Case 1:06-cv-00938-BAF
Document 26-5
Filed 08/04/2008
Page 1 of 30
EXHIBIT 3
QUESTIONS PRESENTED
Under 28 U.S.C. 1500, the Court of Federal Claims
lacks subject matter jurisdiction over "any claim for or in respect to which the plaintiff * * * has pending
in any other court any suit or process against the
United States" or its agents. The questions presented
are: 1. Whether Section 1500 applies if a plaintiff is unable to pursue all its legal theories in a single
action.
2. Whether Section 1500 applies if the plaintiff
simultaneously litigates a dispute in the Court of
Case 1:06-cv-00938-BAF
Federal Claims and another court, but terminates the
other action before the Court of Federal Claims rules
on a motion to dismiss for lack of jurisdiction. 3. Whether the decision in this case should apply
to petitioner.
Document 26-5 Filed 08/04/2008 Page 2 of 30
(i)
T'ABLE OF CONTENTS
Page
Opinions below ..................................................................... 1
Jurisdiction ........................................................................... 2
Statutory provision involved .............................................. 2
Statement: 1. District Court litigation ,.....................,.................... 3
a. Pennsylvania ....................................................... 3 b. New York ............................................................ 3 c. District of Columbia.......................................... 4
Case 1:06-cv-00938-BAF Document 26-5
2. Court of Federal Claims liigation ......................... 4
a. Keene I ,................................................................ 4 b. Keene II ............................................................... 4 3. The Section 1500 motions ........................................ 5 4. The court of appeals' decisions ............................... 6 a. The panel decision ............................................... 6
b. The en banc decision .......................................... 7
Summary of argument "........................................................ 10 Argument:
i. Section 1500 bars simultaneous litigation of a
dispute in the Court of Federal Claims and
another court ........................................................... 14
A. Section 1500 provides that the Court of Fed-
eral Claims lacks jurisdiction if the plaintiff has a related action pending in another
court ..................................................................... 14 B. The purpose of Section 1500 is to bar plain-
Filed 08/04/2008
tiffs from suing the United States or its
agents in the Court of Federal Claims and
another court .................................................... 17
C. Section 1500 is not limited to legal theories
that must be liigated in a single action
under principles of claim preclusion ............. 21
Page 3 of 30
(ii)
Argument-Continued: Page
Casès-Continued :
Christianson v. Colt Indus. Operating Corp'., 486
IV
v
Page
32
D. Section 1500 does not permit a plaintiff to
U.S. 800 (1988)
engage in simultaneous litigation against the
United States as long as the second action is terminated before the Court of Federal
Corona Coal Co. v. United States, 263 U.S. 537
De La Rama S.S. Co. v. United States, 344 U.S.
Claims rules on a motion to dismiss.............. 29
(1924) ..............................................8, 12, 15, 16, 28, 38, 39
32
15
E. The jurisdictional bar of Section 1500 does
not depend on the order in which a plain-
tiff's actions are filed ......................................... 36
386 (1953) ............................................................... Estate of Cowart v. Nicklas Drilling Co., 112 S.Ct.
2589 (1992) ..............................................................
F. The courts are not free to disregard clear
Firestone Tire & Rubber Co. v. Risjord, 449 U.S.
Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222 (1957)
Frantz Equip. Co. v. United States, 1'20 C1. Ct. 314
statutory language to avoid harsh results,
368 (1981) .......................................................9, 13,41,42
30
35
4
6
6
and Section 1500 is not as harsh as petitioner
and its amici suggest ........................................ 39
Case 1:06-cv-00938-BAF
II. The doctrines of non-retroactivity and equitable
tollng do not apply in this case ............................. 41 A. Non-retroactivity is inappropriate in this
GAF Corp. v. United States:
(1951) ......................................................................
case ....................................................................... 41
B. Equitable tollng is inappropriate in this
818 F.2d 901 (D.C. Cir. 1987) 19 C1. Ct. 490 (1990) ............................................
case ....................................................................... 43
923 F.2d 947 (Fed. Cir. 1991), cert. denied,
112 S. Ct. 965 (1992)....................................
Conclusion....................................................................... ...... 46
Griffth V. Kentucky, 479 U.S. 314 (1987)
Hallstrom v. Tillamook County, 493 U.S. 20
Document 26-5
42
T'ABLE OF AUTHORITIES
(1989) .......................................................................
Hill v. United States, 8 C1. Ct. 38'2 (1985)
Cases:
33
Hossein v. United States, 218 Ct. C1. 727 (1978)....
Insurance Corp. of Ireland v. Compagnie des
16,27
34
Bauxites de Guinee, 456 U.S. 694 (1982)............ 32
Allied Materials & Equipment Co. v. United States, 210 ct. C1. 714 (1976)............................ 27
Boston Five Cents- Savings Bank v. United States,
864- F.2d 137 (Fed. Cir. 1988) ............................. 27
Irwin v. Veterans Admin., 111 S. Ct. 453 (1990).. 33, 43,
44
British American Tobacco Co., 89 Ct. C1. 438
Filed 08/04/2008
Brown v. United States, 358 F.2d 1002 (Ct. C1.
(1931), cert. denied, 310 U.S. 627 (1940) ........ 25,34
1966) ...........................................................8, 34, 35, 36, 40
James B. Beam Distilling Co. v. Georgia, 111 S. Ct. 2439 (1991) ............................................................. 42-43 Japanese War Notes Claimants Ass'n v. United
States, 373 F.2d 356 (Ct. C1.), cert. denied, 389
Budinich v. Becton Dickinson & Co., 486 U.S. 196 (1988) ....................................................................... 41,42
U.S. 971 (1967) .......-............................................... 44
Johns-Manville Corp. v. United States, 855 F'.2d
Cas
man v. United States, 135 Ct. C1. 647 (1956) ..._ 8,26,
Catawba Indian Tribe of South Carolina V. United
27,28,36,40
1556 (Fed. Cir. 1988), cert. denied, 489 U.s.
1066, (1989) ...................................5,15,23,24,25,26,44
Keene Corp. v. United States:
States, No. 92-5018 (Fed. Cir. Jan. 6, 1993) ........ 44
Page 4 of 30
Chevron Oil Co. v. Huson, 404 U.S. 97 (1971) ........ 43
700 F.2d 836 (2d Cir. 1983), cert. denied,
464 U.S. 864 (1983) ...................................... 4
Case 1:06-cv-00938-BAF
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OCTOBER TERM, 1992
No.
92-166
KEENE CORPORATION, PETITIONER
v.
UNITED STATES OF AMERICA
Case 1:06-cv-00938-BAF
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
Document 26-5
BRIEF FOR THE UNITED STATES
OPINIONS BELOW
The en banc opinion of the court of appeals (Pet.
App. AI-A34) is reported at 962 F.2d 1013. The
¡ i
opinion of the Court of Federal Claims 1 (Pet. App.
Filed 08/04/2008
EI-E27) is reported at 17 Cl. Ct. 146.
J
1 Effective October 29, 1992, Congress renamed the United
j
States Claims Court the "United States Court of Federal Claims." See Court of Federal Claims Technical and Proce-
dural Improvements Act of 1992, Pub. L. No. 102-572, §:§ 902,
911, 106 Stat. 4516, 4520. Throughout this brief, we refer
to the court by its new name.
1 i i 1
Page 7 of 30
(1 )
¡ ¡ oj ¡
2
3
l.District Court Litigation
JURISDICTION
The judgment of the court of appeals was entered
a. Pennsylvania. In June 1979, petitioner filed a
on April 23, 1992. The petition for a writ of certiorari was filed on July 22, 1992, and was granted
third-party complaint against the United States in
Miller v. Johri-Manville Prods. Corp., No. 78-1283E
on October 19, 1992. The jurisdiction of this Court
is invoked under 28 U.S.C. 1254 (1) .
tribution for any tort liabilty that it might incur for
injuries caused by the plaintiff's exposure to asbestos while working for a private company that performed work for the United States N avypursuant to a government contract. Pet. App. IL-I3. In May 1980, the
(W.D. Pa.). Petitioner sought indemnification or con-
STATUTORY PROVISION INVOLVED'
Section 1500 of Title 28, U.S. Code, provides:
The United States Court of Federal Claims shall
Case 1:06-cv-00938-BAF
not have jurisdiction of any claim for or in re-
spect to which th~ plaintiff or his assignee has
court granted petitioner's motion to dismiss its thirdparty complaint without prejudice. Pet. App. E15.
pending in any other court any suit or process
against the United States or any person who, at the time when the cause of action alleged in such
b. New York. In January 1980, petitioner filed an omnibus tort action against the United States in
the United States District Court for the Southern
suit or process arose, was, in respect thereto,
Document 26-5
acting or professing to act, directly or indirectly under the authority of the United States.
District of New York. Keene Corp. v. United States, No. 80-Civ.-0401GLG. Petitioner sought to recover from the United States amounts that it had paid or
expected to pay to some 14,000 asbestos tort claimants
STATEMENT
who were exposed to asbestos while working at naval
shipyards or for private companies acting under con-
Petitioner manufactured and sold products containing asbestos. From 1979 to 1987, petitioner liti-
gated separate civil actions against the United States
tract for the United States Navy. In addition, petitioner asserted that the federal government's recoupment of payments under the Federal Employees Com-
in three district courts and in the Court of Federal Claims. In each action, petitioner sought reimbursement for its liabilty to workers injured as a result
pensation Act, 5 U.S.C. 1500 (FECA), was a taking
of petitioner's property without just compensation
Filed 08/04/2008
yards or for private companies
of exposure to asbestos while working at naval shipunder contract to the
United States N avy.2
in violation of the Fifth Amendment. See J.A. 6-39. On September 30, 1981, the district court dismissed
the action, primarily on the ground that petitioner's
2 Petitioner's lawsuits were part of massive liigation against the United States over asbestos claims. At its height,
Page 8 of 30
the government was being sued in some 3,000 cases and faced potential liabilty in excess of $40 bilion. The Department of
administrative tort claims against the United States failed to satisfy the requirements of the Federal Tort Claims Act (FTCA), 28 U.S.C. 2675(a). The court
also held that it lacked jurisdiction to decide peti-
Justice created a special 35-Iawyer section within its Civil
Division solely to defend this litigation.
tioner's takings claims. J.A. 41-57. The court of
4
5
appeals affrmed the district court's ruling, Keene
F12.
3. The Section 1500 Motions
Corp. v. Un~ted States, 700 F.2d 836 (2d Cir.), and
tioner reiterated its claim that the government's re-
this Court denied certiorari, 464 U.S. 864 (1983).
c. District of Columbia. In July 1982, after the
coupmentof payments under FECA was a taking of property without just compensation. Pet. App. Fl-
district court in the Southern District of New York had rejected petitioner's tort claims, petitioner brought
a second omnibus tort action against the United States
a. In February 1987, the United States filed a
motion in the Court of Federal Claims pursuant to 28
U.S.C. 1500 to dismiss petitìoner's Tucker Act com-
plaints, and similar complaints brought by several
other asbestos manufacturers, for lack of subject
Case 1:06-cv-00938-BAF
in the United States District Court for the District of Columbia. In July 1984, the district court held that petitioner was attempting to relitigate issues decided in the New York litigation, and that consequently principles of issue preclusion required dismissal of the action. Keene Corp. v. United States,
matter jurisdiction. The government contended that
the Court of Federal Claims lacked jurisdiction be-
591 F. Supp. 1340, 1345-1349 (D.D.C. 1984). The
court of appeals affrmed the district court;s ruling.
GAF Corp. v. United States, 818 F.2d 901, 912-916
(D.C. Cir. 1987).
cause petitioner and the other claimants had district court suits involving the same dispute pending at the same time they were litigating their actions in the
Court of Federal Claims.
Document 26-5
2. Court of FederalCláims Litigation
a. Keene I. In December 1979-while petitioner's
third-party complaint in Miller was pending-petitioner filed an action against the United States in
the Court of Federal Claims under the Tucker Act,
In April 1987, the Court of Federal Claims granted the government's motion as to one claimant, JohnsManvile Corporation. Keene Corp. v. United States, 12 Cl. Ct. 197 (1987). The court did not rule on the motion with respect to petitioner or the other manufacturers, but noted that their claims likely would
28 U.S.C. 1491. Keene C01'p. v. United States, No.
579-79C. Petitioner sought indemnity from the United States for any amounts paid by petitioner to asbestos
be dismissed under Section 1500 for want of jurisdiction. Id. at 198-199 n.lo The court of appeals
Filed 08/04/2008
affrmed, Johns-Manville Corp. v. United States, 855
F.2d .1556 (Fed. Cir. 1988), and this Court denied
tort claimants exposed to asbestos while working at naval shipyards or for companies under contract to the United States Navy. Pet. App.HI-H20.
b. Keene II. On September 25, 1981-while peti-
tioner's omnibus tort action was. pending in New York-petitioner filed a second action in the Court of
certiorari, 489 U.S. 1066 (1989). b. In November 1988, the government filed a second motion to dismiss petitioner's claims. under 28
U.S.C. 1500. The Court of Federal Claims granted
Page 9 of 30
Federal Claims under the Tucker Act. Keene Corp.
v. United States, No. 585-81C. In that action, peti-
the government's motion as to all plaintiffs except
6
7
GAF Corporation:'! The court held that Section 1500 required dismissal of the other asbestos manufactur-
court found that the statutory language was ambiguous, and that "policy and legislative history support
ers' claims because,
at the time the actions were filed
in the Court of Federal Claims, the plåintiffs had
other actions involving the same dispute pending in
a different reading." Ibid. Judge Mayer dissented. He concluded that the
panel's holding was "contrary to the unambiguous
other courts against the United States. The Court of Federal Claims rejected petitioner's argument that
the subsequent termination of the district court ac-
language of the statute, its purpose and history." Pet. App. D26. Judge Mayer reasoned that the juris-
tions vested it with jurisdiction over the complaints.
Pet. App. E1-E27.
Case 1:06-cv-00938-BAF
4. The Court of Appeals' Decisions
diction of the Court of Federal Claims "should not depend on when a motion to dismiss under section 1500 is filed or is considered by this court." Ibid. b. The En Banc Decision. The court of appeals
granted rehearing en banc and affrmed the decision
of the Court of Federal Claims in an opinion joined
a. The Panel Decision. A panel of the court of appeals reversed. Pet. App. D1-D25. The panel held that "when an earlier-filed district court case is finally
A24.
by nine of the ten judges on the court. Pet. App. Ali. The court of. appeals comprehensively reexam-
dismissed before the Claims Court entertains and acts
Document 26-5
on a § 1500 motion to dismiss, § 1500 does not bar
Claims Court jurisdiction even though the dismissal may have occurred after the filing of the Claims
ined prior judicial decisions construing Section 1500
and concluded that "section 1500 is rife with judicially created exceptions and rationalizations to the
point that it no longer serves its purposes: to force
Court action." Pet. App. D22.The panel acknowledged that a "not * * * unreasonable reading of
an election of forum and to prevent simultaneous
the statute" would bar the Court of Federal Claims from exercising jurisdiction if the plaintiff had a
dual litigation against the government." Pet. App.
related action pending in another court when it filed
an action in the Claims Court. ld. at D23. But the
TecOn Engineers,
A14. The court observed that" (iJt is a rare plaintiff who could not find an exception to his liking if he tried hard enough." ld. at AI4-AI5. The court
declined petitioner's invitation to continue "the charade." ld. at A15.
Filed 08/04/2008
''!The Court of Federal Claims, relying on
Inc. v. United States,
343 F.2d 943
(Ct. Ci. 1965), cert.
denied, 382 U.S. 976 (1966),
held that Section 1500 did not
The court of appeals concluded that the plain mean-
ing of the statute and its purpose mandate a brightline rule that the Court of Federal Claims lacks juris-
apply to GAF because GAF fied its district court action one day after it filed suit in the Court of Federal Claims. Pet. App. E25-E26. The Court of Federal Claims subsequently
rejected GAF's claims on the merits. GAF' Corp. v. United
diction over a claim if the same claim is pending in
another court. Accordingly, the court held:
1) if the same claim is pending in another court at the time the complaint is filed in the Claims
Page 10 of 30
States, 19 CI. Ct. 490 (1990). The court of appeals affrmed that ruling, 923 F.2d 947 (Fed. Cir. 1991), and this Court
denied certiorari, 112 S. Ct. 965 (1992).
"8
'9
Court, the Claims court
gardless of when an objection is raised or acted
court
Court has no jurisdiction, re-
and another court. Pet. App. A13-AI4,Al 7. The
also overruled Tecon Engineers, Inc.v. United StaÆes, 343 F.2d 943 (Ct. 01. 1965), cert. denied, 382
U.S. 976 (1966), which' had held that Section 1500
on; 2) if the same claim is fied in another
after the complaint is filed in the Claims Court,
the Claims Court is by that action divested
did not apply if the plaintiff first fied an action in
the Court of Federal Claims and thereafter filed an action concerning the same dispute in another court. Pet. App. A18-AI9.
of jurisdiction
regardless of when the Court
memorializes the fact by order of dismissal; and 3) if the same claim has been finally disposed of
iii. The court reaffrmed the principle that two
actions involve the same "claim" for the purposes of
Section 1500 if they are based on the same operative
Case 1:06-cv-00938-BAF
by another court before the complaint is filed in the Claims Court, ordinary rules of res judicata and available defenses apply. Pet. App. Al5.
"claim" refers to actions based on
facts. The court rejected the contention that a
The court of appeals declined to construe Section
1500 as permitting "a plaintiff to maintain cases in
the same legal
theory. The court explained that such a narrow con-
both courts unti the government moves to dismiss
the Claims Court suit or unti a judge addresses the
motion." Pet. App. A16. The court explained that
struction of the term "claim" would render the statute ineffective against the very abuse it was intended
to prevent. Pet. App. A19-A20.
iv. Finally, the court of appeals rejected the petitioner's argument that its decision should not be given
Document 26-5
such a rule would be "contrary to thEeJ recognized
purpose of section 1500," because it would "compel the government to defend two suits simultaneously." Ibid.
ii. The court of appeals reexamined several of its prior decisions that created exceptions to the juris-
dictional bar of Section 1500 in order to ameliorate its
retroactive effect. The court explained that, because a federal court "lacks discretion to consider the merits of a case over which it is without jurisdiction, * * * a jurisdictional ruling may never be made prospective only." Pet. App. A22-A23, quoting Firestone Tire &: Rubber Co. v. Risjord, 449 U.S. 368, 379
Filed 08/04/2008
(1981) .
v. Chief Judge Nies joined the court's opinion, but
also filed a
hIe hardship to a plaintiff "does
perceived harshness. Adhering to this Court's decision in Corona Coal Co. v. United StaJtes, 263 U.S. 537, 540 (1924), the court of appeals held that possinot justify rewriting
separate opinion suggesting that, in some
the statute." Pet. App. A17. Accordingly, the court
circumstances when a party is barred by Section 1500
from litigating simultaneous actions .against the
United States, equitable tollng of the statute of limii
overruled Brown v. United St(Jtes, 358 F.2d 1002 (Ct. C1. 1966), and Casman v. United States, 135
Ct. C1. 647 (1956). Pet. App. A17 & n.3. Brown and
tations may be appropriate. Pet. App. A24-A25.
vi. Judge Plager dissented. Pet. App. A25-A34.
Casman had both construed Section 1500 to allow
I
Page 11 of 30
plaintiffs to maintain simultaneous actions concern-
Judge Plager would have ruled that "when an earlierfied district court case is finaHy dismissed before the
ing the same dispute in the Court of Federal Claims
¡
i
10
11
Claims Court entertains and acts on a § 1500 motion
to dismiss, § 1500 does not bar Claims Court jurisdic-
tion." ld. at A3L.
cials in other courts. The stated purpose of the statute was "to put that class of persons to their election either to leave the Court of Claims or to leave the
other courts." Congo Globe, 40th Cong., 2d Sess. 2769
SUMMARY OF ARGUMENT
(1868) .
c. Petitioner is incorrect in contending that Section 1500 applies only if principles of claim preclu-
1. a. Section 1500 provides that the Court of Fed-
eral Claims "shall not have jurisdiction of any claim
for or in respeot to which the plaintiff or his assignee
sion would require the plaintiff to pursue all its legal
theories in a single action. By its terms, Section 1500
has pending in any other court any suit or process against the United States" or its agents. Congress
applies if a claim is "in respect to"-i.e., related to-
Case 1:06-cv-00938-BAF
hardly could have chosen more sweeping and defini-
a pending action in another court. A claim that is
based on the same set of facts as a pending action plainly is related to the action. Moreover, petitioner's
proposed construction would foster the very type of
tive language to bar plaintiffs from litigating a dis-
pute against the government simultaneously in the
Court of Federal Claims and another court. Sec-
tion 1500 applies to any claim "in respect to which"
Document 26-5
the plaintiff has pending another action-that is, any
simultaneous litigation that Section 1500 was designed to stop. The Court of Federal Claims has no jurisdiction to hear claims under the Federal Tort Claims Act; the district courts have no jurisdiction to hear claims under the Tucker Act for more than
allow plaintiffs to engage in simultaneous litigation
$10,000. Consequently, petitioner's proposal would
claim that "relates to" or is "concerned with" a pending action. Because Section 1500 applies only if the plaintiff "has pending" another action, it does not bar 8, plaintiff from bringing an action in the Court of Federal Claims if a related action in another court
is no longer pending. But the Court of Federal
of a dispute in the Court of Federal Claims (on a contract theory) and in the district court (on a tort
theory). Indeed, petitioner's construction of the statute would have allowed the cotton claimants to continue to maintain simultaneous actions against the
Claims plainly lacks jurisdiction while a related action is pending in another court, and the termination of the related action does not confer jurisdiction
plaintiff from engag-
retroactively on the Court of Federal Claims.
Filed 08/04/2008
b. The legislative history of Section 1500 confirms
United States and federal offcials.
d. Petitioner is also incorrect in contending that Section 1500 allows a plaintiff to engage in simul-
that Congress intended to bar a
ing in simultaneous litigation of a dispute in the
Court of Federal Claims and another court. The
taneous litigation against the United States as long
as the other actions are terminated before the Court of Federal Claims rules on a motion to dismiss for
lack of jurisdiction. Section 1500 plainly provides
Page 12 of 30
statute was specifically intended to apply to the so-
called "cotton claimants," a group of plaintiffs who brought actions against the United States in the Court of Claims and parallel actions against federal off-
that the Court of Federal Claims "shall not have
jurisdiction" if the plaintiff "has pending" a related
12 13
action against the United States in another court. The Court of Federal Claims does not acquire jurisdiction merely because the government fails to learn
of the existence of a related action or the Court of
wasteful and duplicative litigation and conserves public resources. Those policies are hardly out of keeping with the current legal landscape. Moreover,
Federal Claims fails to rule on a motion to dismiss.
petitioner and its amici greatly exaggerate the harsh
results that wil flow from interpreting Section 1500
That reading of Section 1500 is confirmed by the
as i,t is written. In many cases, plaintiffs wil be able to obtain complete relief in a single action. Where
that is not possible, the generous six-year period of
original statutory language, which provided that "no person shall file or prosecute any claim * * * for or in respect to which he * * * has pending any suit or
process." 15 Stat. 77. When Congress replaced that
phrase in 1948, it did not intend to alter the meaning
Case 1:06-cv-00938-BAF
of the statute.
limitations applicable to Tucker Act claims affords plaintiffs an opportunity to bring a second action in all but the most protracted cases. If a plaintiff has
acted dilgently and refrained from engaging in
Petitioner's proposed construction would not precumstances.
vent dual simultaneous litigation. Given the mini-
simultaneous litigation, equitable tollng of a statute
mal requirements of notice pleading, and the diffcul-
of limitations may be available in appropriate cir2. a. The court of appeals correctly concluded
that it was required to give its decision retroactive
ties of coordinating the government's numerous liti-
gating components, a plaintiff could often litigate
against the government on two fronts at the same
Document 26-5
time. If plaintiffs. understand that the Court of
Federal Claims wil
effect. Because the federal courts have no authority to expand their subject matter jurisdiction, "a jurisdictional ruling may never be made prospective
only." Firestone Tire i& Rwbber Co. v. Risjord, 449
be required to dismiss their action if they litigate simultaneously in another forum,
Section 1500 wil be largely self-policing. Petitioner's construction also ignores the funda-
U.S. 368, 379 (1981). In any event, there is no basis
for petitioner's suggestion that the Court's decision
should not apply to
mental rule that limitations on a court's subject mat-
ter jurisdiction cannot be waived by the parties or
the court. There is no source of authority that would
cle III concerns that petitioner's argument raises,
petitioner. Apart from the Artipetitioner is not entitled to a prospective ruling be-
Filed 08/04/2008
permit a court to overlook the defect in its subject
matter jurisdiction.
cause it is not relying on clear past precedent, but
e. Although petitioner contends that Section 1500
rather on arguments that prior judicial exceptions to
Section 1500 should be expanded. b. Petitioner did not seek equitable tollng of the statute of limitations in the courts below, and those
is out of harmony with the legal landscape and
produces harsh results, this Court has already de-
clined a litigant's invitation to "add an exception
courts did not consider that issue. Accordingly, this
Court should not address it either. In any event, equitable tollng is not appropriate in the circumstances of this case. Petitioner did precisely what
(to Section 1500) to remove apparent hardship."
Page 13 of 30
Corona Coal Co. v. United StGJtes, 263 U.S. 537, 540
(1924). In any event, a rule barring litigation of
the same dispute in two courts at once discourages
14
15
are not at liberty to add an exception in order to
Section 1500 forbids. It pursued multiple actions in
multiple courts seeking essentially the same relief against the United States based on essentially the
remove apparent hardship." Corona Coal Co. v.
United States, 263 U.S. 537, 540 (1924). See generally Estate of Cowart v. Nicklos Drilling Co., 112
same facts-the government's alleged responsibilty
for injuries to workers exposed to asbestos while
working in naval shipyards or on federal contracts. Indeed, petitioner litigated precisely the same takings
S. Ct. 2589, 2594 (1992); King v. St. Vincent's Hos-
claim simultaneously in the Court of Federal Claims and the district court. None of the established judi-
pital, 112 S. Ct. 570, 575 n.14 (1991). Section 1500 speaks in the language of subject matter jurisdiction. It provides in absolute and sweeping terms that the
Court of Federal Claims I'shall not have jurisdiction
cial exceptions to Section 1500 authorized petitioner's
of any claim for or in respect to which the plaintiff
Case 1:06-cv-00938-BAF
extraordinary seven-year campaign of simultaneous
* * * has pending in any other court any suit or
litigation. Accordingly, petitioner is not entitled to
equitable relief.
process"against the United States or "any person
* * * acting or professing to act, directly or indirectly
under the authority of the United States" (emphasis
ARGUMENT
added). Congress hardly could have chosen more
I. SECTION 1500 BARS SIMULTANEOUS LITIGA.
definitive and emphatic language to bar plaintiffs
from litigating a dispute with the government simul-
TION OF A
Document 26-5
DISPUTE IN THE COURT OF FED. ERAL CLAIMS AND ANOTHER COURT
Court Of Federal
taneously in the Court of Federal Claims and in
another court.
A. Section 1500 Provides That The
Claims Lacks Jurisdiction If The Plaintiff Has A Related Action Pending In Another Court Section 1500 of Title 28 provides:
As petitioner observes (Pet. Br. 18), the word
The United States Court of Federal Claims
Filed 08/04/2008
shall not have jurisdiction of any claim for or in respect to which the plaintiff or his assignee has
pending in any other court any suit or process against the United States or any person who, at
the time when the cause of action alleged in such
ti.
suit or process arose, was, in respect thereto,
i
l
t
"claim" lacks a single "plain" meaning. See J olinsManville Corp. v. United States, 855 F.2d 1556, 1560 (Fed. Cir. 1988), cert. denied, 489 U.S. 1066 (1989). But Congress eliminated any ambiguity that attaches to the term "claim" by providing that the Court of Federal Claims lacks "jurisdiction of any claim for or in respect to which the plaintiff * * * has pending * * * any other suit or process" against the United States or its agents. A claim is "in respect to" a suit
if it "relate(sJ to" the suit, or is "concerned with"
acting or professing to act, directly or indirectly under the authority of the United States.
the suit, or Ilha(sJ regard or reference to the suit.
(
As the Court observed in construing the predecessor
Webster's Third New International Dictionary 1934
(1986). Cf. Lemon v. Kurtzman, 403 U.S. 602, 612
t
11 i' I' I: ,¡
Page 14 of 30
of Section 1500, "the words of the statute are plain,
with nothing in the context to make their meaning
doubtful; no room is left for construction, and we
(1971) (discussing meaning of the word "respecting" in the Establishment Clause of the First Amendment).
L
16 17
Accordingly, the language of Section 1500 bars the
B. The Purpose Of Section 1500 Is To Bar Plaintiffs From Suing The United States Or Its Agents In
The Court Of Federal Claims And Another Court
1. The legislative history of 28 U.S.C. 1500 con-
Court of Federal Claims from assuming jurisdiction over a claim if the plaintiff has a related action pending in another court.
By its terms, Section 1500 deprives the Court of
Federal Claims of jurisdiction if the plaintiff "has pending" a related suit in another court. If the re-
firms that Congress intended to bar simultaneous
lated action is no longer pending, the statutory lan-
guage does not prevent the plaintiff from bringing
litigation of a dispute in the Court of Federal Claims and another court. During the Civil War, the government seized property in the Confederate States pursuant to the Captured and Abandoned Property Act
of 1863, ch. 120, 12 Stat. 820. Persons claiming
a subsequent action in the Court of Federal Claims.
Case 1:06-cv-00938-BAF
But a "pending" action does not become a "non-
pending" action merely because the parties fail to
ownership of property seized under that Act were
permitted to bring an action against the United States in the Court of Claims to recover any pro-
bring it to the attention of the Court of Federal Claims, or that court fails to rule on a motion to dismiss. See Hill v. United States, 8 Ci. Ct. 382,
385-386 (1985) ("words 'shall not' are an absolute
ceeds from the sale of the property, but were required to prove that they had not given any aid or comfort
to the rebellon. § 3, 12 Stat. 820. The "cotton claimants" (so called because most of the claims were for seized cotton) not only brought a large
bar depriving this court of any discretion, whatso-
Document 26-5
ever, when duplicative claims are filed").4
4 This Court's prior decisions construing the predecessor
number of actions against the United States in the
A 7; David Schwartz, Section
of 28 U.S.C. 1500, Section 154 of the Judicial Gode, consistently have adhered to the plain language of the statute. In
Corona Coal Co. v. United States, 263 U.S. 537 (1924), the
Court of Claims, but also brought parallel tort actions against federal offcials in other courts. See Pet. App. 1500 of the Judicial
Code and Duplicate Suits Against the Government
and Its Agents, 55 Geo. L.J. 573, 575-576 (1967). Congress enacted the original version of Section 1500, Section 8 of the Act of June 25, 1868, ch. 71,
Court of Claims dismissed the plaintiff's action, and the plain-
tiff took an appeal to this Court. After the Court of Claims entered judgment, the plaintiff brought separate actions in
Filed 08/04/2008
the district court "because (the actions) were about to become barred by expiration of the statutory period of limitation."
15 Stat. 77, to put an end to this dual litigation.
Section 8 provided:
263 U.S. at 540. This Court held that Section 154 required dismissal of the appeaL. It concluded that "the words of the
statute are plain," and therefore the Court is "not at liberty to add an exception in order to remove apparent hardship in
tiff) from suing on those claims in the Court of Claims, and excluders) its jurisdiction of them") ; Matson Navigation Co.
particular cases." Ibid. See also Ex parte Skinne1" & Eddy Corp., 265 U.S. 86, 95 (1924) (where the Court of Claims grants the plaintiff's motion to dismiss, and the plaintiff then
v. United States, 284 U.S. 352 (1932) (plain language of Section 154 inapplicable if simultaneous action is against
the United States rather than a federal offcial). In 1948,
Page 15 of 30
Section 154 was amended to apply to multiple actions against
the United States. See p. 20, infra. . , .
brings a suit in state court "on substantially the same causes of action," Section 154 "necessarily prevent(s,J the (plain-
18
19
A nd be it further enacted, That no person shall
to which he or any assignee of his shall have
file or prosecute any claim or suit in the court of claims, or an appeal therefrom, for or in respect
filed them in the Court of Claims, so that after they put the Government to the expense of beat-
deavoring to prosecute their claims, and have
commenced and has pending any suit or process
ing them once in a court of law they can turn
in any other court against any offcer or person who, at the time of the cause of action * * *
around and try the whole question in the Court
arose, was in respect thereto acting or professing
persons to their election either to leave the Court
of Claims. The object is to put that class of
to act, mediately or immediately, under the au-
of Claims or to leave the other courts. I am sure
thority of the United States, unless such suit or
Case 1:06-cv-00938-BAF
be withdrawn or dismissed within thirty days after the passage of this act.
process, if now pending in such other court, shall
Act of June 25, 1868, ch. 71,§ 8, 15 Stat. 77.5
Senator Edmunds, the sponsor of the legislation,
explained its purpose:
everybody wil agree to that. Congo Globe, 40th Cong., 2d Sess. 2769 (1868). The stated purpose of Section 8 was thus to require plaintiffs to make an election between a suit in the Court of Claims and one brought in another court against an agent of the government. Ibid. Section 8 was incorporated into the Revised Statutes of 1874 with minor changes that were not intended to alter its meaning. See 2 Congo Rec. 129
Document 26-5
The object of this amendment is to put to their election that large class of persons having cotton claims particularly, who have sued the Secretary
of the Treasury and the other agents of the Gov-
(1873) (statement of Rep. Butler).6 It was later reenacted without change as Section 154 of the Judicial Code of 1911. Act of Mar. 3, 1911, ch. 231,
ernment in more, than a hundred suits that are
now pending, scattered over the country here and
there, and who are here at the same time en-
§ 154, 36 Stat. 1138. Congress reenacted the statute as Section 1500 of the Judicial Code of 1948. See Act of June 25, 1948, ch. 646, 62 Stat. 942. The 1948 legislation (1) deleted the phrase "or in the Supreme
6 The 1874 statute provided:
No person shall
Filed 08/04/2008
file or prosecute in the Court of Claims,
or in the Supreme Court on appeal therefrom,
~ The text of Section 8, as passed by both the Senate and the House of Representatives, provided that "no person shall file or prosecute any claim or suit in the Court of Claims, or on appeal therefrom, for or in respect to which he * * *
shall have commenced and has pending, or shall commence
I
and have pending, any suit or process in any other court"
1
ì'.'
any claim
against a federal offciaL. Congo Globe, 40th Cong., 2d Sess.
2769 (1868) (statement of Sen. Edmunds) ; id. at 3269 (em-
for or in respect to which he or any assignee of his has pending in any other court any suit o.r process against
any person who, at the time when the cause of action
alleged in such suit or process arose, was, in respect
phasis added) ; Journal of the Senate, 40th Cong., 2d Sess.
Page 16 of 30
445 (1868). The enrolled version of the bil omitted the high-
lighted clause. There is no recorded explanation of the omission. Pet. App. A8-A9 n.1, A19.
thereto, acting or professing to act, mediately or immediately, under the authority of the United States.
Revised Statutes, Title 13, ch. 21, § 1067, 18 Stat. 197 (1874).
20
21
Court on appeal therefrom" as unnecessary; (2)
simultaneous litigation," but also to "preclud(eJ * * *
added the phrase "against the United States" in
order to bar simultaneous actions against the United
States as well as actions against federal offcials; and (3) replaced the phrase "No person shall file
a second adjudication after a first decision on the merits." By its terms, however, the statute applies only if the plaintiff "has pending any suit or process
in any other court." 15 Stat. 77 (emphasis added). The language of the statute thus does not preclude
or prosecute" with "The Court of Claims shall not
have jurisdiction of" to make clear that Section 1500
is a jurisdictional statute. See Reviser's Notes, 28
a second adjudication if the first action is no longer "pending." See p. 16, supra.
C. Section 1500 Is Not Limited To Legal Theories That Must Be Litigated In A Single Action Under Principles Of ClaimPrec1usion
1. In its brief on the merits, petitioner argues (Pet.
U.S.C. 1500, at 1862 (1948).
Case 1:06-cv-00938-BAF
2.
We do not contend that Section 1500 must be
interpreted to bar successive litigation-only simultaneous litigation. It is true, as petitioner recog-
nizes (Pet. Br. 31), that Senator Edmunds' state-
ment indicates that Section 8 was intended to ad-
vance not only "a general policy seeking to protect
Br. 18-32) that Section 1500 applies only if principles of claim preclusion would require the plaintiff
to present all its legal theories in a single action.
Document 26-5
the Government against the burdens of multiple
Petitioner contends (Pet. Br. 18-19) that the word "claim" in Section 1500 is "naturally read as referring to the law of claim preclusion," and that "( t J he
statute should be read to deem a claim in one case 'for or in respect to (the claim J' in another only
7 In 1982, Congress passed legislation substituting the new Claims Court for the old Court of Claims. See Federal Courts Improvement Act of 1982, Pub. L. No. 97-164, 96 Stat. 40. Most recently, in 1992, Congress passed legislation substi-
tuting "Court of Federal Claims" for "Claims Court." See
when ordinary claim-splitting preclusion principles
would say that they should (and, therefore, could) be brought together if they were both brought against
note 1, supra.
A bil entitled the "Court of Federal Claims Technical and
Procedural Improvements Act of 1992," introduced by Sena-
tor Heflin on April 2, 1992, would have repealed Section
the United States." That argument was not presented to the courts below or in the petition for
certiorarP In any event, it is incorrect.
S The questions presented in the petition for certiorari
(which focused on the meaning of the statutory phrase "has
Filed 08/04/2008
1500. See S. 2521, 102d Cong., 2d Sess. § 10 (c) (1992); 138 Congo Rec. S4830-S4832 (daily ed. Apr. 2, 1992). On April 29, 1992, six days after the court of appeals issued its en
bane decision in this case, the Senate Committee on the Ju-
diciary held hearings on the proposed legislation. See 138
Congo Rec. D465 (daily ed. Apr. 29, 1992). As ultimately
enacted, the Court of Federal Claims Technical and Pro-
cedural Improvements Act of 1992 amended Section 1500 by substituting the "Court of Federal Claims" for the "Claims
pending" rather than the definition of the term "claim") bear little resemblance to the questions presented in petitioner's brief on the merits. Compare Pet. i with Pet. Br. i. A brief on the merits "may not raise additional questions or
change the substance of the questions already presented in
(the petition)." Sup. Ct. R. 24.1 (a).
Page 17 of 30
Court," but did not repeal or otherwise modify the statute.
See Pub. L. No. 102-572, §§ 901-911, 106 Stat. 4516-4520.
22
23
Contrary to petitioner's contention, the term "any
on an actor may apply to a given episode does not
claim" in Section 1500 is most naturally read not as
a veiled reference to the law of claim preclusion, but
simply as a reference to any claim for relief in the
create multiple transactions and hence multiple claims. This remains true although the several legal
theories * * * would call for different measures of liabilty or different kinds of relief." ld. comments band c. That is precisely the approach followed by
Court of Federal Claims. Moreover, petitioner's argument ignores the statutory language that immediately
follows the term "any claim." Under Section 1500,
the Court of Federal Claims lacks jurisdiction over
the court of appeals in Johns-Manville Corp. v. United
States, 855 F.2d 1563 (Fed. Cir. 1988), and reaffrmed in this case. See Pet. App. A19. Applying
that definition of "claim," petitioner's tort actions
"any claim for or in respect to which the plaintiff * * * has pending any suit or process in any other
the very same c1aim.ll
Case 1:06-cv-00938-BAF
court" (emphasis added). As we have explained, see
pp. 15-16, supra, a claim is "in respect to" a suit or
were not only actions "respecting" petitioner's claims
in the Court of Federal Claims, but were actions on
2. Petitioner relies not on the definition of "claim" for purposes of claim preclusion, but on an exception
process if it "relates to" or is "concerned with" the
suit. Accordingly, the proper jurisdictional inquiry
under Section 1500 is not whether the plaintiff is pursuing one or several legal theories-let alone
Document 26-5
whether principles of claim preclusion would permit or require him to pursue all his theories in a single
to the general rule of preclusion that applies if
action-but simply whether the plaintiff's claim is related to other litigation that he has pending in
"(tJhe plaintiff was unable to rely on a certain theory of the case or to seek a certain remedy or form of relief in the first action because of the limitations on
the subject matter jurisdiction of the courts." Re-
another court. The court of appeals' definition of a claim as including all legal ((theories that arise from
statement (Second) of J udgments§ 26 (1) (c) & com-
the same operative facts," Pet. App. A20, is con-
ment c (1982). There is no basis in the language or
history of Section 1500 for
sistent with this statutory language.
applying that exception to
permit simultaneous litigation in the Court of Federal Claims and other courts. Petitioner's proposed construction of Section 1500
Filed 08/04/2008
Even if petitioner were justified in looking to principles of claim preclusion, a "claim" for preclusion purposes consists of "all rights of the plaintiff to remedies against the defendant with respect to
would almost never prevent a plaintiff from litigat-
all or any part of the, transaction,. or series of con-
Restatement (Second) of
nected transactions, out of which the action arose." Judgments §24(1) (1982).
II Petitioner's attempt to link Section 1500 to. principles of claim preclusion is misguided for another reason as well. The law of claim and issue preclusion governs the p,reclusive
effect of judgments. See
A "transaction" refers to "a natural grouping or common nucleus of operative fact. * * * That a
Restatement (Second) of Judgments ch. 1, at 1 (1982). In the absence of a judgment,
principles of claim and issue preclusion
Page 18 of 30
are not concerned
number of different legal theories casting liabilty
with simultaneous litigation of a dispute in different courts.
24 25
ing a dispute with the United States in two courts
3. Petitioner is wrong in asserting (Pet. Br. 22)
at once. The Court of Federal Claims has no juris-
that "it was the clear law in the Court of Claims that
Section 1500 did not apply where two claims could
diction to decide claims under the Federal Tort
tion to decide claims under the Tucker Act if the
Claims Act, and the district courts have no jurisdic-
not both be brought in the same court." In fact, petitioner's proposed construction of Section 1500 goes
"vell beyond any of the judicial exceptions to the
statute that were overruled by the court of appeals.
amount sought by the plaintiff is greater than $10,000. See 28 U.S.C. 1346 (a), 1491. Consequently, petitioner's construction of Section 1500 would allow any plaintiff seeking more than $10,000 to litigate against the United States in district court under a tort theory
a. The court of appeals reaffrmed the principle
that Section 1500 applies when two actions arise out of a single "set of underlying facts." Pet. App. A19.
See Johns-Manville Corp., 855 F.2d at 1563 (for purposes of Section 1500, "claim" is "defined by the op-
Case 1:06-cv-00938-BAF
while simultaneously litigating the very same set of
facts, and seeking the very same relief, under a con-
tract or taking theory in the Court of Federal Claims.
Indeed, petitioner's construction of the statute would
erative facts alleged, not the legal theories raised") ; Los Angeles Shipbwilding .& Drydock Corp. v. United
States, 138 Ct. Cl. 648, 652 (1957); National COTed Forgings Co. v. United States, 132 Ct. Cl. 11, 19-20
have allowed the cotton claimants to maintain simultaneous actions against the United States and fed-
(1955); British America,n Tobacco Co. v. Un1:ted
States, 89 Ct. Cl. 438, 440 (1931), cert. denied, 310
Document 26-5
eral offcials. Because the cotton claimants themselves were pursuing different legal theories that could not
be asserted together in one court, Section 1500 should
not be read to reach only actions involving identical
U.S. 627 (1940). Because petitioner's proposed construction of Section 1500 was not settled law-and,
indeed, is contrary to it-it does not "deserve respect
legal theories, or actions that can all be brought in
the same court.IO
under the doctrine of sta,re decisi::." Pet. Br. 22.11
1868, they would have been permitted to do so in the Court of
prevented the cotton claim-
10 Petitioner's contention (Pet. Br. 32) that its interpreta-
tion of Section 1500 would have
Filed 08/04/2008
ants from suing in two courts at once is unconvincing.
Claims. Even assuming that such claims could have been
brought together, it is far from clear that principles of claim preclusion would have barred separate actions. "Although
No court had jurisdiction to decide both the cotton claimants' statutory claims against the. United States and their
tort claims against federal offcials. See Johns-Manville, 855
F.2d at 1561.. Petitioner asserts that principles of claim preclusion would have required plaintiffs tOo bring statutory
the 'same evidence' standard was '(oJ ne of the tests' used at the time, The Haytian Republic, 154 U.S. 118, 125 (1894),
it was not the only one." See Nevada v. United States, 463 U.S. 110, 130-131 n.12 (1983).
claims and tort claims against the United States in a single
suit. But as petitioner recognizes (Pet. Br. 32), no court
11 For the same reason, there is no basis for presuming
had jurisdiction to entertain tort claims against the United
that Congress was aware of petitioner's proposed construction
or intended to adopt it when it amended Section 1500 in
Page 19 of 30
supported assumption that if the cotton claimants
States in 1868. Petitioner's assertion thus rests on an unhad been
1982 to substitute the Claims Court for the Court of Claims.
permitted to pursue tort claims against the United States in
See Lorillard v. Pons, 434 U.S. 575, 580-581 (1978). Indeed,
26
2.7
There is also no basis for petitioner's suggestion
(Pet. Br. 24) that the court of appeals' definition of
"claim" should be rejected because it is too vague
or diffcult to apply. The court of appeals' definition
does not apply where plaintiff is seeking monetary . relief from both courts) ; Boston Five Cents Savings Bank v. Un~ted States, 864 F.2d 137, 139 (Fed. Cir. 1988) (Casman limited to situations where "different types of relief are sought") ; Pitt River Home ,& Agricultural Coop. Assoc., 215 Ct. CL 959, 961 (1977)
(inquiry under Cas
applies not only in the context of Section 1500, but
in a variety of other contexts as welL. See, e.g., United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966)
"derive from a common nucleus of operative fact"),;
(pendent jurisdiction over nonfederal claims that
man is whether the plaintiff is "seeking the same relief" in the Court of Claims as
in the district court); Nonella v. United States, 16
Case 1:06-cv-00938-BAF
Maher v. Gagne, 448 U.S. 122, 132-133 n.15 (1980) (attorney's fees available under 42 U.S.C. 1988 for
claims arising out of a "common nucleus of opera.
tive fact"); Restatement (Second) of Judgments
CL Ct. 290, 293 (1989) (Casman exception is "limited" to "where the plaintiff seeks substantially different relief in each forum") ; Hill v. United States,
8 CL Ct. at 387-388 (the Casmam exception does not
§ 24 (1) (1982) (claim preclusion).
b. In Casman v. United States, 135 Ct. CL 647
apply where plaintiff seeks monetary relief in both the district court and the Claims Court, even if she
also seeks declaratory relief in the district court)?2
(1956), the court created an exception to Section 1500 that applied when a plaintiff sought damages
Document 26-5
in the Court of Federal Claims and equitable relief
in another court. The plaintiff in Casman was a
The Casmanexception does not apply in this case. See Pet. App. D20; Alaska Br. 23; Cheyenne-Arapaho Tribes Br. 6. The relief sought in petitioner's dis-
former federal employee who sought reinstatement in the district court and back pay in the Court of Claims. The Court of Claims concluded that Section
trict court actions was not "entirely different" from
12 In addition to Cas man, petitioner cites two brief orders of the Court of Claims in support of its assertion that it was "clear law" that Section 1500 did not apply whenever two
1500 should not be construed to bar simultaneous litigation when (1) the remedy sought in the district
court is "entirely different" from that sought in the
Filed 08/04/2008
claims could not be brought in the same court. Pet. Br. 22
Court of Claims, and (2) the Court of Claims has no
(citing Allied Materials & Equipment Co. v. United States,
210 Ct. Cl. 714 (1976), and Prillman v. United States, 220
judisdiction to award the typ~ of relief sought in the district court. 135 Ct. Cl. at 649-650. See also Johns-
Ct. Cl. 677 (1979)). The facts of Prillman were similar to
those of Cas
Manville, 855 F.2dat 1566-1567 (Casman exception
man-a discharged federal employee sought both
reinstatement and back pay in excess of $10,000. And al-
to the extent that such arguments have weight, Congress's
though Allied Materials read Casman to apply when a plain-
recent amendment of Section 1500 following the court of
tiff cannot "combine all its claims" in a single court, 210
weight of authority limiting Cas
Page 20 of 30
appeals' en banc decision, and its failure to enact a proposal
to repeal Section 1500, undermines petitioner's position. See
Ct. Cl. at 716, that reading is contrary to the overwhelming man to situations in which
the plaintiff sought different forms. of relief.
note 7, supra.
"28
29
D. Section 1500 Does Not Permit A Plaintiff To En-
the relief it sought in the Court of Federal Claims.
On A Motion To Dismiss
135 Ct. Cl. at 650. On the contrary, petitioners' ac-
tions in the district courts and its actions in the
gage In Simultaneous Litigation Against the United States As Long As The Second Action Is Terminated Before The Court Of Federal Claims Rules
Court of Federal Claims sought precisely the same
type of relief-damages for injuries caused by workPetitioner also contends (Pet. Br. 33-42) that Sec-
ers' exposure to asbestos. Consequently, the Court
need not address the validity of the Casman exception
tion 1500 does not prevent a plaintiff from maintaining simultaneous actions in the Court of Federal
in this case.
In any event, the court of appeals correctly con..
Claims and another court as long as the plaintiff
dismisses (or otherwise terminates) the second ac-
Case 1:06-cv-00938-BAF
man is inconsistent with the language and purpose of Section 1500. A suit seeking equitable relief rather than damages is nevertheless a "suit or process." And a claim for damages plainly
eluded that Cas
tion before the Court of Federal Claims rules on a motion to dismiss for want of jurisdiction. As petitioner concedes (Pet. Br. 33), its position is contrary to the rule that "(tJhe existence of federal
is a claim "with respect to" a suit for injunctive
relief based on the same set of facts. As a leading commentator has observed, "Casman is one of several
major decisions under section 1500 in which the
jurisdiction ordinarily depends on the facts as they exist when the complaint is filed." Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 830 (1989)
Document 26-5
Court of Claims has overridden the words of the sec-
(citing Smith v. Sperling, 354 U.S. 91, 93 n.l
( 1957) ) . It is also inconsistent with the language
and purpose of Section 1500.
1. By its terms, Section 1500 deprives the Court of
tion in favor of a result it deemed desirable." See
Schwartz, 55 Geo. L.J. at 587-588. But where "the
words of the statute are plain," the courts are "not
at liberty to add an exception in order to remove apparent hardship." Corona Coal, 263 U.S. at 540.13
Federal Claims of subject matter jurisdiction if the plaintiff "has pending" another action. Pet. App. A16. A "pending" action is not transformed into a "non-pending" action merely because the parties fail
to bring the existence of the action to the attention
Filed 08/04/2008
of the Court of Federal Claims, or that court fails
to rule on a motion to dismiss. If the related action is no longer pending, Section 1500 does not prevent
the plaintiff from bringing an action in the Court of
Federal Claims. But the fact that an action in another court has ended does not imply that the Court
Page 21 of 30
13 In 1982, Congress eliminated the problem that concerned the court in Casman. Federal employees are now permitted to seek both back pay and reinstatement in a single action
of Federal Claims had jurisdiction while the other
action was pending.
in the Court of Federal Claims. See 28 U.S.C. 1491 (a) (2).
30
31
Our reading of Section 1500 is confirmed by the
original statutory language, which provided that "no
person shall file or prosecute any claim * * * for
or in respect to which he * * * has pending any suit
or process in any other court." 15 Stat. 77. That
2. Petitioner's proposed construction would permit plaintiffs to litigate simultaneously in the Court of Federal Claims and a district court as long as they were careful to terminate the district court litigation before the Court of Federal Claims ruled on a
motion to dismiss for lack of jurisdiction. That rule
language plainly barred a plaintiff from filing or litigating an action in the Court of Claims while a
related action was pending. In 1948, Congress re-
would not prevent-and, indeed, would encouragedual simultaneous litigation against the government.
placed the phrase "no person shall file or prosecute"
with the phrase "(tJhe United States Court of Claims
Because of the lninimal requirements of notice p