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

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In the United States Court of Federal Claims
No. 06-942 L (Filed June 19, 2008) * * * * * * * * * * * * * * PASSAMAQUODDY TRIBE, Plaintiff, v. THE UNITED STATES, Defendant. * * * * * * * * * * * * * * Tribal Trust Claims; 28 U.S.C. § 1500 (2000); RCFC 12(b)(1); Whether Same-Day Filings are Per Se Pending for the Purposes of Section 1500; More Weight Given to Contemporaneous Documentary Evidence than to Inconsistent Testimony Provided During Litigation; Substantially the Same Operative Facts; Overlapping Requested Relief that is Not Distinctly Different.

* * * * * * * * * * * * * *

Keith Harper, with whom were G. William Austin and Catherine F. Munson, Washington, D.C., for plaintiff. Laura M.L. Maroldy, United States Department of Justice, with whom was Ronald J. Tenpas, Assistant Attorney General, Washington, D.C., for defendant. Thomas Kearns and Elisabeth Brandon, Office of the Solicitor, United States Department of the Interior, Teresa E. Dawson, Office of the Chief Counsel, Financial Management Service, United States Department of the Treasury, and Kevin Regan, United States Department of Justice, Washington, D.C., of counsel. __________________________

OPINION _______________________
Bush, Judge.

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The court has before it Defendant's Motion to Dismiss Pursuant to 28 U.S.C. § 1500, for which an evidentiary hearing was held February 1, 2008. Briefing on defendant's motion was re-opened for simultaneous post-hearing sur-reply briefs, filed on March 20, 1998. For the reasons stated below, defendant's motion to dismiss for lack of jurisdiction is granted and plaintiff's complaint in this court must be dismissed, without prejudice. BACKGROUND On December 29, 2006, the last day the Clerk's Office of the United States Court of Federal Claims (COFC or CFC) was open for business in 2006, plaintiff filed a complaint (Compl. or Passamaquoddy COFC) before this court requesting damages for breaches of trust by the United States. The same day, plaintiff filed a complaint (DDC Compl. or Passamaquoddy DDC) in the United States District Court for the District of Columbia (DDC) also requesting relief related to breaches of trust responsibilities by the United States. See Passamaquoddy Tribe of Maine v. Kempthorne, No. 1:06-cv-02240-JR. The court must determine whether 28 U.S.C. § 1500 (2000), in the circumstances of these filings, removes jurisdiction over plaintiff's claims in the subject matter. The relevant text of the statute is reproduced here: The United States Court of Federal Claims shall not have jurisdiction of any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United States . . . . Id. Putting aside, for the moment, the question of whether the claim in another court must be the same or, alternatively, merely have some overlap with the one filed in this court, as a general proposition the jurisdictional bar in § 1500 is triggered when there is a pending claim in a district court at the time the "same" claim is filed in this court. Plaintiff's counsel has now faced § 1500 challenges to three other tribal trust cases he filed in this court on December 29, 2006, for different tribal plaintiffs. The underlying facts of these multiple filings, and the decisions made on the § 1500 issue in these cases, are necessary to the court's analysis in the subject matter. The court briefly discusses the facts of each of the cases filed here by plaintiff's 2

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counsel on December 29, 2006, and the disposition of the § 1500 jurisdictional challenges decided thus far. The court undertakes a more thorough examination of the evidentiary disputes related to these cases infra. Tohono O'odham Nation v. United States, No. 06-944 L Unlike the other cases filed here by plaintiff's counsel on December 29, 2006, Tohono O'odham Nation v. United States, No. 06-944 L (Tohono O'odham COFC), posed no dispute, factual or legal, as to whether a case was pending in the United States District Court for the District of Columbia at the time the Tohono O'odham case was filed here. On December 28, 2006, plaintiff's counsel filed Tohono O'odham Nation v. Kempthorne, No. 1:06-cv-02236-JR (Tohono O'odham DDC), in the district court. The next day, December 29, 2006, Tohono O'odham COFC was filed here. Thus the suit in the district court was pending, for one day, when Tohono O'odham COFC was filed in this court, and the only issue before the court was whether the overlap in claims was sufficient to defeat jurisdiction here. See Tohono O'odham Nation v. United States, 79 Fed. Cl. 645, 654 (2007) (Tohono O'odham I) ("The feature of section 1500 that is controverted here is the question of whether the complaints involve the same "`claim.'"), appeal docketed, No. 08-5043 (Fed. Cir. Feb. 20, 2008). After a detailed comparison of the operative facts alleged in each suit and the types of relief requested from the district court and this court, the Tohono O'odham I court concluded that indeed the claims overlapped sufficiently to trigger the jurisdictional bar of § 1500. See id. at 659 ("There is plainly substantial overlap in the operative facts as well as in the relief requested. That being the case, unfortunately for plaintiff, section 1500 is a bar."). Tohono O'odham COFC was dismissed for lack of jurisdiction. The court commented: "We recognize that, if the filing dates of the complaints had been reversed, section 1500 would not be a problem and the two courts would use traditional principles of comity, collateral estoppel, and res judicata to sort out any duplication." Tohono O'odham I, 79 Fed. Cl. at 659 n.16. Ak-Chin Indian Community v. United States, No. 06-932 L For this tribal plaintiff, counsel filed two complaints on December 29, 2006. One, Ak-Chin Indian Community v. United States, No. 06-932 L (Ak-Chin COFC), 3

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was filed in this court. The other, Ak-Chin Indian Community v. Kempthorne, No. 1:06-cv-02245-JR (Ak-Chin DDC), was filed in the United States District Court for the District of Columbia. The parties hotly disputed whether the district court filing was pending when the Ak-Chin COFC complaint was filed in this court. The parties also differed as to whether the operative facts and relief requested overlapped enough to potentially trigger the § 1500 jurisdictional bar. A brief review of both of these disputes is instructive. As to whether Ak-Chin DDC was pending when Ak-Chin COFC was filed, this type of dispute poses two questions, one legal, and one evidentiary. First, does the term "has pending," as used in § 1500, require a court to examine the order of filing for same-day filings, or, do two same-day filings in and of themselves, regardless of the order of filings on that day, satisfy the statutory element of having a suit pending in another court, which would then deprive this court of jurisdiction over its case if the other elements of § 1500 are met? The court in Ak-Chin disposed of this question rather succinctly: Defendant argues, without precedential authority, that "an action in another court should be deemed `pending' if it was filed on the same day as a complaint in this court." The court respectfully disagrees and will not further address the issue in this Opinion. Ak-Chin Indian Cmty. v. United States, 80 Fed. Cl. 305, 308 n.4 (2008) (Ak-Chin I) (citation to defendant's brief omitted). The court will return to this legal question, infra. Assuming, arguendo, that the order of filing of two same-day filings must be established to determine whether the "has pending" element of § 1500 is satisfied, some level of evidentiary inquiry is required if the parties cannot agree as to the sequence of the same-day filings. This, indeed, is the evidentiary issue that confronted the Ak-Chin I court, and the final resolution of this issue required discovery, briefing, an evidentiary hearing, oral argument, and post-hearing briefing.1 Of particular interest is testimony taken from a paralegal who performed

1

/ Neither this court, nor the United States District Court for the District of Columbia, (continued...)

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the filings in question, Ms. Alexis Applegate. The transcript from the hearing containing Ms. Applegate's testimony regarding the order of filings of Ak-Chin COFC and Ak-Chin DDC on December 29, 2006, Transcript of Ak-Chin COFC Hearing held October 24, 2007 (Ak-Chin Tr.), is of interest and relevant here.2 Her testimony, over the course of three evidentiary hearings in three different cases before this court, reports on her actions in filing all of her firm's tribal trust claims that day in both courts. In Ak-Chin I, the court found Ms. Applegate to be "a credible witness," and that her time-line for the filings of Ak-Chin COFC and Ak-Chin DDC on December 29, 2006 was "not implausible or inconsistent with the record." 80 Fed. Cl. at 313. Because Ms. Applegate testified that she filed Ak-Chin COFC before Ak-Chin DDC, the court concluded that, "based on its view of the preponderance of the credible evidence before it," Ak-Chin DDC was not pending when Ak-Chin COFC was filed. Id. The court then turned to the issue of whether, had Ak-Chin DDC been pending when Ak-Chin COFC was filed, the two complaints contained some overlap in the operative facts and relief requested, enough to have triggered the § 1500 jurisdictional bar.3 Just as in Tohono O'odham I, the Ak-Chin I court engaged in a lengthy comparison of the complaints filed in the district court and this court. The court identified similarities between these documents, noting that the claims "involve the same parties, the same trust corpus, and the same allegations that the government breached its trust responsibilities." Ak-Chin I, 80 Fed. Cl. at 317. The court concluded that the two complaints were "based on the same operative facts." Id. As to the relief requested in each court, the court held that "the results sought in each action include overlapping relief." Id. at 321. The court approved of the reasoning in Tohono O'odham I which identified a request, in similar
(...continued) time-stamps complaints received for filing. / Neither party objected to making the transcripts of evidentiary hearings in similar cases part of the record in the subject matter. / The court addressed this issue for two reasons: (1) to respond fully to the questions before it; and (2) to ensure that any later review of its disposition of the § 1500 issue could proceed efficiently. See Ak-Chin I, 80 Fed. Cl. at 308 & n.3, 313.
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complaints filed by the same counsel in both the district court and this court, for monetary relief related to the government's breach of trust duties.4 Id. The AkChin I court concluded that "[b]ecause plaintiff's complaints are based on the same operative facts and seek overlapping relief that is not distinctly different, . . . § 1500 would preclude jurisdiction if plaintiff's Court of Federal Claims complaint had not been found to have been filed before plaintiff's District Court complaint." Id. at 322 (citations omitted). Salt River Pima-Maricopa Indian Community v. United States, No. 06-943 L Again, plaintiff's counsel filed two suits on December 29, 2006. One, Salt River Pima-Maricopa Indian Community v. United States, No. 06-943 L (Salt River COFC), was filed in this court. The other, Salt River Pima-Maricopa Indian Community v. Kempthorne, No. 1:06-cv-02241-JR (Salt River DDC), was filed in the United States District Court for the District of Columbia. Once again, the parties hotly disputed whether the district court complaint was pending when Salt River COFC was filed in this court. The parties also disputed whether the claims in the two courts overlapped so as to trigger the § 1500 bar, but the court did not reach this issue. To resolve the § 1500 question in Salt River COFC, the court ordered discovery, briefing, a formal evidentiary hearing for receiving the testimony of plaintiff's paralegal, Ms. Applegate,5 an informal hearing regarding filing procedures in this court,6 and post-hearing briefing. These procedures were undertaken to fully examine what happened on December 29, 2006, and to establish the order in which the filings of Salt River COFC and Salt River DDC occurred. Testimony was taken on events which had transpired almost one year
/ Plaintiff in Ak-Chin COFC conceded that there were no "substantive distinctions" between the two complaints filed in Tohono O'odham COFC and Tohono O'odham DDC and the two complaints filed in Ak-Chin COFC and Ak-Chin DDC, except that the Tohono O'odham complaints were filed one day apart. See Ak-Chin Indian Cmty. v. United States, No. 06-932 L, Plaintiff's Brief in Response to the Court's Request for Briefing Regarding the Opinion Issued in Tohono O'odham v. United States, at 2 (Fed. Cl. Jan. 7, 2008).
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/ Transcript of Salt River COFC Hearing held December 10, 2007 (Salt River Tr.).

/ Transcript of Salt River COFC Informal Hearing held December 12, 2007 (Salt River Add'l Tr.).

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beforehand. The court rejected defendant's argument that a same-day filing in a district court is per se "pending" for the purposes of § 1500, noting that this court had previously rejected that argument. Salt River Pima-Maricopa Indian Cmty. v. United States, No. 06-943 L, 2008 WL 1883170, at *5 (Fed. Cl. Apr. 24, 2008) (Salt River I) (citing Breneman v. United States, 57 Fed. Cl. 571, 574, 576-77 (2003), aff'd on other grounds, 97 Fed. Appx. 329 (Fed. Cir. 2004)).7 The Salt River I court also relied on Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1548 (Fed. Cir. 1994) (en banc); Tecon Engineers, Inc. v. United States, 343 F.2d 943, 946 (Ct. Cl. 1965); and Ak-Chin I, 80 Fed. Cl. at 308 n.4, for its determination that the order of same-day filings, even where neither court time-stamps its filings, is an evidentiary issue that must be resolved in order to decide a motion to dismiss based upon § 1500. Salt River I, 2008 WL 1883170, at *4-*5. The court then turned to the evidentiary issue before it. The Salt River I court thoroughly discussed the types of documentary evidence before it, and the informal and formal testimony it had received in hearings. In the end, two aspects of that evidence appeared to be pivotal. First, Ms. Applegate was found to be a credible witness. Salt River I, 2008 WL 1883170, at *15. Second, the court decided that the numbering of receipts for the complaints filed in this court, and an inconsistency in Ms. Applegate's testimony regarding the time she received those receipts, were not particularly significant facts in determining the order in which complaints were filed on December 29, 2006. Id. at *14. The Salt River I court found that "[p]laintiff has proved by a preponderance of the evidence that the CFC complaint was the first of the Salt River Complaints filed on December 29, 2006." Id. at *15. DISCUSSION I. Standard of Review for a Motion to Dismiss for Lack of Jurisdiction Plaintiff bears the burden of establishing subject matter jurisdiction, Alder
/ Plaintiff in the subject matter filed a Motion for Leave to File Notice of Supplemental Authority on April 29, 2008, concerning the fact that Salt River I had issued. Plaintiff's motion received no response from defendant. Because the Salt River I opinion, although unpublished, is readily available to the court, plaintiff's motion is denied as moot.
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Terrace, Inc. v. United States, 161 F.3d 1372, 1377 (Fed. Cir. 1998) (citing McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936)), and must do so by a preponderance of the evidence, Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988) (citations omitted). If jurisdiction is found to be lacking, this court must dismiss the action. Rule 12(h)(3) of the Rules of the United States Court of Federal Claims (RCFC). In rendering a decision on a motion to dismiss for lack of subject matter jurisdiction pursuant to RCFC 12(b)(1), this court must presume all undisputed factual allegations to be true and construe all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 814-15 (1982); Reynolds, 846 F.2d at 747. If jurisdictional facts are challenged, however, the court must weigh the evidence presented and must make findings of fact pertinent to its jurisdiction. See Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1584 (Fed. Cir. 1993) (noting that when "facts underlying the controverted jurisdictional allegations are in dispute [these] are subject to fact-finding by the [trial] court") (citations omitted)). II. Analysis of the "Pending" Issue A. Whether Same-Day Filings are Per Se Pending for the Purposes of § 1500

Defendant urges the court to approve its position, rejected in Breneman, AkChin I and Salt River I, that a same-day filing of the same claim in a district court, regardless of the order of filing on that day, deprives this court of jurisdiction because of the bar raised by 28 U.S.C. § 1500. Although none of the cases ruling against defendant's position are binding precedent, the court is always hesitant to disagree with a reading of the law by other judges on this court. Reasonable minds may disagree on this and other points of law, however, and a trial court must discharge its duty of discerning legal authority and applying that authority to the controversy before it. The United States Court of Appeals for the Federal Circuit has ruled that this court must not engage in a de novo interpretation of statutes such as § 1500; rather, it should carefully follow the binding precedent in this circuit as to the meaning of the relevant statutory terms:

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We reject the court's initial de novo interpretation of [the statute in question] because the Court of Federal Claims may not deviate from the precedent of the United States Court of Appeals for the Federal Circuit any more than the Federal Circuit can deviate from the precedent of the United States Supreme Court. Trial courts are not free to make the law anew simply because they disagree with the precedential and authoritative analysis of a reviewing appellate court. Crowley v. United States, 398 F.3d 1329, 1335 (Fed. Cir. 2005). Keeping this instruction firmly in mind, the court reviews authority it considers pertinent to the issue at hand. Section 1500 has a long history, and a complex one. 1. The Jurisdictional Bar Now Codified at 28 U.S.C. § 1500

In 1868, Congress first raised a jurisdictional bar to suits in this court in circumstances where a claimant has the same claim pending in a district court. Act of June 25, 1868, ch. 71, § 8, 15 Stat. 75, 77. The legislative history of this statute is perfectly silent as to the issue of same-day filings and the meaning of the words "has pending." See 81 Cong. Globe, 40th Cong., 2nd Sess. 2769 (1868). The sponsor's explanation of the purpose of the jurisdictional bar is reproduced here in its entirety: 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 Government 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 endeavoring to prosecute their claims, and have filed them in the Court of Claims, so that after they put the Government to the expense of beating them once in a court of law they can turn around and try the whole question in the Court of Claims. The object is to put that class of persons to their election either to leave the Court of Claims or to leave the other courts. I am sure 9

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everybody will agree to that. Id. Despite certain modifications in language and re-codifications not relevant here, the jurisdictional bar has remained mostly unchanged since 1868 and the words "has pending" have remained in all versions of the statute. See Keene Corp. v. United States, 508 U.S. 200, 210 (1993) (Keene) (noting that certain phrases in the statute have remain unchanged); UNR Indus. v. United States, 962 F.2d 1013, 1017-19 (Fed. Cir. 1992) (en banc) (describing the statutory history of § 1500 as "fairly straightforward" and noting that few changes in language have occurred therein), aff'd sub nom. Keene Corp. v. United States, 508 U.S. 200 (1993). The jurisdictional bar in § 1500 has been much criticized for being an awkward tool that has outlived its original purpose. See generally, e.g., Paul F. Kirgis, Section 1500 and the Pitfalls of Federal Government Litigation, 47 Am. U. L. Rev. 301 (1997); Payson R. Peabody, Thomas K. Gump & Michael S. Weinstein, A Confederate Ghost That Haunts the Federal Courts: The Case for the Repeal of 28 U.S.C. § 1500, 4 Fed. Cir. B.J. 95 (1994); David Schwartz, Section 1500 of the Judicial Code and Duplicate Suits Against the Government and Its Agents, 55 Geo. L.J. 573 (1967). Courts have commented that the application of the statute may lead to nonsensical or anachronistic results. See Tohono O'odham I, 79 Fed. Cl. at 659 n.16 ("While this illustrates the lack of need for section 1500 and its arbitrariness, we can do no more than make this observation and suggest that plaintiff attempt a legislative solution through a congressional reference or a new jurisdictional statute."); A.C. Seeman, Inc. v. United States, 5 Cl. Ct. 386, 389 (1984) ("Section 1500 is an anachronism. It was first enacted in 1868, and over the years has been encrusted with numerous shadings and tortured constructions. It is part of the Code, however, and its restrictions on jurisdiction cannot be ignored."); see also d'Abrera v. United States, 78 Fed. Cl. 51, 56 n.10 (2007) (describing § 1500 as offering "a significant trap for the unwary . . . [which] could entirely bar a cause of action from being heard"). Despite these criticisms, this court has no choice but to attempt to apply § 1500 in a way consistent with its purpose, a purpose which is defined less by its legislative history than by subsequent precedential interpretation. As the court turns to a review of relevant caselaw, two themes emerge: the general purpose of § 1500, and the identification of specific, carved-out exceptions, related to the timing of the filings in question, which prevent the application of § 1500's jurisdictional bar. It is also useful to distinguish between a separate suit filed before the date of the filing in this court, 10

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after the date of the filing in this court, and on the date of the filing in this court, in elucidating the meaning of the statutory term "has pending."8 2. Court of Claims Precedent Regarding Same-Day and LaterFiled Suits in Other Courts

There appears to be no controversy that suits filed in a district court prior to the date of a filing in this court are included and have always been included within the concept of "has pending" and serve to trigger the jurisdictional bar now codified in § 1500. See Frantz Equip. Co. v. United States, 98 F. Supp. 579, 580 (Ct. Cl. 1951) ("The plaintiff, on March 8, 1946, prior to the filing of its petition herein on September 11, 1950, made use of a counterclaim to assert its claim against the United States, in connection with the suit instituted against the plaintiff by the United States, and asked judgment thereon against the United States in the sum of $12,727.21. By so doing the plaintiff lost its right, so long as said claim remained pending in the District Court, to institute and maintain suit in this court upon the same claim."). When it comes to later-filed suits, there has been a convoluted history of evolving precedent. In various decisions, the Court of Claims applied § 1500 to deny jurisdiction in this court where there had been laterfiled actions in another federal court. For example, in Maguire Industries v. United States, 86 F. Supp. 905 (Ct. Cl. 1949), the court dismissed a suit in this court because of a later-filed appeal to the United States Court of Appeals for the District of Columbia, which challenged the dismissal of a claim which had first been brought in the Tax Court. Id. at 906 ("[O]n March 28, 1949, plaintiff filed its petition in this court. Subsequent thereto, however, plaintiff perfected an appeal to the United States Court of Appeals for the District of Columbia from the determination of the Tax Court . . . ."). In Maguire, even though litigation was begun in the Tax Court before a suit was filed in this court, it was the later-filed appeal in the Court of Appeals which triggered § 1500's jurisdictional bar. See id. at 907 (noting that "the proceedings in the Court of Appeals for the District of Columbia was a suit" requiring application of the § 1500 bar). Similarly, in Hobbs v. United States, 168 Ct. Cl. 646 (1964), a suit was

/ The term "this court," as it is used here, refers to this trial court and its predecessors, including the Court of Claims, the United States Claims Court, and the United States Court of Federal Claims.

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dismissed in this court because of a later-filed appeal in the United States Court of Appeals for the Fifth Circuit. The plaintiff had first sought compensation from the Atomic Energy Commission (AEC) for alleged use of his patents. Id. at 647. A few months after that claim was denied, Mr. Hobbs filed a suit in this court encompassing the same claim, on August 29, 1963. Id. The next day, on August 30, 1963, Mr. Hobbs filed a petition for review of the AEC decision in the Fifth Circuit. Id. The Court of Claims dismissed the suit before it, applying the jurisdictional bar in § 1500 even though the suit in the Fifth Circuit was filed one day after suit was filed in this court. Id. at 647-48. From these cases, it is clear that for some years, the statutory term "has pending" in § 1500 was read broadly enough to include later-filed suits in another court, not just those filed before the day suit was filed in this court. Not surprisingly, in that era, same-day filings in another court were also considered to be within the scope of the "has pending" language in § 1500. For example, in British American Tobacco Co. v. United States, 89 Ct. Cl. 438 (1939) (British American), the plaintiff filed two suits on the same day, one in the United States District Court for the Southern District of New York, and the other in the Court of Claims. Id. at 439. Both suits sought compensation for gold bullion delivered to the Federal Reserve Bank of New York. Id. The district court and the regional appellate circuit found against the plaintiff. Id. at 441. The Court of Claims suit was dismissed, pursuant to § 1500. Thus, a same-day filing in a district court deprived this court of jurisdiction, with no discussion of the order of filing on the day both suits were filed. The "has pending" language of § 1500 encompassed a case where a same-day filing had occurred.9 Similarly, in National Cored Forgings Co. v. United States, 132 F. Supp.

/ There was a slight change in the wording of the jurisdictional bar in 1948, but this change does not appear to have modified how courts have interpreted the term "has pending" as it might apply to same-day filings. See Keene, 508 U.S. at 209-10 (commenting, in regard to the 1948 modifications in language, that "we do not presume that the revision worked a change in the underlying substantive law"). Thus, the court considers the holding of British American to apply with full force to the issue of same-day filings under the current version of the statute. See Johns-Manville Corp. v. United States, 855 F.2d 1556, 1562 (Fed. Cir. 1988) ("[S]ince all changes after the original version [of what is now § 1500] were intended as but changes in phraseology, we must presume Congress was aware of and adopted the judicial interpretations of section 1500 and its predecessors.") (citations omitted).

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454 (Ct. Cl. 1955) (National Cored Forgings), the plaintiff filed two suits on November 20, 1951, one in the Court of Claims and the other in the United States District Court for the District of Columbia. Id. at 457. The same contract claims were brought in each suit. Id. The district court suit was stayed to allow the Court of Claims suit to proceed, id., but the Court of Claims dismissed the suit before it pursuant to § 1500, id. at 459. Again, the "has pending" language of § 1500 encompassed a case where a same-day filing had occurred, although this aspect of the case received no commentary from the court. Thus, the Court of Claims held, during this period, that earlier-filed suits, later-filed suits, and same-day filed suits in another federal court deprived this court of jurisdiction pursuant to the "has pending" language of § 1500, when the same claim was pending in each suit. Precedent on this issue shifted in 1965, and the pertinent question here is to what extent. 3. The Tecon Rule

In Tecon Engineers, Inc. v. United States, 343 F.2d 943 (Ct. Cl. 1965), the Court of Claims revisited the issue of whether later-filed suits in another federal court could deprive this court of jurisdiction pursuant to the "has pending" language of § 1500. In an unusual procedural posture, the plaintiffs brought consolidated cases before the Court of Claims, prosecuted them for over two years, were frustrated in their request to postpone trial, and, immediately upon rejection of their appeal of the denial of that requested continuance, filed identical claims in the United States District Court for the Eastern District of Kentucky on January 26, 1965. Id. at 944 & n.1. On the same day, the plaintiffs moved to have their Court of Claims suit dismissed for lack of jurisdiction pursuant to § 1500. Id. at 944. The plaintiffs also indicated that if they did not prevail and win dismissal pursuant to § 1500, that they would "refus[e] to further prosecute these actions [in the Court of Claims]." Id. Although the analysis of the § 1500 issue presented in the Tecon decision is too lengthy to reproduce in all of its detail, the court here excerpts certain relevant highlights. First, the question before the court was fairly narrow: The question presented is whether plaintiffs by this motion may oust this court of its conceded jurisdiction under the Tucker Act over these pending suits by later 13

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filing new suits for the same claims in a Federal district court, and then moving to dismiss these same cases here, for lack of jurisdiction. Id. at 944-45. Second, § 1500 was understood to have descended from the 1868 legislation and to not have deviated from the original purpose of that earlier jurisdictional bar: The statute of 1868 was enacted to eliminate duplication of litigation between claimants and the Government or its agents, and to prevent conflicts of jurisdiction between the Court of Claims and other courts. Section 1500 was enacted with the same basic legislative purpose. Id. at 948. The Act of June 25, 1868, according to the Tecon court, had this purpose: "Congress clearly intended that if a claimant "shall have commenced and has pending" a suit in another court against any officer of the United States, the Court of Claims was to be divested of jurisdiction over the same claim when brought against the United States if the claim was filed thereafter in this court." Id. at 947-48. From this analysis derived what could be called the Tecon rule, quoted here in its most succinct form: [W]e conclude that the only reasonable interpretation of the statute is that it serves to deprive this court of jurisdiction of any claim for or in respect to which plaintiff has pending in any other court any suit against the United States, only when the suit shall have been commenced in the other court before the claim was filed in this court. Id. at 949. Certain language from the opinion raises the question whether the Tecon rule might have been limited to the specific facts of that case. See id. at 950 (noting that "[t]he cases cited by plaintiffs (and 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"). The Federal Circuit, however, has ruled that 14

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Tecon is not limited to its facts. Hardwick Bros. II v. United States, 72 F.3d 883, 886 (Fed. Cir. 1995) (Hardwick). Even though the Tecon rule is of general applicability, there are several reasons to believe that the Tecon rule was not meant to, and does not today, apply to two suits filed on the same day. See United States v. County of Cook, Ill., 170 F.3d 1084, 1090 (Fed. Cir. 1999) (County of Cook) (noting that the statement in Tecon which embodies the Tecon rule, excluding later-filed district court claims from the scope of the jurisdictional bar in § 1500, was "dictum with respect to the simultaneous filing issue"). Indeed, prior caselaw in the Court of Claims involving same-day filings is specifically cited in Tecon as being distinguishable from the issue then before the Tecon court, i.e., the issue of whether a district court filing occurring after a filing in this court would trigger § 1500. See 343 F.2d at 950 n.4. First, the Tecon court noted the intent of Congress to prevent duplicative suits from being filed in a district court and this court. Id. at 948. It is hard to imagine a scenario more indicative of duplicative filings than that of filing two suits, embracing the same claims, in two courts on the same day, regardless of the order of filing. That scenario is very different from the one presented in Tecon, where two years elapsed before the plaintiffs attempted to defeat jurisdiction in this court by filing the same claims in a district court. Second, the Tecon court distinguished its case from instances where "simultaneous" filings occurred. Id. at 950 n.4. The simultaneous filing category is described only by citing the decisions in British American and National Cored Forgings, which are, of course, cases involving same-day filings, with no mention of the order of filing as a relevant issue, and Hobbs, a case where the district court case was filed one day after the Court of Claims suit. Id. Because Hobbs, too, was described as a simultaneous filing case by the Tecon court and considered distinguishable from the Tecon fact scenario, it is difficult to believe that a same-day filing in a district court, even if the plaintiff could prove that the case was filed some minutes or hours later than the case filed in this court, would somehow be envisioned by the Tecon court to benefit from the Tecon rule. For these reasons, the court cannot read the Tecon rule as including same-day filings cases in the category of later-filed district court cases which, after Tecon, do not trigger the jurisdictional bar of § 1500.10
/ There is language in Tecon which states that the court did not feel bound by decisions which did not discuss the significance of the order of filings in dismissing a case pursuant to § 1500. 343 F.2d at 950 (stating that because "the issue of priority was [n]ever fully briefed, (continued...)
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Nothing in the cases decided in the next thirty years contradicts this interpretation of the Tecon rule. Indeed, the court has found no binding precedent on the same-day filing issue, as of this date, which undermines its interpretation of Tecon. Same-day filings of the same claim in a district court and this court, until recently, routinely triggered dismissal of the claim in this court. For example, in 1978, in Frunzi v. United States, 216 Ct. Cl. 439 (1978), the Court of Claims dismissed a suit pursuant to § 1500. Two suits were filed on June 10, 1977, one in the United States District Court for the Eastern District of New York, and another in the Court of Claims. Id. at 439-40. The court described the same-day filings as having been filed "simultaneously," and, without discussion of the order in which they were filed that day, applied the jurisdictional bar in § 1500 to the "very same claim" filed in this court. Id. at 440.11

(...continued) considered or decided . . . we cannot draw upon the prior caselaw for direction in this decision"). Nonetheless, Tecon did not explicitly overrule British American, National Cored Forgings or Hobbs, as these decisions applied § 1500 to "simultaneously" filed cases, and cannot be presumed to have done so sub silentio. See, e.g., Union Elec. Co. v. United States, 363 F.3d 1292, 1299-1300 (Fed. Cir. 2004) (citing Agostini v. Felton, 521 U.S. 203, 237 (1997), for the rule that precedent should be followed unless explicitly overruled). Also, the issue of same-day filings was not before the Tecon court, which renders implied criticism in Tecon, or implied overruling, if any, of precedent on this topic mere dictum and non-precedential. See Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1549 (Fed. Cir. 1994) (en banc) (noting that a Federal Circuit pronouncement on "the legal import of cases whose factual bases were not properly before [it] was mere dictum, and therefore . . . not accord[ed] . . . stare decisis effect"). / In 1988, the Federal Circuit issued a decision which, although silent as to the significance of its analysis of the same-day filing issue, is of interest because it refrained from applying the Tecon rule to a later-filed same-day filing in a district court. See Boston Five Cents Sav. Bank, FSB v. United States, 864 F.2d 137 (Fed. Cir. 1988) (Boston Bank). One issue before the Federal Circuit was "[w]hether Boston Bank's filing of the identical money damages suit in district court on the same day the Claims Court action was filed requires the Claims Court to dismiss the action under 28 U.S.C. § 1500." Id. at 138. The Federal Circuit duly noted that the district court suit had been filed "[l]ater [than the Claims Court suit on] the same day," but did not apply the Tecon rule concerning later-filed district court suits which do not trigger the jurisdictional bar in § 1500. Id. Instead, the court permitted the suit to proceed in this court, for a different reason, because this court had "exclusive jurisdiction over Boston Bank's monetary claim." Id. at 140. Thus, even where the order of filing of same-day filings was known, and the district court suit was filed later than the suit in this court, there is no indication that the Federal Circuit considered the order of filing, or the Tecon rule, to be helpful to the plaintiff.
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In 1985, the Claims Court, bound by and citing the precedent of Tecon, again reviewed whether same-day filings triggered the jurisdictional bar of § 1500. Hill v. United States, 8 Cl. Ct. 382 (1985). In that case, the same claim was filed in both the United States District Court for the Eastern District of New York and this court, on February 7, 1985. Id. at 383-84. The filings were described as "simultaneous[]" by both the plaintiff and the court. Id. at 385 n.3. The court relied on British American, National Cored Forgings, Hobbs and Tecon to decide that the plaintiff's filing in district court was pending pursuant to § 1500. See id. (citing Tecon, 343 F.2d at 950 n.4, and "the cases cited therein"). Applying § 1500, the Claims Court dismissed the suit before it. Id. at 388. The Claims Court applied the Tecon rule in a similar fashion in 1989. See Nat'l Union Fire Ins. Co. v. United States, 19 Cl. Ct. 188 (1989) (National Union). Plaintiffs in that case filed suits in the Claims Court and the United States District Court for the Central District of California on November 23, 1988. Id. at 188. Although the order of filing on that date is not apparent from the opinion, it is clear that the court considered same-day filings of the same claim to raise a bar against jurisdiction in this court. See id. at 189 ("There is no argument that simultaneous filing of both suits resulted in a claim `pending' within the meaning of § 1500."). The court referenced the discussion in Tecon which distinguished between simultaneously filed cases, such as same-day filed cases, and later-filed cases in a district court. See id. (citing Tecon, 343 F.2d at 949-51). The Claims Court applied the jurisdictional bar and dismissed the claims before it. Id. at 190. Thus, the limits of the Tecon rule were well-established. The Tecon rule, which interpreted the "pending" language in § 1500 to exclude later-filed district court cases, was not read broadly enough to require an analysis of the order of filing when same-day filings were at issue. Instead, courts relied on the language of Tecon which distinguished simultaneously filed cases from the general rule that later-filed cases in a district court would not defeat jurisdiction over the same claim in this court. Although none of these cases addressed the order of filing of sameday filings explicitly, the dismissal of the cases in this court filed on the same day as a district court case has been entirely consistent with Tecon and the interpretation of Tecon advanced here. 4. Attempted Revision of § 1500 Precedent in UNR

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For a brief period of time, the Tecon rule was itself overruled by an en banc decision of the Federal Circuit. See UNR, 962 F.2d at 1023 ("Tecon is overruled."). The Federal Circuit reviewed the history of § 1500 and concluded that its purpose was "to force an election of forum and to prevent simultaneous dual litigation against the government." Id. at 1021. The UNR court reasoned that "Congress wanted not to dictate the order in which a claimant files suits in the Claims Court and another court on the same claim, but to discourage him from doing so altogether." Id. at 1022. Although the issue of later-filed suits in a district court was not before the Federal Circuit, the UNR court overruled the Tecon rule, and several other exceptions to the application of the jurisdictional bar in § 1500. Some of these revisions of precedent proved to be short-lived. 5. Keene

Although UNR was affirmed as to certain dispositive issues decided by the Federal Circuit, the Supreme Court declined to approve various other pronouncements in UNR concerning the scope of § 1500. See Keene, 508 U.S. at 216 ("In applying § 1500 to the facts of this case, we find it unnecessary to consider, much less repudiate, [other] `judicially created exceptions' to § 1500 . . . ." (citations omitted)). Specifically, the Supreme Court declined to consider whether the Tecon rule was correctly overruled in UNR, noting that the facts of UNR did not raise the issue of later-filed suits in a district court. Id. at 209 n.4. The Keene court did cite British American and Hill approvingly, id. at 214 n.9, but did not discuss the "has pending" language of § 1500 in any detail. The Supreme Court in Keene also did not discuss same-day or simultaneous filings in relation to the jurisdictional bar in § 1500. 6. The Loveladies Affirmation of the Tecon Rule

After Keene, the Federal Circuit, in another en banc decision, limited the holding in UNR to the issues and facts before the UNR court. Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1549 (Fed. Cir. 1994) (en banc) (Loveladies) ("As the Supreme Court has reminded us, anything we said in UNR regarding the legal import of cases whose factual bases were not properly before us was mere dictum, and therefore we will not accord it stare decisis effect."). The Tecon rule was thus recognized to be viable precedent and is still good law in this circuit. See Hardwick, 72 F.3d at 886 (stating that Tecon "remains good law and binding on 18

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this court"); accord Dico, Inc. v. United States, 48 F.3d 1199, 1201 n.4 (Fed. Cir. 1995). The scope of the Tecon rule was not discussed in Loveladies, nor was a same-day or simultaneous filings issue before the Loveladies court. In fact, Loveladies did not involve a later-filed district court suit or a later-filed appeal, either, so any commentary in Loveladies that could be construed as interpreting the Tecon rule in the first instance would be mere dicta. See supra note 10. The one comment in Loveladies about the "has pending" language of § 1500 is simply a historical note of the Keene decision, indicating that the jurisdictional test must be applied at the time of filing, not at the time the § 1500 motion is decided. See Loveladies, 27 F.3d at 1548 ("The question of whether another claim is "pending" for purposes of § 1500 is determined at the time at which the suit in the Court of Federal Claims is filed, not the time at which the Government moves to dismiss the action."). 7. The Purpose of § 1500

After Keene, the Federal Circuit has continued to describe the purpose of § 1500 as preventing the filing of duplicative suits in two federal courts. In Loveladies, the court observed that "`the legislative history and the cases indicate section 1500 was enacted for the benefit of the government and was intended to force an election where both forums could grant the same relief, arising from the same operative facts.'" 27 F.3d at 1550 (quoting Johns-Manville Corp. v. United States, 855 F.2d 1556, 1564 (Fed. Cir. 1988)). In County of Cook, 170 F.3d at 1090-91, the Federal Circuit discussed the policy underpinnings of the statute: [W]e endeavor to further 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 court," . . . and to "protect the United States from having to defend two lawsuits over the same matter simultaneously." Id. at 1090 (quoting UNR, 962 F.2d at 1018-19). The court, citing policy reasons, ruled that simultaneous filings are pending for the purposes of § 1500: These policies are promoted by precluding jurisdiction in the Court of Federal Claims over claims which had been 19

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previously filed in the district courts, and nothing suggests that these policies would not similarly be promoted by precluding jurisdiction in the simultaneous filing context. Accordingly, we hold that the "filing" of the same claim simultaneously in the district court and the Court of Federal Claims by operation of [28 U.S.C.] § 1631 [(2000)] deprives the latter court of jurisdiction pursuant to § 1500. Id. at 1091. In addition to UNR, the Federal Circuit in County of Cook relied on National Cored Forgings for this statement of the purpose of § 1500: "`The obvious and declared purpose of [§ 1500] was to require an election between a suit in this court against the United States and one brought' in the district courts." County of Cook, 170 F.3d at 1090-91 (quoting National Cored Forgings, 132 F. Supp. at 458). 8. County of Cook and Simultaneous Filings

In the court's view, County of Cook, with the precedential background of British American, National Cored Forgings, Hobbs, Tecon, and Frunzi, resolves the question at hand: same-day filings in a district court are per se pending for the purposes of § 1500, and the order of filing of the two complaints on the day in question is of no consequence. County of Cook, it is true, can be read two different ways. If County of Cook is seen as directly on point and stating a rule which applies to all same-day and simultaneous filings, this rule commands that same-day filings of the same claims in two federal courts defeat jurisdiction in this court pursuant to § 1500. Or, if the facts in County of Cook are seen as distinguishable from same-day filings in two federal courts, County of Cook nonetheless states a rule regarding the purpose of § 1500, and the precedent governing the interpretation of § 1500, which commands the dismissal of a suit in this court when the same claim has been filed in district court on the same day. County of Cook presented the question of whether claims in this court, deemed filed by operation of 28 U.S.C. § 1631 on the same day as the same claims filed in a district court, were barred by § 1500. The relevant text of § 1631 is reproduced here:

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Whenever a civil action is filed in a court as defined in section 610 of this title or an appeal, including a petition for review of administrative action, is noticed for or filed with such a court and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred. 28 U.S.C. § 1631 (emphasis added). Thus, if a transfer is made to this court from a district court pursuant to § 1631, the statute creates a § 1500 same-day filings scenario if the district court retains certain claims which are later shown to be the same as the claims transferred to this court. See County of Cook, 170 F.3d at 1090 (describing the retained claims in the district court as having been filed "simultaneously" with the claims in this court "through the operation of § 1631"). In County of Cook, the simultaneously filed district court claims were "pending" for the purposes of § 1500 and triggered the jurisdictional bar. How one interprets the Federal Circuit's use of the word "simultaneous" in County of Cook determines the breadth of its holding. The more plausible reading of County of Cook is that the word "simultaneous" refers both to same-day filings in two courts, and the deemed filing date in this court of transferred claims, which, pursuant to § 1631, matches the date of the filing of the other claims retained in a suit originating in a district court. Certainly, the Federal Circuit employs simultaneous in a broad sense in County of Cook, in the course of two successive paragraphs. The court refers to Tecon, and that opinion's use of the word "simultaneously filed" to describe the claims in British American and National Cored Forgings. County of Cook, 170 F.3d at 1090. These cases are same-day filing cases. County of Cook then itself refers to British American and National Cored Forgings as involving simultaneously filed claims. Id. This is followed by general references to "the simultaneous filing issue," and "claims filed simultaneously," as the subject of the court's search for precedent which is "squarely on point." Id. If caselaw is to be "squarely on point," in County of 21

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Cook, it must be applicable to claims transferred pursuant to § 1631. Thus, the County of Cook court uses the word "simultaneous" to refer to the § 1631 context, as well as other types of same-day filing scenarios, within the space of a few sentences.12 Next, the Federal Circuit turns to the purpose of § 1500, and the policies underlying the statute. In this regard, as mentioned supra, the court reasons that "[t]hese policies are promoted by precluding jurisdiction in the Court of Federal Claims over claims which had been previously filed in the district courts, and nothing suggests that these policies would not similarly be promoted by precluding jurisdiction in the simultaneous filing context." County of Cook, 170 F.3d at 1091. There is no indication that the word "simultaneous" in this sentence signifies only § 1631 transferred claims, and not other types of same-day filings cases. It is doubtful that the repeated, broad use of the word "simultaneous" in the preceding sentences of County of Cook was suddenly narrowed when the court discerned and discussed the implications of the policy objectives of § 1500. It is true that when the Federal Circuit applied its interpretation of § 1500's purpose to the facts of County of Cook, the court described the force and effect of § 1500 as offering a jurisdictional bar that arises in the context of § 1631 transfers: "Accordingly, we hold that the `filing' of the same claim simultaneously in the district court and the Court of Federal Claims by operation of § 1631 deprives the latter court of jurisdiction pursuant to § 1500." County of Cook, 170 F.3d at 1091. This particular, narrow statement of the functional import of § 1500 does not, however, negate the broader holding of County of Cook, that all types of simultaneous filings of the same claims in this court and another federal court offend § 1500. See id. (stating that the policies § 1500 would be furthered by "precluding jurisdiction [in this court] in the simultaneous filing context").

/ County of Cook did not regard the precedent of British American, National Cored Forgings and Tecon as clearly dispositive of the issue before it. See 170 F.3d at 1090 ("Our independent review of the case law has not revealed any precedent squarely on point . . . . "). The court noted that British American and National Cored Forgings "lack an express analysis of whether a claim simultaneously filed in the district courts is `pending' for purposes of § 1500." Id. The court also noted that "Tecon's fact situation renders the [Tecon rule] dictum with respect to the simultaneous filing issue." Id. It is the interpretation of § 1500, and the review of precedent in County of Cook, which together create precedent that binds the court in deciding the § 1500 issue before it.

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Because County of Cook states a general rule regarding simultaneous filings, inclusive of both § 1631 transferred claims and same-day filings in two federal courts, same-day filings are pending, for the purposes of § 1500, regardless of their sequence of filing on the day of filing. Plaintiff argues that only transferred claims pursuant to § 1631 are truly simultaneous, and that sequential filings in this court and a district court on the same day are not implicated by the holding in County of Cook. Pl.'s Resp. at 9-11. Plaintiff relies heavily on Breneman v. United States, 57 Fed. Cl. 571 (2003), aff'd on other grounds, 97 Fed. Appx. 329 (Fed. Cir. 2004).13 The court respectfully disagrees with both plaintiff and Breneman. 9. Breneman

The Brenemans filed two suits on December 13, 2002, one in this court and the other in the United States District Court for the District of Massachusetts. Breneman, 57 Fed. Cl. at 574. In this court the plaintiffs faced a jurisdictional challenge based on § 1500, and a summary judgment challenge. Id. at 571, 578. In Breneman, the court noted that "[t]he caselaw regarding the time of filing claims here and in a district court and the subsequent jurisdictional effect of § 1500 on those claims is not clearly dispositive of the issue of same-day filing." Id. at 576. Although the court rejected defendant's arguments based on § 1500, the case was dismissed under the summary judgment standard. Id. at 586. In its careful review of § 1500 caselaw, the Breneman court quoted this statement of the law: "[t]he sum of these cases leads us to conclude that the same action filed in district court prior to being filed in the Court of Federal Claims divests the latter of jurisdiction, as do actions filed simultaneously, but actions filed in district court subsequent to the Court of Federal Claims filing are not considered `pending' in the

/ The government did not cross-appeal this court's ruling on the § 1500 issue in Breneman. Brief for Appellee at *14 n.6, Breneman v. United States, No. 03-5156, 2004 WL 3763416 (Fed. Cir. Feb. 6, 2004).

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language of Section 1500, and thus do not divest this court of jurisdiction." 57 Fed. Cl. at 576-77 (quoting Spodek v. United States, 44 Fed. Cl. 32, 41 (1999)). The court agrees with this statement of the law in Spodek. The court does not, however, follow the Breneman court in four aspects of its analysis. First, the Breneman court did not cite to British American or National Cored Forgings, or the fourth footnote in Tecon, precedent which in this court's view shows that the Tecon rule does not apply to same-day filings. See County of Cook, 170 F.3d at 1090 (noting that the statement in Tecon which embodies the Tecon rule excluding later-filed district court claims from the scope of the jurisdictional bar in § 1500 was "dictum with respect to the simultaneous filing issue"). The Breneman court also did not discuss Frunzi, Hill or National Union, all cases where, after Tecon, same-day filings led to the dismissal of claims in this court. In the court's view, this precedent argues strongly for ignoring the order of filing of same-day filings when deciding a § 1500 challenge. Second, the Breneman court distinguished County of Cook and considered its holding to be limited to § 1631 scenarios where the § 1500 bar would be triggered by strictly, "truly" simultaneous scenarios. Breneman, 57 Fed. Cl. at 577. The court disagrees with this interpretation of precedent. Although the time of filing is considered important in § 1500 precedent, there is no indication that this phraseology refers to "the time of day of same-day filings," rather than the date the claims were filed or deemed filed. Compare County of Cook, 170 F.3d at 1091 n.8 ("Section 1631 mandates that the transferred claims be treated as if they were filed in the transferee court at the time they were filed in the transferor court.") with Harbuck v. United States, 378 F.3d 1324, 1328 (Fed. Cir. 2004) ("Thus, under § 1631, [the plaintiff's transferred] claim was deemed filed in the Court 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."). As shown in Harbuck, issued after Breneman, the language concerning the time of filing in County of Cook, as it might relate to any simultaneous filing scenario, refers to the day of filing rather than any time of day. Cf. Wilson v. United States, 32 Fed. Cl. 794, 795-96 (1995) (noting that "[t]he date for determining jurisdiction is the date on which plaintiffs filed their complaint in the Court of Federal Claims" and dismissing a suit pursuant to § 1500 because a notice of appeal had been filed on the same day as the suit in 24

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this court). Third, even if the court were to accept the premise that County of Cook, because of its focus on § 1631, is somehow distinguishable from cases involving other types of same-day filings, the court is nonetheless bound by the statutory interpretation of § 1500 presented in County of Cook. See Crowley v. United States, 398 F.3d 1329, 1335 (Fed. Cir. 2005) (instructing this court to follow "the precedential and authoritative [statutory] analysis of a reviewing appellate court"). The statutory interpretation in County of Cook embraces two concepts: forcing plaintiffs to choose a forum for a particular claim, and protecting the United States from duplicative, simultaneous litigation. 170 F.3d at 1090-91. At the same time, County of Cook clearly stated that the Tecon rule did not apply to simultaneous filing situations. Id. at 1090. Given the purpose of the statute, the inapplicability of the Tecon rule exempting later-filed cases from the jurisdictional bar, and a long history of dismissals of suits involving same-day filings, this court is constrained to interpret County of Cook as stating a rule of law which applies § 1500 to sameday filings of the same claim in two courts, regardless of the order of filing on that day.14 In the view of this court, applying the jurisdictional bar in § 1500 to sameday filings, even when the district court suit is filed later in the day than the suit filed here, is the more appropriate approach in following the rule of law stated in County of Cook. Fourth, the Breneman court relied on dictum in Richmond, Fredericksburg, & Potomac Railroad v. United States, 75 F.3d 648, 653 (Fed. Cir. 1996) (Richmond Railroad), as support for its jurisdictional ruling. This dictum, in hypothetical terms, considered whether the Tecon rule could apply to same-day filings. The entire treatment of this hypothetical is reproduced here: Since we find that the jurisdictional flaw was subsequently cured, we need not address the question of whether, though filed on the same day, the suit in the Court of Federal Claims might have been the first filed and therefore possibly entitled to the benefit of the rule in
/ Because this statement of the law is essential to the result reached in County of Cook, it cannot be disregarded as dictum. See In re McGrew, 120 F.3d 1236, 1238 (Fed. Cir. 1997) (defining dicta as "statements in judicial opinions upon a point or points not necessary to the decision of the case") (citations omitted).
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Tecon Engineers. Richmond Railroad, 75 F.3d 653 n.2 (citing generally to Tecon and Hardwick). Obviously, this statement was not necessary to the result in Richmond Railroad and is dictum. See supra notes 10, 14. Furthermore, County of Cook, decided three years later, fails to cite this dictum and indeed, conducted a much more thorough analysis which answered the question posed by Richmond Railroad: the Tecon rule does not apply to simultaneous filings. County of Cook, 170 F.3d at 1090. Richmond Railroad thus supplies no meaningful support to the jurisdictional ruling in Breneman. For these reasons, the court cannot agree with the holding in Breneman. Breneman suggests that the Tecon rule requires an inquiry into a sequential order of filings when the same claim has been filed in a district court and this court on the same day. For the reasons outlined above, the court disagrees with this approach, and must also respectfully disagree with the Ak-Chin I court, 80 Fed. Cl. at 308 n.4, and the Salt River I court, 2008 WL 1883170, at *4-*5, which followed Breneman in making their jurisdictional rulings.15 Here, the district court suit was filed on the same day as the complaint in the subject matter, and was thus per se "pending" for the purposes of § 1500. 10. Practical Considerations

In addition to the binding precedent which compels the court's resolution of the "pending" claim issue, the court notes that there are practical considerations at work here as well. This court does not time-stamp complaints. Other courts, including the United States District Court for the District of Columbia, do not timestamp complaints, although some do. Each time a party files the same claims here and in a district court on the same day, this court will be obliged, according to

/ Another decision of this court addressed this issue after Breneman was decided. In Lan-Dale Co. v. United States, 60 Fed. Cl. 299 (2004), the court described same-day filings to be "contemporaneous," and for lack of proof of the order of filing, or any argument thereon, considered the district court filing and the filing in this court to be simultaneous, triggering § 1500 and defeating jurisdiction in this court. Id. at 302 n.2 (citing County of Cook, 170 F.3d at 1091). To the extent that Lan-Dale contemplated that a court might apply the Tecon rule to same-day filings, the court respectfully disagrees with such an approach, for the reasons given in this opinion.

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plaintiff's view of the law, to determine the order of filing in order to assure itself of its jurisdiction. At times, this issue will be hotly disputed, as it has been in this case. In such circumstances, an evidentiary hearing may be required, because the documents and affidavits submitted may not resolve the issue. This is indeed the case here. Although the operation of § 1500 throughout its history has been at times confusing and contradictory, construing § 1500 to require the taking of live testimony from paralegals and filing clerks borders on the absurd. Duplicative suits filed on the same day in two courts should not require such an extensive inquiry. Such an inquiry frustrates all notions of judicial economy, and the purposes of § 1500. If C