United States Court of Appeals
for the Federal Circuit
__________________________
HILDA M. GRIFFIN,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
2009-5045
__________________________
Appeal from the United States Court of Federal
Claims in 07-CV-318, Judge Francis M. Allegra.
__________________________
ON PETITION FOR REHEARING EN BANC
__________________________
Before RADER, Chief Judge, NEWMAN, PLAGER, ∗ LOURIE,
BRYSON, GAJARSA, LINN, DYK, PROST, and MOORE, Circuit
Judges.
PER CURIAM.
PLAGER, Circuit Judge, with whom NEWMAN, Circuit
Judge, joins, responding to the decision of the court to
deny panel rehearing and rehearing en banc.
∗
Judge Plager participated only in the decision on
the petition for panel rehearing.
GRIFFIN v. US 2
GAJARSA and LINN, Circuit Judges, dissent, without
opinion, from the denial of the petition for rehearing en
banc.
__________________________
ROBERT E. RIGRISH, Bodker, Ramsey, Andrews, Wino-
grad & Wildstein, P.C., of Atlanta, Georgia, filed a peti-
tion for rehearing en banc for plaintiff-appellant.
KENNETH S. KESSLER, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, filed a response to
the petition for defendant-appellee. With him on the
response were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and HAROLD D. LESTER,
JR., Assistant Director.
_________________________
ORDER
A petition for rehearing en banc was filed by the
Plaintiff-Appellant, and a response thereto was invited by
the court and filed by the Defendant-Appellee. The peti-
tion for rehearing was referred to the panel that heard the
appeal, and thereafter the petition for rehearing en banc
and the response were referred to the circuit judges who
are authorized to request a poll whether to rehear the
appeal en banc. A poll was requested, taken, and failed.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The petition of Plaintiff-Appellant for panel re-
hearing is denied.
(2) The petition of Plaintiff-Appellant for rehearing
en banc is denied.
3 GRIFFIN v. US
(3) The mandate of the court will issue on October 14,
2010.
FOR THE COURT
October 7, 2010 /s/ Jan Horbaly
—————————— ——————————
Date Jan Horbaly
Clerk
cc: Robert E. Rigrish, Esq.
Kenneth S. Kessler, Esq.
United States Court of Appeals
for the Federal Circuit
__________________________
HILDA M. GRIFFIN,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
2009-5045
__________________________
Appeal from the United States Court of Federal
Claims in 07-CV-318, Judge Francis M. Allegra.
__________________________
PLAGER, Circuit Judge, with whom NEWMAN, Circuit
Judge, joins, responding to the decision of the court to
deny panel rehearing and rehearing en banc.
1.
Sometimes counsel for a litigant, unfamiliar with the
intricacies and complexities of federal jurisdiction, will
file a complaint in district court with multiple counts, one
or more of which properly belong in a different trial court,
such as the United States Court of Federal Claims.
Congress has provided in 28 U.S.C. § 1631 for such situa-
tions by authorizing the district court simply to transfer
the misfiled count to the appropriate court; the receiving
GRIFFIN v. US 2
court is to treat the count as if it had been filed there
originally. 1 That was the situation in this case.
Unfortunately, in this case the receiving court, the
Court of Federal Claims, confronted our jurisprudence on
28 U.S.C. § 1500. Section 1500 was enacted in 1868 to
prevent litigants from suing the government in two dif-
ferent capacities in different courts for the same cause of
action. In its current iteration, the statute bars the Court
of Federal Claims from having jurisdiction over any claim
“pending in any other court.” Due to the evolving law of
pleading and jurisdiction, including doctrines such as res
judicata and collateral estoppel, § 1500 has long outlived
its purpose, and has been described many times as now
being little more than a “trap for the unwary.” 2 In United
States v. County of Cook, 3 this court interpreted § 1500 in
a way that unnecessarily widened the trap. Ms. Griffin’s
case illustrates the nature of the trap, and presented us
with an opportunity to correct the unjust error in our
precedent that we created in County of Cook.
Ms. Griffin filed suit in federal district court against
her employer, the U.S. Army Reserve Command, assert-
ing separate claims under the Equal Pay Act (“EPA”) and
Title VII of the Civil Rights Act of 1964. The district
1 See United States v. County of Cook, 170 F.3d
1084, 1089 (Fed. Cir. 1999) (holding that Ҥ 1631 allows
for the transfer of less than all of the claims in a civil
action to the Court of Federal Claims”).
2 See, e.g., d’Abreza v. United States, 78 Fed. Cl. 51,
56 n.10 (2007); Vaizburd v. United States, 46 Fed. Cl. 309,
309-10 (2000). For a full discussion of § 1500, its history
and some of the many cases addressing it, see UNR
Industries, Inc. v. Keene Corp., 911 F.2d 654, 659 (1990),
vacated en banc on other grounds, 962 F.2d 1013 (Fed.
Cir. 1992).
3 170 F.3d 1084 (Fed. Cir. 1999).
3 GRIFFIN v. US
court granted summary judgment for the Government on
the Title VII claim. On the EPA claim the district court
identified a material factual dispute warranting trial.
Because the EPA claim sought more than $10,000 in
damages, depriving the district court of Tucker Act juris-
diction over the claim, the district court pursuant to
§ 1631 transferred that claim to the Court of Federal
Claims where jurisdiction properly lay.
Under § 1631, the transferred EPA claim was deemed
to have been filed in the Court of Federal Claims “on the
date upon which it was actually filed” in the district court.
In County of Cook, this court had held that “on the date
upon” in § 1631 meant that the claims were filed “simul-
taneously,” and, critically, that simultaneously-filed
claims were as a matter of law “pending” with respect to
each other for purposes of § 1500. 4 Thus the trial court in
Ms. Griffin’s case, concluding that her EPA and Title VII
claims were the “same” for purposes of § 1500, applied the
rule in County of Cook and dismissed the transferred EPA
claim for lack of jurisdiction.
Ms. Griffin was deprived of a forum for her otherwise
legitimate EPA claim against the government. Unbe-
knownst to Ms. Griffin, that claim was doomed from the
moment it was mistakenly filed in district court.
2.
The rule of law created by County of Cook should be
overturned for at least two reasons. First, the rule con-
flicts with binding precedent of this court that the bar of
§ 1500 applies “only when the suit shall have been com-
menced in the other court before the claim was filed in
4 Id. at 1090-91.
GRIFFIN v. US 4
[the Court of Federal Claims].” 5 Prior to County of Cook,
the Court of Federal Claims was deprived of jurisdiction
only when a plaintiff filed claims sequentially, not simul-
taneously—no cases had been dismissed on the ground
that a claim had been filed “simultaneously” with a claim
in another court.
Second, in County of Cook the court admitted that it
was making new law, and based its conclusion on its view
of appropriate policy, a view that I believe was mistaken.
The court purported to “endeavor to further the estab-
lished policies of § 1500”—to protect the government from
defending two related lawsuits simultaneously. 6 But the
policy basis of the decision in County of Cook is at best
arguable, since it ignores the role of § 1631. The purpose
of § 1631 is “to cure want of jurisdiction” and allow un-
wary litigants who file in the wrong courts to avoid tech-
nical obstacles, such as statutes of limitations. Yet in a
case like Ms. Griffin’s, no court may hear the transferred
claim because it was filed first in district court. That
would not be the case if Ms. Griffin had filed her EPA
claim in the Court of Federal Claims before filing her
other claim in the district court. Had she followed that
path, she would have been permitted to litigate her differ-
ent claims against the government, each in the court with
appropriate jurisdiction. Whatever policy basis § 1500
may once have had, it cannot trump the obvious purpose
of Congress to ensure that citizens have access to a proper
forum to resolve their disputes with the government.
Congress thus far has not heeded calls for the repeal
of § 1500. Unfortunately, County of Cook needlessly
5 Tecon Eng’rs, Inc. v. United States, 343 F.2d 943,
949 (Ct. Cl. 1965) (emphasis added).
6 170 F.3d at 1090.
5 GRIFFIN v. US
extended the reach of § 1500 with the effect of further
restricting the jurisdiction of the Court of Federal Claims.
As a court, we may not be able to undo the basic mischief
inherent in § 1500, though the Supreme Court has a case
before it that could help, 7 but we need not make matters
worse for pleaders who inadvertently fall afoul of the
federal jurisdictional maze. The trial judge expressed at
length his concern with our law, but felt compelled to
follow it. It is time for us to correct the problem that we
created more than a decade ago.
7 See Tohono O’odham Nation v. United States, 559
F.3d 1284 (Fed. Cir. 2009), cert. granted, 130 S. Ct. 2097
(2010).