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

Case 1:06-cv-00936-TCW

Document 19

Filed 07/18/2008

Page 1 of 37

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

UNITED KEETOOW AH BAND OF )
CHEROKEE INDIANS IN OKLAHOMA, )

v. )
) )

Plaintiff, )
)

No. 06-936 L
Judge Thomas C. Wheeler

THE UNITED STATES OF AMERICA, )

Defendant. ))
)

DEFENDANT'S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION UNDER 28 U.S.c. § 1500
Pursuant to Rule 12(b)(I) of the Rules of the Court of

Federal Claims (RCFC), Defendant

moves to dismiss this lawsuit for lack of subject matter jurisdiction under 28 U.S.C. § 1500. The
grounds for this motion are set forth in the attached brief.
Respectfully submitted this 18th day of July, 2008.
RONALD J. TENPAS Assistant Attorney General

JAMES M. UPTON United States Department of Justice Environment Division Natural Resources Section P.O. Box 663 Washington, D.C. 20044-0663 Tel: (202) 305-0482 Fax: (202) 353-2021
Attorney for Defendant
OF COUNSEL:

ANTHONY P. HOANG JARED PETTINATO United States Department of Justice

Case 1:06-cv-00936-TCW

Document 19

Filed 07/18/2008

Page 2 of 37

Natural Resources Section P.O. Box 663 Washington, D.C. 20044-0663 Tel: (202) 305-0241 Tel: (202) 305-0203 Fax: (202) 353-2021
THOMAS BARTMAN Office of the Solicitor
United States Department of

the Interior

Washington, D.C. 20240
THOMAS KEARNS Office of the Chief Counsel Financial Management Service

United States Department ofthe Treasur Washington, D.C. 20227

-2-

Case 1:06-cv-00936-TCW

Document 19

Filed 07/18/2008

Page 3 of 37

TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................. 11
INTRODUCTION ............................................................ 3

FACTUAL BACKGROUND................................................... 5
ARGUMENT............................................................... .6
I. Applicable Legal Standards. ........................................... 6

II. Plaintiff's District Court Case was "Pending" When Plaintiff Filed
This Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
A. Because the District Court Complaint Was Filed on the Same Day as

this Complaint, § 1500 Deems the District Court Complaint to Be
Simultaneously-Filed and, Thus, Pending. ...................... 8
1. Brief history of § 1500 's "pending" claim issue in the Federal

Circuit and Supreme Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2. The plain language of § 1500, the intent of § 1500, and relevant

Federal Circuit decisions addressing same-day filings deem the District Court Complaint simultaneously-fled, and, therefore, pending at the time Plaintif filed the CFC Complaint. .. . . . . . . 14
3. A broad interpretation of

the Tecon exception to include same-day

filings would eviscerate the purpose of § 1500. .............. 16

B. Even if Tecon Applies to Two Complaints Filed Simultaneously, Plaintiff Has not Carried its Burden to Establish Jurisdiction. . . . . . . . . . . . . . . . 20
III. Plaintiff's District Court and CFC Complaints are Based on the Same

Operative Facts ................................................. 20
IV. Plaintiff's District Court and CFC Complaints Contain Overlapping Claims

for Relief. ...................................................... 24

A. Both Complaints Indicate That Plaintiff Seeks an Accounting . . . . . . . . 26
B. Both Complaints Indicate That Plaintiff Seeks Monetary Relief ...... 28

Case 1:06-cv-00936-TCW

Document 19

Filed 07/18/2008

Page 4 of 37

v. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ATTACHMENTS
Exhibit No. 1- Complaint filed in district cour (E.D. Okla.) Exhibit No. 2- Order of June 19, 2008 transferring district cour case to District of Columbia Exhibit No. 3- Complaint fied in CFC Exhibit No. 4- Brief of Respondent (the United States) in Keene Corp.

11

Case 1:06-cv-00936-TCW

Document 19

Filed 07/18/2008

Page 5 of 37

TABLE OF AUTHORITIES
FEDERAL CASES
Ak-Chin Indian Community v. United States, 80 Fed. Cl. 305 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Breneman v. United States,
57 Fed. Cl. 571 (2003) ............................................... 13, 16

British American Tobacco Co. v. United States,
89 Ct. Cl. 438 (1939), cert. denied, 310 U.S. 627 (1940) ..................... 14, 15

Cardinal Chem. Co. v. Morton Int'l, 508 U.S. 83 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Christopher Vilage, L.P. v. United States,
360 F.3d 1319 (Fed. Cir. 2004) ............................................ 28

Corona Coal Co. v. United States, 263 U.S. 537 (1924) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Eastern Shawnee Tribe of Oklahoma v. United States,
2008 WL 2554943* 1 (Fed.CL. June 23, 2008) ............................ passim

Gaubert v. United States,
28 Fed.CL. 597 (1993) ...................................................20

Griggs v. Provident Consumer Disc. Co., 459 U.S. 56 (1982) . . . . . . . .. . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Harbuck v. United States,
378 F.3d 1324 (Fed. Cir. 2004) ........................................ passim

Hardwick Brothers Co. II v. United States,
72 F.3d 883 (Fed. Cir. 1995) ...........................................12, 18
Hil v. United States,

8 Cl. Ct. 382 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . 13, 16
Hobbs v. United States, 168 Ct. Cl. 646 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

11

Case 1:06-cv-00936-TCW

Document 19

Filed 07/18/2008

Page 6 of 37

In re Markowitz,

190 F.3d 455 (6th Cir. 1999) ..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Johns-Manvile Corp. v. United States,
855 F.2d 1556 (Fed. Cir. 1988) ......................................21,22,29

Keene Corp. v. United States,
508 U.S. 200 (1992) ................................................ passim

Klamath & Modoc Tribes v. United States,
174 Ct. Cl. 483 (1966) .................................................. 27

Lemon v. Kurtzman, 403 U.S. 602 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21

Loveladies Harbor, Inc. v. United States,
27 F.3d 1545 (Fed. Cir. 1994) ......................................... passim

Nat

'i Cored Forgings Co. v. United States,
132 Ct. Cl. 11, 132 F. Supp. 454 (Ct. Cl. 1955) ............................ 14, 15

Nat'! Union Fire Ins. Co. v. United States, 19 Cl. Ct. 188 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 16

Northrop Corp. v. United States, 27 Fed. Cl. 795 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Pa. R.R. Co. v. United States, 363 U.S. 202 (1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
Passamaquoddy Tribe v. United States,
2008 U.S. Claims Lexis 147*2 (Fed. Cl. June 19,2008) .................... passim

Preiser v. Newkirk,

422 U.S. 395 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Pueblo of Laguna v. . United States,
60 Fed. Cl. 133 (Fed. Cl. 2004). ........................................... 28

Reynolds v. Army & Air Force Exch. Serv.,
846 F.2d 746 (Fed. Cir. 1998) ......................................... 3,6,20

iv

Case 1:06-cv-00936-TCW

Document 19

Filed 07/18/2008

Page 7 of 37

Salt River Pima-Maricopa Indian Community v. United States,
2008 WL 1883170, * 1 (Fed. Cl. 2008) ................................ 13, 16, 19

Snyder v. United States,
63 Fed. Cl. 762 (2005) ................................................... 7

Tecon Eng'rs, Inc. v. United States,
170 Ct. Cl. 389, 343 F.2d 943 (1965), cert. denied, 382 U.S. 976 (1966) ....... passim

Thorn v. IBM,

10 1 F .3d 70 (8th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 19
Tohono 0 'odham v. United States, 79 Fed. Cl. 645 (Fed. Cl. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Toxgon Corp. v. BNFL, Inc., 312 F. 3d 1379 (Fed. Cir. 2002) . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

United States v. Brown,
333U.S. 18 (1948) ...................................................... 19
United States v. County of

Cook, ILL.,

170 F.3d 1084 (Fed. Cir. 1999) ........................................ passim

UNR Indus., Inc. v. United States,
911 F.2d 654 (Fed. Cir. 1990) ......................................... passim

UNR Indus. v. United States,
962 F. 2d 1013(Fed. Cir. 1992) ........................................ passim

Yoder v. Honeywell, Inc.,
104 F.3d 1215 (10th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

FEDERAL STATUTES
28 U.S.C. § 1404 .............................................................. 1

28 U.S.C. § 1404(a) . . . . . . . . .. . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . 3, 17
28 U.S.C. § 1446(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

28 U.S.C. § 1500 .............................................. ... . . . . . . . . . passim
v

Case 1:06-cv-00936-TCW

Document 19

Filed 07/18/2008

Page 8 of 37

28 U.S.C. § 1631 ......................................................... passim

FEDERAL RULES
RCFC 12(b)(I) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

OTHER AUTHORITIES
81 Congo Globe 40th Cong., 2d Sess. 2769 (1868) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Henr C. Black, Black's Law Dictionary (6th ed. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
David Schwartz, Section 1500 of

the Judicial Code and Duplicate Suits Against

the Governent and Its Agents, 55 Geo.L.J. 578, 597 (1967) .................... 17

Webster's Third New International Dictionary 1934 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

vi

Case 1:06-cv-00936-TCW

Document 19

Filed 07/18/2008

Page 9 of 37

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

UNITED KEETOOWAH BAND OF )
CHEROKEE INDIANS IN OKLAHOMA, )

v. )
)

Plaintiff, )
) )

No. 06-936 L
Judge Thomas C. Wheeler

THE UNITED STATES OF AMERICA, )

Defendant. ))
)

BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION UNDER 28 U.S.C. § 1500

INTRODUCTION
On December 29, 2006, Plaintiff filed cases in the United States District Court for the
Eastern District of Oklahoma (see Complaint, United Keetoowah Band of Indians in Oklahoma v.

Kempthorne, et al., No. 06-CV-559-RAW) (E.D. Okla. 2006), Dkt. 1) and in this Cour (see
Complaint, United Keetoowah Band of Cherokee Indians of

Oklahoma v. United States, No. 06-936

L (Fed. Cl. 2006), Dkt. 1). Given Plaintiffs two cases, 28 U.S.C. § 1500 divests this Court of
jurisdiction over Plaintiff s claims, if Plaintiff fails to disprove the following elements of a viable
Section 1500 defense: (1) a district court case is "pending"; (2) the two Complaints allege the same

operative facts; and (3) Plaintiff seeks the same relief in both courts. Eastern Shawnee Tribe of
Oklahoma v. United States, 2008 U.S. Claims Lexis 180,2008 WL 2554943*1 (Fed.CL. June 23,

2008), citing Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1551 (Fed. Cir. 1994). In

other words, under Section 1500, Plaintiff bears the burden of establishing that this Cour has
jurisdiction, Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1998), and it
-3-

Case 1:06-cv-00936-TCW

Document 19

Filed 07/18/2008

Page 10 of 37

has failed to car that burden in this case.

On May 27,2008, Plaintiff moved to transfer its companion case from the United States
District Cour for the Eastern District of

Oklahoma to the United States District Cour for the District

of

Columbia, pursuant to 28 U.S.C. § 1404(a). Defendants opposed the transfer motion. On June
Oklahoma granted Plaintiffs motion, and, on

19,2008, the District Cour for the Eastern District of

June 24, the action was transferred to the District Court for the District of Columbia.

The transfer of Plaintiffs companion case in the United States District Cour does not
preclude the applicability of § 1500 in this case. Notwithstanding the transfer, Plaintiffs claims in
the District Cour are deemed to have been fied as of

December 29,2006, the date on which they

were originally fied in the Eastern District of Oklahoma. See Passamaquoddy Tribe v. United
States, 2008 U.S. Claims Lexis 174*2 (Fed. Cl. June 19,2008). In other words, Plaintiffs District
Cour claims are "pending" within the meaning of Section 1500.
As explained in detail below, this case is jurisdictionally defective. Because Plaintiff filed

this case and its companion case in the United States District Cour on the same day, this Court
should consider Plaintiffs District Cour case to be "pending" for purposes of § 1500, and, on that

basis, it should dismiss this case for lack of jurisdiction. Assuming arguendo the Cour were to
decide that the precise time (as opposed to merely the date) of

fiing mattered, however, Plaintiffhas

failed to prove that it fied its complaint in this Cour first, as it must, in order to establish this
Cour's jurisdiction)!

11 On June 11, 2008, Defendant propounded limited discovery on Plaintiff so as to shed light
on the specific timing of its fiing of

the complaints in the two cases.
-4-

Case 1:06-cv-00936-TCW

Document 19

Filed 07/18/2008

Page 11 of 37

As for the second and third prongs under § 1500 analysis, the claims against Defendantl¡ in

this case and in Plaintiff s District Cour case arise out of the same operative facts, and, in both

cases, Plaintiff seeks overlapping relief in the form of an accounting and monetary damages.

Specifically, Plaintiff seeks relief related to Defendant's management and administration of
Plaintiffs trust fuds and propert (collectively, "trust assets").

Because all three prongs of § 1500 are satisfied, Plaintiff has not carried its burden to

establish jurisdiction, and, therefore, this Cour lacks subject matter jurisdiction to consider
Plaintiffs claims.

FACTUAL BACKGROUND
On December 29, 2006, Plaintiff fied a Complaint in the United States District Court for the
Eastern District of Oklahoma against the Secretary of the Interior, the Secretary of

the Treasury, and

the United States (collectively, Defendant). See copy of

Complaint attached as Exhibit No.1. On
the

the face ofthis Complaint, Plaintiff seeks a declaratory judgment that Defendant owes Plaintiff

"fiduciary obligations of a trustee at common law; "including the duty to account for the monies,
lands, and other trust assets held in trust by Defendant for Plaintiff s benefit; and that Defendant has

failed to fulfill its common law duties of trustee. Complaint ~~ 16-22. In addition, Plaintiff seeks

issuance of an injunction compellng Defendant to fulfill its trust responsibilities to Plaintiff,
including an historical accounting of

Plaintiffs trust assets. Complaint ~~ 23-26.

l¡ Defendant

notes thatPlaintiffhas named

Dirk

Kempthorne, James Cason, and

Henr Paulson

as defendants herein. 28 U.S.C. § 1500 applies equally to lawsuits against agencies and officers of the United States, as well as lawsuits against the United States itself. See UNR Indus., Inc. v. United
States, 911 F.2d 654, 660-61 (Fed. Cir. 1990) overruled on other grounds by UNR Indus., Inc. v.

United States, 962 F.2d 1013, 1018, 1021 (Fed. Cir. 1992) (en banc) ("UNR"). For that reason, § 1500 applies to the named defendants as well.
-5-

Case 1:06-cv-00936-TCW

Document 19

Filed 07/18/2008

Page 12 of 37

On June 19, 2008, the United States District Cour for the Eastern District of Oklahoma
transferred Plaintiffs case (pursuant to Plaintiffs motion to transfer filed under 28 U.S.C. § 1404(a))
to the District Court for the District of

Columbia. See copy of Order appended hereto as Exhibit No.

2. On June 24, 2008, the Complaint was filed in the District Court in D.C. Order of June 24, 2008.
Dkt. #41.

Plaintiff

filed a similar Complaint against Defendant in this Cour (also referred to herein as

"CFC") on December 29,2006. See Dkt. 1 (Complaint also attached hereto as Exhibit No.3). On
the face of

the Complaint in this case, Plaintiff seeks, among other things, monetar damages for

Defendant's breach of its fiduciary duties to Plaintiff, including the duty to provide regular
accountings of

the tribal monies, lands, and other assets held in trust by the United States and the
the Keetoowah Cherokees." CFC Complaint

"duty to safely invest the tribal fuds for the benefit of

~iì 13, 14 and 22; ~1 of Prayer for Relief

Most of

the allegations in the Complaints in this case and Plaintiffs District Court case are

verbatim the same. More importantly, the two Complaints establish an overlap in the relief sought
and are based upon the same operative facts.

ARGUMENT
I. Applicable Legal Standards

Determining whether this Cour has subject-matter jurisdiction to hear Plaintiffs claims is
a question oflaw. Toxgon Corp. v. BNFL, Inc., 312 F. 3d 1379, 1381 (Fed. Cir. 2002). Plaintiff

has

the burden of establishing that this Cour has subject matter jurisdiction to consider Plaintiffs claims.

Eastern Shawnee Tribe of Oklahoma v. United States, 2008 WL 2554943*3 ( Fed.CL. June 23,

2008), citing Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1998).
-6-

Case 1:06-cv-00936-TCW

Document 19

Filed 07/18/2008

Page 13 of 37

Section 1500 (28 U.S.C.§ 1500) provides:
The United States Cour 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 United States.

the cause of action alleged in such suit arose, was, in respect thereto, acting, or
professing to act, directly or indirectly under the authority of

(Emphasis added.) Congress enacted this provision to "force plaintiffs to choose between pursuing

their claims in the Cour of Claims (now the Cour of Federal Claims) or in another court" and to
prevent Defendant from having to litigate and defend against the same claims in both courts. UNR

Indus. v. United States, 962 F. 2d 1013, 1018, and 1021 (Fed. Cir. 1992); see also Passamaquoddy

Tribe, 2008 U.S. Claims Lexis 174* 14-52 (Fed. Cl. June 19,2008) for the historical background
of§ 1500.

As noted above, § 1500 divests this Cour of

jurisdiction over Plaintiffs claims if

Plaintiff

fails to disprove the requisite elements of a viable Section 1500 defense: (1) a District Court case

is "pending"; (2) the two complaints allege the same operative facts; and (3) Plaintiff seeks
"overlapping" relief in the two cours. See Eastern Shawnee, supra, at 5-10, citing Keene Corp. v.

United States, 508 U.S. 200,209 (1992); and Loveladies Harbor, Inc. v. United States, 27 F. 3d
1545 (Fed. Cir. 1994) (en banc), among other decisions. If this Cour rules that it lacks

jurisdiction

under § 1500, it has to dismiss this case. See, e.g., Passamaquoddy_Tribe, supra; and Snyder v.
United States, 63 Fed. Cl. 762 (2005) (granting governent's motion to dismiss pursuant to RCFC
12(b)(I) for lack of

jurisdiction under Section 1500).

II. Plaintiff's District Court Case Was "Pending" When Plaintiff Filed This Case.

Plaintiff filed both Complaints on the same day. Most of the allegations in the two
Complaints are verbatim the same. The relevant claims in both cases arise out ofthe same operative
-7-

Case 1:06-cv-00936-TCW

Document 19

Filed 07/18/2008

Page 14 of 37

facts and, in both cases, Plaintiff seeks overlapping relief against Defendant in the form of a "full

and complete" accounting and related monetary compensation. Because Plaintiff fied the two

Complaints on the same day, the case in the United States District Cour should be deemed
"pending" for puroses of § 1500, and this case should be dismissed.
A. Because the District Court Complaint Was Filed on the Same Day as this

Complaint, § 1500 Deems the District Court Complaint to Be Simultaneously Filed and, Thus, Pending.
Congress intended § 1500 to protect the United States from litigating the same claim in two
cours, so it would seem extraordinar for a plaintiff

to frustrate Congress' intent merely by fiing

the District Cour case hours, minutes, or even seconds, after the CFC Complaint was filed.
Certainly, the plain language of § 1500 suggests nothing of that sort. Nevertheless, the Federal

Circuit's jurisprudential tus have complicated the "pending claim" issue. See Passamaquoddy
Tribe, 2008 U.S. Claims Lexis 174, * 14-52 (describing the landmark precedents applying § 1500).
As explained below, however, applicable precedents, § 1500's plain

language, and § 1500's purose

indicate that complaints filed in this Cour the same day are simultaneously fied and pending for
puroses of § 1500.
1. Brief history of § 1500 's "pending" claim issue in the Federal Circuit and

Supreme Court.

The straightforward, plain language of § 1500 divests this Cour of jurisdiction whenever a
plaintiff attempts to maintain overlapping claims in this and another cour-regardless of

whether

the plaintiff

fied its complaint in the other court before, simultaneously, or after it fied its complaint

in this Cour. Indeed, the Court of Claims and the Supreme Cour interpreted § 1500 in that very
fashion by initially holding that § 1500 applied, regardless of the order in which the plaintiff fied

-8~

Case 1:06-cv-00936-TCW

Document 19

Filed 07/18/2008

Page 15 of 37

the complaints. UNR, 962 F.2d 1013, 1019 (Fed. Cir. 1992) (discussing the evolution of § 1500
jurisprudence); see also Corona Coal Co. v. United States, 263 U.S. 537, 540 (1924) (holding that

the "words of (the prior version of § 1500) are plain, with nothing in the context to make their
meaning doubtful; no room is left for construction, and we are not at libert to add an exception in

order to remove apparent hardship in particular cases.").

In Tecon Eng'rs, Inc. v. United States, 170 Ct. Cl. 389,343 F.2d 943 (1965) (Tecon), cert.

denied, 382 U.S. 976 (1966), the Cour of Claims created an exception to the plain language by
holding that § 1500 would not divest its jurisdiction when a plaintiff fied a complaint in another

court because that complaint was not "pending." Id. at 399. In Tecon, the plaintiff intentionally
sought to divest the Cour of Claims of

jurisdiction (1) by filing its complaint in District Cour after

two years and extensive pretrial proceedings in the Cour of

Claims and (2) by subsequently moving
Claims under § 1500. The Court of

to dismiss its own complaint in the Cour of

Claims rejected that

attempt by holding that subsequently-filed District Cour complaints did not divest it of jurisdiction.
Id. at 401-402. In creating this limited exception, the Tecon cour explicitly distinguished its holding
from situations in which complaints were simultaneously fied. Id. at 400-01. It acknowledged that

§ 1500 applied to those "simultaneous," or same-day, filings, citing cases that involved both same-

day fiings and even one in which the action was fied one day after filing in the Cour of Claims.
Id. at 401 n.4.

In UNR v. United States, 962 F.2d 1013(Fed. Cir. 1992), aff'd sub nom. Keene Corp. v.
United States, 508 U.S. 200 (1993) (Keene), the Federal Circuit, sitting en banc, thoroughly

reviewed the legislative and judicial history of § 1500 and concluded that the judicial exception
created in cases such as Tecon violated the plain language and the purose of §1500. Id. at 1019-9-

Case 1:06-cv-00936-TCW

Document 19

Filed 07/18/2008

Page 16 of 37

1024. In UNR, the Plaintiff

had filed its complaint in the Cour of

Federal Claims after fiing the

same claims in District Court. While the case in the Cour of Federal Claims was pending, the

District Cour dismissed its related case. UNR argued that § 1500 did not require the Court of
Federal Claims to dismiss its complaint because the District Cour case was no longer pending: the
subsequent dismissal of

the District Cour case had revived the CFC's jurisdiction.

The Federal Circuit rejected that argument. It held that, "if

the same claim is pending in

another cour at the time the complaint is fied in the Claims Cour, the Claims Cour has no
jurisdiction, regardless of

when an objection is raised or acted on. . . ." Id. at 1021. In reaching this

conclusion, the Federal Circuit applied the "time of fiing" axiom "that jurisdiction is established,

if at all, at the time suit is filed." Id. at 1022.
In an effort to rectify what it viewed as multiple errors in § 1500 jurisprudence, the Federal

Circuit went on to examine Tecon and Tecon's conclusion that a subsequently-fied District Cour
case did not divest the Claims Court of jurisdiction. See UNR, 962 F .2d at 1021 ("As can now be

seen, section 1500 is rife with judicially created exceptions and rationalizations to the point that it
no longer serves its puroses: to force an election of foru and to prevent simultaneous dual

litigation against the governent."). The Federal Circuit rejected Tecon's conclusion and held that

"Tecon is overrled." 962 F.2d at 1023. The proper rule, according to the Federal Circuit, was
simply this: "if the same claim is fied in another cour after the complaint is fied in the Claims
Cour, the Claims Cour is by that action divested of jurisdiction. . . ." Id. at 1021. In explaining
its decision to overrle Tecon, the Federal Circuit reasoned that any other interpretation would ignore

the plain language of § 1500 and eviscerate its meaning:
Section 1500 states that the "(Cour of

Federal Claims) shall not have jurisdiction of
-10-

Case 1:06-cv-00936-TCW

Document 19

Filed 07/18/2008

Page 17 of 37

any claim . . . in respect to which the plaintiff. . . has pending in any other court any suit or process." A case fied subsequent to a Claims Cour complaint is clearly a
"pending. . . suit or process." Thus, by the command that the Claims Court "shall
not have jurisdiction," upon the occurrence of in another cour, the Claims Cour is automatically divested of

the triggering event, the filing of suit jurisdiction. Congress

wanted not to dictate the order in which a claimant files suits in the Claims Cour and

another court on the same claim, but to discourage him from doing so altogether.
Otherwise the purose of saving the governent from defending the same claim in

two courts at the same time would be defeated.
UNR, 962 F.2d at 1022-23ß

When the Supreme Cour reviewed the UNR decision in Keene, it upheld the Federal
Circuit's decision that jurisdiction of the Cour of

Federal Claims should be examined based on the

time of filing and that a subsequent dismissal of the District Cour case could not re-create
jurisdiction. See Keene, 508 U.S. at 207-08. Nevertheless, the Supreme Cour explicitly refused
to consider whether the Tecon exception stil remained valid law: "We do not decide whether the
statute also continues to bar a plaintifffrom prosecuting a claim in the Cour ofF ederal Claims while

he has pending a later-filed suit in another cour 'for or in respect to' the same claim. Cf (Tecon).
As the dissenting judge (in UNR) noted below, this case does not present that issue." Keene, 508

'j The Federal Circuit explained that this conclusion did not violate the "time of

fiing" rule it had just applied in the case because that rule applies to subsequent actions ofthe paries and not to subsequent operations oflaw: "Of course, it is axiomatic that once jurisdiction attaches, subsequent

activities by the parties do not affect it. (Citation omitted) But the result here (to dismiss the complaint for lack of jurisdiction) occurs by operation of law." Id. In many other situations, subsequent events divest cours of jurisdiction. Those situations include (1) mootness, Cardinal
Chem. Co. v. Morton Int 'i, 508 U.S. 83, 97 (1993); (2) dissolution of a case or controversy, Preiser

v. Newkirk, 422 U.S. 395,401 (1975) ("The rule in federal cases is that an actual controversy must review, not merely at the time the complaint is filed." (citations omitted) be extant at all stages of (quotations omitted)); (3) appeals, Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982) ("The filing of a notice of appeal is an event of jurisdictional significance-it confers jurisdiction on

the court of appeals and divests the District Cour of its control over those aspects of the case
involved in the appeaL.") superseded by statute on other grounds as recognized in In re Markowitz,
190 F.3d455, 460 n.2 (6th Cir. 1999); and (4) removal, 28 U.S.C. § 1446(d) (divesting state cours

of jurisdiction when removing cases to federal District Cours).
-11-

Case 1:06-cv-00936-TCW

Document 19

Filed 07/18/2008

Page 18 of 37

U.S. at 209 n.4 (citations omitted).
After the Supreme Court's decision in Keene, the Federal Circuit determined that its decision
to overrle Tecon and four other cases in UNR should be considered nonbinding dicta in view of

the Supreme Court's dispensation of

the case. Loveladies Harbor, Inc. v. United States, 27 F.3d

1545, 1549 (Fed. Cir. 1994) (en banc). Then, in Hardwick Brothers Co. II v. United States, 72 F .3d
883 (Fed. Cir. 1995) (hereinafter Hardwick, in contrast to Harbuck, 378 F.3d 1324), a panel of

the

Federal Circuit reinstated Tecon without significant analysis: "Tecon Engineers remains good law
and binding on this cour." Id. at 886. However, neither Loveladies nor Hardwick addressed the

precise parameters of

when the Tecon exception should apply, and certainly did not address the issue

of same-day fiings.1'
More recently, in the context of claims filed on the same date by operation oflaw, the Federal

Circuit did not apply the Tecon exception and instead held that the claims would be considered

"simultaneously" fied and the District Court action deemed pending for purposes of §1500. In
County of

Cook, 170 F.3d at 1091, the Federal Circuit addressed the effect ofthe transfer statute, 28
, jurisdiction of

U.S.C. §1631, on the

the court. In that case, the District Cour had transferred some,

but not all, of the claims before it to the Court of Federal Claims. Under the transfer statute, a
transferred claim is deemed fied "on the date upon which it was actually fied in or noticed for the
cour from which it is transferred." 28 U.S.C. § 1631. The Federal Circuit held that the transferred
claims should be considered simultaneously-filed with the District Cour claims, and that the District
Cour claims must therefore be considered "pending" for puroses of §1500. Id. at 1090-91. See

l' Although Defendant continues to maintain that Tecon is wrongly decided and should be

overrled, this Cour does not need to reach that issue in this case because, as explained below, the Tecon exception does not apply to same-day fiings.
-12-

Case 1:06-cv-00936-TCW

Document 19

Filed 07/18/2008

Page 19 of 37

also Harbuckv. United States, 378 F.3d 1324, 1328 (Fed. Cir. 2004) (transferred claim "was deemed
filed in the Cour of

Federal Claims on the same day on which she originally filed that claim as one

of

the three counts of

her District Court complaint." (emphasis added)).

Although the Federal Circuit and Cour of Claims have never applied the Tecon exception
to same-day filings, the Court of

Federal Claims decisions have been inconsistent. In Hil v. United

States, 8 Cl. Ct. 382 (1985), the cour held that §1500 applied to claims fied on the same day,
describing the claims as being fied "simultaneous," and dismissed the suit before it. Similarly, in
Nat'l Union Fire Ins. Co. v. United States, 19 Cl. Ct. 188 (1989), the court applied § 1500 to

complaints fied on the same day, concluding that '(t)here is no argument that simultaneous fiing
of

both suits resulted in a claim 'pending' within the meaning of §1500." Id. at 189.
In the first case to apply the Tecon exception to same-day fiings, Breneman v. United States,

57 Fed. Cl. 571, 576-77 (2003) (J. Hewitt), the court declined to follow County of

Cook and used

affidavits to determine the order of

fiing within the day. Two other recent decisions from the Cour

of Federal Claims, Salt River Pima-Maricopa Indian Community v. United States, 2008 WL

1883170, * 1 (Fed. Cl. 2008) (J. Baskir) and Ak-Chin Indian Community v. United States, 80 Fed.
Cl. 305 (2008) (J. Hewitt), similarly applied the Tecon exception and held evidentiar hearings to
determine the order of

fiing for complaints filed the same day.

Most recently, in Passamaquoddy Tribe, the court conducted a very thorough review ofthe
history of § 1500 jurisprudence and correctly concluded as a matter of law that § 1500 applies to
same-day filings regardless of the precise order in which the plaintiff

fied the cases on that day. See

-13-

Case 1:06-cv-00936-TCW

Document 19

Filed 07/18/2008

Page 20 of 37

2008 U.S. Claims Lexis 174, *24-34, *51.2 As discussed below, this Cour should follow the
precedent of the Federal Circuit, and the persuasive reasoning of

the cour in Passamaquoddy, and

hold that same-day fiings are pending for puroses of § 1500.

2. The plain language of § 1500, the intent of § 1500, and relevant Federal

Circuit decisions addressing same-day filings deem the District Court
Complaint simultaneously-filed, and, therefore, pending at the time Plaintif

filed the CFC Complaint.

As discussed above, every decision from the Federal Circuit or its predecessor that has
applied § 1500 in the context of same day filings has reached the same result: the District Court case
has been deemed pending for puroses of § 1500. See County of Cook, 170 F .3d at 1091 ("the
'fiing' of the same claim in the District Cour and the Court of

Federal Claims by operation of28

U.S.C. § 1631 deprives the latter cour of

jurisdiction pursuant to § 1500."); Harbuck v. United
claim under

States, 378 F.3d 1324,1328 (Fed. Cir. 2004) (transferred

28 U.S.C. § 1631 was deemed

fied in the Cour of

Federal Claims on the same day on which she originally filed that claim as one

of

the three counts of

her District Cour complaint." (emphasis added)). Two earlier decisions of

the United States Cour of Claims reach the same result, but without the same level of analysis found
in the County of Cook case. See British American Tobacco Co. v. United States, 89 Ct. Cl. 438

(1939) (dismissing petition filed in the Cour of Claims under the statutory predecessor to section
1500 where the plaintiff

had fied the same claim seeking the same relief on the same day in federal

District Cour), cert. denied, 310 U.S. 627 (1940); Natl Cored Forgings Co. v. United States, 132
Ct. Cl. 11, 132 F. Supp. 454 (Ct. Cl. 1955) (dismissing complaint fied in the Court of

Claims under

s¡ In the alternative, "the (Passamaquoddy) cour did not find (the plaintiffs witness's)
testimony to be either persuasive or credible," so it concluded that Plaintiff had not caried its evidentiary burden of establishing jurisdiction by proving plaintiff filed in the Cour of Federal
Claims first. Id. at * 80-81.

-14~

Case 1:06-cv-00936-TCW

Document 19

Filed 07/18/2008

Page 21 of 37

section 1500 where the plaintiff

had filed a complaint asserting the same claims in federal District

Cour on the same day).
These cases are entirely consistent with the decision in Tecon, which by its own terms does
not apply to claims fied on the same day. In Tecon, the court established the category of

"simultaneous" fiings, and quickly distinguished the facts in the case before it from the facts of

the

cases in that category. It recognized that

(t)he cases cited by plaintiffs (and the other relevant cases) are not particularly
germane to our resolution of the correct interpretation of

Section 1500, with respect

to the facts of this case. For the most part the cases involve situations where suit was fied in another cour prior to, or simultaneous with,4 the filing ofthe petition in this

cour.
4 (British Am. Tobacco Co. and Natl Cored Forgings Co.); also see Hobbs

v. United

States, 168 (Ct.) Cl. 646 (1964), which suit in the Fifth Circuit was filed one day after the petition was fied in this cour.
170 Ct. Cl. at 400-01 (footnote omitted) (emphasis added). From Tecon's footnote four, one can see

that Tecon did not intend its rule to apply to complaints filed on the same day. First, although the

plaintiffs in British Am. Tobacco Co. and Nat'l Cored Forgings Co. filed their cases on the same
day, but not at the same instant, the Tecon court categorized those cases as "simultaneous(ly)" fied.

Second, although the plaintiff in Hobbs fied a related action in another court one day later, Tecon
approvingly cited Hobbs in support of applying § 1500 to divest jurisdiction over simultaneously-

filed complaints. Thus, Tecon's own language does not extend the exception it created to claims
filed on the same day in the Court of

Federal Claims and in another cour.

In the recent Passamaquoddy decision, the cour properly analyzed Tecon and the related
precedents in concluding that same day filings must be considered "pending" for purposes of § 1500

-15-

Case 1:06-cv-00936-TCW

Document 19

Filed 07/18/2008

Page 22 of 37

analysis. Passamaquoddy, 2008 U.S. Claims Lexis 174, at *14-52. Unlike Passamaquoddy, the
other recent Cour of

Federal Claims cases that have applied the Tecon exception to same-day filings

did not address the limitations placed on the exception by Tecon itself nor the other post-Tecon
cases§¡ that applied § 1500 to same-day filings. Instead, the decisions opined that the County of

Cook

and Harbuck decisions only apply to situations in which the cases are deemed fied simultaneously
as a matter oflaw (i.e., pursuant to the transfer statute).2 But neither the language of

the transfer

statute nor the rationale used by the Federal Circuit in County of Cook supports this dismissive

treatment of the cases.

First, the transfer statute does not direct that the transferred claims be deemed fied
"simultaneously" with the district claims. Instead, it provides that a transferred claim is deemed fied

"on the date upon which it was actually filed in or noticed for the cour from which it is transferred."
28U.S.C. § 1631 (emphasis added). In County of Cook, the Federal Circuit properly interpreted

this

provision to mean that the claims should be considered "simultaneously" filed because they were
deemed fied on the same date. Similarly, in Harbuck the Federal Circuit did not say that the

§¡ See Nat

'I Union Fire Ins. Co. v. United States, 19 Cl. Ct. 188, 189 (CL. Ct. 1989) ("There both suits resulted in a claim 'pending' within the meaning of § 1500. Nor is this a case in which the plaintiff fied its action in District Cour after commencing suit in the Claims Court, as (in Tecon)."); Hil v. United States, 8 Cl. Ct. 382, 385-86 (CL. Ct. 1985)
is no argument that simultaneous filing of

(finding that plaintiff declared that, by filing its complaints on the same day, it fied them
"(s)imultaneous(ly)," so the District Cour complaint was pending).
7J In Breneman, 57 Fed. Cl. at 577 (Fed. Cl. 2003), the cour reasoned that County of

Cook applies only to situations in which § 1631 deems cases filed literally simultaneously as a matter of law. See 57 Fed. Cl. at 577 ("at the time. . . "); see also Salt River Pima-Maricopa Indian Cmty., 2008 WL 1883170, *4-5 (relying on Breneman and Ak-Chin Indian Cmty. to conclude that a District Cour complaint filed the same day is not pending for puroses of § 1500); Ak-Chin Indian Cmty., 80 Fed. Cl. at 308 n.4 ("Defendant argues, without precedential authority, that an action in another

court should be deemed "pending" if it was fied on the same day as a complaint in this court."
(quotations omitted)).

-16~

Case 1:06-cv-00936-TCW

Document 19

Filed 07/18/2008

Page 23 of 37

complaints were filed on the same instant by operation of

the transfer statute. Its factual finding was

that the Cour of

Federal Claims action was deemed fied "on the same day on which she originally

filed that claim as one of the three counts of her District Court complaint." 378 F.3d at 1328
(emphasis added). Based on this finding that the complaints were fied "on the same day," the
Federal Circuit held that the claims were simultaneously fied and thus subject to dismissal under
§1500.

Moreover, in deciding that claims submitted on the same date should be construed as falling
within § 1500, the Federal Circuit did not rely on the technicalities of

the transfer statute but instead

explained that its ruling was needed to effectuate the purose of § 1500, which is to protect the

United States from having to defend two lawsuits simultaneously:
(W)e endeavor to fuher the established policies of § 1500, which are "to force plaintiffs to choose between pursuing their claims in the Court of (Federal) Claims or in another cour," UNR (Industries, Inc. v. United States J, 962 F.2d (1013,) 1018
((Fed. Cir. 1992)) (citing the legislative history ofthe original version of § 1500, 81

Congo Globe, 40th Cong., 2d Sess. 2769 (1868), and to "protect the United States

from having to defend two lawsuits over the same matter simultaneously," id.. at
1019. . .. These policies are promoted by precluding jurisdiction in the Cour of

Federal Claims over claims which had been previously fied in the District Cours,

and nothing suggests that these policies would not similarly be promoted by
precluding jurisdiction in the simultaneous fiing context.
Id. at 1090-91 (emphasis supplied). Given this rationale, there is no valid reason to narrowly
construe County of Cook and Harbuck as limited

to cases involving the operation of the transfer
the Federal

statute. Accordingly, consistent with language and intent of § 1500, and the decisions of

Circuit in County of Cook and Harbuck, this Cour should conclude - as did the court in
Passamaquoddy - that a District Cour action filed the same day as the action in the CFC must be
deemed pending for puroses os § 1500, regardless ofthe precise order of

the filings within the day.

-17-

Case 1:06-cv-00936-TCW

Document 19

Filed 07/18/2008

Page 24 of 37

3. A broad interpretation of the Tecon exception to include same-day filings
would eviscerate the purpose of §1500.

The exception created in Tecon, if applied sweepingly, would completely eviscerate the
purpose of § 1500, which is to prevent the United States from litigating against the same claims
simultaneously in two cours. The Federal Circuit explicitly recognized that fact when it originally

overtrned Tecon in UNR Industries. Although the Federal Circuit has reinstated Tecon as good case

law, and opined in gratis dictum not to limit Tecon to its facts, Hardwick, 72 F.3d at 886, no
rationale exists for extending Tecon to same-day fiings. See BLACK'S LA W DICTIONARY 465 (7th

ed. 1999) (defining gratis dictum as "(a) cour's stating of a legal principle more broadly than is
necessary to decide the case").

As discussed previously, Tecon by its own terms does not extend to same-day filings, and
there is no valid rationale for extending the Tecon exception. As the Federal Circuit stated in UNR,

Tecon is an "aberrational case" that does not comport with the plain language and purpose of § 1500ß

UNR, 962 F.2d at 1023. Nothing in § 1500 suggests that this Cour's jurisdiction depends on the

precise instant at which plaintiffs fie their complaints in two cours, and Congress cannot have

intended the absurd effect of forcing the parties and this Cour to spend time and money on
§¡ The Federal Circuit in UNR also recognized that the Tecon exception was created to address
egregious conduct of

the Plaintiff. 962 F.2d at 1020. In Tecon, the plaintiffs intentionally sought

to extinguish CFC jurisdiction after lengthy pretrial proceedings had been completed and a trial date
set. As explained by the Federal Circuit, "An exasperated Cour of Claims retained

jurisdiction so

it could dismiss the case with prejudice for failure to prosecute." Id. In fact, the plaintiffs conduct in Tecon was so outrageous that the United States advocated for the limited exception created by the Cour of Claims in that case. See Br. ofResp. at 38-39 n.19, Keene Corp. v. United States, No. 92166 (U.S. Jan. 1993), attached as Exhibit NO.4. However, when Keene was decided, the United States recognized that the Tecon rule did not comport with either the language or purpose of § 1500, and it argued to the Supreme Court that the Federal Circuit's was correct in overruling Tecon
because the order of fiings is irrelevant for the puroses of § 1500. Br. of

Resp. at 36-38, Keene

Corp, No. 92-166.
-18-

Case 1:06-cv-00936-TCW

Document 19

Filed 07/18/2008

Page 25 of 37

evidentiary proceedings to investigate the precise moments a plaintiff fied each complaint. See
Passamaquoddy Tribe, 2008 U.S. Claims LEXIS 174, *52 ("construing § 1500 to require the taking

oflive testimony from paralegals and filing clerks borders on the absurd."); United States v. Brown,

333 U.S. 18,27 (1948) ("No rule of construction necessitates our acceptance of an interpretation
resulting in patently absurd consequences."). The Passamaquoddy Tribe cour determined the order

of filing by examining, inter alia, testimony of paralegals and cour clerks, emails, affidavits,
interrogatories, transcripts, receipts, and docket numbers. Id. at *7, 54-81. That cour expressed

incredulity that the Ak-Chin Indian Cmty. and Salt River Pima-Maricopa Indian Cmty. courts
"ordered discovery, briefing, a formal evidentiary hearing for receiving the testimony ofplaintiffs

paralegal, . . . an informal hearing regarding filing procedures in this cour, and post-hearing
briefing." Id. at *10-11, 52 (footnotes omitted).

If this Court extends Tecon improperly to same-day fiings, the observations of a
commentator concerning Tecon would be particularly apt: "Section 1500 does not belong on the

books if, as the result in Tecon would indicate, it may readily be evaded by the informed, and
remains a trap only for those unfamilar." David Schwartz, Section 1500 of

the Judicial Code and

Duplicate Suits Against the Government and Its Agents, 55 GEO.L.J. 578, 597 (1967). 2J

2J As noted previously, on June 24, 2008, the United States District Cour for the Eastern District of Oklahoma transferred Plaintiffs companion case (at Plaintiffs request, pursuant to 28

U.S.C. § 1404(a)) to the United States District Cour for D.C. While the date of fiing in the transferee cour was June 24, 2008, the date of the original filing in the District Cour is stil
December 29,2006, i.e., the date of the filing of Plaintiff s companion case in the Eastern District of Oklahoma. See Thorn v. IBM, 10 1 F .3d 70 (8th Cir. 1996)( assessing a statute oflimitations dateof-filing based on the date fied in the transfer court); Yoder v. Honeywell, Inc., 104 F.3d 1215 (10th

Cir. 1997) (same). In other words, Plaintiff s District Court case and this case were filed
"simultaneously," which means that Plaintiffs District Cour case is deemed "pending" within the meaningof§ 1500. Cf. UNR v. United States, 962 F.2d 1013,1021-22 (Fed. Cir. 1992)(holdingthat
(continued... )

-19-

Case 1:06-cv-00936-TCW

Document 19

Filed 07/18/2008

Page 26 of 37

B. Even if Tecon Applies to Two Complaints Filed Simultaneously, Plaintiff Has Not Carried Its Burden to Establish Jurisdiction.
Even if Tecon applies to complaints fied upon the same day, Plaintiff

has failed to carr its

burden to establish

jurisdiction. See Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748

(Fed. Cir. 1988). In the context of § 1500, Plaintiff

must establish that the District Cour case was

not pending at the time Plaintiff fied its Complaint in this Cour. See id.
Aware that Tecon might be held to apply in this case, on June 11,2008, Defendant served

Requests for Production of Documents on Plaintiff, seeking documents that would establish the

precise time at which each of the Complaints in Plaintiffs two cases was filed on December 29,
2006. Plaintiff responded to Defendant's production requests on July 17,2008; the responses were

received on July 18thlQ. In the event that the Cour rules that Tecon applies in this case, Defendant
requests that the Cour conduct an evidentiary hearing for the purpose of determining the order in

which the two complaints were filed, but that, for reasons of judicial economy and efficiency, the

Cour not schedule such an evidentiary hearing, at least until after Plaintiff has responded to
Defendant's requests for production.

2/(.. .

continued)

District Court complaint fied first was "pending" for § 1500 puroses, even though it was
subsequently dismissed, while the suit fied in the CFC was stil before the CFC because the "time
of fiing" determines jurisdiction). There is no language in the County of Cook opinion that
indicates that the term "simultaneous "refers only to claims transferred pursuantto 28 U. S. C. § 1631,

and not to any other tyes of "simultaneous"- or same-day fiing of the same claims in a federal

district court and the CFC. In such a situation, the District Court claims are deemed "pending" within the meaning of § 1500, and the claims in the CFC should be dismissed.
lQ Plaintiff objects to all four requests for production because they see "documents protected by the
attorney-client privilege and! or work product doctrine." As to two of the requests, Plaintiff states that it "wil produce any non-privileged documents within its possession, custody or control that maybe states it has reasonably responsive" but "subject to and without waiving (its)...objections." Plaintiff no responsive documents as to the other two requests.
-20-

Case 1:06-cv-00936-TCW

Document 19

Filed 07/18/2008

Page 27 of 37

III. Plaintiff's District Court and CFC Complaints are Based on the Same Operative Facts.

After establishing that the District Cour Complaint is pending, this Court has to analyze
whether the claims are for or "in respect to" claims "the plaintiff. . . has pending in any other cour
. .. ." 28 U.S.C. § 1500. A claim is one "for. . . which" a plaintiff

has a suit or process pending

in another court if the claims are identicaL. By using the phrase "for or in respect to which,"
Congress intended § 1500 to apply both to identical claims and more broadly to claims "in respect
to" the suit or process. A claim is "in respect to" a suit or process if it "relate

( s) to" or is "concerned

with" the suit or "ha( s) regard or reference to the suit. Webster's Third New International Dictionary
1934 (1986). Cf Lemon v. Kurtzman, 403 U.S. 602, 612 (1971) (discussing meaning of

the word

"respecting" in the Establishment Clause of

the First Amendment). See Keene, 508 U.S. at 212-14

("Congress did not intend the statute to be rendered useless by a narrow concept of identi ( cal claims)

providing a correspondingly liberal opportity to maintain two suits arising from the same factual
foundation. ").
Accordingly, the language of § 1500 bars this Cour from assuming

jurisdiction over a claim

if plaintiff has a related claim pending in another cour. Determining whether claims are rela~ed
'''requires a comparison between the claims raised in the Cour of

Federal Claims and in the other
Loveladies, 27 F.3d at 1549). Such a

lawsuit.'" See Harbuck, 378 F.3d at 1329 (quoting

comparison

involves evaluating the complaints fied in each cour. See Loveladies, 27 F.3d at 1553-54
(comparing District Court and CFC complaints).

The Court of Claims and the CFC have consistently defined the term "claim" for puroses

of a § 1500 analysis to tu on operative facts, rather than on legal theories. See, e.g., JohnsManvile Corp. v. United States, 855 F.2d 1556, 1562 (Fed. Cir. 1988); Eastern Shawnee, NO.1 :06-21-

Case 1:06-cv-00936-TCW

Document 19

Filed 07/18/2008

Page 28 of 37

cv-00917-CFL, 2008 U.S. Claims Lexis 180, *12,2008 WL 2554943, *4 (Fed. Cl. Jun. 23, 2008)
("Eastern Shawnee asserts that the basis of

the District Cour complaint is the failure to provide an

adequate accounting, while the complaint in this court addresses the failure of the governent
properly to manage monetar and non-monetary trust assets. This proffered distinction is not

persuasive in light of prior precedents.") (citation omitted). Furher, Plaintiff need not plead
identical operative facts. It is sufficient that they are substantially the same. Johns-Manvile Corp.,
855 F.2d at 1559 (dismissing a case under § 1500 in a situation in which the "facutal allegations in
the Claims Court cases overlay the factual allegations" in the District Cour cases); Passamaquoddy

Tribe, Lexis at *89-90.
In the words of this Cour in Eastern Shawnee, a comparative reading of

the District Cour

and CFC Complaints confirms that they are both based on substantially the same facts:

(T)he claims in the case in the District Cour and in the instant action are basically
different manifestations of the same underlying claim that the governent failed properly to administer and manage (Plaintiff s) trust land and assets. The two claims involve the same parties, the same trust corpus, and the same breach of the same trust duties over the same time period. The only apparent factual difference is a narower focus on the accounting aspects ofthe alleged breaches of trust duties in the District Cour complaint. . . .

The governent's role here is essentially the same, properly to manage and account
for the tribe's trusts and assets. The conduct alleged in the District Court case of failing to provide a full and accurate accounting is encompassed within the averments

of the instant case, which addresses "the failure of the CFC defendants to properly

manage monetary and non-monetar trust assets." Both actions turn on the
governent's past actions related to its management and administration of

(Plaintiff s) same tribal trust lands and assets. Indeed, both suits specify that (Plaintiff) seeks an accounting to determine whether, and to what extent, the Tribe has suffered losses as a result of the governent's breaches of trust.
Eastern Shawnee, Lexis at * 13-14,15-16; WL at * 5

(citations omitted); see also Loveladies, 27 F.3d

at 1551-52; Keene Corp., 508 U.S. at 212-14; Tohono O'odham, 79 Fed. Cl. at 657. Four courts
-22~

Case 1:06-cv-00936-TCW

Document 19

Filed 07/18/2008

Page 29 of 37

have previously considered cases on similar facts and complaints; all found that plaintiffs demanded
substantially the same relief on the same operative facts. See Ak-Chin Indian Cmty., 80 Fed. Cl. 305
(Fed. Cl. 2008); Tohono 0 'odham, 79 Fed. Cl. 645 (Fed. Cl. 2007); Eastern Shawnee,;

Passamaquoddy, 2008 U.S. Claims Lexis 174, *1.
Nearly all of

the factual allegations in the two Complaints are absolutely identicaL. Compare

District Cour Complaint, ~~ 1-3, 6-21,23 with CFC Complaint ~~ 1-3, 6-21, 22. The basic trust of
these allegations is that the United States, as trustee, breached fiduciary duties owed to Plaintiff, as
trustee beneficiary, by failing properly to account for and manage Plaintiffs trust assets. Compare

District Cour Complaint ~~ 1,3, 8-12, 13-15,21-26 with CFC Complaint ~~ 1, 3, 6-22. See Tohono
o 'odham, 79 Fed. Cl. at 652, 656 (concluding that the complaints were based on the same operative

facts, where "(t)he two complaints clearly involve the same parties, the same trust corpus, the same

asserted trust obligations, and the same asserted breaches of trust over the same period of time").
The court in Ak-Chin analyzed similar facts as follows:
The court wil be required to review the governent's alleged failure to maintain records and account for plaintiff s trust propert by considering any existing records

related to the governent's collection, handling, and investment ofthe CommUnity's
trust fuds and propert. The nature ofIndian trust cases and the governent's trust

responsibility owed to Indian tribes does not lend itself to a simple delineation or separation of operative facts as they pertain to the governent's various duties owed to Indian tribes. It is not apparent to the cour how it could address facts related to

the governent's duty to invest and deposit plaintiff s trust fuds without considering the facts related to the governent's overall trust obligations owed to
plaintiff, including its duty to account. It is simply not the case that there are two

different and separate sets of trust duties described in plaintiffs District Cour
complaint and its Cour of

Federal Claims complaint.

80 Fed. Cl. at 319-20.
In this case, the facts underlying the allegations raised by Plaintiff in its CFC Complaint are

-23-

Case 1:06-cv-00936-TCW

Document 19

Filed 07/18/2008

Page 30 of 37

identical to those raised by Plaintiff in its District Court Complaint with the exceptión of the
allegations in ~ 22 of

the District Cour Complaint. Both complaints relate to the same trust assets.

Plaintiff alleges the Defendant mismanaged the very same resources and propert - - that is, "certain

monies, lands and other assets."

Both complaints are also based on the identical trust obligations for Defendant. Plaintiff
alleges in both complaints that Defendants's trust obligations include, but are not limited to: (1)
protecting, preserving, managing, and investing trust assets, including trust fuds and trust propert
(compare District Cour Complaint ~~ 9, 10 with CFC Complaint ~~ 9, 10; (2) maintaining accurate

records (compare District Cour Complaint ~~ 9 with CFC Complaint ~ 9); and (3) providing
accurate and timely reports to account holders (compare District Cour Complaint ~~ 9-11 with CFC
Complaint ~~ 9-11).
Moreover, Plaintiff has sued the same defendants in both cases (compare caption of

District

Cour Complaint and caption of CFC Complaint), and it bases its claims in both cases on the fact

that it is the beneficial owners of land and natural resources held in trust by the United States
(compare District Court Complaint ~ 17 with CFC Complaint ~ 17).

As the preceding comparisons have shown, the same operative facts underlie both
complaints.
iv. Plaintiff's District Court and CFC Complaints Contain Overlapping Claims for Relief.

Just as the operative facts need not be identical for a claim to be the same, the relief sought
also does not need to be identicaL. See Harbuck, 378 F.3d at 1329; see also Eastern Shawnee, Lexis
at * 17, WL at *6 ("Thus, the inclusion of other and different requested relief does not bar application
of Section 1500"). As in Eastern Shawnee, the relief

in substance in this case and Plaintiff s District
-24-

Case 1:06-cv-00936-TCW

Document 19

Filed 07/18/2008

Page 31 of 37

Court case wil be the same. The complaints in the District Cour and the CFC contain overlapping

claims for relief related to the alleged breach of fiduciar duties owed to Plaintiffby the governent.
See Eastern Shawnee, Lexis at *17-18, WL at *6 ("Accordingly, while Eastern Shawnee correctly
asserts that it does not specifically make a request for money damages in District Cour, in substance

the requested relief overlaps with the request for money damages in this cour."); Keene, 508 U.S.
at 212.

In its District Cour Complaint, Plaintiff expressly seeks several different forms of relief,
District Court Complaint, Prayer for Relief~~ 1-5 (a declaration delineating the trust duties which
Defendant owes to the Band; a declaration that Defendant has breached these duties, including the
duty to provide the Band with accountings of its tribal trust assets at regular intervals; an injunction

requiring defendant to fulfill its trust duties; and "an award of damages in excess of $1 ,000,000 to

the Keetoowah Cherokees in an amount to be determined at trial . . . ." In its CFC Complaint,
Plaintiff expressly seeks the same relief. See CFC Complaint, Claim for Relief~ 1 (requesting "an
award of damages in excess of $1,000,000 in an amount to be determined at trial. .. "which

necessitates an accounting in aid of judgment). As shown earlier, the text of § 1500 requires only
that the relief sought here is "related to" or is "concerned with" the claims in the District Cour. The

relief must merely be the same in natue, such as monetar or injunctive. Harbuck, 58 Fed. Cl. at

269. This Cour recently found unpersuasive a distinction by plaintiff between a request for
equitable and monetary relief:
Eastern Shawnee contends that it does not seek the same relief in the actions because

the relief sought in District Court is solely equitable and the relief sought here is solely monetary. However, in substance the relief sought in the two complaints, an

accounting and reimbursement for losses resulting from mismanagement, is
overlapping. As explained below, if

Eastern Shawnee were to establish liability for
-25-

Case 1:06-cv-00936-TCW

Document 19

Filed 07/18/2008

Page 32 of 37

breaches of trust in this proceeding, an accounting would be required, and that accounting would overlap with the accounting available in equitable proceedings
such as the case brought in District Court.

Eastern Shawnee, NO.1 :06-cv-00917-CFL, at 8 (citations omitted). As the cour stated in Tohono
o 'odham, "the inquiry is whether there is meaningful overlap both in the underlying facts and in the

relief sought in the two actions. A perfect symmetry of demands for relief is not necessary." 79 Fed.

Cl. at 657; see also Keene, 508 U.S. at 212-14.
Under the foregoing circumstances, § 1500 divests this Cour of jurisdiction because Plaintiff

pursues overlapping claims in more than one foru. See Harbuck, 378 F.3d at 1329. For § 1500
puroses, "the legal theory behind the allegations or the characterizations of the requests for relief

are not controllng." Tohono 0 'odham, 79 Fed. Cl. at 656. Here, there is no doubt that the same
facts are relevant, namely, Defendant's management of

Plaintiff s trust assets, and that the relief that

Plaintiff seeks overlap, i. e., both cases are based on Defendant's alleged breach of

the same fiduciary

duties, Plaintiff s request for an accounting, and Plaintiff s desire or reimbursement for losses caused

as a result of Defendant's alleged breaches of its trust duties.

A. Both Complaints Indicate That Plaintiff Seeks an Accounting.
In the District Cour, Plaintiff seeks an accounting. District Cour Complaint ~~ 1, 20-22,
24-26, Prayer for Relief~3. It also seeks an accounting in this Cour. See CFC Complaint, ~ 20 (an
accounting must "contain suffcient information for the beneficiary to readily ascertain whether the trust has been faithfully caried out."). See Eastern Shawnee, Lexis at * 18-19, WL at *7 ("In short,

once liability has been established, the equitable 'relief of an accounting is a necessary precursor
to an award of damages. Moreover, this is not a situation where jurisdiction over an equitable

accounting rests with District Cours while this cour is barred from undertaking an accounting.
-26-

Case 1:06-cv-00936-TCW

Document 19

Filed 07/18/2008

Page 33 of 37

Instead, this cour has the authority 'to require an accounting in aid of its jurisdiction to render a
money judgment.'''); Tohono O'odham, 79 Fed. Cl. at 659.

Plaintiff asks the District Cour to compel Defendant to provide a full and complete
accounting of the trust assets, see District Cour Complaint, Prayer for Relief ~ 3. The District
Court Complaint anticipates that the accounting sought by Plaintiffin the District Cour wil provide

the factual predicate for the alleged breaches of fiduciary duty committed by Defendants.
Plaintiff anticipates achieving the same accounting result in the CFC Complaint by claiming

that it has "been damaged by the United States' breach of its fiduciar duties to the tribe in an
amount to be determined at trial, but which, upon information and belief, exceeds $1,000,000." CFC

Complaint, ~ 22, which this Cour would have to provide through an accounting in aid of
judgment.il See Eastern Shawnee, Lexis at *19, WL at *7 (citing Klamath & Modoc Tribes v.
United States, 174 Ct. Cl. 483,490-91 (1966); Tohono 0 'odham, 79 Fed. Cl. at 59; see also CFC
Complaint, ~~ 27-28.

Plaintiff did not limit its CFC Complaint to a request for monetary reliefbecause it also seeks

"such other and further relief as may be just and equitable." CFC Complaint, Claim for Relief~ 2
(emphasis added). The plain language of

Plaintiffs CFC Complaint belies any notion that its own

terms limit it exclusively to a request for damages. See CFC Complaint ~~ 9-14, 20-22. The Court
need not assess whether it is empowered to grant such relief as Plaintiff is requesting here under the

Tucker Act or