Patricia Millett and James Meggesto Commentary on the Tohono O’odham Decision

Download a pdf here (Tohono Oodham Nation decision analysis).

Here is the text:

Yesterday, the Supreme Court issued its decision in United States v. Tohono O’odham Nation, No. 09-846. The Court, by a vote of 5-2-1 (Justice Kagan recused) reversed the decision of the Court of Appeals for the Federal Circuit, and held that the Court of Federal Claims lacked jurisdiction over the Tohono O’odham Nation’s claims for monetary relief on its trust mismanagement claims. Justice Kennedy delivered the opinion of the Court, which was joined by Chief Justice Roberts and Justices Scalia, Thomas, and Alito. Justice Sotomayor issued an opinion concurring in the judgment that was joined by Justice Breyer. Justice Ginsburg filed a dissenting opinion. Justice Kagan took no part in the decision as she was the Solicitor General during earlier proceedings in the case.

The case arose when the Tohono O’odham Nation filed back-to-back lawsuits seeking relief for numerous violations of trust and fiduciary obligations with respect to assets held in trust by the federal government. The Nation first filed suit in the United States District Court for the District of Columbia against the United States, seeking primarily equitable relief, including an accounting. That complaint also sought equitable monetary relief in the form of disgorgement and restitution. The next day, the Nation filed a second lawsuit in the Court of Federal Claims (CFC) seeking monetary damages for mismanagement of the same trust assets.

The Court of Federal Claims dismissed the action under 28 U. S. C. §1500 for want of jurisdiction. Section 1500 provides that:

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 Court of Federal Claims held that the factual underpinnings for the Nation’s suit before it and the separate suit pending in federal district court were “for all practical purposes identical.” 79 Fed. Cl. 645, 656 (2007).

The Court of Appeals for the Federal Circuit reversed and held that the CFC retained jurisdiction because the two lawsuits sought distinct forms of relief. 559 F. 3d 1284 (2009). The Federal Circuit held that Section 1500 bars relief only if the claims in the two lawsuits both share operative facts and also seek overlapping relief. Because the court found no overlap in the relief the Nation requested from the two courts, the court of appeals held that the action was not barred by Section 1500.

The Supreme Court has now reversed, significantly limiting the ability of claimants—whether Tribes, government contractors, or property owners challenging unconstitutional takings—to obtain full relief against the United States government for the government’s violations of the law. The Supreme Court held that “[t]wo suits are for or in respect to the same claim, precluding jurisdiction in the CFC, if they are based on substantially the same operative facts, regardless of the relief sought in each suit.” Slip Op. at 9 (emphasis added). In so holding, the Court acknowledged that “in respect to a claim” could mean facts alone or facts coupled with some overlapping relief. The Court held, however, that the former interpretation was “more reasonable,” pointing to Congress’s provision in the next clause that the CFC would also lack jurisdiction over claims against “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.” 28 U. S. C. §1500. “Acting” “in respect to a cause of action,” the Court concluded, only made sense with respect to factual overlap because it referred to the timeframe before suit was even filed. Individuals cannot “act[]” in respect to particular forms of relief before litigation commences, the Court explained. Thus, the Court concluded, if the phrase “in respect to a cause of action” does not “embrace the concept of remedy, it is reasonable to conclude that” the similarly worded phrase “for or in respect to” a claim does not “embrace the concept of remedy” either. Slip Op. at 5.

The Court thus resolved the question left open in Keene Corp. v. United States, 508 U. S. 200 (1993). In Keene, the Court had held that two suits are for or in respect to the same claim when they are “based on substantially the same operative facts . . . , at least if there [is] some overlap in the relief requested.” Id. at 212. In Tohono O’odham, the Court has closed the door on Keene’s “at least” clause. “To continue to reserve the question [of whether common facts are sufficient to bar a CFC action where a similar case is pending elsewhere]” even if the relief sought is different, the Court explained, would force the CFC to engage in an unnecessary and complicated remedial inquiry, and it would increase the expense and duration of litigation. The question demands an answer, and the answer is yes,” jurisdiction is barred based on factual overlap alone. Slip Op. at 9.

The Court rejected the Nation’s argument that its rule would unfairly require the Nation and other claimants against governmental action to choose between partial remedies in different courts. The Court observed that the Nation could “dismiss the [District Court] action, or upon that action’s completion, the Nation is free to file suit again in the CFC if the statute of limitations is no bar.” Slip op. 10. After clarifying the rule of law, the Court quickly found that the Nation’s two suits arose out of the same operative facts and were correctly dismissed by the CFC.

The consequences of the Court’s decision are significant for Indian Country. Tribes who have simultaneous litigation pending in both federal district court and the CFC may now find that subject matter jurisdiction is lacking over their CFC judgments. The decision is equally important for the numerous other litigants seeking both monetary and equitable relief against the United States’ violations of law. For example, if the government is engaged in an ongoing regulatory taking of property, individuals must now choose between exercising their constitutional right to obtain just compensation for that taking in the CFC and their right to prevent further constitutional injury through an injunction in federal district court. The property owner cannot obtain both forms of relief simultaneously.

It bears noting that the Court did not directly address Tecon Engineers, Inc. v. United States, 170 Ct. Cl. 389 (1965), which held that Section 1500 does not apply as long as the CFC action is filed first and jurisdiction attaches before the federal district court case commences. (The Nation filed in the reverse order.) But that rule remains on thin ice given (i) the Court’s decision to give Section 1500 a broad, protective reading favoring the United States, (ii) the Court’s admonition that “the Court of appeals was wrong to allow its precedent to suppress the statute’s aims,” Slip Op. at 7, and (iii) the Court’s reminder that claims in the CFC are “available by grace and not by right” (Slip op. 9).

Justice Sotomayor, joined by Justice Breyer, concurred narrowly in the judgment. In Justice Sotomayor’s view, the Nation’s two actions sought overlapping relief and should have been dismissed under Keene, without any need for the Court to rule more broadly. Justice Sotomayor criticized the Court for “unnecessarily” holding that Section 1500 bars jurisdiction in the CFC whenever a plaintiff’s CFC action is based on substantially the same facts as a suit pending elsewhere and for repudiating unnecessarily the CFC’s holding in Casman v. United States, 135 Ct. Cl. 647 (1956), which sustained jurisdiction for back pay when reinstatement claims were pending in federal court. Justice Sotomayor found the holding in Casman necessary and consistent with the statutory text, legislative history, and purpose of Section 1500, which is focused on the election of remedies and, therefore, does not apply “when a plaintiff has no right to elect between two courts.” Concurrence Slip Op. at 5. The jurisdictional bar was intended to affect a very limited number of actions involving the election of remedies, and was never meant to prevent nonduplicative relief. She insisted that federal courts have ample tools to prevent the burdens of duplicative discovery and simultaneous litigation.

Justice Ginsburg agreed with much of Justice Sotomayor’s reasoning, but dissented because, in her view, “entitlement to relief is essential to the existence of a claim or cause of action” and thus Section 1500 should focus on whether the claims seek distinct relief.

Patricia Millett & James Meggesto

Akin Gump Strauss Hauer & Feld LLP

[Disclosure: the authors filed an amicus curiae brief on behalf of the Osage Nation in support of the Tohono O’odham Nation in the Supreme Court.]

This entry was posted in Author: Matthew L.M. Fletcher, Research, Supreme Court and tagged , , , . Bookmark the permalink.

One Response to Patricia Millett and James Meggesto Commentary on the Tohono O’odham Decision

  1. Pingback: 2011 Top Ten Indian Law Stories | Turtle Talk

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