Free Response to Motion [Dispositive] - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) ) ) ) ) ) ) ) )

PASSAMAQUODDY TRIBE, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant.

Case No. 06-942L Judge Lynn J. Bush Electronically filed on November 5, 2007

PLAINTIFF'S BRIEF IN RESPONSE TO DEFENDANT'S MOTION TO DISMISS

KEITH HARPER D.C. Bar No. 451956 E-mail: [email protected] G. WILLIAM AUSTIN D.C. Bar No. 478417 E-mail: [email protected] CATHERINE F. MUNSON, GA Bar No. 529621 E-mail: [email protected] KILPATRICK STOCKTON LLP 607 14th Street, N.W. Washington, D.C. 20005 Phone: (202) 508-5800 Attorneys for Plaintiff The Passamaquoddy Tribe

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TABLE OF CONTENTS Page(s) I. INTRODUCTION .................................................................................................................... 1

II. STATEMENT OF THE CASE................................................................................................. 3 A. B. Plaintiff-Beneficiary Filed this Action Prior to Filing an Action In The District Court. ........................................................................................................................... 3 The CFC Complaint And District Court Complaint Allege Different Claims Involving Different Operative Facts And Different Relief.......................................... 5

III. ARGUMENT............................................................................................................................ 7 A. This Court's Jurisdiction Is Established At The Time The Suit Is Filed And A LaterFiled District Court Action Does Not Divest This Court Of Jurisdiction. .................. 7 1. 2. B. As this Court held in Breneman, same-day filings are not treated as simultaneous for the purposes of § 1500. ......................................................... 8 No suit or process was pending against the United States at the time this Court obtained jurisdiction over Plaintiff-Beneficiary's claims. .............................. 12

Dismissal Under 28 U.S.C. § 1500 Is Improper Unless The CFC And District Court Complaints Present the "Same Claim" That Arises From The "Same Operative Facts" And Seeks The "Same Relief." ...................................................................... 15 1. Plaintiff-Beneficiary's claim in the District Court for an equitable accounting arises from a different breach of trust and different operative facts from its claims in the CFC for mismanagement of Plaintiff-Beneficiary's trust property. .......................................................................................................... 16 a. b. c. 2. "Operative facts" under 28 U.S.C. § 1500 do not include background facts. .......................................................................................................... 17 The District Court and CFC Complaints do not present the same operative facts. .......................................................................................................... 18 The government's argument misunderstands the law and mischaracterizes the Complaints. ......................................................................................... 19 Plaintiff-Beneficiary seeks different relief in the District Court than it does in the CFC ­ equitable relief in the former and money damages in the latter ­ in accord with each Court's jurisdiction. ............................................................ 21

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a. b. c.

Section 1500 does not apply where the pending Complaints seek different relief. ......................................................................................................... 21 Plaintiff-Beneficiary does not seek the same relief in the two cases. ....... 23 The government's arguments to the contrary are without merit. ............. 27

IV. CONCLUSION....................................................................................................................... 39

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TABLE OF AUTHORITIES Page(s) Cases Alaska Airlines, Inc. v. Johnson, 8 F.3d 791 (Fed. Cir. 1993) ...................................................................................................... 31 AllState Financial Corp. v. U.S., 29 Fed. Cl. 366 (1993) .............................................................................................................. 11 Am. Indians Residing on the Maricopa Ak-Chin Reservation v. U.S., 229 Ct. Cl. 167, 667 F.2d 980 (1981) ....................................................................................... 22 Bowen v. Massachusetts, 487 U.S. 879 (1988).................................................................................................. 3, 30, 31, 33 Branch v. United States, 29 Fed. Cl. 606 (1993) ........................................................................................................ 17, 18 Breneman v. United States, 57 Fed. Cl. 571 (Fed. Cl. 2003), aff'd, 97 Fed. Appx. (Fed. Cir. 2004) ............................ passim Casman v. United States, 135 Ct. Cl. 647 (1956) .......................................................................................................... 2, 21 Cherokee Nation v. United States, 21 Cl. Ct. 565 (1990) ................................................................................................................ 22 Cobell v. Babbitt, 30 F. Supp. 2d 24 (D.D.C. 1998).............................................................................................. 32 Cobell v. Babbitt, 91 F. Supp. 2d 1 (D.D.C. 1999)................................................................................................ 32 Cobell v. Norton¸ 240 F.3d 1081 (D.C. Cir. 2001)......................................................................................... passim Cooke v. United States, 77 Fed. Cl. 173 (2007) ................................................................................................ 2, 3, 17, 28 Crocker v. Piedmont Aviation, Inc., 49 F.3d 735 (D.C. Cir. 1995).................................................................................................... 31 d'Abrera v. United States, No. 06-427C, 07-365C, 2007 WL 2332142 (Fed. Cl. Aug. 15, 2007) .............................. passim

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Doe v. United States, 372 F.3d 1308 (Fed. Cir. 2004) ................................................................................................ 31 Fire-Trol Holdings, LLC v. United States, 65 Fed. Cl. 32 (2005) .................................................................................................... 15, 17, 18 Frunzi v. U.S., 216 Ct. Cl. 439 (1978) .............................................................................................................. 11 Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002)............................................................................................................ 30, 32 Harbuck v. United States, 378 F.3d 1324 (Fed. Cir. 2004) .................................................................................... 11, 27, 28 Hardwick Bros. Co. II v. United States, 72 F.3d 883 (Fed. Cir. 1995) ...................................................................................................... 1 Heritage Minerals, Inc. v. United States, 71 Fed. Cl. 710 (2006) .............................................................................................................. 17 Hill v. United States, 8 Cl. Ct. 382 (1985) .................................................................................................................. 11 Johns-Manville Corp. v. United States, 855 F.2d 1556 (Fed. Cir. 1988) .......................................................................................... 15, 21 Kidwell v. Dep't of the Army, 56 F.3d 279 (D.C. Cir. 1995).............................................................................................. 25, 27 Klamath & Modoc Tribes & Yahooskin Bank of Snake Indians v. United States, 174 Ct. Cl. 483 (1966) .............................................................................................................. 22 Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949).................................................................................................................. 30 Loveladies Harbor v. United States, 27 F.3d 1545 (Fed. Cir. 1994) ........................................................................................... passim Lucas v. United States, 25 Cl. Ct. 298 (1992) ................................................................................................................ 18 Manke Lumber Co. v. United States, 44 Fed. Cl. 219 (1999) .............................................................................................................. 15 Osage Nation v. United States, 57 Fed. Cl. 392 (2003) .............................................................................................................. 22

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Osage Tribe of Indians of Okla. v. United States, No. 04-0283, 2005 WL 578171 (D.D.C. Mar. 9, 2005) ........................................................... 33 OSI, Inc. v. United States, 73 Fed. Cl. 39 (2006) ................................................................................................................ 29 Poafpybitty v. Skelly Oil Co., 390 U.S. 365 (1968).................................................................................................................. 26 Porter v. Warner Holding Co., 328 U.S. 395 (1946).................................................................................................................. 32 Rainbolt v. Johnson, 669 F.2d 767 (D.C. Cir. 1981).................................................................................................. 32 Reich v. Continental Cas. Co., 33 F.3d 754 (7th Cir. 1994) ................................................................................................ 30, 32 Sec. Exch. Comm'n v. First City Fin. Corp., 890 F.2d 1215 (D.C. Cir. 1989)................................................................................................ 31 Tecon Engineers, Inc. v. United States, 343 F.2d 943 (Ct. Cl. 1965) ...................................................................................................... 10 Tecon Engineers, Inc. v. United States, 343 F.2d 943 (Fed. Cl. 1965)................................................................................................ 7, 11 Teegarden v. United States, 42 Fed. Cl. 252 (1998) ................................................................................................................ 7 Tootle v. Sec'y of the Navy, 446 F.3d 167 (D.C. Cir. 2006).................................................................................................. 25 U.S. v. County of Cook, 170 F.3d 1084 (Fed. Cir. 1999) ............................................................................................ 9, 11 United States v. Minor, 228 F.3d 352 (4th Cir. 2000) .................................................................................................... 31 United States v. Mitchell, 463 U.S. 206 (1983)........................................................................................................ 6, 22, 35 UNR Indus. v. U.S., 962 F.2d 1013 (Fed. Cir. 1992) ................................................................................................ 11 Vaizburd v. U.S., 46 Fed. Cl. 309 (2000) ................................................................................................................ 8

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Williams v. United States, 71 Fed. Cl. 194 (2006) .............................................................................................................. 18 Statutes 25 U.S.C. § 4011(a) (2000)........................................................................................................... 24 25 U.S.C. § 4022........................................................................................................................... 26 28 U.S.C. § 1500.................................................................................................................... passim 28 U.S.C. § 1631....................................................................................................................... 9, 11 Other Authorities 1 Dan R. Dobbs, Law of Remedies § 4.1(2) (2d ed. 1993) ........................................................... 32 2A A. Scott & W. Fratcher, The Law of Trusts § 172 (4th ed. 1987)........................................... 24 6 Bogert, The Law of Trusts & Trustees, § 963 ...................................................................... 24, 25 D. Dobbs, Handbook on the Law of Remedies 135 (1973)........................................................... 31 G. Bogert, et al., The Law of Trusts & Trustees § 963 (2d ed. 2006)........................................... 24 G. Bogert, The Law of Trusts & Trustees § 962 ........................................................................... 32 Restatement (Second) of Agency § 399 (1958) ............................................................................. 24 Rules 25 C.F.R. § 162.616 ................................................................................................................ 26, 27 25 C.F.R. § 162.619 ...................................................................................................................... 26 RCFC 12(b)(1) ................................................................................................................................ 1 Rule of Civil Procedure 80 ............................................................................................................. 4

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I.

INTRODUCTION This is an action for money damages against the United States, brought to redress gross breaches of trust by the United States as trustee of land, natural resources, and other assets held for the benefit of the Passamaquoddy Tribe ("Plaintiff-Beneficiary"). The government has moved to dismiss the action for lack of subject matter jurisdiction pursuant to RCFC 12(b)(1) and 28 U.S.C. § 1500 on the ground that Plaintiff-Beneficiary's separate action for an equitable accounting pending in the United States District Court for the District of Columbia is the same claim that it seeks to vindicate here. It is well-settled, however, that jurisdiction is established at the time of filing and under § 1500, a later-filed district court action does not divest the Court of Federal Claims of jurisdiction that was earlier properly established. See Hardwick Bros. Co. II v. United States, 72 F.3d 883, 886 (Fed. Cir. 1995). Plaintiff-Beneficiary is able to demonstrate through the testimony of the person who filed each action, and supporting evidence, that its action in the District Court was not pending at the time Plaintiff-Beneficiary filed this action. This timing issue is dispositive of this Court's jurisdiction. See id. Moreover, as the Federal Circuit has made clear, "to be precluded from hearing a claim under § 1500, the claim pending in another court must arise from the same operative facts, and must seek the same relief." Loveladies Harbor v. United States, 27 F.3d 1545, 1551 (Fed. Cir. 1994) (en banc) (emphases in original). Both requirements must be satisfied, and here neither is met. First, Plaintiff-Beneficiary's claim in the District Court arises from different operative facts involving the breach of a different trust duty from its claims in this Court. In the District Court, Plaintiff-Beneficiary seeks to compel the government to provide a complete, accurate, and adequate accounting of all of the property it holds in trust for the benefit of Plaintiff1

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Beneficiary. The operative facts necessary to establish the breach of that trust obligation include decades of inaction on the part of the United States in the fulfillment of this core duty and the government's failure to maintain adequate records of these trust assets so that PlaintiffBeneficiary can ascertain the true state of its assets. In this Court, by contrast, PlaintiffBeneficiary will prove distinct breaches of trust in the management of Plaintiff-Beneficiary's trust funds and non-monetary trust assets. The operative facts include, for example, loss of investment funds as a result of the United States' breach of its fiduciary duty to maximize trust income by prudent investment and the failure of the United States to obtain fair and reasonable compensation for the use of Plaintiff-Beneficiary's land and other non-monetary assets. To be sure, certain background facts will overlap because the breaches of duty to be proved in both courts arise from the trust relationship between the United States and Plaintiff-Beneficiary, but an overlap in such background facts does not render the two claims the "same" for purposes of § 1500. See, e.g., Cooke v. United States, 77 Fed. Cl. 173, 177-78 (2007); Casman v. United States, 135 Ct. Cl. 647 (1956). Thus, the facts material to the claims in the two courts are not the same. In addition, § 1500 does not apply for the independent reason that Plaintiff-Beneficiary does not seek the same relief in both courts. Simply put, it seeks strictly equitable relief in the District Court and money damages here. In the District Court, Plaintiff-Beneficiary asks for the equitable remedies available in that court for the breach of a duty to account ­ an order directing the government to provide that accounting and other appropriate equitable relief, including restatement of Plaintiff-Beneficiary's accounts to reflect the results of that accounting. It does not, however, request money damages to compensate Plaintiff-Beneficiary for losses resulting from imprudent investment or mismanagement of Plaintiff-Beneficiary's trust assets. The latter form of relief is only requested (and is only available) in this Court. 2

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In particular, contrary to the government's position, the restitution and disgorgement sought in the District Court do not overlap with the money damages requested in this Court. It is well-settled that equitable restitution is not the same as money damages and that in any event, § 1500 does not apply when two claims seek different measures and amounts of monetary relief. See, e.g., Bowen v. Massachusetts, 487 U.S. 879, 893 (1988); Cooke, 77 Fed. Cl. at 178. The government also contends Plaintiff-Beneficiary seeks overlapping declaratory relief, but this argument rests both on a misreading of the Prayer for Relief in this Court and the allegations in the District Court Complaint and on the erroneous legal premise that a liability determination is a form of relief. Accordingly, § 1500 is not a bar to Plaintiff-Beneficiary's claims because it did not have a claim pending in the District Court at the time it filed this action and, in any event, PlaintiffBeneficiary's claim in the District Court neither arises from the same operative facts nor involves the same relief it seeks here. For these reasons, the government's motion to dismiss should be denied. II. STATEMENT OF THE CASE A. Plaintiff-Beneficiary Filed this Action Prior to Filing an Action In The District Court.

On December 29, 2006, Plaintiff-Beneficiary filed two different complaints ­ one in this Court against the United States ("CFC Complaint") and later, one in the District Court for the District of Columbia (the "District Court Complaint") against the Secretaries of the Interior and the Treasury and the Special Trustee for American Indians. (See October 24, 2007 Hearing Transcript, Ak-Chin Indian Community v. United States, No. 06-932L ("Hearing Tr."), 17:1919:15; 33:10-34:9, Appx. Ex. 1.)1 Ms. Applegate, a paralegal at Kilpatrick Stockton LLP, filed

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On October 24, 2007, pursuant to Court order, Ms. Applegate testified in Ak-Chin Indian Community v. United States, No. 06-932L regarding the sequence of the filings of the 3

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both the CFC Complaint and the District Court Complaint. (Hearing Tr. 17:19-19:15; Affidavit of Alexis Applegate ("Applegate Aff."), ¶¶ 3 and 4, Appx. Ex. 2; Plaintiff's Responses and Objections to Defendant's First Set of Interrogatories ("Response to Interrogatories"), Response No. 11, Appx. Ex. 3.) Ms. Applegate filed seven Complaints that day. (Hearing Tr. 17:19-19:15; Applegate Aff., ¶¶ 3 and 4; Plaintiff's Responses and Objections to Defendant's First Set of Interrogatories ("Response to Interrogatories"), Response No. 11.) She filed four Complaints in the Court of Federal Claims and three in the District Court. Id. To accomplish these filings, Ms. Applegate made five separate trips to the clerks' offices of the Court of Federal Claims and District Court. (Hearing Tr. 17:19-19:15.) Plaintiff-Beneficiary's CFC Complaint was among three Court of Federal Claims Complaints, which were the first Complaints Ms. Applegate filed the morning of December 29, 2006. (Hearing Tr. 18:3-9.) Although Ms. Applegate candidly does not remember the exact time she filed these three Complaints, the Complaints were ready to be filed by 9:30 a.m. that morning. (Hearing Tr. 20:9-21:18; 29:16-30:4.) To file these Complaints, Ms. Applegate walked to the Court of Federal Claims, which is just a few blocks from her office. (Hearing Tr. 11:13-20; 18:3-9.) After filing these Complaints, Ms. Applegate returned to the office. (Hearing Tr. 18:216.) Shortly thereafter, Ms. Applegate took a cab to the District Court to file Plaintiff-

Beneficiary's District Court Complaint and the District Court Complaint on behalf of the Salt

Complaints on December 29, 2006. At this hearing, Ms. Applegate testified about her filing of the Complaints initiating this action and Plaintiff-Beneficiary's District Court action. See, e.g., Hearing Tr. 17:19-19:15. Plaintiff-Beneficiary has included a certified copy of the transcript reflecting Ms. Applegate's testimony in the accompanying Appendix ("Appx."), which includes all referenced exhibits. See RCFC 80 ("Whenever the testimony of a witness at a trial or hearing which was reported is admissible in evidence at a later trial, it may be proved by the transcript thereof duly certified by the person who reported the testimony."). 4

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River Pima-Maricopa Indian Community ("Salt River"). (Hearing Tr. 18:17-19:15; 35:1-7); Response to Interrogatories, Response No. 2.) After Ms. Applegate filed these actions, she took a cab back to the office and then completed the filings of Complaints for Ak-Chin in the Court of Federal Claims and District Court, which required her taking two trips to the District Court. (Hearing Tr. 18:17-19:15.) B. The CFC Complaint And District Court Complaint Allege Different Claims Involving Different Operative Facts And Different Relief.

Although both the CFC Complaint and District Court Complaint arise from the trust relationship between Plaintiff-Beneficiary and the United States and the failure of the United States to fulfill various trust obligations, the two complaints allege different claims that involve different operatives facts relating to different breaches of trust and that seek different relief. The District Court Complaint invokes the equitable jurisdiction of the District Court to request a complete, accurate, and adequate accounting of all property held in trust by the United States for Plaintiff-Beneficiary's benefit. See District Ct. Compl. ¶ 1 (attached as Ex. 1 to Def. Br.); Cobell v. Norton¸ 240 F.3d 1081, 1103 (D.C. Cir. 2001) (Cobell VI) (the accounting obligation requires, inter alia, an accounting report that "contain[s] sufficient information for [Plaintiff-Beneficiary] readily to ascertain whether the trust has been faithfully carried out.") (citation omitted). The United States' repeated breaches of its fiduciary obligations with respect to Indian trust assets, now widely recognized by the courts and the Congress, make an accounting necessary to ascertain the true state of Plaintiff-Beneficiary's trust assets. (District Ct. Compl. ¶ 21.) In Count One of the District Court Complaint, Plaintiff-Beneficiary requests a declaration (1) that the United States and its trustee-delegates owe a fiduciary duty to provide a complete and accurate accounting of all funds and assets, and (2) that the defendants are in violation of their duty. (Id. at ¶¶ 33-39; Prayer ¶¶ 1-4.) In Count Two of the District Court 5

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Complaint, Plaintiff-Beneficiary requests injunctive relief directing the defendants to provide such an accounting and to comply with their other fiduciary duties as determined by that Court. (Id. at ¶¶ 41-44; Prayer ¶ 5.) Further, to the extent that the accounting demonstrates errors in the account balances (whether positive or negative), Plaintiff-Beneficiary seeks a decree directing the restatement and correction of Plaintiff-Beneficiary's trust account balances to reflect the results of the accounting. (Id. at ¶¶ 1, 43; Prayer ¶ 6.) Finally, the accounting may well reveal that other equitable relief is appropriate to compel the government to comply with its trust obligations in the present or in the future. (Id. at ¶ 43-44; Prayer ¶¶ 5-6.) The equitable relief Plaintiff-Beneficiary seeks in the District Court is designed to address the government's trust obligations to account for Plaintiff-Beneficiary's trust assets, but it cannot remedy the past breaches of duty prudently to invest money held in trust funds or to obtain the highest and best use for Plaintiff-Beneficiary's land or other trust assets. Establishing the breach of those latter duties involves different operative facts and leads to only one remedy: money damages. Therefore, on December 29, 2006, Plaintiff-Beneficiary filed a Complaint for money damages in this Court to redress specific breaches of statutory, regulatory, and fiduciary duties in the management of Plaintiff-Beneficiary's trust funds and non-monetary trust assets. These duties, as the Supreme Court has recognized, are "money-mandating" and their breach may be remedied by an award of money damages in the Court of Federal Claims. See United States v. Mitchell, 463 U.S. 206, 228 (1983) ("Mitchell II"). The CFC Complaint alleges three distinct breach-of-trust claims for mismanagement of different tribal funds and assets. Specifically, Count I alleges mismanagement of PlaintiffBeneficiary's natural resources, including timber, for failure to obtain "fair and reasonable compensation" for the lease of these resources. (CFC Compl. ¶¶ 26-29.) Count II alleges 6

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mismanagement and failure prudently to invest the principal and earnings of judgment funds held in trust for Plaintiff-Beneficiary. (Id. at ¶¶ 31-34.) Finally, Count III alleges

mismanagement and failure prudently to invest the principal and earnings of other funds held in trust for Plaintiff-Beneficiary, including funds obtained through agreements regarding land and natural resources. (Id. at ¶¶ 37-40.) For all three counts, the only relief requested, and the only relief adequate to redress the trust breaches, is an award of money damages. (Prayer ¶¶ 1-4). III. ARGUMENT A. This Court's Jurisdiction Is Established At The Time The Suit Is Filed And A Later-Filed District Court Action Does Not Divest This Court Of Jurisdiction.

Section 1500 of Title 28 provides that the Court of Federal Claims shall not have jurisdiction "of any claim for or in respect to which the plaintiff ... has pending in any other court any suit ... against the United States." 28 U.S.C. § 1500. The Federal Circuit has made clear that jurisdiction is established at the time the suit is filed. Hardwick, 72 F.2d at 886. Thus, to determine whether § 1500 applies, this Court must first examine whether PlaintiffBeneficiary, when it filed its Complaint in this Court, had pending in any other court any suit against the United States. See id.; Breneman v. United States, 57 Fed. Cl. 571, 575 (2003), aff'd, 97 Fed. Appx. 392 (Fed. Cir. 2004); Tecon Engineers, Inc. v. United States, 343 F.2d 943, 949 (Fed. Cl. 1965). This "timing issue is dispositive of this court's jurisdiction." Id. (citing Hardwick, 72 F.2d at 886; Teegarden v. United States, 42 Fed. Cl. 252, 255 (1998)). Accordingly, if Plaintiff-Beneficiary's District Court Action was not pending at the time it filed its CFC complaint in this Court, the government's motion to dismiss should be denied on this ground alone. See d'Abrera v. United States, 78 Fed. Cl. 51, 56 & n.9 (2007).

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1.

As this Court held in Breneman, same-day filings are not treated as simultaneous for the purposes of § 1500.

In support of its motion to dismiss, the government first argues that PlaintiffBeneficiary's December 29, 2006 filings in this Court and the District Court should be treated as simultaneous for the purposes of § 1500 simply because they were filed on the same day and regardless of which Complaint Plaintiff-Beneficiary in fact filed first. This interpretation of 28 U.S.C. § 1500 is incorrect. First, it disregards the express language of the statute. Section 1500 applies only if another action was "pending" at the time the Complaint in this action was filed. 28 U.S.C. § 1500. "Pendency" is a familiar and easily understood legal term. No lawyer would sensibly say that a later-filed action was "pending" at the earlier time a different complaint was filed in a different court. The government's position also is directly contrary to the Federal Circuit's decision in Hardwick that jurisdiction is established at the time the suit is filed and that under § 1500, a later-filed district court action does not divest the Court of Federal Claims of jurisdiction that was earlier properly established. See Hardwick, 72 F.2d at 886; 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 ....") (emphasis supplied); Vaizburd v. U.S., 46 Fed. Cl. 309, 311 (2000) ("`pendency,' for purposes of applying section 1500, is measured as of the time of the filing of the Court of Federal Claims action.") (emphasis supplied) (citations omitted). Finally, the government reprises arguments that this Court explicitly rejected in Breneman. See also d'Abrera, 78 Fed. Cl. at 56; Tecon Engineers, 343 F.2d at 949 . Indeed, the government cites no legal authority that supports (let alone adopts) its position. In Breneman, as here, the plaintiffs had filed suit in the Court of Federal Claims and the District Court on the same day within several hours of each other and were able to demonstrate 8

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that the District Court action was not pending at the time plaintiffs filed their complaint in the Court of Federal Claims. 57 Fed. Cl. at 574 n. 9. The government moved to dismiss based on 28 U.S.C. § 1500, arguing that because the plaintiffs filed the complaints on the same day, the two complaints should be treated as having been filed simultaneously for purposes of the Court's jurisdiction under § 1500. Id. at 575. In making this argument, the government relied upon United States v. County of Cook, 170 F.3d 1084 (Fed. Cir. 1999), a case in which a district court had transferred some of plaintiff's claims to the Court of Federal Claims for lack of jurisdiction pursuant to 28 U.S.C. § 1631, but had retained other claims. Breneman, 57 Fed. Cl. at 577. In County of Cook, the

Federal Circuit held "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 (emphasis supplied). In Breneman, this Court rejected the application of County of Cook to the different situation in which CFC and District Court complaints were sequentially filed on the same day and no transfer under § 1631 was involved. As the Court explained, § 1631 at issue in County of Cook "mandates" that transferred claims be treated as if they were filed in the transferee court at the time they were filed in the transferor court. Breneman, 57 Fed. Cl. at 577 (citing to County of Cook, 170 F.3d at 190). Thus, unlike a same-day filing, the transferred claims "were truly filed `simultaneously.'" Id. County of Cook therefore had no application in Breneman. This Court then addressed the factual question of the order in which the two complaints actually were filed. Examining the plaintiffs' evidence regarding the filing of the complaints, the Court found that the CFC complaint was filed before the District Court complaint and thus "there was not pending in any other court any suit or process against the United States" for purposes of § 1500. Breneman, 57 Fed. Cl. at 577. Accordingly, plaintiffs' later filing of a 9

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District Court action did not deprive this Court of jurisdiction. Id. (citing Tecon Engineers, 343 F.2d 943); see also Hardwick, 72 F.2d at 886. Because this ruling was dispositive under § 1500, the Court noted that it did not need to address whether the claims in both courts were the same for purposes of that statute. Breneman, 57 Fed. Cl. at 577 n. 11. In Breneman, this Court also considered and rejected both of the policy considerations the government reiterates here to justify expanding the reach of § 1500 beyond its terms. First, the government argues that treating same-day filings as simultaneous under § 1500 serves the purpose of § 1500 to make a plaintiff elect in which forum to proceed and properly focuses the § 1500 inquiry on whether the claims are the same. (Def. Brf. 9.) Second, making same-day filings simultaneous for purposes § 1500 "makes sense" to the government because it asserts that District Court in the District of Columbia records filings only by date but not by time and thus determining the order in which the complaints actually were filed "unnecessarily complicates" the Court's jurisdictional inquiry. (Def. Brf. 9-10.)2 In rejecting these same

arguments in Breneman, this Court relied upon the Federal Circuit's explicit holding in Hardwick that jurisdiction is established at the time of filing suit and a later-filed district court action does not divest the Court of Federal Claims of jurisdiction that was earlier properly established, irrespective of whether the claims are the same under § 1500. Breneman, 57 Fed. Cl. at 576 (citing Hardwick, 72 F.3d at 885-86).3

This argument fails to acknowledge that district courts outside the District of Columbia, such as the District Court involved in Breneman, record filing of complaints by time. See Breneman, 57 Fed. Cl. at 577. 3 The government asserts that eliminating this Court's jurisdiction over same-day filings is desirable on the ground that plaintiffs would no longer be able to "orchestrate the timing of their complaints." (Def. Brf. 10.) The government acknowledges, however, that a plaintiff can avoid § 1500 simply by filing a CFC Complaint one day prior to filing a district court action ­ an avenue which would continue to be available to a plaintiff under the government's approach. (Def. Brf. n. 6.) As such, extending § 1500 to same-day filings would not end "orchestrated filings" as the government suggests. See d'Abrera, 78 Fed. Cl. at 55 n. 9. 10

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Moreover, the jurisdictional provision in § 1500 must, as the Federal Circuit has ruled, be strictly construed to avoid unnecessarily depriving litigants of the opportunity to vindicate all of their claims beyond what Congress expressly provided. Loveladies, 27 F.3d at 1555-56. Policy considerations, such as the ones the government identifies here, should not expand or contract § 1500's terms "to reflect policy preferences that may or may not have led to [its] enactment." d'Abrera, 78 Fed. Cl. at 56 n. 10. Lastly, the government relies heavily upon Harbuck v. United States, 378 F.3d 1324 (Fed. Cir. 2004), to support its position that same-day filings be treated as simultaneous. However, Harbuck, like County of Cook, involved the transfer of claims from the district court and turned on the application of § 1631. In Breneman, this Court soundly rejected the

application of 28 U.S.C. § 1631 ­ which renders filings "truly simultaneous" ­ to same-day filings. Breneman, 57 Fed. Cl. at 577 (citing County of Cook, 170 F.3d at 190).4

During oral argument addressing the government's Motion to Dismiss in Ak-Chin Indian Community v. United States, No. 06-932L, the government referred to three additional cases not cited in its Brief in Support of Its Motion to Dismiss: Hill v. United States, 8 Cl. Ct. 382 (1985), AllState Financial Corp. v. U.S., 29 Fed. Cl. 366 (1993), and Frunzi v. U.S., 216 Ct. Cl. 439 (1978). None of these cases supports the government's argument that same-day filings should be treated as simultaneous for the purposes of § 1500 or justifies this Court's departure from the rule articulated in Breneman. Most importantly, in contrast to what Plaintiff-Beneficiary has demonstrated here, the plaintiffs in Hill, AllState, and Frunzi did not show, or even attempt to show, that they had filed their Court of Federal Claims Complaints prior to filing their District Court Complaints. In fact, in Hill, the plaintiff alleged in her Complaint that the filing of her district court action was "simultaneous" with the filing of the Court of Federal Claims Complaint. 8 Cl. Ct. at 385 n. 3. The Court noted that it was relying upon this allegation when treating the two Complaints as having been filed simultaneously. Id. In addition, the Court decided AllState after the Federal Circuit had stated in UNR Indus. v. U.S., 962 F.2d 1013 (Fed. Cir. 1992), aff'd in part and rejected in pertinent part by Keene Corp. v. United States, 508 U.S. 200 (1993), that it was overruling the rule articulated in Tecon Engineers ­ that a later filing in district court does not deprive this court of jurisdiction ­ and before the Federal Circuit issued its decision in Loveladies. In Loveladies, relying in part upon the Supreme Court's rejection of this portion of UNR in Keene, 508 U.S. at 216, the Federal Circuit explained that this statement in UNR was dicta and that the rule as stated in Tecon Engineers is still good law. See Loveladies, 27 F.3d at 1549; Hardwick, 72 F.3d at 886 ("After UNR/Keene and Loveladies, Tecon Engineers remains good law and binding on this court."); see also Breneman, 57 Fed. Cl. at 575-77 (discussing history of the law on the time of the filing claims). Thus, it is not surprising that in 11

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In the end, the government forthrightly concedes that it simply disagrees with this Court's ruling in Breneman. That, however, is no reason for the Court to depart from

Breneman, and the government presents no other reason. Accordingly, Breneman governs this case. 2. No suit or process was pending against the United States at the time this Court obtained jurisdiction over Plaintiff-Beneficiary's claims.

Because, under Breneman, Plaintiff-Beneficiary had not in fact filed its District Court Complaint at the time of the filing of its CFC Complaint in this Court, § 1500 is inapplicable and does not divest the Court of jurisdiction. The most compelling evidence demonstrating that no other suit or process was pending is the testimony of Alexis Applegate, the paralegal responsible for filing Plaintiff-Beneficiary's CFC and District Court Complaints. Ms. Applegate testified unequivocally that she filed the Complaint initiating this action prior to filing Plaintiff-Beneficiary's District Court Complaint: The first trip of the day, I walked here to the CFC to file three complaints ­ Passamaquoddy, Salt River and Tohono O'odham ­ then returned back to the office, at which point I discovered that the district court complaints in Passamaquoddy and Salt River were now ready. I took my first taxi to the district court and filed those two. (Hearing Tr. 18:3-9; see also id. at 18:17-19:1.) In an effort to create a factual dispute where none exits, the government points to the fact that the District Court Complaint was the first Complaint filed in the District Court on December 29th and argues that this "tend[s] to show" that Ms. Applegate filed the District Court Complaint before filing the CFC Complaint. (Def. Brf. 11.) It shows nothing of the sort. Indeed, the fact that Plaintiff-Beneficiary's District Court Complaint was the first Complaint filed in the District

AllState the parties did not argue, and the Court did not consider, the issue of the time that the Complaints were filed. This Court, however, is bound by Loveladies and Hardwick, which hold that a later-filed district court action does not deprive the Court of Federal Claims of jurisdiction. Loveladies, 27 F.3d at 1549; Hardwick, 72 F.3d at 886. 12

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Court that day is fully consistent with Ms. Applegate's testimony that she filed the District Court Complaint in the morning ­ albeit shortly after she filed the CFC Complaint. It is Ms.

Applegate's uncontroverted testimony that Plaintiff-Beneficiary's CFC Complaint, and the two other CFC Complaints she filed during her first trip to the Court of Federal Claims, were ready to be filed by 9:30 a.m. (Hearing Tr. 20:9-21:18; 29:16-30:4).5 After completing these filings at the Court of Claims and returning to her office, Ms. Applegate "was told" that PlaintiffBeneficiary's District Court Complaint was "ready." (Hearing Tr. 18:3-25; 11:13-20.) She then took a cab to the District Court to file it. Id.6 The fact that the District Court Complaints for Plaintiff-Beneficiary and Salt River are listed in the District court's docket as the first two Complaints filed that morning is fully consistent with Ms. Applegate's testimony. As her testimony makes clear, they were filed that "a.m." ­ but after the CFC Complaints for PlaintiffBeneficiary and two other tribal plaintiffs had been filed in the Court of Federal Claims. The government also argues that Mr. Harper's 8:59 a.m. e-mail to Ms. Applegate, telling her to file the District Court Complaints while he made changes to the CFC Complaints, is dispositive of the timing issue. (Def. Brf. Ex. 4.) This argument is a complete "red herring." Ms. Applegate testified that she did not even see Mr. Harpers 8:59 a.m. e-mail on December 29th and thus could not have heeded this instruction. (Hearing Tr. 28:7-10; 30:6-20.) In addition, that morning, Ms. Applegate was unable to confirm whether the Court of Federal Claims would be closing early that day for the holiday. (Hearing Tr. 26:1-9; Response to Interrogatories, Response No. 11; Applegate Aff., ¶ 7.) This uncertainty, coupled with Mr.

5

While the Complaint to initiate the instant action was ready to go by 9:30 a.m., the Court of Federal Claims Complaint for Ak-Chin was not ready to be filed at that time due to the fact that counsel had not yet obtained information needed to complete the Complaint. (Hearing Tr. 19:16-20:8; 21:19-23:18) and Ex. B, included in Appx.) 6 As Ms. Applegate testified on October 24th, the cab receipt with her "a.m." notation is the cab receipt which documented this morning trip to the District Court. (Hearing Tr. 34:10-35:7) and Ex. E, included in Appx.; 37:13-38:2.) 13

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Harper never having filed a Complaint in the Court of Federal Claims, prompted Mr. Harper to orally direct Ms. Applegate to file the Court of Federal Claims actions prior to filing the District Court actions. (Hearing Tr. 27:12-28:6); Response to Interrogatories, Response No. 11;

Applegate Aff., ¶ 7.) It is this instruction that Ms. Applegate followed. (Hearing Tr. 18:3-9.) Lastly, the government contends that two e-mails Ms. Applegate sent on April 23, 2007 demonstrate that Ms. Applegate is uncertain of which of Plaintiff-Beneficiary's Complaints she filed first that day. (Def. Brf. n. 5 and Ex. 5.) These e-mails reflect Ms. Applegate's response to Ms. Munson's question ­ nearly four months after the filings ­ of how to determine what time the Complaints were filed. Ms. Applegate responded to Ms. Munson's inquiry within a matter of minutes and prior to having reviewed all the relevant contemporaneous evidence relating to the December 29th filings, which is what she did before she executed the Affidavit and testified on October 24, 2007.7 Moreover, in the earlier e-mail, Ms. Applegate does not state that she could not determine the order of filing, as the government suggests. (Def. Brf. n. 5.) Rather, Ms. Applegate simply explains that because the Complaints had no time-stamps, there is "no precise way" to determine what time she filed the Complaints in each court, which is fully consistent with her October 24th testimony. (Hearing Tr. 20:9-14; 30:21-25). In fact, in a follow-up e-mail, and even prior to reviewing all the relevant documentary evidence, Ms. Applegate remembered that she had gone to the Court of Federal Claims first. (Def. Brf. Ex. 5.) For these reasons, the government's arguments do not controvert Plaintiff-Beneficiary's showing that the District Court action was not pending at the time Plaintiff-Beneficiary filed the CFC Complaint.
7

While Ms. Applegate initially recalled having to make a second trip to the Court of Federal Claims that day because she was "missing something" her first trip there, the reason Ms. Applegate was required to make a second trip to the Court of Federal Claims was because the Ak-Chin Complaint was not ready when the other three Complaints were filed and it had to be delivered for filing later that same morning. (Def. Ex. 5.) 14

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B.

Dismissal Under 28 U.S.C. § 1500 Is Improper Unless The CFC And District Court Complaints Present the "Same Claim" That Arises From The "Same Operative Facts" And Seeks The "Same Relief."

The purpose of § 1500 is to "prohibit the filing and prosecution of the same claims against the United States in two courts at the same time." Johns-Manville Corp. v. United States, 855 F.2d 1556, 1562 (Fed. Cir. 1988) (emphasis added). Since the Federal Circuit's en banc decision in Loveladies, it has been well-settled that "[f]or the Court of Federal Claims to be precluded from hearing a claim under § 1500, the claim pending in another court must arise from the same operative facts, and must seek the same relief." Loveladies, 27 F.3d at 1551 (emphasis in original).8 "If either is missing, § 1500 does not apply." Manke Lumber Co. v. United States, 44 Fed. Cl. 219, 222 (1999). Here, both requirements are missing and, therefore, dismissal under 28 U.S.C. § 1500 is improper. In interpreting § 1500 the Federal Circuit has warned that the jurisdictional bar must be construed narrowly in order to guarantee that litigants have an opportunity to vindicate all of their claims and avoid being forced to forgo some claims in favor of others. In Loveladies, the Federal Circuit stated: Because this nation relies in significant degree on litigation to control the excesses to which Government may from time to time be prone, it would not be sound policy to force plaintiffs to forego monetary claims in order to challenge The government tries to dilute the standard in Loveladies, although the distinction does not ultimately matter here because Plaintiff-Beneficiary prevails under either standard. The government argues it is sufficient for dismissal if the operative facts in the two complaints are "substantially the same." (Def. Brf. 7.) (emphasis added). For this point, the government cites the Supreme Court's decision in Keene Corp. v. United States, 508 U.S. 200, 212-214 (1993). In Keene, the Supreme Court, interpreting the predecessor to § 1500, said that the comparison of two suits turned upon whether the plaintiff's other suit was based on "substantially the same operative facts." Id. at 201. As this Court observed in Manke Lumber, however, the Federal Circuit in Loveladies has since worded the applicable standard under § 1500 differently, requiring the "same operative facts." See 44 Fed. Cl. at 222 ("The Supreme Court in Keene used different phraseology to discuss dismissal under § 1500 than that employed by the Federal Circuit in Loveladies."). And this court is "governed by the Federal Circuit's explication of Keene [in Loveladies] which developed it into a two prong test." Fire-Trol Holdings, LLC v. United States, 65 Fed. Cl. 32, 34 (2005). 15
8

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the validity of Government action, or to preclude challenges to the validity of Government action in order to protect a Constitutional claim for compensation. 27 F.3d at 1555-56. As the en banc court noted, "Section 1500 was enacted to preclude duplicate [claims in the aftermath of the Civil War for private property (usually cotton) confiscated from residents of the Confederacy] ­ claims for money damages ­ at a time when res judicata principles did not provide the Government with protection against such `duplicative lawsuits.'" Id. at 1556 (emphasis deleted) (quoting Keene, 508 U.S. at 206). Recognizing that § 1500 has long outlived the narrow purpose for which it was enacted, the en banc court cautioned that "[w]hatever viability remains in § 1500, absent a clear expression of Congressional intent we ought not extend the statute to allow the Government to foreclose non-duplicative suits, and to deny remedies the Constitution and statutes otherwise provide." Id.9 Applying this principle here, § 1500 should not be extended to foreclose PlaintiffBeneficiary's statutory right to money damages arising from breaches of money-mandating duties merely because it also seeks in the District Court the separate relief of an equitable accounting based upon different operative facts and involving different trust duties. 1. Plaintiff-Beneficiary's claim in the District Court for an equitable accounting arises from a different breach of trust and different operative facts from its claims in the CFC for mismanagement of Plaintiff-Beneficiary's trust property.

Plaintiff-Beneficiary's claim for a complete and adequate accounting of its trust assets and other equitable relief in the District Court arises from the government's failure to comply with its trust duty to provide an accounting for all assets held in trust for Plaintiff-Beneficiary. That case is based upon different operative facts and involves a different trust duty than Plaintiff-Beneficiary's claims in this Court for money damages for past mismanagement.
9

Transparently, the government is following a two-step strategy to dismiss the present action under § 1500 and then to challenge the District Court's jurisdiction in the other action ­ thereby leaving Plaintiff-Beneficiary with no recourse for Defendants' egregious and longstanding breaches of trust. (Def. Brf. 19 n. 8.) 16

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a.

"Operative facts" under 28 U.S.C. § 1500 do not include background facts.

As the en banc court recognized in Loveladies, "operative facts" do not include every fact alleged in a complaint, but instead require some link between the facts and the elements of the claim to be proved: Despite its lineage, it can be argued that there is a basic epistemological difficulty with the notion of legally operative facts independent of a legal theory. Insofar as a fact is `operative' ­ i.e., relevant to a judicially imposed remedy ­ it is necessarily associated with an underlying legal theory, that is, the cause of action. For example, without legal underpinning, words in a contract are no different from casual correspondence. 27 F.3d at 1551 n.17. Because it was not critical to the decision in that case, the Federal Circuit concluded it was unnecessary to "further refine the meaning of `operative facts.'" Id. As this Court has repeatedly recognized, "[c]laims involving the same general factual circumstances, but distinct material facts can fail to trigger section 1500." Heritage Minerals, Inc. v. United States, 71 Fed. Cl. 710, 716 (2006) (quoting Branch v. United States, 29 Fed. Cl. 606, 609 (1993)). "[W]hile claims `may be supported by some common operative facts,' § 1500 is not implicated where `the material facts supporting each claim [are] characterized as largely dissimilar.'" Id. Thus, the "fact that two claims share the same factual background is

insufficient to divest this Court of jurisdiction when there is a material difference between the operative facts relevant to each claim." Cooke, 77 Fed. Cl. at 178; see also Fire-Trol, 65 Fed. Cl. at 34 (facts that are "merely background" are "not operative facts directly giving rise to the claims pled"). Under this legal standard, this Court has repeatedly and consistently concluded that claims involving similar background facts, but different operative facts, did not implicate § 1500's bar. See, e.g., d'Abrera, 78 Fed. Cl. at 58 (claims did not arise from the same operative facts despite shared general factual background); Cooke, 77 Fed. Cl. at 177-787 (same); Fire17

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Trol, 65 Fed. Cl. at 34-35 ("merely background"); Heritage Minerals, 71 Fed. Cl. at 715; Williams v. United States, 71 Fed. Cl. 194, 199-200 (2006) (even though "[m]any of the factual allegations ... match[ed]," claims arose from different operative facts); Branch, 29 Fed. Cl. at 608; Lucas v. United States, 25 Cl. Ct. 298, 305 (1992) (claims involved different operative facts event though they had some general facts in common). b. The District Court and CFC Complaints do not present the same operative facts.

The government contends that both complaints are based upon "essentially identical factual allegations" that the United States "as trustee, breached fiduciary duties owed to Plaintiff by allegedly failing to properly manage Tribal trust funds and assets." (Def. Brf. 13.) That is not correct. Of course, there are similarities between the two complaints. But that is neither surprising nor legally germane. In each case, it is the trust relationship between the United States as trustee and Plaintiff-Beneficiary that is at the center of Plaintiff-Beneficiary's claims and gives rise to the duties assertedly violated. But what is legally controlling is that the duties specifically at issue in each case, and the facts underlying the breaches of those duties, are different. Fundamentally, the principal duty Plaintiff-Beneficiary seeks to enforce in the District Court is the government's obligation to provide a complete, accurate, and adequate accounting of all property held in trust by the United States for Plaintiff-Beneficiary's benefit ­ an obligation the United States, as trustee, has not fulfilled since the inception of the trust. (District Ct. Compl. ¶¶ 33-39, 41-42; Prayer ¶¶ 1-3, 5.) The operative facts supporting this claim are those showing that the government has not conducted an accounting due to decades of inaction on the part of the trustee-delegates with respect to fulfillment of this core duty. Those operative facts are different from the facts to be established in support of the distinct breach-of-trust claims alleging fund and asset mismanagement in the case filed in this Court, which include 18

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inter alia, whether there is a money-mandating duty involved; whether and how the government utilized the trust assets; what return was realized for that use; and whether that return was fair and reasonable for a prudent investment under the circumstances. For example, assume arguendo that the trustee-delegates in the accounting sought in the District Court action are able to account faithfully for every transaction related to PlaintiffBeneficiary's judgment funds and other trust funds. Plaintiff-Beneficiary would nonetheless be entitled to substantial money damages in this Court (Counts II and III) if the government's records, although accurate, reflect a failure to deposit or invest those same funds "with the care, skill, and caution that a prudent investor would exercise under the circumstances." (CFC Compl. ¶ 37; see also id. at ¶¶ 31-34) (breach in management of judgment funds). The facts presented in support of these claims would be different from the facts presented to support the equitable accounting claim in the District Court. Conversely, assume arguendo that the trustee-delegates prudently managed and invested Plaintiff-Beneficiary's trust assets. Plaintiff-Beneficiary still would be entitled to an accounting in the District Court if the facts show that the government failed to provide a proper statement of account. Once again, the "same operative facts" do not underlie the two claims. c. The government's argument misunderstands the law and mischaracterizes the Complaints.

In support of its contention that the facts underlying these allegations are likely to be substantially similar in both cases, the United States points to background facts presented in both Complaints that describe the trust relationship between Plaintiff-Beneficiary and the United States, and the persistent and egregious pattern of the United States' failures to comply with its trust obligations. (Def. Brf. 13-17.) Although a full and accurate picture of this trust

relationship is an important backdrop for the claims in both courts, the specific duties PlaintiffBeneficiary seeks to vindicate in each court, and the facts supporting the breaches of those 19

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duties, are different. As explained above, the common facts asserted by the government are legally insufficient to dismiss the complaint under § 1500. Furthermore, the government mischaracterizes the factual allegations on the face of the Complaints. For example, the United States contends that Plaintiff-Beneficiary challenges the adequacy of income it derived from tribal trust lands and natural resources not only in its claims for damages in this Court but also in the District Court. (Def. Brf. 14-15; compare CFC Compl. ¶¶ 26-29 (Count I), with District Ct. Compl. ¶¶ 1-4, 14, 20-21.) Plaintiff-Beneficiary's claim in the District Court, however, does not turn on specific failures to maximize the productivity of its trust property or to use it for its highest and best use. (District Ct. Compl. ¶¶ 20(f)-21). Such breaches are the focus of the Court of Federal Claims Complaint and can only be remedied here where money damages are available. Accordingly, these allegations are simply relevant

background for Plaintiff-Beneficiary's demand for a full accounting in the District Court because these repeated breaches make clear the need for the government to account for all of Plaintiff-Beneficiary's trust assets. Furthermore, without such an accounting, it is possible other breaches would go unnoticed. (Id. at ¶ 21.) ("Due to these and other breaches of the fiduciary duties owed by the United States, the Tribe does not know, and has no way of ascertaining, the true state of its trust assets"). In sum, the operative facts necessary to the claims filed in this court for money damages are different than the facts needed to complete and present the equitable accounting claim in the District Court. This reflects that the trust duties in the two cases are different ­ the accounting obligation and other duties at issue in the District Court are not the same trust duties as the money-mandating duties that support Plaintiff-Beneficiary's three-count complaint here in the Court of Federal Claims.

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2.

Plaintiff-Beneficiary seeks different relief in the District Court than it does in the CFC ­ equitable relief in the former and money damages in the latter ­ in accord with each Court's jurisdiction.

In addition, the District Court and Court of Federal Claims actions seek "distinctly different types of relief in the two courts." Loveladies, 27 F.3d at 1554 (quoting Keene, 508 U.S. at 216). For this independent reason, the government's motion to dismiss should be denied. a. Section 1500 does not apply where the pending Complaints seek different relief.

It is well-settled that § 1500 does not apply where "a different type of relief is sought in the district court (equitable) from that sought in the Court of [Federal] Claims (money)." JohnsManville, 855 F.2d at 1566. For example, in Loveladies, a plaintiff property owner sought complementary, but different, relief in two different courts according to the jurisdiction of each court to award that relief. In the Court of Federal Claims, the plaintiff sought money damages for denial of a wetlands development permit; by contrast, in the district court, the plaintiff filed suit to challenge, and seek the reversal of, the denial of the permit itself. The Federal Circuit held § 1500 did not apply because the plaintiff sought different relief in each court. Loveladies, 27 F.3d 1545; see also Casman, 135 Ct. Cl. 647 (equitable claim for reinstatement sought different relief from claim for back pay). Like the plaintiff in Loveladies, Plaintiff-Beneficiary seeks strictly equitable relief in the District Court and strictly money damages in the CFC. (District Ct. Compl. Prayer ¶¶ 1-6; CFC Compl. ¶¶ 29, 34, 40, Prayer ¶ 2.) Thus, Plaintiff-Beneficiary has tailored the relief it seeks in each court, as it must, to the relief that court has the jurisdictional power to award. See Loveladies, 27 F.3d at 1550 ("using differing relief as a characteristic for distinguishing claims was especially appropriate here because the Court of Federal Claims and its predecessors ... could not grant the kinds of general equitable relief the district courts could, even in cases over 21

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which they otherwise have subject-matter jurisdiction"). There is jurisdiction in this Court over Plaintiff-Beneficiary's claims for money damages for past violations of the United States' trust obligations in the management of Indian property. See Mitchell II, 463 U.S. at 228. However, Plaintiff-Beneficiary cannot obtain declaratory relief here or compel the government to comply with its duty to provide a general accounting of all of PlaintiffBeneficiary's trust assets. See Osage Nation v. United States, 57 Fed. Cl. 392, 393 n.2 (2003) ("this court does not have jurisdiction over claims for a pre-liability accounting or for declaratory relief"); Cherokee Nation v. United States, 21 Cl. Ct. 565, 582 (1990) ("Until plaintiff establishes the liability of defendant, an accounting action takes the form of an independent equitable action beyond the jurisdiction of this court."); Am. Indians Residing on the Maricopa Ak-Chin Reservation v. U.S., 229 Ct. Cl. 167, 667 F.2d 980, 983 (1981) ("this court has no equity jurisdiction to entertain a suit for an accounting"); Klamath & Modoc Tribes & Yahooskin Bank of Snake Indians v. United States, 174 Ct. Cl. 483, 487 (1966) ("It is fundamental that an action for accounting is an equitable claim and that courts of equity have original jurisdiction to compel an accounting. ... Our general jurisdiction under the Tucker Act does not include actions in equity.") (citations omitted). Indeed, the government has conceded that "this Court lacks the power to order a general accounting." See Def. Reply Mot. to Dismiss, at 18, Ak-Chin (No. 06-932L); Def. Reply Mot. to Dismiss, at 17, Salt River (No. 06-943). Given the distinct relief sought in the two cases, application of § 1500 to bar PlaintiffBeneficiary's present claims for money damages in this Court would effectively force claimants to choose between requesting an equitable accounting in the District Court and obtaining money damages here. This is foreclosed by the narrow rule of construction announced in Loveladies. As the Federal Circuit recognized, it is neither good law nor sound policy to require plaintiffs to

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forgo their monetary claims in favor of other equitable remedies against the government and thus "deny remedies the Constitution and statute