Here's the Brief in Opposition in the case which asks whether takings claims against the federal government -- which we described as subject to a "jurisdictional ambush" due to the old Tucker Act Shuffle -- are subject to the rule of 28 U.S.C. § 1500 set out in the Tohono O'odham case.
If that's a lot to digest in one sentence, here's the slightly longer story. The core issue is one we've dealt with extensively before, and which the Supreme Court dodged in in United States v. Tohono O'odham Nation, 131 S. Ct. 1723 (2011), namely, whether § 1500's jurisdictional bar operates in takings claims, which are required to be split between the CFC and the district courts (aka the "Tucker Act Shuffle"). We filed an amicus brief in Tohono O'odham, arguing that the statute cannot be read to deprive takings plaintiffs of their right to secure just compensation, when they may be required to file their district court actions first. The Court ruled in that case without passing on the takings issue.
So here it is. Ministerio Roca Solida involves a Nevada property owner who asserted the feds' diversion of a stream that ran through its property deprived it of water which it was entitled to and would have otherwise enjoyed. It filed a complaint in the district court seeking to stop the diversion, and two days later a complaint in the CFC seeking just compensation for a taking under the Tucker Act. The CFC dismissed without prejudice under § 1500 and Tohono, and the Federal Circuit affirmed. No jurisdiction.
The cert petition is posted here. The government's BIO argues:
This case therefore does not involve a plaintiff who has carefully separated a takings claim (pursued in the CFC) and other claims (pursued in another court). Such a case could implicate different analytical considerations. Petitioner's decision to simultaneously pursue the same takings claim in the CFC and district court, however, lies within the core of Section 1500's prohibition. At the very least, Congress through Section 1500 has properly prohibited a plaintiff from pursuing a claim in the CFC when the plaintiff has the same claim pending in another court.
BIO at 10-11. This argument overlooks two things. First, it doesn't matter if the plaintiff has "carefully separated" her CFC takings claims from a related action in the district court, courts will still apply § 1500's jurisdictional bar. Second, you can't really separate a takings claim to any court's satisfaction, at least not a court that we're aware of -- they treat them all as "takings" claims, regardless of the relief you seek in each court (declaratory and injunctive relief in district court, just compensation in the CFC).
Brief for the United States in Opposition, Ministerio Roca Solida v. United States, No. 14-1413 (Oct. 5, 20...
