Here’s one we’ve been waiting for, but had been hoping for a better result.
In Resource Investments, Inc. v. United States, No. 15-802 (cert. petition filed Dec. 16, 2015), the U.S. Supreme Court was being asked to consider the issue it left open after United States v. Tohono O’odham Nation, 131 S. Ct. 1723 (2011), whether takings claims must be excepted from the rule in Tohono that the Court of Federal Claims is deprived of jurisdiction in any case which is based on the same operative facts “pending in any other court any suit or process.”
Tohono was not a takings case, but rather a non-takings claim for damages. The Supreme Court upheld the dismissal of the claim by the CFC on jurisdictional grounds, because the at the time the Nation filed its CFC complaint against the United States for money damages, the District Court was considering the Nation’s claim that the United States had breached its trust obligations which sought an accounting. The Supreme Court concluded that a federal statute, 28 U.S.C. § 1500, which prohibits the CFC from taking 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” deprived the CFC of the power to hear the damage claim because both that case and the District Court complaint arose out of the same “operative facts.” Never mind that the Nation was required to split its claim, the statute is the statute and Congress can limit how the United States can get sued for money.
We argued in Tohono that such a rule shouldn’t apply to takings claims because property owners have a self-executing right to just compensation that cannot be limited by Congress. Takings cases are different, and absent such an exception, property owners would be barred from bringing a CFC regulatory takings suit for compensation if a related challenge to the regulation itself were filed first in the District court. The Court, however, avoided the takings issue, reserving it for another case.
Other cases came and went in the interim (all denied cert), but when Resource Investments arose, it looked like a good vehicle because it had none of the procedural difficulties presented by earlier cases, and the issue was squarely teed up.
So we filed an amicus brief in Resource Investments which argued that Tohono rule, broadly applied, subjects takings plaintiffs to a jurisdictional ambush that forces them to either forego a challenge to the offending regulation, or risk losing their just compensation claim. If a property owner simply filed her CFC claim for just compensation before filing the District Court action challenging the validity of the regulation, the CFC case was subject to dismissal because the just comp claim would technically not be ripe (Williamson County rears its ugly head). Wait to file the CFC case until after you resolve the District Court challenge, and you risk the statute of limitations. Others saw it the same way, and there were more than a few other amicus briefs filed which, like ours, urged the Court to take this case.
That, and other hopeful signs (such as the Court asking the United States to file a response and then relisting the case, and the venerable SCOTUSblog naming it as a “petition to watch”) gave us some hope that the justices might address the takings chad left hanging after Tohono.
But on the last day of the Term, the Court denied cert.
So the chad remains hanging, folks. In the meantime, CFC mavens, file your CFC case first, then file your District Court case, then ask the CFC to stay while you resolve the validity of the regulation. Yes, it’s kabuki, and your court may say no. (Update: as astute readers noted, the Government in Resource Investments argued again that the Federal Circuit’s file-first rule “should be overruled.” See BIO at 24 n.4. So this may not work.) But until the Supreme Court gets around to resolving this issue, it’s the best we can do.