One for all you Court of Federal Claims mavens: a new cert petition, filed On Wednesday, that once again puts front and center 28 U.S.C. § 1500, the statute which bars the CFC from hearing claims that are “pending in any other court” against the United States.
The statute was last interpreted by the Supreme Court in United States v. Tohono O’Odham Nation, 563 U.S. 307 (2011), a case in which the Nation alleged in a District Court lawsuit that the federal government had breached trust duties it owed. Almost immediately thereafter, the Nation filed a claim in the CFC for money damages based on the same theory. The CFC’s limited jurisdiction does not allow it to hear claims for declaratory relief, and District Courts are without power to make the federal government pay significant money damages. Meaning that claims like the Nation’s (and takings claims where the property owner also challenges the validity of the government action) must be split between the CFC and a District Court. But the CFC dismissed under § 1500, because both lawsuits arose out of the same set of facts, despite each seeking separate (and exclusive) relief.
We filed an amicus brief in that case pointing out to the Supreme Court the “jurisdictional ambush” which § 1500 sets for takings claimants caused by the claim splitting requirement, arguing that this would “force private property owners into a quandary: either they must forfeit their ability to challenge the validity of the regulation, or they must risk losing their rights to seek just compensation.” We also argued that takings claims were different, since they are self-executing, and thus there must be a federal judicial forum which can hear these claims and award just compensation.
But the Court failed to address the issue, because it adopted a test for § 1500 which did not go past the trust claim in the case, which requires the CFC to dismiss if there is any claim pending in another court that arise from the same “operative fact.” The Court affirmed the CFC’s dismissal, because at the time of its filing, the District Court lawsuit had already been filed.
The takings problem we noted in our amicus brief has been presented to the Court in at least two cases since Tohono, with the latest case being being denied review only recently. And now the issue is back again, with the latest petition seeking review of a recent Federal Circuit opinion (which we detailed here).
Here are the Questions Presented:
Section 1500 of Title 28 bars the Court of Federal Claims from asserting jurisdiction over “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.” In United States v. Tohono O’odham Nation, 563 U.S. 307, 317 (2011), this Court held that, for the purposes of § 1500, “[t]wo suits are for or in respect to the same claim, precluding jurisdiction in the [Court of Federal Claims], if they are based on substantially the same operative facts, regardless of the relief sought in each suit.”
The questions presented are:
1. Whether the Federal Circuit impermissibly broadened the scope of § 1500’s jurisdictional bar and deviated from settled precedent when it construed this Court’s straightforward “substantially the same operative facts” standard to mean “arising out of the same transaction.”
2. Whether, in the absence of clear congressional intent to bar constitutional claims, § 1500 should be construed to preclude Fifth Amendment takings claims and, if so, whether such an interpretation would be unconstitutional.
In our view, until the Court resolves the question left open by Tohono, property owners are going to get unfairly caught up in this jurisdictional trap, and will risk being deprived of constitutional remedies to which they are entitled.
More posted, when there is more.
Petition for a Writ of Certiorari, Resource Inv., Inc. v. United States, No. ___ (Dec. 16, 2015)