United States Court of Appeals for the Federal Circuit
2008-5102
EASTERN SHAWNEE TRIBE OF OKLAHOMA,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
Brian J. Leinbach, Engstrom, Lipscomb & Lack, of Los Angeles, California,
argued for plaintiff-appellant.
Aaron P. Avila, Trial Attorney, Environment and Natural Resource Division,
United States Department of Justice, of Washington, DC, argued for defendant-
appellee. With him on the brief was John C. Cruden, Acting Assistant Attorney General.
Appealed from: United States Court of Federal Claims
Judge Charles F. Lettow
United States Court of Appeals for the Federal Circuit
2008-5102
EASTERN SHAWNEE TRIBE OF OKLAHOMA,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
Appeal from the United States Court of Federal Claims in case 06-CV-917, Judge
Charles F. Lettow.
___________________________
DECIDED: September 17, 2009
___________________________
Before GAJARSA, DYK, and MOORE, Circuit Judges.
Opinion for the court filed by Circuit Judge DYK. Concurring opinion filed by Circuit
Judge MOORE.
DYK, Circuit Judge.
The Eastern Shawnee Tribe of Oklahoma (“the Tribe”) brought suit in the Court
of Federal Claims, alleging that the United States had breached fiduciary and other
duties as trustee of property and other assets owned by the Tribe. The Court of Federal
Claims dismissed the case without prejudice, holding that 28 U.S.C. § 1500 precluded
the Court of Federal Claims’ jurisdiction over the Tribe’s claims because the Tribe had
earlier filed a district court complaint “aris[ing] from the same operative facts and
seek[ing] essentially the same relief.” E. Shawnee Tribe of Okla. v. United States, 82
Fed. Cl. 322, 329 (2008). Recently in Tohono O’odham Nation v. United States,
559 F.3d 1284 (Fed. Cir. 2009), we held in similar circumstances that § 1500 was
inapplicable because the complaints sought different relief in the Court of Federal
Claims and in the district court. Accordingly, we reverse and remand.
INTRODUCTION
The United States has important trust obligations to Indian tribes. Various suits
have been brought asserting breaches of those duties, including the failure to provide
an accurate accounting of lease payments received by the United States on behalf of
the tribes, an obligation that is now reinforced by statute. See American Indian Trust
Fund Management Reform Act of 1994, Pub. L. No. 103-412, 108 Stat. 4239 (codified
at 25 U.S.C. §§ 4001–61). This case once again involves claims by an Indian tribe
against the United States for breach of such trust duties, as well as questions as to the
respective jurisdictions of the United States District Court for the District of Columbia
and the Court of Federal Claims.
The Administrative Procedure Act (“APA”) appears to provide that claims seeking
monetary recovery and an equitable accounting for breach of trust duties must be
brought in the Court of Federal Claims. Under the APA, the district court lacks
jurisdiction unless parties are “seeking relief other than money damages.” 5 U.S.C.
§ 702. Claims for monetary recovery and an equitable accounting appear to be
essentially for “money damages” (as the Court of Federal Claims held here, E.
Shawnee, 82 Fed. Cl. at 329). As the Supreme Court has recently noted, “[a]lmost
invariably . . . suits seeking (whether by judgment, injunction, or declaration) to compel
the defendant to pay a sum of money to the plaintiff are suits for ‘money damages,’ as
that phrase has traditionally been applied, since they seek no more than compensation
for loss resulting from the defendant’s breach of legal duty.” Great-West Life & Annuity
2008-5102 2
Ins. Co. v. Knudson, 534 U.S. 204, 210 (2002) (quoting Bowen v. Massachusetts, 487
U.S. 879, 918-919 (1988) (Scalia, J., dissenting)) (alteration in original) (quotation
marks omitted). In addition, the district court lacks jurisdiction unless “there is no other
adequate remedy in a court.” 5 U.S.C. § 704. Again there appears to be an “adequate
remedy” in the Court of Federal Claims. The Court of Federal Claims can award
monetary relief and appears to have the authority to order an equitable accounting as
ancillary relief, the Tucker Act having been amended in 1982 “to permit the Court of
Federal Claims to grant equitable relief ancillary to claims for monetary relief over which
it has jurisdiction, see 28 U.S.C. §§ 1491(a)(2), (b)(2).” Nat’l Air Traffic Controllers
Ass’n v. United States, 160 F.3d 714, 716 (Fed. Cir. 1998). 1
The United States Court of Appeals for the District of Columbia Circuit—we think
incorrectly—has nonetheless held that §§ 702 and 704 of the APA do not bar a suit in
the district court for an equitable accounting and the award of monetary relief, though it
has agreed that some forms of monetary relief are unavailable in the district court and
must be sought in the Court of Federal Claims. See Cobell v. Norton, 240 F.3d 1081,
1094, 1104 (D.C. Cir. 2001). The result is that responsibility for resolving these breach
of trust controversies is split between the district court and the Court of Federal Claims.
The question presented here is whether a suit filed in the Court of Federal Claims
seeking relief that was not sought in the district court and that the district court cannot
1
Before the 1982 amendment the Court of Federal Claims appears to have
lacked such authority. See Klamath & Modoc Tribes v. United States, 174 Ct. Cl. 483,
487 (1966) (“It is fundamental that an action for accounting is an equitable claim and
that courts of equity have original jurisdiction to compel an accounting. Our general
jurisdiction under the Tucker Act does not include actions in equity.” (citations omitted)).
2008-5102 3
award (even under the D.C. Circuit’s expansive theory of district court jurisdiction) is
barred by the provisions of 28 U.S.C. § 1500.
Section 1500 provides that “[t]he 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.” 28 U.S.C.
§ 1500.
BACKGROUND
The Tribe is a federally recognized sovereign Indian tribe living in northeastern
Oklahoma. The United States holds and manages funds, land, and resources in trust
for the Tribe.
On December 20, 2006, the Tribe filed a complaint in the District Court for the
District of Columbia against the Secretary of the Interior, the Special Trustee for
American Indians, and the Secretary of the Treasury, alleging that the United States
had breached its trust duties to the Tribe. See Complaint at 10, E. Shawnee Tribe of
Okla. v. Salazar, No. 1:06-cv-02162-JR (D.D.C. Dec. 20, 2006) (“District Ct. Compl.”). 2
In the district court, the Tribe characterized its suit as an action “for an accounting and a
reconciliation of its trust funds, for equitable relief, and for such other relief as the Court
deems appropriate.” Id. at 1. The Tribe sought several forms of relief in the district
court, specifically asking:
1. For a declaration that the Defendants have not provided the
Plaintiff with a complete, accurate and up to date accounting of
the Plaintiff’s trust funds as required by law.
2
This district court litigation has been temporarily stayed in order to allow
the parties to attempt settlement or alternative dispute resolution. See Parties’ Joint
Status Report at 7, E. Shawnee Tribe of Okla. v. Salazar, No. 1:06-cv-02162-JR (D.D.C.
July 15, 2009).
2008-5102 4
2. For a declaration that by so doing, the Defendants have
deprived the Plaintiff of the ability to identify whether it has
suffered a loss, as well as any specific claims that it might have
against the Defendants for their mismanagement of those funds.
3. For a mandatory injunction requiring the Defendants to provide
a full and complete accounting of the Plaintiff’s trust funds.
4. For a judicial order preserving any claims that the Plaintiff might
uncover once it receives that accounting.
5. For an order directing the Defendants to manage all of the
Plaintiff’s current and future trust funds, properties and
resources in full compliance with all applicable law and with their
duties as the Plaintiff’s guardian and trustee.
6. For an award of cost of suit, without limitation, attorneys’ fees
under the Equal Access to Justice Act, 28 U.S.C. Section 2412,
and other applicable federal statues, and under general
principals [sic] of law and equity, and the fees and costs for
expert assistance.
7. For such other relief as may be just and equitable.
Id. at 13.
Eight days later, on December 28, 2006, the Tribe filed a complaint in the Court
of Federal Claims, alleging that the United States had breached its trust duties to the
Tribe. See Complaint at 1, E. Shawnee Tribe of Okla. v. United States, 82 Fed. Cl. 322
(2008) (No. 1:06-cv-00917-CFL). In the Court of Federal Claims, the Tribe
characterized its suit as an action “for money damages, with interest” from the failure of
the United States to “generate, invest and manage the Plaintiff’s tribal trust assets and
property in the manner prescribed by applicable law.” Id. The relief specifically
requested by the Tribe was:
1. Consequential damages according to proof,
2. Incidental damages according to proof,
3. Compound interest on liquidated amount and judgment awards.
4. Pre-judgment interest,
5. Costs of the suit herein,
2008-5102 5
6. Attorneys fees, according to statute
7. Any and all other relief or damages as permitted by this Court or
applicable law.
Id. at 17.
In January 2008, the Court of Federal Claims ordered the Tribe to show cause
why its case should not be dismissed in light of 28 U.S.C. § 1500. After additional
briefing by both parties and a hearing, the court determined that the Tribe’s claims in the
district court and the Court of Federal Claims were “basically different manifestations of
the same underlying claim that the government failed properly to administer and
manage Eastern Shawnee’s trust land and assets.” E. Shawnee, 82 Fed. Cl. at 326.
The court also determined that “the accounting sought [in the district court] is ‘in
essence’ a claim for money damages,” noting that such a claim would then “fall under
the exclusive jurisdiction” of the Court of Federal Claims. Id. at 329. The court
concluded that § 1500 removed its jurisdiction of the Tribe’s case because the Tribe’s
claim for damages in the Court of Federal Claims arose “from the same operative facts
and [sought] essentially the same relief as that sought by the Tribe in a case filed eight
days earlier in district court,” and dismissed the Tribe’s suit without prejudice. Id. at
329.
The Tribe timely appealed. We have jurisdiction under 28 U.S.C. § 1295(a)(3).
DISCUSSION
We review without deference dismissals by the Court of Federal Claims for lack
of jurisdiction. Sacco v. United States, 452 F.3d 1305, 1308 (Fed. Cir. 2006).
2008-5102 6
I
In Keene Corp. v. United States, the Supreme Court interpreted the term “claim”
in § 1500. 508 U.S. 200, 210–14 (1993). The Court held that under § 1500, “the
comparison of the two cases for purposes of possible dismissal would 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. In Loveladies Harbor, Inc. v. United States, following Keene, we held that “[f]or the
Court of Federal Claims to be precluded from hearing a claim under § 1500, the claim
pending in another court must arise from the same operative facts, and must seek the
same relief.” 27 F.3d 1545, 1551 (Fed. Cir. 1994) (en banc). The plaintiff here does not
persuasively dispute that the claims in the district court and the Court of Federal Claims
arise from the same set of operative facts. The question is whether the complaints seek
the same relief.
In Tohono we examined similar issues involving the jurisdiction of the Court of
Federal Claims under § 1500. The Tohono O’odham Nation (“the Nation”) had filed a
complaint in district court seeking an accounting and corrected statement of the Nation’s
assets held in trust by the United States, and then had filed a complaint in the Court of
Federal Claims seeking money damages from the United States for breaching its
fiduciary duty as trustee. Tohono, 559 F.3d at 1285–86.
We applied in Tohono the test for jurisdiction under § 1500 set forth in our
opinion in Loveladies. We emphasized in Tohono that “it is the relief that the plaintiff
requests that is relevant under § 1500,” 559 F.3d at 1291, citing the Supreme Court’s
decision in Keene, 508 U.S. at 212 (discussing “overlap in the relief requested”).
2008-5102 7
In Tohono we distinguished between the Nation’s claims in the district court,
which sought only equitable relief, and the Nation’s claims in the Court of Federal
Claims, which sought only damages at law. Tohono, 559 F.3d at 1289. We concluded
that the district court complaint requested an equitable accounting and restatement of
the Nation’s trust accounts and that the Court of Federal Claims complaint requested a
legal remedy—“essentially consequential damages.” Id. at 1290. We also
distinguished the Nation’s district court complaint as seeking “old money,” characterized
as “money that is already in the government’s possession, but that erroneously does not
appear in the Nation’s accounts,” from the Nation’s Court of Federal Claims complaint
seeking “new money,” such as consequential damages and lost profits. Id. We
concluded that the availability of an accounting in aid of judgment in the Court of
Federal Claims “does not transform [an] unambiguous request for damages into a
request for an accounting.” Id. at 1291. Thus, we held that because the Nation had
requested different relief in the district court and the Court of Federal Claims, the Court
of Federal Claims had jurisdiction to hear the Nation’s claims.
The basic holding in Tohono is that § 1500 is not a bar to claims seeking relief in
the Court of Federal Claims where different relief is sought in the Court of Federal
Claims and the relief sought in the Court of Federal Claims could not be awarded in the
district court action. See id. at 1292 (“The Nation’s complaint in the Court of Federal
Claims seeks only . . . relief that the Nation has not requested in the district court, and
which the district court is, in any event, powerless to award.”). 3 Here, because
3
The concurrence here curiously suggests that this reading of Tohono
“expands” the exception recognized by that case. We do no such thing. We simply
recognize that Tohono imposes a dual requirement.
2008-5102 8
consequential damages were not sought in the district court and the district court could
not award consequential damages, § 1500 is not a bar to the Court of Federal Claims
action. If claimants were barred by § 1500 from filing such a suit in the Court of Federal
Claims with respect to claims not brought in the district court, the statute of limitations
could well run on such claims during the pendency of the district court proceeding. On
the other hand, if the protective filing of such claims were allowed, the government’s
interest in avoiding duplicative proceedings could be addressed by staying the Court of
Federal Claims proceedings pending the outcome of the district court proceedings. Cf.
Tohono, 599 F.3d at 1291–92.
II
As a panel, we are bound by the earlier decision in Tohono. For the same
reasons described in Tohono, § 1500 does not bar the Court of Federal Claims here
from exercising jurisdiction over the Tribe’s claims.
The Tribe’s Court of Federal Claims complaint here and its complaint in the
district court differentiated the monetary relief sought in each court even more clearly
than the two complaints in Tohono. Unlike the plaintiff in Tohono, who sought restitution
and disgorgement in the district court in addition to an accounting, the Tribe here sought
only a general accounting of its trust assets in the district court. In addition, here the
Tribe’s district court complaint disavowed at least some claims for money damages,
stating that “[t]he Tribe may have claims to damages that cannot be ascertained until
after the Defendants make a reconciliation and accounting of the Tribe’s trust property
and accounts” and that “[s]ome of these claims, should they exist, will have to be filed in
the United States Court of Federal Claims.” District Ct. Compl. at 12. Under Tohono,
2008-5102 9
the Tribe thus requested different relief in the district court than in the Court of Federal
Claims, and § 1500 is inapplicable. 4
We reverse the dismissal of the Tribe’s suit and remand the case to the Court of
Federal Claims.
REVERSED AND REMANDED
COSTS
No costs.
4
Following oral argument in this case, we requested supplemental briefing
on the issue of whether § 1500 is applicable when the district court lacks jurisdiction
over the claims asserted in district court. Both parties argued in their supplemental
briefs that a district court’s jurisdiction over the claims asserted in district court (as
opposed to its jurisdiction over the claims asserted in the Court of Federal Claims) is in
general irrelevant to a § 1500 analysis under Frantz Equip. Co. v. United States, 98 F.
Supp. 579, 580 (Ct. Cl. 1951). However, both parties also recognized that the majority
opinion in Loveladies concluded that a § 1500 analysis is inapplicable to a claim over
which the district court concludes it lacks jurisdiction. See Loveladies, 27 F.3d at 1554
(concluding that because the district court had determined that it did not have
jurisdiction to hear a takings claim, that claim was “without legal significance” in a
§ 1500 analysis). In the district court, the Tribe sued under the APA. See District Ct.
Compl. at 2–3 (asserting that the district court has jurisdiction under 5 U.S.C.
§§ 702, 704, and 706). As we have noted earlier, under § 702 the district court lacks
jurisdiction unless parties are “seeking relief other than money damages.” 5 U.S.C.
§ 702. Under § 704 it lacks jurisdiction unless “there is no other adequate remedy in a
court.” Id. § 704. There is a serious question here as to the district court’s jurisdiction.
However, we need not reach this issue in light of our earlier decision in Tohono.
2008-5102 10
United States Court of Appeals for the Federal Circuit
2008-5102
EASTERN SHAWNEE TRIBE OF OKLAHOMA,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
Appeal from the United States Court of Federal Claims in case 06-CV-917, Judge
Charles F. Lettow.
MOORE, Circuit Judge, concurring.
The only question before this court is whether, under 28 U.S.C. § 1500, the
Tribe’s suit in the United States District Court for the District of Columbia “was based on
substantially the same operative facts . . . at least if there was some overlap in the relief
requested” as its suit in the Court of Federal Claims. Keene v. United States, 508 U.S.
200, 212 (1993). I agree that we must reverse the Court of Federal Claims because the
answer to this question is no, but I write separately to express my reasons for the
decision and my concerns over the majority’s unnecessary and troubling expansion of
the test under § 1500.
There is only one standard for applying § 1500—the one announced by the
Supreme Court in Keene. We could not and did not modify this standard in Loveladies
Harbor, Inc. v. United States, 27 F.3d 1545, 1551 (Fed. Cir. 1994) (en banc), or in
Tohono O’odham Nation v. United States, 559 F.3d 1284 (Fed. Cir. 2009). In order to
fall within § 1500, the two suits must have both “substantially the same operative facts”
and there must be “at least . . . some overlap in the relief requested.” Keene, 508 U.S.
at 212. It is contrary to Keene to apply § 1500 to two complaints that have no overlap in
the relief requested. It is equally contrary to require that the relief requested in the two
complaints be the same. None of the language in Loveladies or Tohono may be read to
contravene Keene in these ways. Loveladies held that “[i]f the claims are distinctly
different, Loveladies are excused from the jurisdictional dance required by § 1500.” 27
F.3d at 1549. This holding is fully consistent with Keene because distinctly different
claims have no overlap in the relief requested. Yet Loveladies creates some
understandable confusion: “For the Court of Federal Claims to be precluded from
hearing a claim under § 1500, the claim pending in another court must arise from the
same operative facts, and must seek the same relief.” Id. at 1551; see Tohono, 559
F.3d at 1288 (“Under the test set forth in Loveladies, § 1500 is applicable only if two
claims arise from the same operative facts and seek the same relief.”). When
presented with such an ambiguity, we must read our cases as consonant with Supreme
Court precedent. Indeed, the ultimate holding of Loveladies leaves no doubt that the
standard is substantially the same operative facts and some overlap in the relief
requested: “[T]he claims in the two courts are for distinctly different and not the same or
even overlapping relief—this case presents the straightforward issue of plaintiffs who
seek distinctly different types of relief in the two courts." 27 F.3d at 1554.
Moreover, I cannot agree with the majority that “[t]he basic holding in Tohono is
that § 1500 is not a bar to claims seeking relief in the Court of Federal Claims where
different relief is sought in the Court of Federal Claims and the relief sought in the Court
of Federal Claims could not be awarded in the district court action.” Maj. Op. at 8. With
2008-5102 2
all due respect to the majority, the narrow holding of Tohono is clear: “Because we
conclude that the Nation’s complaint in the Court of Federal Claims seeks relief that is
different from the relief sought in its earlier-filed district court action, we reverse.”
Tohono, 559 F.3d at 1285; see also id. at 1293 (“Because the relief requested in the
Nation’s district court complaint is different from the relief requested in its Court of
Federal Claims complaint, § 1500 does not divest the Court of Federal Claims of
jurisdiction.”); id. at 1289-91 (detailing the different relief sought in the two complaints).
Section 1500 turns on the relief sought, not the jurisdictional limitations of the courts.
See Dico v. United States, 48 F.3d 1199, 1204 (Fed. Cir. 1995) ("[I]t is the responsibility
of the plaintiff to allege, clearly and with specificity, that different claims are involved in
its two actions."). As both parties in this case argued in supplemental briefing, the
jurisdiction of the district court is irrelevant in a § 1500 analysis:
The applicability of Sec. 1500 to the first claim of plaintiff, asserted in its
petition herein, is not conditioned upon the question of whether the District
Court had jurisdiction of the claim asserted by the plaintiff therein; and it is
not necessary to the decision, upon the defendant's plea to the jurisdiction
of this court, for us to discuss the question of whether or not the District
Court does or does not have jurisdiction of the counterclaim filed by
plaintiff therein.
Frantz Equip. Co. v. United States, 98 F. Supp. 579, 580 (Ct. Cl. 1951). The majority’s
interpretation of the holding in Tohono, which incorporates an evaluation of the relief
that can be awarded in the district court, contravenes the binding precedent of Frantz. 1
1
Loveladies is not to the contrary. See Maj. Op. at 10 n.1. In that case, we
did not evaluate the district court’s jurisdiction. Rather, the district court dismissed the
takings claim before it. Even this act of dismissal is irrelevant to the § 1500 analysis.
See Keene, 508 U.S. at 204 (applying § 1500 to a Court of Federal Claims complaint
even though the district court had dismissed the complaint filed there five days after the
first complaint was filed in the Court of Federal Claims).
2008-5102 3
The majority may be justifiably concerned that the district court lacks jurisdiction to
entertain a suit that serves as a legal predicate for money damages. But that issue is
not before us. The proper fora for that dispute are the district court and the Court of
Appeals for the District of Columbia Circuit.
There is no doubt that under our holding in Tohono, we must reverse. In
Tohono, we held that § 1500 did not apply to the two complaints, and here, the Tribe
took much greater pains to distinguish the relief it seeks in its two suits than the Tohono
O’odham Nation did in Tohono. See Maj. Op. 9. Even without the close factual analogy
of Tohono to aid us, I would reverse because the district court complaint lacks requests
for restitution and disgorgement. See Tohono, 559 F.3d at 1295-96 (Moore, J.,
dissenting).
2008-5102 4