United States Court of Appeals for the Federal Circuit
2008-5102
EASTERN SHAWNEE TRIBE OF OKLAHOMA,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
Aaron P. Avila, Attorney, Environment and Natural Resources Division, United
States Department of Justice, of Washington, DC, filed a petition for panel rehearing for
defendant-appellee. With him on the petition was Ignacia S. Moreno, Assistant Attorney
General.
Brian J. Leinbach, Engstrom, Lipscomb & Lack, of Los Angeles, California, filed a
response to the petition for panel rehearing for plaintiff-appellant.
Appeal from the 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.
ON PETITION FOR PANEL REHEARING
Before GAJARSA, DYK, and MOORE, Circuit Judges.
Order for the court filed by Circuit Judge DYK. Dissent filed by Circuit Judge MOORE.
DYK, Circuit Judge.
ORDER
We have considered the petition for panel rehearing filed by the United States in
Eastern Shawnee Tribe of Oklahoma v. United States, 582 F.3d 1306 (Fed. Cir. 2009).
In seeking panel rehearing, the United States urges that the panel erred in
holding that under Tohono O’odham Nation v. United States, 559 F.3d 1284 (Fed. Cir.
2009), 28 U.S.C. § 1500 is inapplicable to bar “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.” E. Shawnee, 582 F.3d at 1311. The United States claims that this holding is
inconsistent with Frantz Equipment Co. v. United States, 98 F. Supp. 579 (Ct. Cl. 1951),
in that it looks at the district court’s ability to award relief as part of the test. In reaching
this conclusion, the United States fails to note that the later decision in Casman v.
United States, 135 Ct. Cl. 647 (1956), necessarily supersedes Frantz to the extent that
the two are inconsistent, 1 and Casman essentially adopted the same dual test as the
one we articulated in the majority opinion here, see id. at 649–50. This is particularly
noteworthy because the petition for certiorari filed by the United States in Tohono
describes Casman’s holding as adopting this dual test:
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.
Petition for Writ of Certiorari at 18–19, United States v. Tohono O’odham Nation, No.
09-846 (U.S. Jan. 15, 2010) (“Petition for Certiorari”) (footnote omitted). The United
States’ petition for certiorari also recognizes that our court en banc reaffirmed Casman
in Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1549, 1551 (Fed. Cir. 1994)
(en banc). Petition for Certiorari, supra, at 18. Thus there is no conflict in our
precedent.
1
Because the Court of Claims typically sat en banc at the time of these
decisions, which it did in Casman, it was at liberty to modify or effectively overrule its
earlier decisions. Therefore, where Court of Claims decisions are inconsistent, we are
obligated to follow the court’s most recent decision. See Doe v. United States, 372 F.3d
1347, 1355 (Fed. Cir. 2004).
2008-5102 2
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The petition for panel rehearing is denied.
(2) The mandate of the court will issue on March 24, 2010.
FOR THE COURT
March 17, 2010 /s/ Jan Horbaly
Date Jan Horbaly
Clerk
cc: Aaron P. Avila
Brian J. Leinbach
2008-5102 3
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.
ON PETITION FOR PANEL REHEARING
MOORE, Circuit Judge, dissenting.
Because the majority’s decision creates an erroneous standard for applying
28 U.S.C. § 1500, I respectfully dissent from the majority’s denial of the government’s
petition for panel rehearing.
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.” The majority
holds that § 1500 does not bar an action filed in the Court of Federal Claims when (1)
an action filed in a U.S. district court seeks different relief and (2) the district court lacks
jurisdiction to award the relief sought in the Court of Federal Claims action. According
to the majority, our predecessor court “essentially adopted the same dual test” in
Casman v. United States, 135 Ct. Cl. 647 (1956).
I would rehear this case because the majority’s test—specifically its inquiry into
the district court’s jurisdiction—conflicts with precedent. In Keene v. United States, 508
U.S. 200 (1993), the Supreme Court stated that “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 [Federal] Claims action, at
least if there was some overlap in the relief requested.” Id. at 212 (emphasis added).
The Supreme Court explicitly left open “whether two actions based on the same
operative facts, but seeking completely different relief, would implicate § 1500.” Id. at
212 n.6 (emphasis added) (citing Casman, 135 Ct. Cl. 647).
We addressed this opening in Loveladies Harbor, Inc. v. United States, 27 F.3d
1545 (Fed. Cir. 1994) (en banc). The Loveladies court stated as follows:
The issue the Government raises, and which is now properly before us on
the facts of this case, is whether § 1500 denies jurisdiction to the Court of
Federal Claims if, at the time a complaint for money damages is filed,
there is a pending action in another court that seeks distinctly different
relief.
Id. at 1549 (emphasis added). We assumed arguendo that Loveladies’ two actions
arose from the same operative facts. Id. at 1552. And we acknowledged that “the
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.” Id. at 1554 (internal quotation marks omitted).
The government argued that Ҥ 1500 precludes the Court of Federal Claims from
hearing Loveladies’ takings claim on the ground of operative facts alone.” Id. at 1552.
We rejected this argument, explaining that “[w]e know of no case arising from the same
operative facts in which § 1500 has been held to bar jurisdiction over a claim praying for
2008-5102 2
relief distinctly different from that sought in a pending proceeding.” Id. at 1551. We
held that § 1500 did not bar Loveladies’ action in the Court of Federal Claims. 1
Accordingly, under Keene and Loveladies, I understand the landscape for § 1500
to be as follows: (a) section 1500 bars jurisdiction when the operative facts are at least
substantially the same and there is at least some overlap in the relief requested; and
(b) section 1500 does not bar jurisdiction when the relief requested is “distinctly
different,” regardless of any similarity between the operative facts. Keene teaches the
former; Loveladies the latter. Absent from Keene and Loveladies is an inquiry into
whether the district court lacks jurisdiction to award the relief sought in the Court of
Federal Claims action. Indeed the majority’s infusion of such an inquiry into the § 1500
test conflicts with Loveladies, a decision from our court sitting en banc. For example,
consider an action filed in the Court of Federal Claims that is based on the same
operative facts but that seeks distinctly different relief than an action filed in a U.S.
district court. Under the majority’s test, § 1500 would bar the Court of Federal Claims
action if the district court possesses jurisdiction to award the relief sought in the Court of
Federal Claims action. But under Loveladies, § 1500 can never bar a Court of Federal
Claims action seeking “distinctly different” relief, regardless of the district court’s
jurisdiction to award that relief.
Lastly, I do not believe that it is sensible for the majority to predicate jurisdiction
in the Court of Federal Claims on that court’s evaluation of a district court’s jurisdiction.
1
Certain language in 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.” 27 F.3d at 1551. But the Supreme Court in Keene did not require “the
same relief,” and we must read Loveladies as consonant with Supreme Court
precedent.
2008-5102 3
It may not always be the case that both courts agree on whether the district court
possesses jurisdiction to award the relief sought in the Court of Federal Claims.
For the foregoing reasons, I respectfully dissent from the majority’s denial of the
government’s petition for panel rehearing in this case. The majority was not free to
rewrite the law on § 1500.
2008-5102 4