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No. 09-846

 

In the Supreme Court of the United States

UNITED STATES OF AMERICA, PETITIONER

v.

TOHONO O'ODHAM NATION

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

ELENA KAGAN
Solicitor General
Counsel of Record
IGNACIA S. MORENO
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
ANTHONY A. YANG
Assistant to the Solicitor
General
AARON P. AVILA
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

HILARY C. TOMPKINS
Solicitor
Department of the Interior
Washington, D.C. 20460

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 juris diction over a claim seeking monetary relief for the gov ernment'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.

In the Supreme Court of the United States

No. 09-846

UNITED STATES OF AMERICA, PETITIONER

v.

TOHONO O'ODHAM NATION

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

 

The Solicitor General, on behalf of the United States of America, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Federal Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 1a- 26a) is reported at 559 F.3d 1284. The opinion of the Court of Federal Claims (App., infra, 27a-55a) is re ported at 79 Fed. Cl. 645.

JURISDICTION

The judgment of the court of appeals was entered on March 16, 2009. A petition for rehearing was denied on August 18, 2009 (App., infra, 56a). On November 9, 2009, the Chief Justice extended the time within which to file a petition for a writ of certiorari to and including December 16, 2009. On December 4, 2009, the Chief Justice further extended the time to January 15, 2010. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATUTORY PROVISION INVOLVED

Section 1500 of Title 28 of the United States Code 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.

STATEMENT

1. a. In 1855, Congress established the Court of Claims with limited authority to hear claims against the United States, report its findings to Congress, and, where appropriate, recommend enactment of a private bill to provide the claimant with monetary relief. United States v. Mitchell, 463 U.S. 206, 212-213 (1983). Because that limited authority did not sufficiently relieve Con gress of the burdens of the private-bill process, Con gress, in 1863, adopted President Lincoln's recommen dation and authorized the Court of Claims to issue final judgments. Id. at 213. In 1866, Congress enabled the Court of Claims to exercise full judicial power by repeal ing a provision that had allowed the Secretary of the Treasury to prevent complete execution of the court's judgments. Id. at 213 n.12.

Two years later, in 1868, Congress enacted a provi sion prohibiting the Court of Claims from exercising jurisdiction over "any claim * * * for or in respect to which" the plaintiff "has pending any suit or process in any other court" against an agent of the United States. See Act of June 25, 1868, ch. 71, § 8, 15 Stat. 77; see Keene Corp. v. United States, 508 U.S. 200, 205-207 (1993). Congress later reenacted that jurisdiction- limiting statute in 1874 as Section 1067 of the Revised Statutes and in 1911 as Section 154 of the Judicial Code, ch. 231, § 154, 36 Stat. 1138 (28 U.S.C. 260 (1946)). See Keene, 508 U.S. at 206-207. In 1948, when Congress again reenacted the statute and moved it to its current location at 28 U.S.C. 1500, Congress expanded the stat ute's scope to preclude Court of Claims jurisdiction if the plaintiff's related suit in another court is "against [either] the United States" or its agent. See Act of June 25, 1948, ch. 646, § 1, 62 Stat. 942; Keene, 508 U.S. at 211 n.5. Every modern-day statute conferring jurisdiction on the Court of Claims and its trial-court successor, the United States Court of Federal Claims (CFC)1- including the Tucker Act, 28 U.S.C. 1491(a)(1), and the Indian Tucker Act, 28 U.S.C. 1505, on which respondent rests CFC jurisdiction in this case (App., infra, 60a)- has been enacted against the backdrop of the jurisdic tional limitation embodied in Section 1500 and its prede cessors. See Tucker Act, ch. 359, 24 Stat. 505 (enacted 1887); Indian Claims Commission Act, ch. 959, § 24, 60 Stat. 1055 (enacted 1946).

b. Section 1500 provides that the CFC shall not have jurisdiction of "any claim for or in respect to which" the plaintiff has "any suit or process" against the United States or an agent thereof "pending in any other court." 28 U.S.C. 1500. In Keene, this Court explained that Sec tion 1500's prohibition on CFC jurisdiction over a claim "for or in respect to which" the plaintiff has a pending suit "requires a comparison between the claims raised in the [CFC] and in the other lawsuit." 508 U.S. at 210. The Court also reasoned that Congress's use of the dis junctive "or" in the phrase "for or in respect to which" demonstrates that Section 1500 bars CFC jurisdiction "not only as to claims 'for . . . which' the plaintiff has sued in another court," but also "as to those [CFC claims] 'in respect to which' he has sued elsewhere." Id. at 213. The latter restriction, Keene concluded, "make[s] it clear that Congress did not intend the stat ute to be rendered useless by a narrow concept of iden tity" of the CFC claim and the other lawsuit, which would mistakenly allow a "liberal opportunity to main tain two suits arising from the same factual foundation." Ibid.

Keene ultimately held that Section 1500 requires dis missal of a CFC claim when "the plaintiff's other suit [is] based on substantially the same operative facts as the [CFC] action," "at least" if there is "some overlap in the relief requested." 508 U.S. at 212. Dismissal is re quired, the Court held, even if the other action is "based on [a] different legal theor[y]" that could not "have been pleaded" in the CFC. Id. at 212-214. And although ob serving that Section 1500 has been criticized as "anach ronistic" and acknowledging that Section 1500's jurisdic tional restrictions may "deprive plaintiffs of an opportu nity to assert rights," the Court in Keene concluded that the courts "enjoy no 'liberty to add an exception . . . to remove apparent hardship.'" Id. at 217-218 (quoting Corona Coal Co. v. United States, 263 U.S. 537, 540 (1924)). Such concerns, Keene explained, must be di rected to "Congress, for [it is] that branch of the govern ment" that has "the constitutional authority to define the jurisdiction of the lower federal courts" and that has "limited the jurisdiction of the Court of Claims" in Sec tion 1500. Id. at 207, 217-218 & n.14 (quoting Smoot's Case, 82 U.S. (15 Wall.) 36, 45 (1873)).

Keene reserved two questions concerning "judicially created exceptions" to Section 1500 that are relevant to the present petition. See 508 U.S. at 216 (quoting UNR Indus., Inc. v. United States, 962 F.2d 1013, 1021 (Fed. Cir. 1992) (en banc), aff'd sub nom. Keene, supra). Spe cifically, the Court reserved the questions whether Sec tion 1500's prohibition on CFC jurisdiction is subject to any exception when (1) the action in another court based on the same operative facts seeks "completely different relief," id. at 212 n.6, 214 n.9, 216 (discussing Casman v. United States, 135 Ct. Cl. 647 (1956)), or (2) the plain tiff files his CFC claim first, before filing the related suit in another court. Id. at 209 n.4, 216 (discussing Tecon Eng'rs, Inc. v. United States, 343 F.2d 943 (Ct. Cl. 1965), cert. denied, 382 U.S. 976 (1966)). The en banc Federal Circuit had rejected both of those judicially created exceptions when this Court decided Keene, see UNR Indus., 962 F.2d at 1020, 1024-1025 (purporting to overrule Casman); id. at 1020, 1023 (purporting to over rule Tecon), but the Federal Circuit has since stated that the pertinent portions of UNR Industries were non-binding dicta, and that the exceptions recognized in Casman and Tecon remain good law. See Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1549, 1551 (Fed. Cir. 1994) (en banc) (Casman); App., infra, 16a- 17a (Tecon).

2. On December 28, 2006, the Tohono O'odham Na tion (Tribe) filed a complaint against the United States in the District Court for the District of Columbia. App., infra, 74a-93a. One day later, it filed a similar complaint against the United States in the CFC. App., infra, 58a- 73a.

a. The Tribe's district court complaint initiated "an action to seek redress of breaches of trust by the United States * * * in the management and accounting of [the Tribe's] trust assets." App., infra, 74a-75a. The com plaint states that those assets include the Tribe's reser vation lands, mineral resources, and associated income held for it in trust by the United States, as well as funds owed by the United States to the Tribe under court judgments. Id. at 79a-80a. The complaint asserts that the United States owes "fiduciary obligations to the [Tribe] with respect to the management and administra tion of the [Tribe's] trust funds and other trust assets" that are "rooted in and derive from numerous statutes and regulations." Id. at 79a, 81a (citing illustrative pro visions). "The statutes, regulations, and executive or ders giving rise to the United States' fiduciary duties," it asserts, "provide the 'general contours' of those du ties" and "specific details are filled in through reference to general trust law." Id. at 82a (citation omitted).

More specifically, the district court complaint alleges that the government, inter alia, failed "to provide an adequate accounting of the trust assets" and failed both to "collect" and to "invest" trust funds "in compliance with [its] fiduciary responsibilities and other federal statutory and regulatory law." App., infra, 76a. It thus alleges numerous "breaches of trust [that] include, but are not limited to," the failure to preserve records and provide a proper "accounting of trust property" and fail ures to "deposit trust funds," take reasonable steps "to preserve and protect trust property," and "refrain from self-dealing." Id. at 83a-84a. The complaint further alleges that the government breached a duty to manage the property held in trust "to produce a maximum re turn to the [Tribe]" by "invest[ing]" such funds properly and "maximiz[ing] profits" therefrom. Id. at 76a, 84a; see id. at 83a (duty to "invest" and "maximize" assets); id. at 86a (statutory investment duty).

Count 1 asserts that the government has "failed to fulfill [its] fiduciary obligations," which include, "inter alia," the duty to provide a proper "accounting of the [Tribe's] trust assets." App., infra, 89a-90a. Count 1 also requests a declaration that both defines "the [gov ernment's] fiduciary duties" and finds them to have been breached. Ibid. Count 2 asserts a "continuing pattern" of breaches of "fiduciary duties" and seeks an injunction directing both the completion of a proper accounting and compliance with "all other fiduciary duties." Id. at 91a. Count 2 clarifies that the Tribe requests a "complete accounting" that is "not limited to" the "funds under the custody and control of the United States," and adds that, based on the results of that "complete accounting," the Tribe seeks "restatement of [its] trust fund account bal ances" and "any additional equitable relief," such as "disgorgement" and "equitable restitution," that "may be appropriate." Ibid.; see id. at 92a. Finally, the Tribe's prayer for relief in district court restates the relief requested in Counts 1 and 2 and adds a general plea "[f]or such other and further relief as the Court, * * * sitting in equity, may deem just and proper." Id. at 91-93a.

b. The Tribe's CFC complaint initiated "an action for money damages against the United States" for its alleged "mismanagement of the [Tribe's] trust property" through "breaches of statutory, regulatory, and fidu ciary duties owed to the [Tribe]." App., infra, 58a-59a. The complaint specifies that the asserted duties pertain to the Tribe's reservation lands, mineral resources, and associated income held by the United States, as well as funds owed to the Tribe by the United States under court judgments. Id. at 60a-62a. The complaint, like its district court counterpart, contends that the government owes "fiduciary obligations" to the Tribe with respect to its "management and control of the [Tribe's] tribal as sets" that are "rooted in and derive from a number of statutes, regulations and executive orders." Id. at 62a- 63a (citing illustrative provisions). "The statutes, regu lations, and executive orders giving rise to the United States' fiduciary duties," it adds, "provide the 'general contours' of those duties," and "the details are filled in through reference to general trust law." Id. at 64a (cita tion omitted).

Like the district court complaint, the CFC complaint alleges several "fiduciary duties" and breaches by the government, including the failure to "[f]urnish complete and accurate information to the [Tribe] as to the nature and amount of trust assets" by "performing a [proper] accounting of all the trust property." App., infra, 65a- 66a (¶¶ 22.d, 23.d). It further alleges breaches of duties to keep "accurate information," "properly administer the trust," "collect and deposit the trust funds," "pre serve the trust assets," and "refrain from self-dealing." Id. at 66a-67a. And, like the district court complaint, it alleges the breach of a duty to "invest" funds held by the government in trust "to maximize [its] productivity" for the Tribe. Id. at 67a; see id. at 70a-72a.

Counts 1 through 3 each invoke the government's alleged failure to perform a proper accounting, and as sert that the Tribe was damaged by the government's alleged failure to properly manage the Tribe's mineral estate (Count 1), non-mineral estate (Count 2), and judg ment funds (Count 3). App., infra, 67a-71a. Those breaches allegedly include failures, inter alia, "to col lect" appropriate compensation for leased lands and property rights, "to lease" such assets at fair market value, and "to invest" properly the Tribe's "judgment funds" and other "trust funds." Ibid. Count 4 asserts injury caused by alleged governmental failures to prop erly invest tribal trust funds. Id. at 71a-72a. The com plaint's prayer for relief seeks, inter alia, damages for the government's "breaches of fiduciary duty" and "such other and further relief as the Court deems just and ap propriate." Id. at 72a-73a.

3. The CFC granted the government's motion to dis miss, holding that it was without jurisdiction under Sec tion 1500. App., infra, 27a-55a.

After comparing the district court and CFC com plaints with a side-by-side table detailing their allega tions, App., infra, 33a-38a, the court explained that the "complaints clearly involve the same parties, the same trust corpus, the same asserted trust obligations, and the same asserted breaches of trust over the same pe riod of time." Id. at 39a. The CFC added that, although the district court complaint has an "apparent emphasis" on an accounting, it also seeks equitable monetary relief in the form of a restatement of accounts, disgorgement, and restitution. Id. at 39a, 42a. The CFC complaint, in turn, "although focusing on money damages," seeks re lief that "will require an accounting [by the government] in aid of judgment." Id. at 39a, 41a, 55a. And, in both cases, the court explained, "[t]he underlying facts are the same" for "all practical purposes." Id. at 48a-49a. In these circumstances, the court found it "obvious that there is virtually 100 percent overlap" between the two cases. Id. at 49a. The court accordingly held that, given the "substantial overlap in the operative facts" and "in the relief requested," Section 1500 required dismissal without prejudice for want of jurisdiction. Id. at 55a.

In so holding, the court rejected the Tribe's conten tion that Section 1500 was inapplicable because the Tribe's request for equitable monetary relief in district court was "different" from its request for damages in the CFC. App., infra, 49a-54a. The CFC explained that a plaintiff's "legal theory" is immaterial under Section 1500 and, in any event, an Indian breach-of-trust claim in the CFC is in substance "an equitable proceeding that produces a monetary remedy." Id. at 49a-50a, 53a-54a. What is "relevant" in this context, the CFC held, "is the form of relief"-that is, "money." Id. at 54a.

4. A divided panel of the Federal Circuit reversed and remanded. App., infra, 1a-26a.

a. The majority interpreted its post-Keene en banc decision in Loveladies, as holding that Section 1500's jurisdictional bar applies only if the plaintiff's claim in the CFC both "arise[s] from the same operative facts" and "seek[s] the same relief" as a "claim pending in an other court." App., infra, 7a (quoting Loveladies, 27 F.3d at 1551); see id. at 8a-9a. It accordingly concluded that Section 1500 "does not divest the [CFC] of jurisdic tion" if the plaintiff's action in another court seeks "'dif ferent' relief," even though the cases may "arise from the same operative facts." Id. at 8a-9a. The majority then found that "the 'same relief' prong is dispositive," and therefore declined to decide whether the Tribe's lawsuits "arise from the same operative facts." Id. at 9a & n.1.

The majority reasoned that the two suits do not seek the "same relief" because the Tribe's CFC complaint "seeks damages at law, not equitable relief," whereas its district court complaint "requests only equitable relief and not damages." App., infra, 11a-12a. Although the majority recognized that the "equitable" relief sought in district court would, if granted, recover "money * * * in the government's possession," id. at 13a, it found "[t]he [Tribe's] careful separation of equitable relief and money damages" to be "critical to the § 1500 analysis in this case." Id. at 12a.

The majority disagreed with the CFC's conclusion that the Tribe's lawsuits sought "overlapping relief" in two areas: "money and an accounting." App., infra, 12a. First, the majority concluded that the actions do not seek overlapping monetary relief. Id. at 12a-15a. It reasoned that the Tribe's district court complaint seeks only what the court labeled "equitable 'old money' re lief"-i.e., "money that is already in the government's possession, but that erroneously does not appear in the [Tribe's] accounts" and "balance sheet[s]." Id. at 13a- 14a. The majority found that the CFC complaint, in con trast, seeks money damages for what the court labeled "'new money' that the [Tribe] should have earned as profit but did not" because the United States allegedly "fail[ed] to properly manage the [Tribe's] assets to ob tain the maximum value." Ibid.

The majority similarly found that the Tribe sought an "accounting" in district court but not in the CFC. App., infra, 15a. The court recognized that "what would ensue [in the CFC] would amount to an accounting" in aid of the CFC's ability to enter judgment, but noted that the Tribe's "prayer for relief" in its CFC complaint "does not request an accounting." Ibid.

Finally, the majority rejected the argument that its ruling would undermine Section 1500's policy and pur pose of relieving the United States from the burden of defending the same claims at the same time in different courts. App., infra, 15a. It concluded that such argu ments "ring[] hollow" because, under Federal Circuit precedent, Section 1500 "does not actually prevent a plaintiff from filing two actions seeking the same relief for the same claims." Id. at 16a-17a. Rather, the court reasoned, Section 1500 only prohibits plaintiffs from filing a district court action before a CFC lawsuit, while permitting plaintiffs to proceed with both lawsuits so long as the CFC action is filed first. Ibid. On that view, the majority concluded that Section 1500 "functions as nothing more than a 'jurisdictional dance,'" and it ac cordingly "found [no] purpose that § 1500 serves today." Id. at 17a. The majority also expressed the view that it would not be "sound policy" to read Section 1500 to pre clude damage actions in the CFC when plaintiffs chal lenge the same governmental action in other courts be cause "[t]he nation is served by private litigation which accomplishes public ends" and "relies in significant de gree on litigation to control the excesses [of] Govern ment." Ibid. (quoting Loveladies, 27 F.3d at 1555-1556).

b. Judge Moore, in dissent, explained that the Tribe's suits "were based on substantially the same op erative facts and that the two complaints included some overlap in the relief requested." App., infra, 19a-20a. She accordingly concluded that this Court's decision in Keene required that the CFC action be dismissed under Section 1500. Ibid.

REASONS FOR GRANTING THE PETITION

The Federal Circuit's decision holds that Section 1500, which deprives the CFC of jurisdiction over "any claim for or in respect to which" the plaintiff has "any suit or process" against the United States pending in any other court, permits plaintiffs to maintain simulta neous actions against the United States in two courts arising from the same operative facts so long as the ac tions do not seek the "same relief." It further holds that parallel requests for monetary relief are sufficiently "different" under that jurisdictional test if the monetary relief is deemed "legal" relief in one action and "equita ble" relief in the other. The court's decision finds no support in the broad text of Section 1500's prohibition on CFC jurisdiction; its reasoning is inconsistent with this Court's interpretation of Section 1500 in Keene Corp. v. United States, 508 U.S. 200 (1993); and it resolves incor rectly important questions on which Keene reserved decision.

The Federal Circuit has itself changed course on the key questions concerning the proper interpretation of Section 1500, and its decision in this case will have sig nificant adverse impact. The decision will force the gov ernment to litigate simultaneously against the same plaintiff in several fora concerning the same questions, thereby wasting significant judicial and litigation re sources and risking inconsistent decisions. Indeed, in the Indian Tucker Act context alone, Tribes have brought more than 30 pairs of so-called tribal-trust law suits against the United States and are simultaneously litigating those paired cases in both the CFC and dis trict court.

The Federal Circuit stated that Section 1500 no lon ger serves "any purpose" because, under its interpreta tions, Section 1500 requires only a pointless "jurisdic tional dance" and enables plaintiffs suing the federal sovereign to easily circumvent its restrictions. App., infra, 17a. In so saying, the court of appeals got one thing right: Its post-Keene rulings have indeed reduced Section 1500 to an easily evaded, formal requirement. But that conclusion should have suggested to the Fed eral Circuit not that it disregard what it had left stand ing of Section 1500's jurisdictional restrictions, but that it revisit its own interpretations. Since 1868, Section 1500's jurisdictional restrictions have served as part of the legal framework for every waiver by the United States of its sovereign immunity from suit in the CFC. Congress itself expanded Section 1500's jurisdictional bar in 1948; efforts to repeal the provision have failed; and, as Keene emphasized, Section 1500's "limits upon federal jurisdiction . . . must be neither disregarded nor evaded." Keene, 508 U.S. at 207, 211 n.5, 217 & n.14. To the contrary, such express limitations on the scope of Congress's waivers of the United States' immunity from suit in the CFC must be strictly observed, with any am biguity construed in favor of preserving that immunity.

The Federal Circuit's decision departs from those basic interpretive principles, greatly expands the juris diction of the CFC, disregards the basic teachings of this Court in Keene, and imposes the burden of duplica tive litigation on the parties and the CFC. The Court should grant certiorari to correct the fundamental er rors of the court of appeals and restore the jurisdictional limitations Congress enacted.

A. The Federal Circuit's Same-Relief Requirement Is In consistent With The Text Of Section 1500 And This Court's Decision In Keene

1. Section 1500 precludes CFC jurisdiction when a plaintiff has a second suit pending that is based on substantially the same operative facts as the CFC claim, even if the other suit seeks different relief

The court of appeals erroneously held that Section 1500's jurisdictional bar does not apply when a plaintiff who has sued the United States in the CFC has a related case based on the same operative facts pending in an other court, so long as that other suit seeks "different relief." App., infra, 7a, 8a-9a.2 Section 1500, by its terms, bars CFC jurisdiction over "any" claim "in re spect to which" the plaintiff has "any suit" pending in another court. 28 U.S.C. 1500. A suit sharing the same operative facts as a CFC claim is such a suit.

a. Congress has broadly proscribed CFC jurisdic tion over any claim against the United States for which a plaintiff has a related suit against the government pending in another court, regardless whether that other case seeks the "same relief" as the CFC claim. The phrase "any claim [in the CFC] for or in respect to which the plaintiff * * * has pending * * * any suit or process," 28 U.S.C. 1500, uses the word "which" to refer to the plaintiff's CFC claim. Section 1500's juris dictional bar therefore is triggered by "any suit or pro cess" "for or in respect to" the plaintiff's CFC claim, when that suit or process is pending against the United States in another court. Keene makes clear that that bar prohibits CFC jurisdiction "not only as to claims 'for . . . which' the plaintiff has sued in another court," but also "as to those 'in respect to which' he has sued else where." 508 U.S. at 213. And the expansive text of the latter phrase eschews a "narrow concept of identity." See ibid.

A plaintiff's pending suit in another court is "in re spect to" a claim in the CFC if it "relate[s] to," is "con cern[ed] with," or has some "relation or reference to" that claim. Webster's Third New Int'l Dictionary 1934 (1993) (defining "respect" and "in respect to"). That reading is supported by this Court's conclusion that "the plain language" of a similar statutory phrase ("arising in respect of") is "encompassing" language that "sweep[s] within" its scope all related matters "associated in any way." Kosak v. United States, 465 U.S. 848, 854 (1984) (interpreting 28 U.S.C. 2680(c)); cf. Union Pac. R.R. v. United States, 313 U.S. 450, 464 (1941) (concluding that concessions "in respect to the transportation" of prop erty include concessions that either "directly or indi rectly" affect the cost of such transportation).

Congress further underscored Section 1500's breadth by emphasizing that its jurisdictional bar is triggered by "any suit or process." 28 U.S.C. 1500 (emphasis added). "The term 'any' ensures that the [phrase 'any suit or pro cess'] has a wide reach," Boyle v. United States, 129 S. Ct. 2237, 2243 (2009), and Section 1500 thereby gives "no warrant to limit the class of" related suits that preclude CFC jurisdiction, Republic of Iraq v. Beaty, 129 S. Ct. 2183, 2189 (2009). See Ali v. Federal Bureau of Prisons, 552 U.S. 214, 219 (2008) ("[T]he word 'any' has an expan sive meaning, that is, 'one or some indiscriminately of whatever kind.'") (quoting United States v. Gonzales, 520 U.S. 1, 5 (1997)). A suit that "aris[es] from the same factual foundation" as a claim in the CFC, Keene, 508 U.S. at 213, surely qualifies as a suit that "relate[s] to," is "concern[ed] with," or has some "relation or reference to" that claim, Webster's Third New Int'l Dictionary 1934, or as one that is "associated in any way" with the CFC claim, Kosak, 465 U.S. at 854.

b. Section 1500's broad gatekeeping function rein forces that conclusion. Before 1948, the predecessor to Section 1500 required only "an election between a suit in the Court of Claims [against the United States] and one brought in another court against an agent of the govern ment." Matson Navigation Co. v. United States, 284 U.S. 352, 356 (1932) (emphasis added). Congress ex panded the jurisdictional bar when it enacted Section 1500, which applies when a CFC plaintiff has a related suit in another court against either the United States or one of its agents. See Keene, 508 U.S. at 211 n.5. Con gress accordingly "close[d] th[e] loophole" that permit ted plaintiffs to maintain two related suits brought against the United States directly. Ibid.

In both contexts, Section 1500 bars CFC jurisdiction even in circumstances in which the CFC action and an other pending suit involve claims that could not have been "joined in a single suit." Keene, 508 U.S. at 213. A suit in district court arising from the same factual foun dation can therefore qualify as a suit "in respect to" the plaintiff's CFC claim even though its request for district court relief "rest[s] on a legal theory that could [not] have been pleaded" in or that lies "beyond the jurisdic tion of the [CFC]." See id. at 213-214. It follows that Congress required plaintiffs to elect between fora in which they can have different prospects of successfully securing relief. The Court in Keene did not need to de cide whether Section 1500 applies when two suits seek "completely different relief" because "at least" some overlapping relief was sought in that case. Id. at 212 & n.6. But the Federal Circuit's holding that CFC juris diction is displaced only when another suit seeks the "same relief" in another forum ultimately cannot be rec onciled with the logic of Keene's holding that Section 1500 applies even when the plaintiff's legal theories in the two cases are so different that the theory relied upon in district court could not appropriately be ad vanced in the CFC.

c. The Federal Circuit's extra-textual "same relief" exception to Section 1500's categorical bar likewise finds no sound basis in Casman v. United States, 135 Ct. Cl. 647 (1956), which the en banc Federal Circuit initially repudiated in considered dicta in UNR Industries, Inc. v. United States, 962 F.2d 1013, 1020, 1024-1025 (1992), aff'd sub nom. Keene, supra, but later reaffirmed, see Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1549, 1551 (Fed. Cir. 1994) (en banc). Casman reasoned that Section 1500's purpose was "to require an election between a suit in the Court of Claims and one brought in another court," and concluded that the statute therefore should not apply if the "plaintiff has no right to elect between two courts." 135 Ct. Cl. at 649-650. Because Casman's request for back pay fell "exclusively within the [Court of Claims'] jurisdiction," and because the Court of Claims (at the time) lacked "jurisdiction to" grant Casman's request for specific relief "restor[ing] [him] to his [federal] position," the Court of Claims held in Casman that Section 1500 did not apply when such "entirely different" relief must be sought in different courts. Ibid.3

Casman's focus on the type of relief sought by the plaintiff in a suit in another court finds no textual foun dation. A suit seeking specific relief rather than mone tary relief is nevertheless a "suit or process." And al though the suit may not be "for" the CFC claim under Section 1500, it qualifies as a suit "in respect to" that claim if it arises from substantially the same operative facts. A leading commentary on Section 1500 has thus concluded that the court in Casman "overr[ode] the words of the section." David Schwartz, Section 1500 of the Judicial Code And Duplicate Suits Against the Gov ernment and its Agents, 55 Geo. L.J. 573, 587 (1967).

And although Keene reserved the question whether Casman's "'judicially created exception[]' to § 1500" for suits seeking "completely different" or "distinctly differ ent" relief was valid, 508 U.S. at 212 n.6, 215-216 (cita tion omitted), the Court's reasoning demonstrates that Casman relied on a fundamentally flawed rationale and incorrectly restricted Section 1500. As noted above, Keene holds that Section 1500 requires plaintiffs to elect between suing in the CFC and suing in another court even when the legal theories that could be raised in such suits are distinct. See 508 U.S. at 213-214. Those differ ences in legal theory typically would result in differ ences in the judicial relief that the plaintiff would ulti mately be able to secure. Requiring a plaintiff to elect between a CFC claim and a factually related suit seek ing "different relief" therefore is not materially differ ent from requiring the plaintiff to make the election at issue in Keene.

Keene recognized that Section 1500's restrictions may "deprive plaintiffs of an opportunity to assert rights that Congress has generally made available" and em phasized that only Congress-not the courts-may re move such "apparent hardship" through new legislation. Id. at 217-218 (quoting Corona Coal Co. v. United States, 263 U.S. 537, 540 (1924)). At the time, the en banc Federal Circuit, in the very decision under review, had "announced that it was overruling" Casman. See Keene, 508 U.S. at 212 n.6, 215-216 (citation omitted) (discussing UNR Indus., supra). Now that the Federal Circuit has reinstated the Casman holding, Loveladies, 27 F.3d at 1549, 1551, and applied it in this case, see App., infra, 7a, this Court's review is again necessary.

2. The Tribe did not seek "different relief" in district court because both cases sought monetary relief and other overlapping relief

Even if Casman were correct in concluding that Sec tion 1500 does not preclude simultaneous suits if they seek "entirely different" relief, Casman, 135 Ct. Cl. at 650, the Federal Circuit erred in holding that the Tribe's requests for monetary relief in the CFC and district court qualify as different relief. The court of appeals' conclusion that identifying and distinguishing the legal or equitable bases for such relief is "critical to the § 1500 analysis," App., infra, 12a, is both incorrect and incon sistent with Keene.

a. Keene held that Section 1500 requires dismissal of a CFC claim if "the plaintiff's other suit [is] based on substantially the same operative facts as the [CFC] ac tion, at least if there [is] some overlap in the relief re quested." 508 U.S. at 212. The Court thereby acknowl edged the Casman-based argument that suits based on substantially the same facts might not trigger Section 1500 if they seek "completely different relief"-i.e., "distinctly different types of relief." Id. at 212 n.6, 216; id. at 214 n.9 (emphasizing that Casman is "limited to that situation"). Casman, as noted, concluded that the specific (injunctive) relief of reinstatement available in district court and the monetary relief available in the Court of Claims were "entirely different." 135 Ct. Cl. at 650. Keene accordingly held that Casman's exception, even if valid, was inapplicable because Keene sought "monetary relief " in both the CFC and the district court actions. 508 U.S. at 216.

The Federal Circuit nevertheless concluded that monetary relief in the CFC and monetary relief in dis trict court are "completely different" for purposes of Section 1500. The court found it dispositive that the Tribe styled its requests as for "damages at law, not equitable relief," in the CFC and for "equitable relief and not damages" in district court. App., infra, 11a-12a. The technical law-equity distinction the court found "critical to the § 1500 analysis," id. at 12a, strays even further afield from Section 1500's text than does the holding in Casman. A suit involving equitable monetary relief might not be a suit "for" a CFC claim involving money damages in the technical sense, but if it arises from substantially the same operative facts, it is a suit "in respect to" that claim because it is related to the claim and has "at least * * * some overlap" with it, Keene, 508 U.S. at 212. The Federal Circuit's narrow attention on the doctrinal source for relief, relevant in the days of a divided bench, disregards Keene's teaching that Congress eschewed "a narrow concept of identity"

in Section 1500 and so denied plaintiffs a "liberal oppor tunity to maintain two suits arising from the same fac tual foundation." Id. at 213.

If the law-equity distinction were relevant to Cas man's exception, Keene would have had to address it. But the Court did not do so. Without inquiring whether the "monetary relief" sought in Keene's CFC and dis trict court cases constituted relief at law or at equity, the Court held that the exception for "distinctly differ ent types of relief" did not apply because both actions sought "monetary relief" from the government. 508 U.S. at 216.

Indeed, the Court likely would have reversed rather than affirmed in Keene if the Federal Circuit's distinc tion were correct. The Court affirmed dismissal of a CFC contract claim (Keene I) because, in a separate district court tort action in which Keene was the defen dant, Keene had pending a third-party complaint "seek ing indemnification or contribution from the Govern ment" for any damages that might be awarded against it. See 508 U.S. at 203-204, 216. Indemnification and contribution are understood to be equitable relief.4 Thus, if the Federal Circuit were correct, Section 1500 would not have applied in Keene because such equitable monetary relief would have been "different relief" than legal contract damages. Keene, of course, held other wise.

b. The Federal Circuit's approach led it into a thicket of elusive and technical distinctions, largely based on respondent's characterization of its complaints. That result is in derogation of the principle that "juris dictional rules should be clear," especially in the sover eign immunity context. See Lapides v. Board of Regents of Univ. Sys. of Ga., 535 U.S. 613, 621 (2002); Heckler v. Edwards, 465 U.S. 870, 877 (1984) (explaining that "liti gants ought to be able to apply a clear test to deter mine" which federal court has jurisdiction).

The court first reasoned that the Tribe's actions do not seek overlapping relief because the Tribe's district court complaint seeks so-called "old money" (i.e., "money that is already in the government's possession, but that erroneously does not appear in the [Tribe's] accounts"), whereas its CFC complaint seeks so-called "new money" (i.e., "profits that the [Tribe] would have made but for the United States' mismanagement"). App., infra, 13a. As the dissenting judge explained, the majority's distinction is untenable. Id. at 22a-25a.

In fact, as the dissenting judge noted, the Tribe's CFC complaint-not just its district court complaint -seeks so-called "old money" (money already in the gov ernment's possession) by challenging the government's trust-account record-keeping. See App., infra, 23a-25a; pp. 8-9, supra (discussing CFC complaint). The major ity reiterated its law-equity distinction in arguing that the Tribe's CFC complaint seeks "damages alone" and not "equitable relief of any type," App., infra, 14a, but it provided no reasoned response-let alone one consis tent with liberal notice-pleading rules-to the simple observation that the Tribe's complaints seek overlapping monetary relief.

Conversely, the Tribe's district court complaint-not just its CFC complaint-seeks so-called "new money" (money not already in the government's possession). It does so by requesting monetary relief under equitable doctrines for any injuries resulting from the govern ment's alleged violation of fiduciary duties to "invest" the Tribe's trust assets properly and "maximiz[e] prof its" therefrom. See p. 7, supra (quoting complaint). Indeed, the complaint specifically states that its request for a trust-fund accounting extends beyond "funds under the custody and control of the United States" so as to capture such unrealized profits, see ibid., and, in both stating its claims and articulating its prayer for relief, the Tribe requests "equitable restitution" and "any addi tional equitable relief" that may be appropriate. Ibid.; App., infra, 92a (prayer for relief).

The Federal Circuit's conclusion that the Tribe does not seek an "accounting" in both courts because it does not include an express request for an accounting in its "prayer for relief" to the CFC, App., infra, 15a, further underscores the error in its approach to Section 1500. Even if the Tribe only sought to recover profits lost be cause of mismanagement (so-called "new money") in the CFC, an accounting would be necessary to determine the principal that should have been invested after the Tribe establishes a pertinent governmental investment- related violation. Without knowing that initial invest ment, there is no way to determine the proper amount of investment profits. The court of appeals accordingly acknowledged that "what would ensue [in the CFC] would amount to an accounting," ibid., but found that result irrelevant to the application of Section 1500.

The court's technicality-laden analysis finds no sup port in the text of Section 1500. That provision does not refer to "legal" or "equitable" relief-or indeed to the type of relief sought at all-and therefore provides no basis for the Federal Circuit to hinge Section 1500's ap plication on an assessment of the historical and jurispru dential roots for the relief. Compare Mertens v. Hewitt Assocs., 508 U.S. 248, 253 (1993) (construing the term "appropriate equitable relief" under ERISA, 29 U.S.C. 1132(a)(5)). And the court's approach inevitably creates incentives for counsel to generate novel and intricate distinctions in order to pursue the duplicative litigation that Section 1500 was intended to foreclose, thereby opening the door to inconsistent decisions. Section 1500, properly read, prevents that result where, as here, a plaintiff's district court suit against the United States has some "relation or reference to," or "is concerned with," the plaintiff's claim against the government in the CFC. See p. 16, supra.

3. The Federal Circuit's interpretation of Section 1500 disregards established jurisdictional and sovereign immunity principles

The Federal Circuit's rationale for its interpretation of Section 1500 contravenes established principles gov erning the interpretation of statutes restricting federal jurisdiction and waivers of sovereign immunity in ac tions for monetary relief against the United States. The court reasoned that its decision does not improperly "undermine the policy and purpose of § 1500" of pre venting plaintiffs from pursuing two simultaneous ac tions against the United States in different courts be cause "[i]n practice, § 1500 does not actually prevent a plaintiff from filing two actions seeking the same relief for the same claims." App., infra, 15a-16a. The court explained that its precedent in Tecon Eng'rs, Inc. v. United States, 343 F.2d 943 (Ct. Cl. 1965), created an "anomalous rule" under which a plaintiff may evade Sec tion 1500 by strategically "order[ing]" his actions-that is, by filing his CFC claim prior to filing a related suit in another court. App., infra, at 16a-17a. Observing that Section 1500 "would never have even come into play" if the Tribe had "simply filed its complaints in reverse or der," the court declared that it found no "purpose that § 1500 serves today," that Section 1500 requires "noth ing more than a 'jurisdictional dance,'" and that con cerns about undermining Section 1500 therefore are "of no real consequence." Id. at 17a. On that basis, the court chose to disregard the statute's terms and disman tle its protections.

a. This Court in Keene, as noted above, emphasized that Section 1500's "limits upon federal jurisdiction . . . must be neither disregarded nor evaded" because it is "Congress [that] has the constitutional authority to de fine the jurisdiction of the lower federal courts." Keene, 508 U.S. at 207, 217. Yet the Federal Circuit blithely adopted an unduly narrow interpretation of Section 1500 based in part on the premise that it had previously suc ceeded in rendering Section 1500 a formality. Nothing could be further from the teachings of this Court than this seemingly purposeful attempt to progressively erode a jurisdictional restriction.

Moreover, the court erred in relying on Tecon's limi tation of Section 1500, App., infra, 16a, because (as the en banc Federal Circuit previously declared) that order- of-filing rule is incorrect. See UNR Indus., 962 F.2d at 1020, 1023.5 Section 1500 applies regardless whether a plaintiff files its CFC claim first or second because it precludes CFC "jurisdiction" whenever the plaintiff has "pending" in another court a suit that is related to his claim in the CFC. See 28 U.S.C. 1500. The only two decisions of this Court prior to Keene that found the statute applicable confirm that conclusion. Both held that the jurisdictional bar in Section 1500's direct prede cessor applied when the CFC action is filed first.6 To be sure, the relevant text was even clearer before 1948, when plaintiffs were expressly prohibited from "fil[ing] or prosecut[ing]" any CFC claim if they had a related suit "pending in any other court." 28 U.S.C. 260 (1946) (emphasis added). But as Keene makes clear, Con gress's enactment of Section 1500 made no change to the "underlying substantive law" with its "deletion of the 'file or prosecute' language in favor of the current refer ence to 'jurisdiction.'" 508 U.S. at 209; cf. id. at 212 (ob serving that Congress presumably was aware of similar decisions and adopted them in its 1948 codification). Thus, while Keene reserved the question whether Tecon was properly decided, id. at 209 n.4, Keene's rationale compels the conclusion that it was not.7

b. The Federal Circuit's departure from the text, history, and purpose of Section 1500 cannot be justified by its view of "sound policy"-that "[t]he nation is served by private litigation" against the sovereign that can "control the excesses to which Government may from time to time be prone." App., infra, 17a-18a (quot ing Loveladies, 27 F.3d at 1555-1556). That rationale not only disregards Keene's admonition about the proper role of the courts in this sphere, see 508 U.S. at 217-218, but also contravenes fundamental tenets of federal sov ereign immunity.

As the Tribe's own complaint reflects (App., infra, 60a), Congress enacted limited waivers of sovereign im munity in the Tucker Act and Indian Tucker Act by con ferring jurisdiction on the CFC to hear certain claims against the United States. See United States v. Navajo Nation, 129 S. Ct. 1547, 1551 (2009); Mitchell, 463 U.S. at 212, 215; Tempel v. United States, 248 U.S. 121, 129 (1918). Congress enacted those waivers to precisely the extent it wished, against the well-understood backdrop of Section 1500's longstanding limits on CFC (and Court of Claims) jurisdiction. Such "limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied." Lehman v. Nakshian, 453 U.S. 156, 161 (1981) (citation omitted); see United States v. Sherwood, 312 U.S. 584, 586 (1941) ("[T]he terms of [the United States'] consent to be sued in any court define that court's juris diction to entertain the suit."). By invoking policy ratio nales to insist that Congress provide "a clear expression of [its] intent" to preserve sovereign immunity and limit CFC jurisdiction, App., infra, 18a, the Federal Circuit had it precisely backwards: It is the waiver, not the rec ognition, of federal sovereign immunity that must be "'unequivocally expressed' in the statutory text" and "strictly construed, in terms of its scope." Department of the Army v. Blue Fox, Inc., 525 U.S. 255, 261 (1999) (quoting Lane v. Pena, 518 U.S. 187, 192 (1996)); see United States v. Williams, 514 U.S. 527, 531 (1995) (Statutory "ambiguities [must be construed] in favor of immunity."); Library of Cong. v. Shaw, 478 U.S. 310, 321 (1986) ("[P]olicy, no matter how compelling, is insuffi cient" in this context.).

B. The Federal Circuit's Decision Threatens Significant Adverse Consequences

By holding that Section 1500 permits a plaintiff to maintain two simultaneous actions based on substan tially the same operative facts so long as the two suits seek different relief-and by adopting a test that uses technical pleading concepts to discover differences in relief where none appear to the naked eye-the Federal Circuit has eviscerated Section 1500's limitation on CFC jurisdiction. Since this Court in Keene returned Section 1500 to the court of appeals' interpretive domain, the Federal Circuit has reinstated its flawed decisions in Casman and Tecon, and now has used those decisions to support a holding that would allow two suits, one in the CFC and one in district court, to go forward simulta neously against the government, even when based on the same operative facts and seeking similar relief. The court of appeals' decision is plainly incorrect. And be cause the Federal Circuit exercises exclusive appellate authority over the CFC, 28 U.S.C. 1292(c)(1), 1295(a)(3), this is not a context in which this Court could await for a circuit conflict to develop.8

The implications of the court of appeals' evisceration of Section 1500 are substantial. In the Indian Tucker Act context alone, we have identified at least 31 other pairs of pending cases that Indian Tribes have brought against the United States in the CFC and district court. See App., infra, 94a-99a (listing cases). As is true here, the cases in each pair are based on substantially the same operative facts. While the Tribes are entitled to pursue an action against the government, the Federal Circuit's approval of their double-barreled strategy im poses a substantial litigation burden on the United States and the courts and threatens inconsistent judicial rulings. Section 1500 was intended to prevent just such duplicative litigation. Certiorari is therefore warranted to restore that provision's limitations on CFC jurisdic tion.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

ELENA KAGAN
Solicitor General
IGNACIA S. MORENO
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
ANTHONY A. YANG
Assistant to the Solicitor
General
AARON P. AVILA
Attorney

HILARY C. TOMPKINS
Solicitor
Department of the Interior

JANUARY 2010

1 In 1982, Congress transferred the appellate and trial functions of the Court of Claims to the Court of Appeals for the Federal Circuit and the United States Claims Court, respectively. In 1992, the Claims Court was renamed as the CFC. See Keene, 508 U.S. at 202 n.1; Mitchell, 463 U.S. at 228 n.33.

2 The court of appeals accepted arguendo the CFC's determination that the "operative facts" in the Tribe's two complaints "are the same," App., infra, 48a-49a, by concluding that it need not address whether the complaints arise from the "same operative facts." Id. at 9a n.1.

3 In 1982, Congress eliminated the problem that concerned the Casman court by authorizing federal employees to seek both back pay and reinstatement in the CFC. See 28 U.S.C. 1491(a)(2).

4 See, e.g., United States v. Atlantic Research Corp., 551 U.S. 128, 141 (2007) (ruling that "traditional rules of equity" governs statutory contribution claim); Restatement (Second) of Torts § 866A cmt. c (1979) ("Contribution is a remedy that developed in equity" and is governed by "equity rules" in the tort context.); id. § 866B cmt. c and f (explaining that "[t]he basis for indemnity" is the equitable concept of unjust enrichment and restitution; discussing relationship to contribution); Joseph Story, 2 Commentaries on Equity Jurisprudence § 648 (1918) (surveying the "equitable doctrine of contribution").

5 Although Tecon's rule does not directly apply to this case because the Tribe filed suit in district court (one day) before filing in the CFC, the court of appeals incorporated Tecon's interpretation of Section 1500 into its ratio decidendi by concluding that the outcome in this case comports with the narrow and self-defeating purpose Tecon had attributed to Section 1500.

6 See In re Skinner & Eddy Corp., 265 U.S. 86, 92, 95 (1924) (Court of Claims erred in vacating voluntary dismissal of petition because the plaintiff filed a district court action immediately after the dismissal); Corona Coal, 263 U.S. at 539-540 (dismissing appeal from Court of Claims decision because related district court action was filed while the appeal was pending).

7 The court in Tecon was likely motivated to retain jurisdiction because the plaintiffs before it, after conducting a significant amount of litigation in the Court of Claims, "filed the same claims in a district court and then moved the Court of Claims to dismiss [their] case under Section 1500." UNR Indus., 962 F.2d at 1020. The government and the Court of Claims viewed the plaintiff's effort to force the Court of Claims to release jurisdiction as unacceptable conduct and the court, at the government's urging, "retained jurisdiction so it could dismiss the [plaintiff's] case with prejudice." See ibid. Although the government supported that result at the time, it subsequently concluded, based on further experience, that Section 1500 should be enforced by its terms and that similar conduct by plaintiffs "should be addressed by imposing sanctions for abuse of process and vexatious litigation." U.S. Br. at 39 n.19, Keene, supra (No. 92-166); see UNR Indus., 962 F.2d at 1020.

The bizarre litigation spawned by Tecon's order-of-filing rule confirms this judgment. Plaintiffs have filed several related cases on the same day, see, e.g., Pet. App. 94a-98a, requiring evidentiary hearings to determine what time a messenger delivered (and court clerks filed) the relevant complaints. In such cases, Tecon makes federal jurisdiction turn on whether a CFC judge finds sufficiently credible the testimony of the plaintiff's messenger (perhaps years after the fact) regarding the specific times that the plaintiff's complaints arrived at each court. See, e.g., Passamaquoddy Tribe v. United States, 82 Fed. Cl. 256, 274-280 (2008) (finding such testimony neither "persuasive [n]or credible" after evidentiary hearings).

8 Regional courts of appeals previously could have construed Section 1500 in an appeal from a Little Tucker Act action for which district courts have concurrent jurisdiction with the CFC. 28 U.S.C. 1346(a)(2); see Shapiro v. United States, 168 F. 2d 625, 626 (3d Cir. 1948) (finding district court jurisdiction governed by Section 1500). But the Federal Circuit now has exclusive appellate jurisdiction over district court cases based "in whole or in part" on the Little Tucker Act unless the relevant claim is founded on an internal revenue statute or regulation. 28 U.S.C. 1295(a), (a)(2). The potential for Section 1500 to arise in the context of a case concerning an internal revenue provision and falling within the Little Tucker Act's $10,000 threshold is vanishingly remote, and we have identified no such appellate decision.