker Act,

In April 1987, the Court of Federal Claims granted the government's motion as to one claimant, JohnsManvile Corporation. Keene Corp. v. United States, 12 Cl. Ct. 197 (1987). The court did not rule on the motion with respect to petitioner or the other manufacturers, but noted that their claims likely would

28 U.S.C. 1491. Keene C01'p. v. United States, No.

579-79C. Petitioner sought indemnity from the United States for any amounts paid by petitioner to asbestos

be dismissed under Section 1500 for want of jurisdiction. Id. at 198-199 n.lo The court of appeals

Filed 08/01/2008

affrmed, Johns-Manville Corp. v. United States, 855
F.2d .1556 (Fed. Cir. 1988), and this Court denied

tort claimants exposed to asbestos while working at naval shipyards or for companies under contract to the United States Navy. Pet. App.HI-H20.

b. Keene II. On September 25, 1981-while peti-

tioner's omnibus tort action was. pending in New York-petitioner filed a second action in the Court of

certiorari, 489 U.S. 1066 (1989). b. In November 1988, the government filed a second motion to dismiss petitioner's claims. under 28
U.S.C. 1500. The Court of Federal Claims granted

Page 9 of 30

Federal Claims under the Tucker Act. Keene Corp.

v. United States, No. 585-81C. In that action, peti-

the government's motion as to all plaintiffs except

6

7

GAF Corporation:'! The court held that Section 1500 required dismissal of the other asbestos manufactur-

court found that the statutory language was ambiguous, and that "policy and legislative history support

ers' claims because,

at the time the actions were filed

in the Court of Federal Claims, the plåintiffs had

other actions involving the same dispute pending in

a different reading." Ibid. Judge Mayer dissented. He concluded that the
panel's holding was "contrary to the unambiguous

other courts against the United States. The Court of Federal Claims rejected petitioner's argument that

the subsequent termination of the district court ac-

language of the statute, its purpose and history." Pet. App. D26. Judge Mayer reasoned that the juris-

tions vested it with jurisdiction over the complaints.

Pet. App. E1-E27.

Case 1:06-cv-00937-LAS

4. The Court of Appeals' Decisions

diction of the Court of Federal Claims "should not depend on when a motion to dismiss under section 1500 is filed or is considered by this court." Ibid. b. The En Banc Decision. The court of appeals
granted rehearing en banc and affrmed the decision
of the Court of Federal Claims in an opinion joined

a. The Panel Decision. A panel of the court of appeals reversed. Pet. App. D1-D25. The panel held that "when an earlier-filed district court case is finally
A24.

by nine of the ten judges on the court. Pet. App. Ali. The court of. appeals comprehensively reexam-

dismissed before the Claims Court entertains and acts

Document 21-5

on a § 1500 motion to dismiss, § 1500 does not bar

Claims Court jurisdiction even though the dismissal may have occurred after the filing of the Claims

ined prior judicial decisions construing Section 1500

and concluded that "section 1500 is rife with judicially created exceptions and rationalizations to the
point that it no longer serves its purposes: to force

Court action." Pet. App. D22.The panel acknowledged that a "not * * * unreasonable reading of

an election of forum and to prevent simultaneous

the statute" would bar the Court of Federal Claims from exercising jurisdiction if the plaintiff had a

dual litigation against the government." Pet. App.

related action pending in another court when it filed

an action in the Claims Court. ld. at D23. But the
TecOn Engineers,

A14. The court observed that" (iJt is a rare plaintiff who could not find an exception to his liking if he tried hard enough." ld. at AI4-AI5. The court
declined petitioner's invitation to continue "the charade." ld. at A15.

Filed 08/01/2008

''!The Court of Federal Claims, relying on

Inc. v. United States,

343 F.2d 943

(Ct. Ci. 1965), cert.

denied, 382 U.S. 976 (1966),

held that Section 1500 did not

The court of appeals concluded that the plain mean-

ing of the statute and its purpose mandate a brightline rule that the Court of Federal Claims lacks juris-

apply to GAF because GAF fied its district court action one day after it filed suit in the Court of Federal Claims. Pet. App. E25-E26. The Court of Federal Claims subsequently

rejected GAF's claims on the merits. GAF' Corp. v. United

diction over a claim if the same claim is pending in
another court. Accordingly, the court held:
1) if the same claim is pending in another court at the time the complaint is filed in the Claims

Page 10 of 30

States, 19 CI. Ct. 490 (1990). The court of appeals affrmed that ruling, 923 F.2d 947 (Fed. Cir. 1991), and this Court

denied certiorari, 112 S. Ct. 965 (1992).

"8
'9

Court, the Claims court

gardless of when an objection is raised or acted
court

Court has no jurisdiction, re-

and another court. Pet. App. A13-AI4,Al 7. The
also overruled Tecon Engineers, Inc.v. United StaÆes, 343 F.2d 943 (Ct. 01. 1965), cert. denied, 382
U.S. 976 (1966), which' had held that Section 1500

on; 2) if the same claim is fied in another

after the complaint is filed in the Claims Court,

the Claims Court is by that action divested

did not apply if the plaintiff first fied an action in
the Court of Federal Claims and thereafter filed an action concerning the same dispute in another court. Pet. App. A18-AI9.

of jurisdiction

regardless of when the Court

memorializes the fact by order of dismissal; and 3) if the same claim has been finally disposed of

iii. The court reaffrmed the principle that two
actions involve the same "claim" for the purposes of
Section 1500 if they are based on the same operative

Case 1:06-cv-00937-LAS

by another court before the complaint is filed in the Claims Court, ordinary rules of res judicata and available defenses apply. Pet. App. Al5.
"claim" refers to actions based on

facts. The court rejected the contention that a

The court of appeals declined to construe Section

1500 as permitting "a plaintiff to maintain cases in

the same legal

theory. The court explained that such a narrow con-

both courts unti the government moves to dismiss

the Claims Court suit or unti a judge addresses the

motion." Pet. App. A16. The court explained that

struction of the term "claim" would render the statute ineffective against the very abuse it was intended
to prevent. Pet. App. A19-A20.
iv. Finally, the court of appeals rejected the petitioner's argument that its decision should not be given

Document 21-5

such a rule would be "contrary to thEeJ recognized

purpose of section 1500," because it would "compel the government to defend two suits simultaneously." Ibid.

ii. The court of appeals reexamined several of its prior decisions that created exceptions to the juris-

dictional bar of Section 1500 in order to ameliorate its

retroactive effect. The court explained that, because a federal court "lacks discretion to consider the merits of a case over which it is without jurisdiction, * * * a jurisdictional ruling may never be made prospective only." Pet. App. A22-A23, quoting Firestone Tire &: Rubber Co. v. Risjord, 449 U.S. 368, 379

Filed 08/01/2008

(1981) .

v. Chief Judge Nies joined the court's opinion, but
also filed a

hIe hardship to a plaintiff "does

perceived harshness. Adhering to this Court's decision in Corona Coal Co. v. United StaJtes, 263 U.S. 537, 540 (1924), the court of appeals held that possinot justify rewriting

separate opinion suggesting that, in some

the statute." Pet. App. A17. Accordingly, the court

circumstances when a party is barred by Section 1500

from litigating simultaneous actions .against the
United States, equitable tollng of the statute of limii

overruled Brown v. United St(Jtes, 358 F.2d 1002 (Ct. C1. 1966), and Casman v. United States, 135

Ct. C1. 647 (1956). Pet. App. A17 & n.3. Brown and

tations may be appropriate. Pet. App. A24-A25.
vi. Judge Plager dissented. Pet. App. A25-A34.

Casman had both construed Section 1500 to allow
I

Page 11 of 30

plaintiffs to maintain simultaneous actions concern-

Judge Plager would have ruled that "when an earlierfied district court case is finaHy dismissed before the

ing the same dispute in the Court of Federal Claims

¡

i

10
11

Claims Court entertains and acts on a § 1500 motion

to dismiss, § 1500 does not bar Claims Court jurisdic-

tion." ld. at A3L.

cials in other courts. The stated purpose of the statute was "to put that class of persons to their election either to leave the Court of Claims or to leave the
other courts." Congo Globe, 40th Cong., 2d Sess. 2769

SUMMARY OF ARGUMENT

(1868) .
c. Petitioner is incorrect in contending that Section 1500 applies only if principles of claim preclu-

1. a. Section 1500 provides that the Court of Fed-

eral Claims "shall not have jurisdiction of any claim

for or in respeot to which the plaintiff or his assignee

sion would require the plaintiff to pursue all its legal
theories in a single action. By its terms, Section 1500

has pending in any other court any suit or process against the United States" or its agents. Congress

applies if a claim is "in respect to"-i.e., related to-

Case 1:06-cv-00937-LAS

hardly could have chosen more sweeping and defini-

a pending action in another court. A claim that is
based on the same set of facts as a pending action plainly is related to the action. Moreover, petitioner's
proposed construction would foster the very type of

tive language to bar plaintiffs from litigating a dis-

pute against the government simultaneously in the

Court of Federal Claims and another court. Sec-

tion 1500 applies to any claim "in respect to which"

Document 21-5

the plaintiff has pending another action-that is, any

simultaneous litigation that Section 1500 was designed to stop. The Court of Federal Claims has no jurisdiction to hear claims under the Federal Tort Claims Act; the district courts have no jurisdiction to hear claims under the Tucker Act for more than
allow plaintiffs to engage in simultaneous litigation
$10,000. Consequently, petitioner's proposal would

claim that "relates to" or is "concerned with" a pending action. Because Section 1500 applies only if the plaintiff "has pending" another action, it does not bar 8, plaintiff from bringing an action in the Court of Federal Claims if a related action in another court

is no longer pending. But the Court of Federal

of a dispute in the Court of Federal Claims (on a contract theory) and in the district court (on a tort
theory). Indeed, petitioner's construction of the statute would have allowed the cotton claimants to continue to maintain simultaneous actions against the

Claims plainly lacks jurisdiction while a related action is pending in another court, and the termination of the related action does not confer jurisdiction
plaintiff from engag-

retroactively on the Court of Federal Claims.

Filed 08/01/2008

b. The legislative history of Section 1500 confirms

United States and federal offcials.
d. Petitioner is also incorrect in contending that Section 1500 allows a plaintiff to engage in simul-

that Congress intended to bar a

ing in simultaneous litigation of a dispute in the

Court of Federal Claims and another court. The

taneous litigation against the United States as long
as the other actions are terminated before the Court of Federal Claims rules on a motion to dismiss for
lack of jurisdiction. Section 1500 plainly provides

Page 12 of 30

statute was specifically intended to apply to the so-

called "cotton claimants," a group of plaintiffs who brought actions against the United States in the Court of Claims and parallel actions against federal off-

that the Court of Federal Claims "shall not have

jurisdiction" if the plaintiff "has pending" a related

12 13

action against the United States in another court. The Court of Federal Claims does not acquire jurisdiction merely because the government fails to learn

of the existence of a related action or the Court of

wasteful and duplicative litigation and conserves public resources. Those policies are hardly out of keeping with the current legal landscape. Moreover,

Federal Claims fails to rule on a motion to dismiss.

petitioner and its amici greatly exaggerate the harsh
results that wil flow from interpreting Section 1500

That reading of Section 1500 is confirmed by the

as i,t is written. In many cases, plaintiffs wil be able to obtain complete relief in a single action. Where
that is not possible, the generous six-year period of

original statutory language, which provided that "no person shall file or prosecute any claim * * * for or in respect to which he * * * has pending any suit or

process." 15 Stat. 77. When Congress replaced that

phrase in 1948, it did not intend to alter the meaning

Case 1:06-cv-00937-LAS

of the statute.

limitations applicable to Tucker Act claims affords plaintiffs an opportunity to bring a second action in all but the most protracted cases. If a plaintiff has
acted dilgently and refrained from engaging in

Petitioner's proposed construction would not precumstances.

vent dual simultaneous litigation. Given the mini-

simultaneous litigation, equitable tollng of a statute

mal requirements of notice pleading, and the diffcul-

of limitations may be available in appropriate cir2. a. The court of appeals correctly concluded
that it was required to give its decision retroactive

ties of coordinating the government's numerous liti-

gating components, a plaintiff could often litigate

against the government on two fronts at the same

Document 21-5

time. If plaintiffs. understand that the Court of

Federal Claims wil

effect. Because the federal courts have no authority to expand their subject matter jurisdiction, "a jurisdictional ruling may never be made prospective
only." Firestone Tire i& Rwbber Co. v. Risjord, 449

be required to dismiss their action if they litigate simultaneously in another forum,

Section 1500 wil be largely self-policing. Petitioner's construction also ignores the funda-

U.S. 368, 379 (1981). In any event, there is no basis
for petitioner's suggestion that the Court's decision
should not apply to

mental rule that limitations on a court's subject mat-

ter jurisdiction cannot be waived by the parties or

the court. There is no source of authority that would

cle III concerns that petitioner's argument raises,

petitioner. Apart from the Artipetitioner is not entitled to a prospective ruling be-

Filed 08/01/2008

permit a court to overlook the defect in its subject

matter jurisdiction.

cause it is not relying on clear past precedent, but

e. Although petitioner contends that Section 1500

rather on arguments that prior judicial exceptions to
Section 1500 should be expanded. b. Petitioner did not seek equitable tollng of the statute of limitations in the courts below, and those

is out of harmony with the legal landscape and

produces harsh results, this Court has already de-

clined a litigant's invitation to "add an exception

courts did not consider that issue. Accordingly, this
Court should not address it either. In any event, equitable tollng is not appropriate in the circumstances of this case. Petitioner did precisely what

(to Section 1500) to remove apparent hardship."

Page 13 of 30

Corona Coal Co. v. United StGJtes, 263 U.S. 537, 540

(1924). In any event, a rule barring litigation of

the same dispute in two courts at once discourages

14

15
are not at liberty to add an exception in order to

Section 1500 forbids. It pursued multiple actions in

multiple courts seeking essentially the same relief against the United States based on essentially the

remove apparent hardship." Corona Coal Co. v.
United States, 263 U.S. 537, 540 (1924). See generally Estate of Cowart v. Nicklos Drilling Co., 112

same facts-the government's alleged responsibilty

for injuries to workers exposed to asbestos while

working in naval shipyards or on federal contracts. Indeed, petitioner litigated precisely the same takings

S. Ct. 2589, 2594 (1992); King v. St. Vincent's Hos-

claim simultaneously in the Court of Federal Claims and the district court. None of the established judi-

pital, 112 S. Ct. 570, 575 n.14 (1991). Section 1500 speaks in the language of subject matter jurisdiction. It provides in absolute and sweeping terms that the
Court of Federal Claims I'shall not have jurisdiction

cial exceptions to Section 1500 authorized petitioner's

of any claim for or in respect to which the plaintiff

Case 1:06-cv-00937-LAS

extraordinary seven-year campaign of simultaneous

* * * has pending in any other court any suit or

litigation. Accordingly, petitioner is not entitled to

equitable relief.

process"against the United States or "any person

* * * acting or professing to act, directly or indirectly
under the authority of the United States" (emphasis

ARGUMENT

added). Congress hardly could have chosen more

I. SECTION 1500 BARS SIMULTANEOUS LITIGA.

definitive and emphatic language to bar plaintiffs
from litigating a dispute with the government simul-

TION OF A

Document 21-5

DISPUTE IN THE COURT OF FED. ERAL CLAIMS AND ANOTHER COURT
Court Of Federal

taneously in the Court of Federal Claims and in
another court.

A. Section 1500 Provides That The

Claims Lacks Jurisdiction If The Plaintiff Has A Related Action Pending In Another Court Section 1500 of Title 28 provides:

As petitioner observes (Pet. Br. 18), the word

The United States Court of Federal Claims

Filed 08/01/2008

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
ti.

suit or process arose, was, in respect thereto,
i
l
t

"claim" lacks a single "plain" meaning. See J olinsManville Corp. v. United States, 855 F.2d 1556, 1560 (Fed. Cir. 1988), cert. denied, 489 U.S. 1066 (1989). But Congress eliminated any ambiguity that attaches to the term "claim" by providing that the Court of Federal Claims lacks "jurisdiction of any claim for or in respect to which the plaintiff * * * has pending * * * any other suit or process" against the United States or its agents. A claim is "in respect to" a suit
if it "relate(sJ to" the suit, or is "concerned with"

acting or professing to act, directly or indirectly under the authority of the United States.

the suit, or Ilha(sJ regard or reference to the suit.
(

As the Court observed in construing the predecessor

Webster's Third New International Dictionary 1934
(1986). Cf. Lemon v. Kurtzman, 403 U.S. 602, 612
t
11 i' I' I: ,¡

Page 14 of 30

of Section 1500, "the words of the statute are plain,

with nothing in the context to make their meaning

doubtful; no room is left for construction, and we

(1971) (discussing meaning of the word "respecting" in the Establishment Clause of the First Amendment).

L

16 17

Accordingly, the language of Section 1500 bars the

B. The Purpose Of Section 1500 Is To Bar Plaintiffs From Suing The United States Or Its Agents In
The Court Of Federal Claims And Another Court
1. The legislative history of 28 U.S.C. 1500 con-

Court of Federal Claims from assuming jurisdiction over a claim if the plaintiff has a related action pending in another court.

By its terms, Section 1500 deprives the Court of

Federal Claims of jurisdiction if the plaintiff "has pending" a related suit in another court. If the re-

firms that Congress intended to bar simultaneous

lated action is no longer pending, the statutory lan-

guage does not prevent the plaintiff from bringing

litigation of a dispute in the Court of Federal Claims and another court. During the Civil War, the government seized property in the Confederate States pursuant to the Captured and Abandoned Property Act
of 1863, ch. 120, 12 Stat. 820. Persons claiming

a subsequent action in the Court of Federal Claims.

Case 1:06-cv-00937-LAS

But a "pending" action does not become a "non-

pending" action merely because the parties fail to

ownership of property seized under that Act were
permitted to bring an action against the United States in the Court of Claims to recover any pro-

bring it to the attention of the Court of Federal Claims, or that court fails to rule on a motion to dismiss. See Hill v. United States, 8 Ci. Ct. 382,

385-386 (1985) ("words 'shall not' are an absolute

ceeds from the sale of the property, but were required to prove that they had not given any aid or comfort
to the rebellon. § 3, 12 Stat. 820. The "cotton claimants" (so called because most of the claims were for seized cotton) not only brought a large

bar depriving this court of any discretion, whatso-

Document 21-5

ever, when duplicative claims are filed").4

4 This Court's prior decisions construing the predecessor

number of actions against the United States in the
A 7; David Schwartz, Section

of 28 U.S.C. 1500, Section 154 of the Judicial Gode, consistently have adhered to the plain language of the statute. In

Corona Coal Co. v. United States, 263 U.S. 537 (1924), the

Court of Claims, but also brought parallel tort actions against federal offcials in other courts. See Pet. App. 1500 of the Judicial
Code and Duplicate Suits Against the Government
and Its Agents, 55 Geo. L.J. 573, 575-576 (1967). Congress enacted the original version of Section 1500, Section 8 of the Act of June 25, 1868, ch. 71,

Court of Claims dismissed the plaintiff's action, and the plain-

tiff took an appeal to this Court. After the Court of Claims entered judgment, the plaintiff brought separate actions in

Filed 08/01/2008

the district court "because (the actions) were about to become barred by expiration of the statutory period of limitation."

15 Stat. 77, to put an end to this dual litigation.
Section 8 provided:

263 U.S. at 540. This Court held that Section 154 required dismissal of the appeaL. It concluded that "the words of the

statute are plain," and therefore the Court is "not at liberty to add an exception in order to remove apparent hardship in

tiff) from suing on those claims in the Court of Claims, and excluders) its jurisdiction of them") ; Matson Navigation Co.

particular cases." Ibid. See also Ex parte Skinne1" & Eddy Corp., 265 U.S. 86, 95 (1924) (where the Court of Claims grants the plaintiff's motion to dismiss, and the plaintiff then

v. United States, 284 U.S. 352 (1932) (plain language of Section 154 inapplicable if simultaneous action is against
the United States rather than a federal offcial). In 1948,

Page 15 of 30
Section 154 was amended to apply to multiple actions against
the United States. See p. 20, infra. . , .

brings a suit in state court "on substantially the same causes of action," Section 154 "necessarily prevent(s,J the (plain-

18
19

A nd be it further enacted, That no person shall

to which he or any assignee of his shall have

file or prosecute any claim or suit in the court of claims, or an appeal therefrom, for or in respect

filed them in the Court of Claims, so that after they put the Government to the expense of beat-

deavoring to prosecute their claims, and have

commenced and has pending any suit or process

ing them once in a court of law they can turn

in any other court against any offcer or person who, at the time of the cause of action * * *

around and try the whole question in the Court

arose, was in respect thereto acting or professing

persons to their election either to leave the Court

of Claims. The object is to put that class of

to act, mediately or immediately, under the au-

of Claims or to leave the other courts. I am sure

thority of the United States, unless such suit or

Case 1:06-cv-00937-LAS

be withdrawn or dismissed within thirty days after the passage of this act.

process, if now pending in such other court, shall

Act of June 25, 1868, ch. 71,§ 8, 15 Stat. 77.5

Senator Edmunds, the sponsor of the legislation,

explained its purpose:

everybody wil agree to that. Congo Globe, 40th Cong., 2d Sess. 2769 (1868). The stated purpose of Section 8 was thus to require plaintiffs to make an election between a suit in the Court of Claims and one brought in another court against an agent of the government. Ibid. Section 8 was incorporated into the Revised Statutes of 1874 with minor changes that were not intended to alter its meaning. See 2 Congo Rec. 129

Document 21-5

The object of this amendment is to put to their election that large class of persons having cotton claims particularly, who have sued the Secretary

of the Treasury and the other agents of the Gov-

(1873) (statement of Rep. Butler).6 It was later reenacted without change as Section 154 of the Judicial Code of 1911. Act of Mar. 3, 1911, ch. 231,

ernment in more, than a hundred suits that are

now pending, scattered over the country here and

there, and who are here at the same time en-

§ 154, 36 Stat. 1138. Congress reenacted the statute as Section 1500 of the Judicial Code of 1948. See Act of June 25, 1948, ch. 646, 62 Stat. 942. The 1948 legislation (1) deleted the phrase "or in the Supreme
6 The 1874 statute provided:
No person shall

Filed 08/01/2008
file or prosecute in the Court of Claims,
or in the Supreme Court on appeal therefrom,

~ The text of Section 8, as passed by both the Senate and the House of Representatives, provided that "no person shall file or prosecute any claim or suit in the Court of Claims, or on appeal therefrom, for or in respect to which he * * *

shall have commenced and has pending, or shall commence
I

and have pending, any suit or process in any other court"
1
ì'.'

any claim

against a federal offciaL. Congo Globe, 40th Cong., 2d Sess.

2769 (1868) (statement of Sen. Edmunds) ; id. at 3269 (em-

for or in respect to which he or any assignee of his has pending in any other court any suit o.r process against
any person who, at the time when the cause of action
alleged in such suit or process arose, was, in respect

phasis added) ; Journal of the Senate, 40th Cong., 2d Sess.

Page 16 of 30

445 (1868). The enrolled version of the bil omitted the high-

lighted clause. There is no recorded explanation of the omission. Pet. App. A8-A9 n.1, A19.

thereto, acting or professing to act, mediately or immediately, under the authority of the United States.
Revised Statutes, Title 13, ch. 21, § 1067, 18 Stat. 197 (1874).

20

21

Court on appeal therefrom" as unnecessary; (2)

simultaneous litigation," but also to "preclud(eJ * * *

added the phrase "against the United States" in

order to bar simultaneous actions against the United

States as well as actions against federal offcials; and (3) replaced the phrase "No person shall file

a second adjudication after a first decision on the merits." By its terms, however, the statute applies only if the plaintiff "has pending any suit or process
in any other court." 15 Stat. 77 (emphasis added). The language of the statute thus does not preclude

or prosecute" with "The Court of Claims shall not

have jurisdiction of" to make clear that Section 1500

is a jurisdictional statute. See Reviser's Notes, 28

a second adjudication if the first action is no longer "pending." See p. 16, supra.
C. Section 1500 Is Not Limited To Legal Theories That Must Be Litigated In A Single Action Under Principles Of ClaimPrec1usion
1. In its brief on the merits, petitioner argues (Pet.

U.S.C. 1500, at 1862 (1948).

Case 1:06-cv-00937-LAS

2.

We do not contend that Section 1500 must be

interpreted to bar successive litigation-only simultaneous litigation. It is true, as petitioner recog-

nizes (Pet. Br. 31), that Senator Edmunds' state-

ment indicates that Section 8 was intended to ad-

vance not only "a general policy seeking to protect

Br. 18-32) that Section 1500 applies only if principles of claim preclusion would require the plaintiff
to present all its legal theories in a single action.

Document 21-5

the Government against the burdens of multiple

Petitioner contends (Pet. Br. 18-19) that the word "claim" in Section 1500 is "naturally read as referring to the law of claim preclusion," and that "( t J he
statute should be read to deem a claim in one case 'for or in respect to (the claim J' in another only

7 In 1982, Congress passed legislation substituting the new Claims Court for the old Court of Claims. See Federal Courts Improvement Act of 1982, Pub. L. No. 97-164, 96 Stat. 40. Most recently, in 1992, Congress passed legislation substi-

tuting "Court of Federal Claims" for "Claims Court." See

when ordinary claim-splitting preclusion principles
would say that they should (and, therefore, could) be brought together if they were both brought against

note 1, supra.

A bil entitled the "Court of Federal Claims Technical and

Procedural Improvements Act of 1992," introduced by Sena-

tor Heflin on April 2, 1992, would have repealed Section

the United States." That argument was not presented to the courts below or in the petition for
certiorarP In any event, it is incorrect.
S The questions presented in the petition for certiorari
(which focused on the meaning of the statutory phrase "has

Filed 08/01/2008

1500. See S. 2521, 102d Cong., 2d Sess. § 10 (c) (1992); 138 Congo Rec. S4830-S4832 (daily ed. Apr. 2, 1992). On April 29, 1992, six days after the court of appeals issued its en

bane decision in this case, the Senate Committee on the Ju-

diciary held hearings on the proposed legislation. See 138

Congo Rec. D465 (daily ed. Apr. 29, 1992). As ultimately

enacted, the Court of Federal Claims Technical and Pro-

cedural Improvements Act of 1992 amended Section 1500 by substituting the "Court of Federal Claims" for the "Claims

pending" rather than the definition of the term "claim") bear little resemblance to the questions presented in petitioner's brief on the merits. Compare Pet. i with Pet. Br. i. A brief on the merits "may not raise additional questions or
change the substance of the questions already presented in
(the petition)." Sup. Ct. R. 24.1 (a).

Page 17 of 30

Court," but did not repeal or otherwise modify the statute.

See Pub. L. No. 102-572, §§ 901-911, 106 Stat. 4516-4520.

22
23

Contrary to petitioner's contention, the term "any

on an actor may apply to a given episode does not

claim" in Section 1500 is most naturally read not as

a veiled reference to the law of claim preclusion, but

simply as a reference to any claim for relief in the

create multiple transactions and hence multiple claims. This remains true although the several legal
theories * * * would call for different measures of liabilty or different kinds of relief." ld. comments band c. That is precisely the approach followed by

Court of Federal Claims. Moreover, petitioner's argument ignores the statutory language that immediately

follows the term "any claim." Under Section 1500,

the Court of Federal Claims lacks jurisdiction over

the court of appeals in Johns-Manville Corp. v. United

States, 855 F.2d 1563 (Fed. Cir. 1988), and reaffrmed in this case. See Pet. App. A19. Applying
that definition of "claim," petitioner's tort actions

"any claim for or in respect to which the plaintiff * * * has pending any suit or process in any other
the very same c1aim.ll

Case 1:06-cv-00937-LAS

court" (emphasis added). As we have explained, see

pp. 15-16, supra, a claim is "in respect to" a suit or

were not only actions "respecting" petitioner's claims
in the Court of Federal Claims, but were actions on
2. Petitioner relies not on the definition of "claim" for purposes of claim preclusion, but on an exception

process if it "relates to" or is "concerned with" the

suit. Accordingly, the proper jurisdictional inquiry

under Section 1500 is not whether the plaintiff is pursuing one or several legal theories-let alone

Document 21-5

whether principles of claim preclusion would permit or require him to pursue all his theories in a single

to the general rule of preclusion that applies if

action-but simply whether the plaintiff's claim is related to other litigation that he has pending in

"(tJhe plaintiff was unable to rely on a certain theory of the case or to seek a certain remedy or form of relief in the first action because of the limitations on
the subject matter jurisdiction of the courts." Re-

another court. The court of appeals' definition of a claim as including all legal ((theories that arise from

statement (Second) of J udgments§ 26 (1) (c) & com-

the same operative facts," Pet. App. A20, is con-

ment c (1982). There is no basis in the language or
history of Section 1500 for

sistent with this statutory language.

applying that exception to

permit simultaneous litigation in the Court of Federal Claims and other courts. Petitioner's proposed construction of Section 1500

Filed 08/01/2008

Even if petitioner were justified in looking to principles of claim preclusion, a "claim" for preclusion purposes consists of "all rights of the plaintiff to remedies against the defendant with respect to

would almost never prevent a plaintiff from litigat-

all or any part of the, transaction,. or series of con-

Restatement (Second) of

nected transactions, out of which the action arose." Judgments §24(1) (1982).

II Petitioner's attempt to link Section 1500 to. principles of claim preclusion is misguided for another reason as well. The law of claim and issue preclusion governs the p,reclusive
effect of judgments. See

A "transaction" refers to "a natural grouping or common nucleus of operative fact. * * * That a

Restatement (Second) of Judgments ch. 1, at 1 (1982). In the absence of a judgment,
principles of claim and issue preclusion

Page 18 of 30
are not concerned

number of different legal theories casting liabilty

with simultaneous litigation of a dispute in different courts.

24 25

ing a dispute with the United States in two courts

3. Petitioner is wrong in asserting (Pet. Br. 22)

at once. The Court of Federal Claims has no juris-

that "it was the clear law in the Court of Claims that
Section 1500 did not apply where two claims could

diction to decide claims under the Federal Tort

tion to decide claims under the Tucker Act if the

Claims Act, and the district courts have no jurisdic-

not both be brought in the same court." In fact, petitioner's proposed construction of Section 1500 goes

"vell beyond any of the judicial exceptions to the
statute that were overruled by the court of appeals.

amount sought by the plaintiff is greater than $10,000. See 28 U.S.C. 1346 (a), 1491. Consequently, petitioner's construction of Section 1500 would allow any plaintiff seeking more than $10,000 to litigate against the United States in district court under a tort theory

a. The court of appeals reaffrmed the principle

that Section 1500 applies when two actions arise out of a single "set of underlying facts." Pet. App. A19.
See Johns-Manville Corp., 855 F.2d at 1563 (for purposes of Section 1500, "claim" is "defined by the op-

Case 1:06-cv-00937-LAS

while simultaneously litigating the very same set of

facts, and seeking the very same relief, under a con-

tract or taking theory in the Court of Federal Claims.

Indeed, petitioner's construction of the statute would

erative facts alleged, not the legal theories raised") ; Los Angeles Shipbwilding .& Drydock Corp. v. United
States, 138 Ct. Cl. 648, 652 (1957); National COTed Forgings Co. v. United States, 132 Ct. Cl. 11, 19-20

have allowed the cotton claimants to maintain simultaneous actions against the United States and fed-

(1955); British America,n Tobacco Co. v. Un1:ted
States, 89 Ct. Cl. 438, 440 (1931), cert. denied, 310

Document 21-5

eral offcials. Because the cotton claimants themselves were pursuing different legal theories that could not

be asserted together in one court, Section 1500 should

not be read to reach only actions involving identical

U.S. 627 (1940). Because petitioner's proposed construction of Section 1500 was not settled law-and,
indeed, is contrary to it-it does not "deserve respect

legal theories, or actions that can all be brought in

the same court.IO

under the doctrine of sta,re decisi::." Pet. Br. 22.11
1868, they would have been permitted to do so in the Court of
prevented the cotton claim-

10 Petitioner's contention (Pet. Br. 32) that its interpreta-

tion of Section 1500 would have

Filed 08/01/2008

ants from suing in two courts at once is unconvincing.

Claims. Even assuming that such claims could have been
brought together, it is far from clear that principles of claim preclusion would have barred separate actions. "Although

No court had jurisdiction to decide both the cotton claimants' statutory claims against the. United States and their

tort claims against federal offcials. See Johns-Manville, 855

F.2d at 1561.. Petitioner asserts that principles of claim preclusion would have required plaintiffs tOo bring statutory

the 'same evidence' standard was '(oJ ne of the tests' used at the time, The Haytian Republic, 154 U.S. 118, 125 (1894),
it was not the only one." See Nevada v. United States, 463 U.S. 110, 130-131 n.12 (1983).

claims and tort claims against the United States in a single

suit. But as petitioner recognizes (Pet. Br. 32), no court

11 For the same reason, there is no basis for presuming

had jurisdiction to entertain tort claims against the United

that Congress was aware of petitioner's proposed construction
or intended to adopt it when it amended Section 1500 in

Page 19 of 30

supported assumption that if the cotton claimants

States in 1868. Petitioner's assertion thus rests on an unhad been

1982 to substitute the Claims Court for the Court of Claims.

permitted to pursue tort claims against the United States in

See Lorillard v. Pons, 434 U.S. 575, 580-581 (1978). Indeed,

26
2.7

There is also no basis for petitioner's suggestion

(Pet. Br. 24) that the court of appeals' definition of

"claim" should be rejected because it is too vague

or diffcult to apply. The court of appeals' definition

does not apply where plaintiff is seeking monetary . relief from both courts) ; Boston Five Cents Savings Bank v. Un~ted States, 864 F.2d 137, 139 (Fed. Cir. 1988) (Casman limited to situations where "different types of relief are sought") ; Pitt River Home ,& Agricultural Coop. Assoc., 215 Ct. CL 959, 961 (1977)
(inquiry under Cas

applies not only in the context of Section 1500, but

in a variety of other contexts as welL. See, e.g., United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966)

Case 1:06-cv-00937-LAS

"derive from a common nucleus of operative fact"),;

(pendent jurisdiction over nonfederal claims that

man is whether the plaintiff is "seeking the same relief" in the Court of Claims as
in the district court); Nonella v. United States, 16

Maher v. Gagne, 448 U.S. 122, 132-133 n.15 (1980) (attorney's fees available under 42 U.S.C. 1988 for

claims arising out of a "common nucleus of opera.

tive fact"); Restatement (Second) of Judgments

CL Ct. 290, 293 (1989) (Casman exception is "limited" to "where the plaintiff seeks substantially different relief in each forum") ; Hill v. United States,
8 CL Ct. at 387-388 (the Casmam exception does not

§ 24 (1) (1982) (claim preclusion).

b. In Casman v. United States, 135 Ct. CL 647

apply where plaintiff seeks monetary relief in both the district court and the Claims Court, even if she
also seeks declaratory relief in the district court)?2

(1956), the court created an exception to Section 1500 that applied when a plaintiff sought damages

Document 21-5

in the Court of Federal Claims and equitable relief

in another court. The plaintiff in Casman was a

The Casmanexception does not apply in this case. See Pet. App. D20; Alaska Br. 23; Cheyenne-Arapaho Tribes Br. 6. The relief sought in petitioner's dis-

former federal employee who sought reinstatement in the district court and back pay in the Court of Claims. The Court of Claims concluded that Section

trict court actions was not "entirely different" from
12 In addition to Cas man, petitioner cites two brief orders of the Court of Claims in support of its assertion that it was "clear law" that Section 1500 did not apply whenever two

1500 should not be construed to bar simultaneous litigation when (1) the remedy sought in the district

court is "entirely different" from that sought in the

Filed 08/01/2008
claims could not be brought in the same court. Pet. Br. 22

Court of Claims, and (2) the Court of Claims has no

(citing Allied Materials & Equipment Co. v. United States,
210 Ct. Cl. 714 (1976), and Prillman v. United States, 220

judisdiction to award the typ~ of relief sought in the district court. 135 Ct. Cl. at 649-650. See also Johns-

Ct. Cl. 677 (1979)). The facts of Prillman were similar to
those of Cas

Manville, 855 F.2dat 1566-1567 (Casman exception

man-a discharged federal employee sought both

reinstatement and back pay in excess of $10,000. And al-

to the extent that such arguments have weight, Congress's

though Allied Materials read Casman to apply when a plain-

recent amendment of Section 1500 following the court of

tiff cannot "combine all its claims" in a single court, 210
weight of authority limiting Cas

Page 20 of 30

appeals' en banc decision, and its failure to enact a proposal

to repeal Section 1500, undermines petitioner's position. See

Ct. Cl. at 716, that reading is contrary to the overwhelming man to situations in which

the plaintiff sought different forms. of relief.

note 7, supra.

"28

29
D. Section 1500 Does Not Permit A Plaintiff To En-

the relief it sought in the Court of Federal Claims.
On A Motion To Dismiss

135 Ct. Cl. at 650. On the contrary, petitioners' ac-

tions in the district courts and its actions in the

gage In Simultaneous Litigation Against the United States As Long As The Second Action Is Terminated Before The Court Of Federal Claims Rules

Court of Federal Claims sought precisely the same

type of relief-damages for injuries caused by workPetitioner also contends (Pet. Br. 33-42) that Sec-

ers' exposure to asbestos. Consequently, the Court

need not address the validity of the Casman exception

tion 1500 does not prevent a plaintiff from maintaining simultaneous actions in the Court of Federal

in this case.

In any event, the court of appeals correctly con..

Claims and another court as long as the plaintiff
dismisses (or otherwise terminates) the second ac-

Case 1:06-cv-00937-LAS

man is inconsistent with the language and purpose of Section 1500. A suit seeking equitable relief rather than damages is nevertheless a "suit or process." And a claim for damages plainly

eluded that Cas

tion before the Court of Federal Claims rules on a motion to dismiss for want of jurisdiction. As petitioner concedes (Pet. Br. 33), its position is contrary to the rule that "(tJhe existence of federal

is a claim "with respect to" a suit for injunctive

relief based on the same set of facts. As a leading commentator has observed, "Casman is one of several

major decisions under section 1500 in which the

jurisdiction ordinarily depends on the facts as they exist when the complaint is filed." Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 830 (1989)

Document 21-5

Court of Claims has overridden the words of the sec-

(citing Smith v. Sperling, 354 U.S. 91, 93 n.l
( 1957) ) . It is also inconsistent with the language
and purpose of Section 1500.
1. By its terms, Section 1500 deprives the Court of

tion in favor of a result it deemed desirable." See

Schwartz, 55 Geo. L.J. at 587-588. But where "the

words of the statute are plain," the courts are "not

at liberty to add an exception in order to remove apparent hardship." Corona Coal, 263 U.S. at 540.13

Federal Claims of subject matter jurisdiction if the plaintiff "has pending" another action. Pet. App. A16. A "pending" action is not transformed into a "non-pending" action merely because the parties fail
to bring the existence of the action to the attention

Filed 08/01/2008

of the Court of Federal Claims, or that court fails
to rule on a motion to dismiss. If the related action is no longer pending, Section 1500 does not prevent

the plaintiff from bringing an action in the Court of

Federal Claims. But the fact that an action in another court has ended does not imply that the Court

Page 21 of 30

13 In 1982, Congress eliminated the problem that concerned the court in Casman. Federal employees are now permitted to seek both back pay and reinstatement in a single action

of Federal Claims had jurisdiction while the other
action was pending.

in the Court of Federal Claims. See 28 U.S.C. 1491 (a) (2).

30
31

Our reading of Section 1500 is confirmed by the

original statutory language, which provided that "no

person shall file or prosecute any claim * * * for

or in respect to which he * * * has pending any suit

or process in any other court." 15 Stat. 77. That

2. Petitioner's proposed construction would permit plaintiffs to litigate simultaneously in the Court of Federal Claims and a district court as long as they were careful to terminate the district court litigation before the Court of Federal Claims ruled on a
motion to dismiss for lack of jurisdiction. That rule

language plainly barred a plaintiff from filing or litigating an action in the Court of Claims while a

related action was pending. In 1948, Congress re-

would not prevent-and, indeed, would encouragedual simultaneous litigation against the government.

placed the phrase "no person shall file or prosecute"

with the phrase "(tJhe United States Court of Claims

Because of the lninimal requirements of notice p