SOTOMAYOR, J., CONCURRING IN JUDGMENT
UNITED STATES V. TOHONO O'ODHAM NATION
563 U. S. ____ (2011)
SUPREME COURT OF THE UNITED STATES
NO. 09-846
UNITED STATES, PETITIONER
v. TOHONO
O’ODHAM NATION
on writ of certiorari to the united states court of
appeals for the federal circuit
[April 26, 2011]
Justice Sotomayor, with whom
Justice Breyer joins, concurring in the judgment.
Congress enacted the statute
currently codified at 28 U. S. C. §1500 to put an end to
parallel litigation seeking duplicative relief against the United
States and its agents. Respondent Tohono O’odham Nation seeks in
the Court of Federal Claims (CFC) some of the same relief on the
same facts as it does in its pending District Court action.
Accordingly, applying our decision in
Keene Corp. v.
United States,
508 U. S. 200 (1993), I agree with the
Court that §1500 bars the Nation’s CFC action. Because the Nation’s
two actions seek overlapping relief, this case does not present the
question that the Court decides today—whether §1500 bars an action
in the CFC when the plaintiff’s actions share a common factual
basis but seek different forms of relief. Nonetheless, the Court
holds that a common factual basis alone suffices to bar
jurisdiction in the CFC. Under the Court’s reading of the statute,
a plaintiff cannot pursue a claim in the CFC based on the same
facts as another pending action, even when Congress has required
that plaintiff to file separate actions in two courts to obtain
different forms of relief necessary to make the plaintiff whole. I
cannot agree that §1500 demands this result.
I
Section 1500 bars jurisdiction in
the CFC 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 any agent of the United States. In
Keene, we construed this statute to “turn on whether the
plaintiff’s other suit was based on substantially the same
operative facts as the Court of Claims action, at least if there
was some overlap in the relief requested.”
Id., at 212. It
was irrelevant for purposes of §1500, we observed, that the two
suits proceeded on different legal theories.
Id., at 212.
Because the plaintiff’s actions both sought the same monetary
relief, albeit on different theories, we held that the CFC lacked
jurisdiction.
Id., at 217–218. We thus found “it
unnecessary to consider” whether §1500 barred a CFC claim that was
based on substantially the same operative facts as another suit but
that sought different relief. See
id., at 212, n. 6,
216.
As construed in
Keene,
§1500 bars the Nation’s CFC action. As the majority holds, see
ante, at 9–10, the Nation’s CFC and District Court actions
are based on nearly identical facts. The two actions also seek
overlapping relief: Both complaints request money to remedy the
same injury—the Government’s alleged breach of its fiduciary duty
to maintain accurate accounts of the Nation’s assets. The Nation
does not dispute that its District Court complaint requests such
relief.[
Footnote 1] See Brief
for Respondent 51 (“If … the accounting reveals that assets that
belong to the Nation do not appear on the books, it may be
appropriate to order equitable restitution of those assets”). The
Nation’s CFC complaint is fairly read to do the same. The CFC
complaint alleges that the Government has failed “to keep and
render clear and accurate accounts.” App. to Pet. for Cert. 66a. It
claims that by reason of this and other alleged breaches of
fiduciary duty, the Nation “has been damaged in such amounts as may
be proven at trial.”
Id., at 67a. And the complaint
requests “a determination that the Defendant is liable to the
Nation in damages for the injuries and losses caused as a result of
Defendant’s breaches of fiduciary duty” and a “determination of the
amount of damages due the Nation.”
Id., at 72a–73a. Thus,
just like the District Court complaint, the CFC complaint requests
money to remedy the Government’s alleged failure to keep accurate
accounts.[
Footnote 2]
Because the Nation’s two complaints are “based
on substantially the same operative facts” and there is “at least …
some overlap in the relief requested,”
Keene, 508 U. S.,
at 212, §1500 bars jurisdiction over the Nation’s CFC action.
II
The case does not present the
question, left open in
Keene, “whether common facts
[alone] are sufficient to bar a CFC action where a similar case is
pending elsewhere.”
Ante, at 9. Indeed, for most of the
history of this case, the Government did not even argue that common
facts were sufficient to preclude CFC jurisdiction; until its
petition for rehearing in the Court of Appeals, the Government
argued only that
Keene required dismissal of the Nation’s
CFC action because the Nation’s two actions were based on the same
facts and sought overlapping relief. Deciding this case on the
basis of
Keene would have been the “far more prudent
course than recharacterizing the case in an attempt to reach
premature decision on an important question.”
Missouri v.
Jenkins,
495
U. S. 33, 80 (1990) (Kennedy, J., concurring in part and
concurring in judgment). Instead, discarding the restraint we
exhibited in
Keene, the Court unnecessarily chooses to
hold that §1500 bars jurisdiction in the CFC whenever a plaintiff’s
CFC action is based on substantially the same facts as a suit
pending elsewhere.[
Footnote 3]
This reading of §1500 is, in my opinion, incorrect.
A
Since the enactment of §1500 in
1868, Congress has expanded the avenues by which persons with
legitimate claims against the United States may obtain relief. See
ante, at 6. In some circumstances, Congress has chosen to
require plaintiffs to file actions in two different courts to
obtain complete relief relating to a single set of operative facts.
For example, with some exceptions, the CFC has no power to issue
equitable relief. See
Bowen v.
Massachusetts,
487 U. S. 879,
905 (1988); see also 28 U. S. C. §1491(a). As a result, a
plaintiff seeking both money damages and injunctive relief to
remedy distinct harms arising from the same set of facts may be
forced to file actions in both the CFC and federal district
court.
For half a century, the CFC has
recognized that §1500 does not preclude jurisdiction in that court
when Congress has required a plaintiff to split a claim into two
actions to obtain different forms of relief necessary to make the
plaintiff whole. In
Casman v.
United States, 135
Ct. Cl. 647 (1956), a terminated federal employee sought backpay in
the Court of Claims and reinstatement to his position in District
Court. The plaintiff’s two suits arose from the same facts (his
termination) but sought “entirely different” forms of relief within
the exclusive jurisdiction of two courts.[
Footnote 4]
Id., at 650. In light of our
previous recognition that the purpose of §1500 “ ‘was only to
require an election between a suit in the Court of Claims and one
brought in another court,’ ”
id., at 649 (quoting
Matson Nav. Co. v.
United States,
284 U. S. 352, 355–356
(1932)), the Court of Claims held that §1500 was inapplicable when
a “plaintiff has no right to elect between two courts,” 135 Ct.
Cl., at 650. To hold otherwise, the court acknowledged, “would be
to say to plaintiff, ‘If you want your job back you must forget
your back pay’; conversely, ‘If you want your back pay, you cannot
have your job back.’ ”
Ibid.; see also
Loveladies
Harbor, Inc. v.
United States, 27 F. 3d 1545,
1551 (CA Fed. 1994) (en banc) (reaffirming
Casman’s
inquiry into the form of relief sought).
By reserving the question “whether two actions
based on the same operative facts, but seeking completely different
relief, would implicate §1500,” our decision in
Keene
expressly preserved the
Casman holding. 508 U. S., at 212,
n. 6. The consequence of today’s decision is clear: The
Casman rule is no longer good law. Under the majority’s
reading of §1500, because Casman’s two suits were based on common
facts, §1500 barred jurisdiction in the CFC over his backpay claim
even though he could not have obtained backpay in his District
Court action.
The jurisdictional scheme governing actions
against the United States often requires other plaintiffs to file
two actions in different courts to obtain complete relief in
connection with one set of facts. As just one example, an action
seeking injunctive relief to set aside agency action must proceed
in district court, but a claim that the same agency action
constitutes a taking of property requiring just compensation must
proceed in the CFC. See,
e.g.,
Alaska v.
United States, 32 Fed. Cl. 689 (1995). After today’s
decision, §1500 may well prevent a plaintiff from pursuing a
takings claim in the CFC if an action to set aside the agency
action is pending in district court. This type of plaintiff may
face a choice between equally unattractive options: forgo
injunctive relief in the district court to preserve her claim for
monetary relief in the CFC, or pursue injunctive relief and hope
that the statute of limitations on her takings claim, see 28 U.
S. C. §2501, does not expire before the district court action
is resolved.[
Footnote 5]
B
1
The text, purpose, and history of
§1500 provide strong reason to believe that Congress did not intend
for §1500 to put plaintiffs to a choice between two nonduplicative
remedies that Congress has made available exclusively in two
forums. The statute bars jurisdiction in the CFC over a “claim for
or in respect to which” a plaintiff has a suit or process pending
elsewhere. When Congress first enacted §1500’s predecessor, the
statute establishing the jurisdiction of the Court of Claims used
the term “claims” to refer to demands for money damages. See Act of
Mar. 3, 1863, §§2–3, 12 Stat. 765; see
United States v.
Jones,
131 U.
S. 1, 17 (1889) (noting that the statute’s provisions “were
inconsistent with the enforcement of any claims under the law
except claims for money”).[
Footnote
6] Congress thus would have understood the term “claim” in
§1500 to describe the particular relief sought in the Court of
Claims. Cf.
Commissioner v.
Keystone Consol.
Industries, Inc.,
508 U. S. 152, 159
(1993).
Determining the meaning of
“claim” is only part of the inquiry, however. The question remains
what constitutes a suit or process “for or in respect to” a CFC
claim. The purpose and history of the statute elucidate the meaning
of this ambiguous phrase. As the majority explains, Congress
enacted the statute to prevent “duplicative lawsuits” brought by
the so-called “cotton claimants” in the aftermath of the Civil War.
Keene, 508 U. S., at 206; see
ante, at 3. The
cotton claimants sought monetary compensation for seized cotton in
the Court of Claims pursuant to the Abandoned Property Collection
Act, 12 Stat. 820. Because they had difficulty satisfying the
statutory requirement that, to obtain compensation, they must not
have given aid or comfort to participants in the rebellion, see §3
of the Act, they also sought relief—either in the form of money
damages or actual cotton—in separate lawsuits against federal
officials on tort theories such as conversion. “It was these
duplicative lawsuits that induced Congress” to enact §1500’s
predecessor.
Keene, 508 U. S., at 206.
This historical backdrop sheds light on what
Congress would have understood to be a suit or process “for or in
respect to” a “claim” in the Court of Claims. Congress undoubtedly
intended to preclude a claim for money in the Court of Claims when
the plaintiff was pursuing a suit “for” the same money in district
court. Because, however, some cotton claimants sought return of the
cotton itself in district court, it was also necessary to preclude
jurisdiction in the Court of Claims when the plaintiff’s other
action was “in respect to” that demand for money—
i.e.,
when the plaintiff was seeking duplicative relief. Had the courts
awarded such plaintiffs both the cotton itself and money damages,
the plaintiffs would have obtained twice what they deserved. In
this way, Congress eschewed “a narrow concept of identity” that
would have permitted plaintiffs to pursue and obtain duplicative
relief to remedy the very same harm.
Id., at 213.
The legislative history confirms Congress’
intent to preclude requests for duplicative relief. The statute’s
sponsor explained that the purpose of the statute was “to put to
their election that large class of persons having cotton claims[,]
… who are here at the same time endeavoring to prosecute their
claims, and have filed them in the Court of Claims, so that after
they put the Government to the expense of beating them once in a
court of law they can turn around and try the whole question in the
Court of Claims.”[
Footnote 7]
Cong. Globe, 40th Cong., 2d Sess., 2769 (1868) (statement of Sen.
Edmunds); see also
Matson Nav. Co., 284 U. S., at 355–356.
Congress thus appears to have had in mind cases in which “the whole
question” could be tried in the Court of Claims. The statute’s
history does not suggest that Congress intended to require an
election between two nonduplicative forms of relief available
exclusively in two different courts. In such a case, “the whole
question” could not be tried in either court.
2
None of the majority’s reasons
for its contrary construction of the statute is convincing. First,
the majority reasons that the phrase “claim for or in respect to”
must refer only to factual overlap because the statute uses the
phrase “cause of action … in respect thereto” (which the majority
paraphrases as “in respect to a cause of action”) in a way that is
“consistent only with factual overlap.”
Ante, at 4. This
point rests on a misreading of the statutory text. The statute asks
whether a plaintiff has pending a “suit or process” for or in
respect to the plaintiff’s CFC claim—not whether it has pending a
“cause of action” for or in respect to that claim.[
Footnote 8] Even if the term “cause of
action” refers only to operative facts—such that the inquiry
whether a person was acting under color of federal law in respect
to a cause of action is purely factual in nature—a “suit or
process” will inevitably include a request for relief.
Second, the majority states that,
“in light of the unique remedial powers of the CFC,” requiring
remedial overlap would make no sense because it would result in a
“very limited application” of the statute.
Ante, at 5, 6.
Here, the majority overlooks the nearly 150-year history of the
statute. It was the cotton claimants’ parallel requests for
duplicative relief that prompted passage of §1500 in the first
place. Since then, litigants have continued to seek duplicative
relief against the Government in two courts, as
Keene and
this very case illustrate. See 508 U. S., at 204–205 (seeking tort
damages in the District Court and compensation on a takings theory
in the CFC);
supra, at 1–3 (seeking restitution and
disgorgement in the District Court and money damages in the CFC);
see also,
e.g.,
Ex parte Skinner & Eddy
Corp.,
265 U. S.
86, 91–92 (1924) (seeking money damages against the United
States in the Court of Claims and against a federal entity in state
court);
Corona Coal Co. v.
United States,
263 U. S. 537,
539 (1924) (seeking money damages against the United States in the
Court of Claims and against a federal agent in District Court);
British American Tobacco Co. v.
United States, 89
Ct. Cl. 438, 439–440 (1939)
(per curiam) (seeking tort
damages in the District Court and contract damages in the Court of
Claims). As these cases make clear, interpreting §1500 to prohibit
requests for duplicative relief hardly renders the statute of
limited application.
Third, the majority suggests that its
construction of §1500 is necessary to achieve the statute’s aim of
“sav[ing] the Government from burdens of redundant litigation.”
Ante, at 7. Parallel actions seeking the same or
duplicative relief, or different forms of relief that are available
entirely in one court, are redundant; actions seeking different
forms of relief that Congress has made available exclusively in
different courts are not. To the extent the majority is concerned
about the burdens of parallel discovery, federal courts have ample
tools at their disposal, such as stays, to prevent such burdens.
See Schwartz, Section 1500 of the Judicial Code and Duplicate Suits
Against the Government and Its Agents, 55 Geo. L. J. 573, 599
(1967).
Finally, the majority contends that focusing
on operative facts is consistent with the principles of claim
preclusion embodied in the statute. Claim preclusion ordinarily
“bar[s] claims arising from the same transaction.”
Kremer
v.
Chemical Constr. Corp.,
456 U. S. 461, 482,
n. 22 (1982). There is, however, an exception to this rule
when a plaintiff was unable to obtain a certain remedy in the
earlier action. See Restatement (Second) of Judgments §26(1)(c)
(1980) (claim preclusion does not apply where “[t]he 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”); see
also
Marrese v.
American Academy of Orthopaedic
Surgeons,
470
U. S. 373, 382 (1985); 18 C. Wright, A. Miller, & E.
Cooper, Federal Practice and Procedure §4412, p. 276 (2d ed.
2002). This principle has long informed claim preclusion law. See,
e.g., Restatement of Judgments §62, Comment
k
(1942) (“[W]here a plaintiff brings an action in a State in which
the courts have jurisdiction only with reference to one portion of
his cause of action, he is not barred from maintaining an action in
a proper court for the other portion”); 2 H. Black, Law of
Judgments §618, p. 744 (1891) (“A judgment is not conclusive
of any matter which, from the nature of the case, the form of
action, or the character of the pleadings, could not have been
adjudicated in the former suit”). For these reasons, preclusion
doctrine actually undermines the majority’s position.
In sum, the majority offers no coherent
justification for its conclusion that Congress intended to preclude
jurisdiction in the CFC whenever a plaintiff’s claim in that court
is based on substantially the same facts as a suit pending
elsewhere without reference to the relief sought.
* * *
Even before today’s decision,
§1500 had been described as “anachronistic,”
Keene, 508 U.
S., at 217, “harsh,”
id., at 222 (Stevens, J.,
dissenting), and “arbitrar[y],” 79 Fed. Cl. 645, 659, n. 16
(2007). Judges and commentators have long called for congressional
attention to the statute. See,
e.g.,
Keene, 508
U. S., at 222 (Stevens, J., dissenting); Schwartz,
supra,
at 601. Today’s decision—which unnecessarily considers and
repudiates the
Casman rule—renders such attention all the
more pressing. Under the Court’s construction of §1500, plaintiffs
whom Congress has forced to file parallel actions in the CFC and a
district court to obtain complete relief must now choose either to
forgo relief in the district court or to file first in the district
court and risk the expiration of the statute of limitations on
their claims in the CFC. I cannot agree that Congress intended, or
intends, for §1500 to produce this result. For these reasons, I
respectfully concur only in the judgment.
Footnote 1
The majority characterizes the Nation’s
District Court complaint as seeking “equitable relief,”
ante, at 2, but does not mention that the complaint seeks,
among other things, equitable
monetary relief such as
disgorgement and restitution, see App. to Pet. for Cert. 91a.
Footnote 2
In reaching the opposite conclusion, the
Court of Appeals relied on the fact that the Nation’s District
Court complaint seeks equitable relief whereas its CFC complaint
seeks damages. See 559 F. 3d 1284, 1288–1289 (CA Fed. 2009).
Keene makes clear, however, that actions based on
substantially the same operative facts implicate §1500 so long as
they seek overlapping relief. See
Keene Corp. v.
United States,
508 U. S. 200, 212 (1993). The formal
label affixed to the form of relief sought is irrelevant. In this
case, both the Nation’s CFC complaint and its District Court
complaint seek money to remedy the Government’s alleged failure to
keep accurate accounts.
Footnote 3
The majority does not contend that the facts
of this case require it to decide this question. It justifies its
decision to reach the question on the ground that its rule would
eliminate “an unnecessary and complicated remedial inquiry” and
would decrease “the expense and duration of litigation.”
Ante, at 9. It provides no reason to believe, however,
that inquiry into relief requested is unduly complicated in the
vast majority of cases. Cf.
Loveladies Harbor, Inc. v.
United States, 27 F. 3d 1545, 1552 (CA Fed. 1994) (en
banc) (“The principles of
Casman [v.
United
States, 135 Ct. Cl. 647 (1956)] … are not that difficult to
comprehend or apply”). More importantly, the majority does not
explain why the benefits it perceives to result from deciding this
question today outweigh the potential for its reading of the
statute to leave some plaintiffs with incomplete recompense for
their injuries. See
infra, this page and 5–6.
Footnote 4
Congress has since enacted legislation to
permit plaintiffs in Casman’s situation to obtain complete relief
in the CFC. See Act of Aug. 29, 1972, §1, 86 Stat. 652, 28 U.
S. C. §1491(a)(2) (permitting the CFC to “issue orders
directing restoration to office or position, placement in
appropriate duty or retirement status, and correction of applicable
records”).
Footnote 5
The majority apparently doubts that its
holding puts the Nation to a similarly difficult choice. It first
suggests that the Nation could file solely in the CFC to obtain
damages for the Government’s alleged breaches of fiduciary duty.
See
ante, at 8. The Nation could indeed choose to file
only in the CFC—just as any plaintiff could choose to forgo
injunctive relief to pursue money damages in the CFC—but the Nation
believes it is entitled to more than monetary relief. The Nation’s
District Court action seeks an equitable accounting to remedy the
same breaches of fiduciary duty, and the CFC has held that it lacks
jurisdiction to issue a preliability accounting. See
Klamath and Modoc Tribes v.
United
States, 174 Ct. Cl. 483, 487–488, 490 (1966). But see
Eastern Shawnee Tribe of Okla. v.
United States,
582 F. 3d 1306, 1308 (CA Fed. 2009) (suggesting in dicta that
the CFC can order an equitable accounting as “ancillary relief”
under 28 U. S. C. §§1491(a)(2) and (b)(2)), cert. pending, No.
09–1521.
The majority next suggests that Congress has
tolled the statute of limitations governing the Nation’s CFC
claims. See
ante, at 8–9. But the cited statute only
applies to claims “concerning losses to or mismanagement of trust
funds.” 123 Stat. 2922. It does not appear to toll the statute of
limitations for claims concerning assets other than funds, such as
tangible assets. See App. to Pet. for Cert. 67a–69a (seeking
damages for the Government’s mismanagement of the Nation’s mineral
estates). Expiration of the 6-year statute of limitations governing
claims in the CFC is a very real prospect in this and other cases;
the Nation’s District Court action has been pending for more than
four years.
As the majority notes, see
ante, at
6–7, the validity of the Court of Claims’ holding in
Tecon
Engineers, Inc. v.
United States, 170 Ct. Cl. 389,
343 F. 2d 943 (1965), is not presented in this case. This
Court has never considered that holding. Accordingly, I do not
consider whether the Nation could have avoided application of §1500
altogether by filing its CFC action first.
Footnote 6
Congress has consistently used the term
“claim” to refer to a demand for money in the context of the CFC.
See 28 U. S. C. §1491(a)(1) (conferring jurisdiction in the
CFC over “any
claim against the United States founded
either upon the Constitution, or any Act of Congress or any
regulation of an executive department, or upon any express or
implied contract with the United States, or for liquidated or
unliquidated damages in cases not sounding in tort” (emphasis
added)). Of course, since §1500’s enactment, Congress has
authorized the CFC to issue relief other than money damages in
certain cases. See §1491(a)(2).
Footnote 7
Because §1500’s jurisdictional bar applies
only when the other suit is pending, “there is a good argument
that, even when first enacted, the statute did not actually perform
the preclusion function emphasized by its sponsor.”
Keene,
508 U. S., at 217.
Footnote 8
Section 1500 refers to the “cause of action
alleged in such suit or process” only for the limited purpose of
determining whether the other suit or process is against an agent
of the United States. When the plaintiff’s other action is against
the United States itself, the term “cause of action” has no
relevance to the §1500 inquiry.
Comments
Be the first to comment
Leave a Comment