Last week, we filed an amicus brief in United States v. Tohono O'odham Nation, No. 09-846, (cert. granted Apr. 19, 2010). Why is a case involving the Indian Tucker Act and the technicalities of the Court of Federal Claims' subject matter jurisdiction showing up in the pages of this blog? In addition to being a fascinating case, a claimed limitation on the CFC's jurisdiction is of interest to anyone who follows regulatory takings actions against the federal goverment, as the brief makes clear.
For more than a century, the federal government has held substantial funds and 2.9 million acres of land in Arizona in trust for the Tohono O'odham Nation. In United States v. Tohono O'odham Nation, No. 09-846, (cert. granted Apr. 19, 2010), the Supreme Court is considering whether the Court of Federal Claims has jurisdiction over the the Nation's claim against the federal government for damages under the Indian Tucker Act for alleged breaches of the government's fiduciary duties to the Nation.
The government asserted the CFC was deprived of jurisdiction because the Nation earlier had filed a separate lawsuit in the D.C. District Court, seeking from the government an accounting of the Nation's trust assets. The government based its motion to dismiss the CFC complaint on 28 U.S.C. § 1500, which provides:
The United States Court of Federal Claims shall not have jurisdiction of any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United States or any person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, directly or indirectly under the authority of the United States.
The CFC agreed that the District Court action for an accounting was a "claim for or in respect to which" the Nation had pending, and dismissed the CFC damages action. The Federal Circuit, in a 2-1 opinion reversed, holding that the Nation's CFC complaint seeks different relief than the district court action, and thus § 1500 did not deprive the CFC of jurisdiction. On April 19, 2010, the Supreme Court agreed to review this Question Presented:
Under 28 U.S.C. 1500, the Court of Federal Claims (CFC) does not have jurisdiction over "any claim for or in respect to which the plaintiff * * * has * * * any suit or process against the United States" or its agents "pending in any other court."The question presented is: Whether 28 U.S.C. 1500 deprives the CFC of jurisdiction over a claim seeking monetary relief for the government's alleged violation of fiduciary obligations if the plaintiff has another suit pending in federal district court based on substantially the same operative facts, especially when the plaintiff seeks monetary relief or other overlapping relief in the two suits.The Nation puts the Question Presented sightly differently:Whether 28 U.S.C. § 1500 strips the Court of Federal Claims of jurisdiction over a claim against the United States for money damages if the plaintiff has pending in district court a suit against the United States seeking different relief.
Our brief supports the Nation's position, arguing:In the Government’s view, Congress’ broad waiver of sovereign immunity in the Tucker Act comes with a high price tag: In order to pursue money damages against the Government in the CFC, claimants must effectively forfeit their rights to seek all other forms of relief that could be "associated" with that claim, including declaratory, injunctive, and other equitable relief.....The Government’s reading of section 1500 traps plaintiffs in many contexts in a jurisdictional "gotcha." This brief focuses on one of those contexts, regulatory takings, to illustrate that the Government's interpretation of section 1500 cannot be correct. The Government's reading of the statute 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. Such a construction of the statute, in addition to being inequitable, raises serious constitutional concerns.Like the Nation’s claims for relief in the case at bar, a claim that an action of the Government unconstitutionally impacts property must be split between the district courts, which have exclusive jurisdiction to entertain claims that the regulations fail to "substantially advance a legitimate state interest" or is otherwise invalid under the Due Process Clause, and the CFC, which has exclusive jurisdiction to award just compensation (but only after the district court has ruled the regulation valid or the plaintiff has conceded its validity). Under the Government’s theory, separate claims for relief brought in the district court and CFC are, to use the Government’s phrase "associated," and the CFC action for just compensation is subject to dismissal. Thus, under the Government’s view of section 1500, a property owner would be forced either to forfeit the right to challenge the regulation, or risk losing her right to seek just compensation.This brief is focused on two points. First, a property owner’s assertion that the Government has violated the Due Process and Takings Clauses of the Fifth Amendment must be split between the district courts and the CFC, respectively, and the CFC action can only be filed after the district court action. The Government’s interpretation of section 1500 cannot be correct, since the statute should not be read to deprive property owners of the right to seek just compensation. Second, this brief will highlight two examples from regulatory takings cases to show how the Government’s reading of section 1500 would lead to absurd and unfair results.
Read the entire brief here.
Here are the other briefs in the case so far:
More to follow. Oral argument is set for November 1, 2010.
