UNITED STATES v. TOHONO O’ODHAM NATION

Opinion of the Court

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SUPREME COURT OF THE UNITED STATES
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No. 09–846

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UNITED STATES, PETITIONER v. TOHONO O’ODHAM
NATION

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FEDERAL CIRCUIT

[April 26, 2011]

JUSTICE KENNEDY delivered the opinion of the Court.

The Tohono O’odham Nation is an Indian Tribe with federal recognition. The Nation’s main reservation is in the Sonoran desert of southern Arizona. Counting this and other reservation lands, the Nation’s landholdings are approximately 3 million acres.

The Nation brought two actions based on the same alleged violations of fiduciary duty with respect to the Nation’s lands and other assets. One action was filed against federal officials in district court and the other against the United States in the Court of Federal Claims (CFC). The Court of Appeals for the Federal Circuit held that the CFC suit was not barred by the rule that the CFC lacks jurisdiction over an action “for or in respect to” a claim that is also the subject of an action pending in another court. 28 U. S. C. §1500. The question presented is whether a common factual basis like the one apparent in the Nation’s suits suffices to bar jurisdiction under §1500.

I

The case turns on the relationship between the two suits the Nation filed. The first suit was filed in the United States District Court for the District of Columbia against federal officials responsible for managing tribal assets held in trust by the Federal Government. The complaint alleged various violations of fiduciary duty with respect to those assets. The Nation claimed, for example, that the officials failed to provide an accurate accounting of trust property; to refrain from self-dealing; or to use reasonable skill in investing trust assets. The complaint requested equitable relief, including an accounting.

The next day the Nation filed the instant action against the United States in the CFC. The CFC complaint described the same trust assets and the same fiduciary duties that were the subject of the District Court complaint. And it alleged almost identical violations of fiduciary duty, for which it requested money damages. The CFC case was dismissed under §1500 for want of jurisdiction.

A divided panel of the Court of Appeals for the Federal Circuit reversed. 559 F. 3d 1284 (2009). Two suits are for or in respect to the same claim, it reasoned, only if they share operative facts and also seek overlapping relief. Finding no overlap in the relief requested, the court held that the two suits at issue were not for or in respect to the same claim.

This Court granted certiorari. 559 U. S. ___ (2010).

II

Since 1868, Congress has restricted the jurisdiction of the CFC and its predecessors when related actions are pending elsewhere. Section 1500, identical in most respects to the original statute, 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.” The rule is more straightforward than its complex wording suggests. The CFC has no jurisdiction over a claim if the plaintiff has another suit for or in respect to that claim pending against the United States or its agents.

The question to be resolved is what it means for two suits to be “for or in respect to” the same claim. Keene Corp. v. United States, 508 U. S. 200 (1993), provided a partial answer. It 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. The Keene case did not decide whether the jurisdictional bar also operates if the suits are based on the same operative facts but do not seek overlapping relief. Still, Keene narrows the permissible constructions of “for or in respect to” a claim to one of two interpretations. Either it requires substantial factual and some remedial overlap, or it requires substantial factual overlap without more.

Congress first enacted the jurisdictional bar now codified in §1500 to curb duplicate lawsuits brought by residents of the Confederacy following the Civil War. The so-called “cotton claimants”—named for their suits to recover for cotton taken by the Federal Government—sued the United States in the Court of Claims under the Abandoned Property Collection Act, 12 Stat. 820, while at the same time suing federal officials in other courts, seeking relief under tort law for the same alleged actions. See Keene, supra, at 206–207; Schwartz, Section 1500 of the Judicial Code and Duplicate Suits Against the Government and Its Agents, 55 Geo. L. J. 573, 574–580 (1967). Although the rule embodied in §1500 originated long ago, Congress reenacted the statute at various times, most recently in 1948. See Act of June 25, 1948, 62 Stat. 942; Keene, 508 U. S., at 206–207.

The text of §1500 reflects a robust response to the problem first presented by the cotton claimants. It bars jurisdiction in the CFC not only if the plaintiff sues on an identical claim elsewhere—a suit “for” the same claim— but also if the plaintiff’s other action is related although not identical—a suit “in respect to” the same claim. The phrase “in respect to” does not resolve all doubt as to the scope of the jurisdictional bar, but “it does make it clear that Congress did not intend the statute to be rendered useless by a narrow concept of identity.” Id., at 213. It suggests a broad prohibition, regardless of whether “claim” carries a special or limited meaning. Cf. United States v. Jones, 131 U. S. 1 (1889) (“claim” in the Little Tucker Act refers only to requests for money).

Of the two constructions of “for or in respect to” the same claim that Keene permits—one based on facts alone and the other on factual plus remedial overlap—the former is the more reasonable interpretation in light of the statute’s use of a similar phrase in a way consistent only with factual overlap. The CFC bar applies even where the other action is not against the Government but instead against a “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 statute refers to a person who acts under color of federal law in respect to a cause of action at the time it arose. But at that time, the person could not act in respect to the relief requested, for no complaint was yet filed. This use of the phrase “in respect to a cause of action” must refer to operative facts and not whatever remedies an aggrieved party might later request. A person acts under color of federal law in respect to a cause of action by claiming or wielding federal authority in the relevant factual context. Although the two phrases are not identical—one is in respect to a claim, the other a cause of action—they are almost so, and there is reason to think that both phrases refer to facts alone and not to relief. As the Keene Court explained, “the term ‘claim’ is used here synonymously with ‘cause of action.’ ” 508 U. S., at 210. And if either of the two phrases were to include both operative facts and a specific remedy, it would be the one that uses the term “cause of action” rather than “claim.” “Cause of action” is the more technical term, while “claim” is often used in a commonsense way to mean a right or demand. Here, for the reasons stated in the preceding paragraph, “in respect to a cause of action” refers simply to facts without regard to judicial remedies. So, if the phrase with the more technical of the two terms does not embrace the concept of remedy, it is reasonable to conclude that neither phrase does. Even if the terms “claim” or “cause of action” include the request for relief, the phrase “for or in respect to” gives the statutory bar a broader scope.

Reading the statute to require only factual and not also remedial overlap makes sense in light of the unique remedial powers of the CFC. The CFC is the only judicial forum for most non-tort requests for significant monetary relief against the United States. See 28 U. S. C. §1491 (2006 ed. and Supp. III); §1346(a)(2) (2006 ed.). Unlike the district courts, however, the CFC has no general power to provide equitable relief against the Government or its officers. Compare United States v. King, 395 U. S. 1, 2–3 (1969), with 5 U. S. C. §702; see also United States v. Alire, 6 Wall. 573, 575 (1868) (“[T]he only judgments which the Court of Claims are authorized to render against the government . . . are judgments for money found due from the government to the petitioner”). The distinct jurisdiction of the CFC makes overlapping relief the exception and distinct relief the norm. For that reason, a statute aimed at precluding suits in the CFC that duplicate suits elsewhere would be unlikely to require remedial overlap.

Remedial overlap between CFC actions and those in other courts was even more unusual when §1500’s rule was first enacted in 1868. At that time the CFC had a more limited jurisdiction than it does now, for the Tucker Act’s general waiver of sovereign immunity for non-tort claims for monetary relief had not yet been enacted. See 24 Stat. 505. And while the district courts can today adjudicate suits against the United States for money damages under the Little Tucker Act, 28 U. S. C. §1346(a)(2), and the Federal Tort Claims Act §1346(b), in 1868 the United States could only be sued in the Court of Claims. United States v. Mitchell, 463 U. S. 206, 212–214 (1983); G. Sisk, Litigation with the Federal Government §4.02(a)(1) (4th ed. 2006). Because the kinds of suits and forms of relief available against the United States were few and constrained, remedial overlap between CFC suits and those in other courts was even less common then than now. If the statute were to require remedial as well as factual overlap, it would have had very limited application in 1868 despite its broad language that bars not only identical but also related claims. The rule in §1500 effects a significant jurisdictional limitation, and Congress reenacted it even as changes in the structure of the courts made suits on the same facts more likely to arise. Doing so reaffirmed the force of the bar and thus the commitment to curtailing redundant litigation.

The panel of the Court of Appeals could not identify “any purpose that §1500 serves today,” 559 F. 3d, at 1292, in large part because it was bound by Circuit precedent that left the statute without meaningful force. For example, the panel cited Tecon Engineers, Inc. v. United States, 170 Ct. Cl. 389, 343 F. 2d 943 (1965), which held that §1500 does not prohibit two identical suits from proceeding so long as the action in the CFC, or at that time the Court of Claims, is filed first. The Tecon holding is not presented in this case because the CFC action here was filed after the District Court suit.

Still, the Court of Appeals was wrong to allow its precedent to suppress the statute’s aims. Courts should not render statutes nugatory through construction. In fact the statute’s purpose is clear from its origins with the cotton claimants—the need to save the Government from burdens of redundant litigation—and that purpose is no less significant today. The conclusion that two suits are for or in respect to the same claim when they are based on substantially the same operative facts allows the statute to achieve its aim. Keene, supra, at 206. Developing a factual record is responsible for much of the cost of litigation. Discovery is a conspicuous example, and the preparation and examination of witnesses at trial is another. The form of relief requested matters less, except insofar as it affects what facts parties must prove. An interpretation of §1500 focused on the facts rather than the relief a party seeks preserves the provision as it was meant to function, and it keeps the provision from becoming a mere pleading rule, to be circumvented by carving up a single transaction into overlapping pieces seeking different relief. Cf. Casman v. United States, 135 Ct. Cl. 647 (1956) (CFC had jurisdiction notwithstanding common facts in district court suit because the plaintiff sought different relief in each forum).

Concentrating on operative facts is also consistent with the doctrine of claim preclusion, or res judicata, which bars “repetitious suits involving the same cause of action” once “a court of competent jurisdiction has entered a final judgment on the merits.” Commissioner v. Sunnen, 333 U. S. 591, 597 (1948). The jurisdictional bar in §1500 was enacted in part to address the problem that judgments in suits against officers were not preclusive in suits against the United States. Matson Nav. Co. v. United States, 284 U. S. 352, 355–356 (1932). So it is no surprise that the statute would operate in similar fashion. The nowaccepted test in preclusion law for determining whether two suits involve the same claim or cause of action depends on factual overlap, barring “claims arising from the same transaction.” Kremer v. Chemical Constr. Corp., 456 U. S. 461, 482, n. 22 (1982); see also Restatement (Second) of Judgments §24 (1980). The transactional test is of course much younger than the rule embodied in §1500, but even in the 19th century it was not uncommon to identify a claim for preclusion purposes based on facts rather than relief. See J. Wells, Res Adjudicata and Stare Decisis §241, p. 208 (1878) (“The true distinction between demands or rights of action which are single and entire, and those which are several and distinct, is, that the former immediately arise out of one and the same act or contract, and the latter out of different acts or contracts” (internal quotation marks omitted)); 2 H. Black, Law of Judgments §726, p. 866 (1891) (The test for identity is: “Would the same evidence support and establish both the present and the former cause of action?”). Reading §1500 to depend on the underlying facts and not also on the relief requested gives effect to the principles of preclusion law embodied in the statute.

There is no merit to the Nation’s assertion that the interpretation adopted here cannot prevail because it is unjust, forcing plaintiffs to choose between partial remedies available in different courts. The hardship in this case is far from clear. The Nation could have filed in the CFC alone and if successful obtained monetary relief to compensate for any losses caused by the Government’s breach of duty. It also seems likely that Indian tribes in the Nation’s position could go to district court first without losing the chance to later file in the CFC, for Congress has provided in every appropriations Act for the Department of Interior since 1990 that the statute of limitations on Indian trust mismanagement claims shall not run until the affected tribe has been given an appropriate accounting. See, e.g., 123 Stat. 2922; 104 Stat. 1930.

Even were some hardship to be shown, considerations of policy divorced from the statute’s text and purpose could not override its meaning. Although Congress has permitted claims against the United States for monetary relief in the CFC, that relief is available by grace and not by right. See Beers v. Arkansas, 20 How. 527, 529 (1858) (“[A]s this permission is altogether voluntary on the part of the sovereignty, it follows that it may prescribe the terms and conditions on which it consents to be sued, and the manner in which the suit shall be conducted”). If indeed the statute leads to incomplete relief, and if plaintiffs like the Nation are dissatisfied, they are free to direct their complaints to Congress. This Court “enjoy[s] no ‘liberty to add an exception . . . to remove apparent hardship.’ ” Keene, 508 U. S., at 217–218 (quoting Corona Coal Co. v. United States, 263 U. S. 537, 540 (1924)).

Keene reserved the question whether common facts are sufficient to bar a CFC action where a similar case is pending elsewhere. To continue to reserve the question 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 thus demands an answer, and the answer is yes. Two 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.

III

The remaining question is whether the Nation’s two suits have sufficient factual overlap to trigger the jurisdictional bar. The CFC dismissed the action here in part because it concluded that the facts in the Nation’s two suits were, “for all practical purposes, identical.” 79 Fed. Cl. 645, 656 (2007). It was correct to do so. The two actions both allege that the United States holds the same assets in trust for the Nation’s benefit. They describe almost identical breaches of fiduciary duty—that the United States engaged in self-dealing and imprudent investment, and failed to provide an accurate accounting of the assets held in trust, for example. Indeed, it appears that the Nation could have filed two identical complaints, save the caption and prayer for relief, without changing either suit in any significant respect.

Under §1500, the substantial overlap in operative facts between the Nation’s District Court and CFC suits precludes jurisdiction in the CFC. The Court of Appeals erred when it concluded otherwise.

IV

The holding here precludes the CFC from exercising jurisdiction over the Nation’s suit while the District Court case is pending. Should the Nation choose to dismiss the latter 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. In the meantime, and in light of the substantial overlap in operative facts between them, the two suits are “for or in respect to” the same claim under §1500, and the CFC case must be dismissed. The contrary judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

JUSTICE KAGAN took no part in the consideration or decision of this case.

SOTOMAYOR, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES
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No. 09–846

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UNITED STATES, PETITIONER v. TOHONO O’ODHAM
NATION

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FEDERAL CIRCUIT

[April 26, 2011]

JUSTICE SOTOMAYOR, with whom JUSTICE BREYER joins, concurring in the judgment.

Congress enacted the statute currently codified at 28 U. S. C. §1500 to put an end to parallel litigation seeking duplicative relief against the United States and its agents. Respondent Tohono O’odham Nation seeks in the Court of Federal Claims (CFC) some of the same relief on the same facts as it does in its pending District Court action. Accordingly, applying our decision in Keene Corp. v. United States, 508 U. S. 200 (1993), I agree with the Court that §1500 bars the Nation’s CFC action. Because the Nation’s two actions seek overlapping relief, this case does not present the question that the Court decides today— whether §1500 bars an action in the CFC when the plaintiff’s actions share a common factual basis but seek different forms of relief. Nonetheless, the Court holds that a common factual basis alone suffices to bar jurisdiction in the CFC. Under the Court’s reading of the statute, a plaintiff cannot pursue a claim in the CFC based on the same facts as another pending action, even when Congress has required that plaintiff to file separate actions in two courts to obtain different forms of relief necessary to make the plaintiff whole. I cannot agree that §1500 demands this result. I

Section 1500 bars jurisdiction in the CFC over “any claim for or in respect to which the plaintiff . . . has pending in any other court any suit or process against the United States” or any agent of the United States. In Keene, we construed this statute to “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. It was irrelevant for purposes of §1500, we observed, that the two suits proceeded on different legal theories. Id., at 212. Because the plaintiff’s actions both sought the same monetary relief, albeit on different theories, we held that the CFC lacked jurisdiction. Id., at 217–218. We thus found “it unnecessary to consider” whether §1500 barred a CFC claim that was based on substantially the same operative facts as another suit but that sought different relief. See id., at 212, n. 6, 216.

As construed in Keene, §1500 bars the Nation’s CFC action. As the majority holds, see ante, at 9–10, the Nation’s CFC and District Court actions are based on nearly identical facts. The two actions also seek overlapping relief: Both complaints request money to remedy the same injury—the Government’s alleged breach of its fiduciary duty to maintain accurate accounts of the Nation’s assets. The Nation does not dispute that its District Court complaint requests such relief.1 See Brief for Respondent 51 (“If . . . the accounting reveals that assets that belong to the Nation do not appear on the books, it may be appropriate to order equitable restitution of those assets”). The Nation’s CFC complaint is fairly read to do the same. The CFC complaint alleges that the Government has failed “to keep and render clear and accurate accounts.” App. to Pet. for Cert. 66a. It claims that by reason of this and other alleged breaches of fiduciary duty, the Nation “has been damaged in such amounts as may be proven at trial.” Id., at 67a. And the complaint requests “a determination that the Defendant is liable to the Nation in damages for the injuries and losses caused as a result of Defendant’s breaches of fiduciary duty” and a “determination of the amount of damages due the Nation.” Id., at 72a–73a. Thus, just like the District Court complaint, the CFC complaint requests money to remedy the Government’s alleged failure to keep accurate accounts.2

Because the Nation’s two complaints are “based on substantially the same operative facts” and there is “at least . . . some overlap in the relief requested,” Keene, 508 U. S., at 212, §1500 bars jurisdiction over the Nation’s CFC action.

II

The case does not present the question, left open in Keene, “whether common facts [alone] are sufficient to bar a CFC action where a similar case is pending elsewhere.” Ante, at 9. Indeed, for most of the history of this case, the Government did not even argue that common facts were sufficient to preclude CFC jurisdiction; until its petition for rehearing in the Court of Appeals, the Government argued only that Keene required dismissal of the Nation’s CFC action because the Nation’s two actions were based on the same facts and sought overlapping relief. Deciding this case on the basis of Keene would have been the “far more prudent course than recharacterizing the case in an attempt to reach premature decision on an important question.” Missouri v. Jenkins, 495 U. S. 33, 80 (1990) (KENNEDY, J., concurring in part and concurring in judgment). Instead, discarding the restraint we exhibited in Keene, the Court unnecessarily chooses to hold that §1500 bars jurisdiction in the CFC whenever a plaintiff’s CFC action is based on substantially the same facts as a suit pending elsewhere.3 This reading of §1500 is, in my opinion, incorrect.

A

Since the enactment of §1500 in 1868, Congress has expanded the avenues by which persons with legitimate claims against the United States may obtain relief. See ante, at 6. In some circumstances, Congress has chosen to require plaintiffs to file actions in two different courts to obtain complete relief relating to a single set of operative facts. For example, with some exceptions, the CFC has no power to issue equitable relief. See Bowen v. Massachusetts, 487 U. S. 879, 905 (1988); see also 28 U. S. C. §1491(a). As a result, a plaintiff seeking both money damages and injunctive relief to remedy distinct harms arising from the same set of facts may be forced to file actions in both the CFC and federal district court.

For half a century, the CFC has recognized that §1500 does not preclude jurisdiction in that court when Congress has required a plaintiff to split a claim into two actions to obtain different forms of relief necessary to make the plaintiff whole. In Casman v. United States, 135 Ct. Cl. 647 (1956), a terminated federal employee sought backpay in the Court of Claims and reinstatement to his position in District Court. The plaintiff’s two suits arose from the same facts (his termination) but sought “entirely different” forms of relief within the exclusive jurisdiction of two courts.4 Id., at 650. In light of our previous recognition that the purpose of §1500 “ ‘was only to require an election between a suit in the Court of Claims and one brought in another court,’ ” id., at 649 (quoting Matson Nav. Co. v. United States, 284 U. S. 352, 355–356 (1932)), the Court of Claims held that §1500 was inapplicable when a “plaintiff has no right to elect between two courts,” 135 Ct. Cl., at 650. To hold otherwise, the court acknowledged, “would be to say to plaintiff, ‘If you want your job back you must forget your back pay’; conversely, ‘If you want your back pay, you cannot have your job back.’ ” Ibid.; see also Loveladies Harbor, Inc. v. United States, 27 F. 3d 1545, 1551 (CA Fed. 1994) (en banc) (reaffirming Casman’s inquiry into the form of relief sought).

By reserving the question “whether two actions based on the same operative facts, but seeking completely different relief, would implicate §1500,” our decision in Keene expressly preserved the Casman holding. 508 U. S., at 212, n. 6. The consequence of today’s decision is clear: The Casman rule is no longer good law. Under the majority’s reading of §1500, because Casman’s two suits were based on common facts, §1500 barred jurisdiction in the CFC over his backpay claim even though he could not have obtained backpay in his District Court action.

The jurisdictional scheme governing actions against the United States often requires other plaintiffs to file two actions in different courts to obtain complete relief in connection with one set of facts. As just one example, an action seeking injunctive relief to set aside agency action must proceed in district court, but a claim that the same agency action constitutes a taking of property requiring just compensation must proceed in the CFC. See, e.g., Alaska v. United States, 32 Fed. Cl. 689 (1995). After today’s decision, §1500 may well prevent a plaintiff from pursuing a takings claim in the CFC if an action to set aside the agency action is pending in district court. This type of plaintiff may face a choice between equally unattractive options: forgo injunctive relief in the district court to preserve her claim for monetary relief in the CFC, or pursue injunctive relief and hope that the statute of limitations on her takings claim, see 28 U. S. C. §2501, does not expire before the district court action is resolved.5 B

1

The text, purpose, and history of §1500 provide strong reason to believe that Congress did not intend for §1500 to put plaintiffs to a choice between two nonduplicative remedies that Congress has made available exclusively in two forums. The statute bars jurisdiction in the CFC over a “claim for or in respect to which” a plaintiff has a suit or process pending elsewhere. When Congress first enacted §1500’s predecessor, the statute establishing the jurisdiction of the Court of Claims used the term “claims” to refer to demands for money damages. See Act of Mar. 3, 1863, §§2–3, 12 Stat. 765; see United States v. Jones, 131 U. S. 1, 17 (1889) (noting that the statute’s provisions “were inconsistent with the enforcement of any claims under the law except claims for money”).6 Congress thus would have understood the term “claim” in §1500 to describe the particular relief sought in the Court of Claims. Cf. Commissioner v. Keystone Consol. Industries, Inc., 508 U. S. 152, 159 (1993).

Determining the meaning of “claim” is only part of the inquiry, however. The question remains what constitutes a suit or process “for or in respect to” a CFC claim. The purpose and history of the statute elucidate the meaning of this ambiguous phrase. As the majority explains, Congress enacted the statute to prevent “duplicative lawsuits” brought by the so-called “cotton claimants” in the aftermath of the Civil War. Keene, 508 U. S., at 206; see ante, at 3. The cotton claimants sought monetary compensation for seized cotton in the Court of Claims pursuant to the Abandoned Property Collection Act, 12 Stat. 820. Because they had difficulty satisfying the statutory requirement that, to obtain compensation, they must not have given aid or comfort to participants in the rebellion, see §3 of the Act, they also sought relief—either in the form of money damages or actual cotton—in separate lawsuits against federal officials on tort theories such as conversion. “It was these duplicative lawsuits that induced Congress” to enact §1500’s predecessor. Keene, 508 U. S., at 206.

This historical backdrop sheds light on what Congress would have understood to be a suit or process “for or in respect to” a “claim” in the Court of Claims. Congress undoubtedly intended to preclude a claim for money in the Court of Claims when the plaintiff was pursuing a suit “for” the same money in district court. Because, however, some cotton claimants sought return of the cotton itself in district court, it was also necessary to preclude jurisdiction in the Court of Claims when the plaintiff’s other action was “in respect to” that demand for money—i.e., when the plaintiff was seeking duplicative relief. Had the courts awarded such plaintiffs both the cotton itself and money damages, the plaintiffs would have obtained twice what they deserved. In this way, Congress eschewed “a narrow concept of identity” that would have permitted plaintiffs to pursue and obtain duplicative relief to remedy the very same harm. Id., at 213.

The legislative history confirms Congress’ intent to preclude requests for duplicative relief. The statute’s sponsor explained that the purpose of the statute was “to put to their election that large class of persons having cotton claims[,] . . . who are here at the same time endeavoring to prosecute their claims, and have filed them in the Court of Claims, so that after they put the Government to the expense of beating them once in a court of law they can turn around and try the whole question in the Court of Claims.”7 Cong. Globe, 40th Cong., 2d Sess., 2769 (1868) (statement of Sen. Edmunds); see also Matson Nav. Co., 284 U. S., at 355–356. Congress thus appears to have had in mind cases in which “the whole question” could be tried in the Court of Claims. The statute’s history does not suggest that Congress intended to require an election between two nonduplicative forms of relief available exclusively in two different courts. In such a case, “the whole question” could not be tried in either court. 2

None of the majority’s reasons for its contrary construction of the statute is convincing. First, the majority reasons that the phrase “claim for or in respect to” must refer only to factual overlap because the statute uses the phrase “cause of action . . . in respect thereto” (which the majority paraphrases as “in respect to a cause of action”) in a way that is “consistent only with factual overlap.” Ante, at 4. This point rests on a misreading of the statutory text. The statute asks whether a plaintiff has pending a “suit or process” for or in respect to the plaintiff’s CFC claim—not whether it has pending a “cause of action” for or in respect to that claim.8 Even if the term “cause of action” refers only to operative facts—such that the inquiry whether a person was acting under color of federal law in respect to a cause of action is purely factual in nature—a “suit or process” will inevitably include a request for relief.

Second, the majority states that, “in light of the unique remedial powers of the CFC,” requiring remedial overlap would make no sense because it would result in a “very limited application” of the statute. Ante, at 5, 6. Here, the majority overlooks the nearly 150-year history of the statute. It was the cotton claimants’ parallel requests for duplicative relief that prompted passage of §1500 in the first place. Since then, litigants have continued to seek duplicative relief against the Government in two courts, as Keene and this very case illustrate. See 508 U. S., at 204– 205 (seeking tort damages in the District Court and compensation on a takings theory in the CFC); supra, at 1–3 (seeking restitution and disgorgement in the District Court and money damages in the CFC); see also, e.g., Ex parte Skinner & Eddy Corp., 265 U. S. 86, 91–92 (1924) (seeking money damages against the United States in the Court of Claims and against a federal entity in state court); Corona Coal Co. v. United States, 263 U. S. 537, 539 (1924) (seeking money damages against the United States in the Court of Claims and against a federal agent in District Court); British American Tobacco Co. v. United States, 89 Ct. Cl. 438, 439–440 (1939) (per curiam) (seeking tort damages in the District Court and contract damages in the Court of Claims). As these cases make clear, interpreting §1500 to prohibit requests for duplicative relief hardly renders the statute of limited application.

Third, the majority suggests that its construction of §1500 is necessary to achieve the statute’s aim of “sav[ing] the Government from burdens of redundant litigation.” Ante, at 7. Parallel actions seeking the same or duplicative relief, or different forms of relief that are available entirely in one court, are redundant; actions seeking different forms of relief that Congress has made available exclusively in different courts are not. To the extent the majority is concerned about the burdens of parallel discovery, federal courts have ample tools at their disposal, such as stays, to prevent such burdens. See Schwartz, Section 1500 of the Judicial Code and Duplicate Suits Against the Government and Its Agents, 55 Geo. L. J. 573, 599 (1967).

Finally, the majority contends that focusing on operative facts is consistent with the principles of claim preclusion embodied in the statute. Claim preclusion ordinarily “bar[s] claims arising from the same transaction.” Kremer v. Chemical Constr. Corp., 456 U. S. 461, 482, n. 22 (1982). There is, however, an exception to this rule when a plaintiff was unable to obtain a certain remedy in the earlier action. See Restatement (Second) of Judgments §26(1)(c) (1980) (claim preclusion does not apply where “[t]he plaintiff was unable to rely on a certain theory of the case or to seek a certain remedy or form of relief in the first action because of the limitations on the subject matter jurisdiction of the courts”); see also Marrese v. American Academy of Orthopaedic Surgeons, 470 U. S. 373, 382 (1985); 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §4412, p. 276 (2d ed. 2002). This principle has long informed claim preclusion law. See, e.g., Restatement of Judgments §62, Comment k (1942) (“[W]here a plaintiff brings an action in a State in which the courts have jurisdiction only with reference to one portion of his cause of action, he is not barred from maintaining an action in a proper court for the other portion”); 2 H. Black, Law of Judgments §618, p. 744 (1891) (“A judgment is not conclusive of any matter which, from the nature of the case, the form of action, or the character of the pleadings, could not have been adjudicated in the former suit”). For these reasons, preclusion doctrine actually undermines the majority’s position.

In sum, the majority offers no coherent justification for its conclusion that Congress intended to preclude jurisdiction in the CFC whenever a plaintiff’s claim in that court is based on substantially the same facts as a suit pending elsewhere without reference to the relief sought.

* * *

Even before today’s decision, §1500 had been described as “anachronistic,” Keene, 508 U. S., at 217, “harsh,” id., at 222 (Stevens, J., dissenting), and “arbitrar[y],” 79 Fed. Cl. 645, 659, n. 16 (2007). Judges and commentators have long called for congressional attention to the statute. See, e.g., Keene, 508 U. S., at 222 (Stevens, J., dissenting); Schwartz, supra, at 601. Today’s decision—which unnecessarily considers and repudiates the Casman rule— renders such attention all the more pressing. Under the Court’s construction of §1500, plaintiffs whom Congress has forced to file parallel actions in the CFC and a district court to obtain complete relief must now choose either to forgo relief in the district court or to file first in the district court and risk the expiration of the statute of limitations on their claims in the CFC. I cannot agree that Congress intended, or intends, for §1500 to produce this result. For these reasons, I respectfully concur only in the judgment.

1 The majority characterizes the Nation’s District Court complaint as seeking “equitable relief,” ante, at 2, but does not mention that the complaint seeks, among other things, equitable monetary relief such as disgorgement and restitution, see App. to Pet. for Cert. 91a.

2 In reaching the opposite conclusion, the Court of Appeals relied on the fact that the Nation’s District Court complaint seeks equitable relief whereas its CFC complaint seeks damages. See 559 F. 3d 1284, 1288–1289 (CA Fed. 2009). Keene makes clear, however, that actions based on substantially the same operative facts implicate §1500 so long as they seek overlapping relief. See Keene Corp. v. United States, 508 U. S. 200, 212 (1993). The formal label affixed to the form of relief sought is irrelevant. In this case, both the Nation’s CFC complaint and its District Court complaint seek money to remedy the Government’s alleged failure to keep accurate accounts.

3 The majority does not contend that the facts of this case require it to decide this question. It justifies its decision to reach the question on the ground that its rule would eliminate “an unnecessary and complicated remedial inquiry” and would decrease “the expense and duration of litigation.” Ante, at 9. It provides no reason to believe, however, that inquiry into relief requested is unduly complicated in the vast majority of cases. Cf. Loveladies Harbor, Inc. v. United States, 27 F. 3d 1545, 1552 (CA Fed. 1994) (en banc) (“The principles of Casman [v. United States, 135 Ct. Cl. 647 (1956)] . . . are not that difficult to comprehend or apply”). More importantly, the majority does not explain why the benefits it perceives to result from deciding this question today outweigh the potential for its reading of the statute to leave some plaintiffs with incomplete recompense for their injuries. See infra, this page and 5–6.

4 Congress has since enacted legislation to permit plaintiffs in Casman’s situation to obtain complete relief in the CFC. See Act of Aug. 29, 1972, §1, 86 Stat. 652, 28 U. S. C. §1491(a)(2) (permitting the CFC to “issue orders directing restoration to office or position, placement in appropriate duty or retirement status, and correction of applicable records”).

5 The majority apparently doubts that its holding puts the Nation to a similarly difficult choice. It first suggests that the Nation could file solely in the CFC to obtain damages for the Government’s alleged breaches of fiduciary duty. See ante, at 8. The Nation could indeed choose to file only in the CFC—just as any plaintiff could choose to forgo injunctive relief to pursue money damages in the CFC—but the Nation believes it is entitled to more than monetary relief. The Nation’s District Court action seeks an equitable accounting to remedy the same breaches of fiduciary duty, and the CFC has held that it lacks jurisdiction to issue a preliability accounting. See Klamath and Modoc Tribes v. United States, 174 Ct. Cl. 483, 487–488, 490 (1966). But see Eastern Shawnee Tribe of Okla. v. United States, 582 F. 3d 1306, 1308 (CA Fed. 2009) (suggesting in dicta that the CFC can order an equitable accounting as “ancillary relief” under 28 U. S. C. §§1491(a)(2) and (b)(2)), cert. pending, No. 09–1521. The majority next suggests that Congress has tolled the statute of limitations governing the Nation’s CFC claims. See ante, at 8–9. But the cited statute only applies to claims “concerning losses to or mismanagement of trust funds.” 123 Stat. 2922. It does not appear to toll the statute of limitations for claims concerning assets other than funds, such as tangible assets. See App. to Pet. for Cert. 67a–69a (seeking damages for the Government’s mismanagement of the Nation’s mineral estates). Expiration of the 6-year statute of limitations governing claims in the CFC is a very real prospect in this and other cases; the Nation’s District Court action has been pending for more than four years. As the majority notes, see ante, at 6–7, the validity of the Court of Claims’ holding in Tecon Engineers, Inc. v. United States, 170 Ct. Cl. 389, 343 F. 2d 943 (1965), is not presented in this case. This Court has never considered that holding. Accordingly, I do not consider whether the Nation could have avoided application of §1500 altogether by filing its CFC action first.

6 Congress has consistently used the term “claim” to refer to a demand for money in the context of the CFC. See 28 U. S. C. §1491(a)(1) (conferring jurisdiction in the CFC over “any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort” (emphasis added)). Of course, since §1500’s enactment, Congress has authorized the CFC to issue relief other than money damages in certain cases. See §1491(a)(2).

7 Because §1500’s jurisdictional bar applies only when the other suit is pending, “there is a good argument that, even when first enacted, the statute did not actually perform the preclusion function emphasized by its sponsor.” Keene, 508 U. S., at 217.

8 Section 1500 refers to the “cause of action alleged in such suit or process” only for the limited purpose of determining whether the other suit or process is against an agent of the United States. When the plaintiff’s other action is against the United States itself, the term “cause of action” has no relevance to the §1500 inquiry.

GINSBURG, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 09–846

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UNITED STATES, PETITIONER v. TOHONO O’ODHAM
NATION

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FEDERAL CIRCUIT

[April 26, 2011]

JUSTICE GINSBURG, dissenting.

I dissent from the Court’s immoderate reading of 28 U. S. C. §1500 and would affirm the Federal Circuit’s judgment.

According to the Court, the Court of Federal Claims (CFC) lacks subject-matter jurisdiction over the Tohono O’odham Nation’s (Nation) claim because the Tribe was simultaneously pursuing in the D. C. District Court an action with “a common factual basis.” Ante, at 1. It matters not, the Court holds, that to gain complete relief, the Nation had to launch two suits, for neither of the two courts whose jurisdiction the Tribe invoked could alone provide full redress. See ante, at 8–9.

The Court concludes that “claim” or “cause of action,” terms the Court considers synonymous as used in §1500,* see ante, at 5, refers to “operative facts,” and not to the remedies a plaintiff seeks. See ante, at 4. Section 1500 speaks of “the time when the cause of action . . . arose,” a time antedating the commencement of suit. The Court infers, therefore, that a “claim” or “cause of action” is discrete from a pleading’s request for relief. See ante, at 4. In fact, however, entitlement to relief is essential to the existence of a claim or cause of action, which arises when a person suffers a harm capable of judicial redress. See 2 J. Story, Equity Jurisprudence §1521a, p. 741 (8th ed. 1861) (“[T]he cause of action . . . arises when . . . the party has a right to apply to a court . . . for relief.”).

A plaintiff may not, §1500 instructs, petition both the CFC and a district court, invoking in each a distinct legal theory appropriate to the forum, but seeking redress for a single injury. When Congress bars a plaintiff from obtaining complete relief in one suit, however, and does not call for an election of remedies, Congress is most sensibly read to have comprehended that the operative facts give rise to two discrete claims. Casman v. United States, 135 Ct. Cl. 647 (1956), as JUSTICE SOTOMAYOR spells out, see ante, at 5, is the paradigm case. There, a discharged federal employee, complaining of wrongful termination, sought reinstatement in a district-court action and backpay in the Court of Claims. Section 1500 does not stand in the way, the Court of Claims held in Casman, when the plaintiff suffered two distinct injuries, for which she seeks discrete forms of relief within the exclusive competence of different courts. See 135 Ct. Cl., at 649–650 (claim for backpay “entirely different” from claim for reinstatement). The Federal Circuit, in my view, rightly adhered to Casman in Loveladies Harbor, Inc. v. United States, 27 F. 3d 1545 (1994) (en banc), and rightly did so in this case.

While I agree with much of JUSTICE SOTOMAYOR’s opinion concurring in the judgment, I do not agree with her conclusion that §1500 bars the Nation’s CFC action. JUSTICE SOTOMAYOR joins the Court’s judgment (although not the Court’s reasoning) because the “Tohono O’odham Nation seeks in the [CFC] . . . some of the same relief on the same facts as it does in its pending District Court action.” Ante, at 1 (emphasis added). But to the extent that “the Nation’s two actions seek overlapping relief,” ibid., a disposition less harsh would be in order. Ordinarily, when a plaintiff’s allegations and demands for relief are excessive, her complaint is not instantly dismissed on that account. Instead, she may seek leave to trim her pleading, permission a court “should freely give . . . when justice so requires.” Rule 15(a)(2) (CFC 2010). Cf. Rule 54(c) (CFC 2010) (judgment, other than default, need not conform to demand for relief, but “should grant the relief to which each party is entitled”).

As JUSTICE SOTOMAYOR and the Nation recognize, to avoid both duplication and the running of the statute of limitations, the CFC suit could be stayed while the companion District Court action proceeds. See ante, at 11; Brief for Respondent 35. That is a common practice when a prior action is pending. See Pennsylvania R. Co. v. United States, 363 U. S. 202, 204–206 (1960) (instructing Court of Claims to stay pending proceedings to enable litigant to obtain District Court review of relevant agency order); Creppel v. United States, 41 F. 3d 627, 633 (CA Fed. 1994) (“[T]he Court of Federal Claims may stay a takings action pending completion of a related action in a district court.”).

Why is this Court not positioned to direct the CFC to disregard requests for relief simultaneously sought in a district-court action, or at least to recognize that an amended CFC complaint could save the case? I see no impediment to either course, in §1500 or any other law or rule. * “ ‘Cause of action,’ ” the Court simultaneously states, “is the more technical term.” Ante, at 5. If “more technical” means more precise, clear or certain, the Court is incorrect. See United States v. Memphis Cotton Oil Co., 288 U. S. 62, 67–68 (1933) (“A ‘cause of action’ may mean one thing for one purpose and something different for another.”). In its discourse on the term, the Court has fallen into an old error; the drafters of the Federal Rules endeavored to “eliminate the unfortunate rigidity and confusion surrounding the words ‘cause of action.’ ” 5 C. Wright & A. Miller, Federal Practice and Procedure §1216, p. 207 (3d ed. 2004). Today’s invocation of a supposed particular or exact meaning for the phrase risks reviving that confusion.

Print this transcript Transcript: 

ORAL ARGUMENT OF ANTHONY YANG ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We will hear argument next in Case 09-846, United States v. Tohono O'Odham Nation.

Mr. Yang.

Anthony Yang: Mr. Chief Justice, and may it please the Court:

This Court in Keene held that section 1500 of Title 28 deprives the Court Of Federal Claims has jurisdiction when the plaintiff has a pending suit in another court based on substantially the same operative facts and left open the question whether some overlap in the relief requested is also necessary to trigger that bar.

The Federal Circuit erred in holding that section 1500 applies when both suits -- only when both suits seek the same relief, and that the critical distinction in this regard is whether the particular relief in the plaintiff's plea for relief is deemed legal or equitable.

Section 1500's text broadly bars CFC jurisdiction whenever any suit that the plaintiff has pending in any other court is a suit for the CFC claim or is merely a suit in respect to that claim.

In other words, another suit for a different but a related claim will trigger section 1500.

That provision was intended to protect the government from simultaneous duplicative suits against the United States and its agents by forcing plaintiffs to elect between those related suits.

Justice Ruth Bader Ginsburg: But you recognize that sequential suits could be brought.

So that if the case in the district court went to final judgment, then it would be okay to go to the Court Of Federal Claims.

Anthony Yang: That is correct.

In some, in perhaps a good number of cases, it's possible to, if you are seasonably prompt in your Court Of Federal Claims case or your district court case first--

Justice Ruth Bader Ginsburg: But you don't have control over how long the district court case is going to take, and there is no mechanism to stop the running of the statute of limitations.

Anthony Yang: --Well, I think there is some control that you can exercise over the -- how promptly the suit proceeds.

Particularly if we are talking about suits against the government, many suits proceed on an administrative record and go directly to summary judgment; that can be done in a relatively prompt manner.

But even if not, the Congress that enacted section 1500 in 1868 knew that essentially what it was doing in many, many cases would prevent a second suit from going forward.

That's because the Congress was concerned with the cotton claimants.

The cotton claimants had authorization to bring suit in the Court of Claims, but there was a two-year statute of limitations.

That statute ran from the end of the Civil War.

And this Court in a case called U.S. v. Anderson at 76 U.S., and the relevant pages are 70 to 71, made clear that the end of the Civil War for the purposes of that statute was August in 1866.

Congress enacted section 1500 in June of 1868.

There was a two-month window, if that, to bring suit and Congress recognized, it would have recognized, that if you filed suit or were forced to elect at that point, that would be the end of the game.

There was also another statutory provision that Congress enacted during the Civil War that put a two-year statute of limitations on suits against officers.

That was discussed in this Court's decision, Mitchell v. Clark, 110 U.S. 633 at pages 641 and 642.

So given the time at which Congress was enacting section 1500, it knew it was putting plaintiffs to a very hard choice.

You had to elect between the Court Of Federal Claims remedy and between a remedy in another court against an officer.

That remedy would likely be the end of the game.

And Congress did that in a very particular way.

It did it in a targeted statute that limited the authority of the court that had its hands on the purse strings of the Federal Government, and that performed the very function that Congress just a few years earlier had itself exercised through the enactment of private bills through its appropriations power.

So section 1500 ultimately states in essence that if you are going to bring suit in this specialized court where Congress has vested the Court of Claims with the very special power of distributing money from the Federal fisc, that you could only bring one suit arising from the same operative facts in order to be in that court.

Chief Justice John G. Roberts: Well, but that's -- you just--

Justice Sonia Sotomayor: In the cotton cases, why isn't my reading of it quite very simple, which is Congress was concerned with ensuring that a claimant didn't get double-recovered in two different suits.

Anthony Yang: Well--

Justice Sonia Sotomayor: Isn't that a simple -- you know, you've got people suing in different jurisdictions over getting the same pot of money or something close to it.

Why isn't our view of 1500 just simply you can't have two suits that are seeking the same pot?

Anthony Yang: --Well, it wasn't the same pot of money.

The Abandoned and -- Abandoned Property Collection Act -- we will call it APCA -- provided for a special statutory trust remedy.

That remedy was for the net proceeds of anything -- any -- any auction sales that might have resulted from cotton.

If the cotton was lost, it was damaged, it was destroyed, if the proceeds were paid but ultimately didn't make their way into the fisc, you got nothing or you got a substantially reduced fund.

If you sued in court, you might be able to sue, as we explained in our reply brief, under certain doctrines that would give you the property in specie, or you could seek monetary relief.

These are quite different things.

And even in -- it's not--

Justice Ruth Bader Ginsburg: But you couldn't get both.

I mean, that's I think Justice Sotomayor's point, about duplication.

It's not -- even if you can say, yes, it's a different mode of relief, but you could -- couldn't get -- I mean, suppose we didn't have 1500 and you prevailed in your suit on the APCA or whatever you call the statute.

You could not then turn around and sue the government official, because you have the -- the single claim, you've been compensated.

Anthony Yang: --I don't know--

Justice Ruth Bader Ginsburg: It's not here -- it's quite different.

I mean, one suit is not precluded by the other.

You -- you recognize that by saying you could bring the Claims Court suit after the district court suit.

That's not so in -- in the cotton cases.

Anthony Yang: --You may in certain instances.

But particularly in the cotton cases, Congress knew that it -- what it was doing was forcing one path and only one path.

It wasn't about duplicative recovery.

You had to choose and you not -- you weren't going to have time to bring another suit, and Congress would have known that when it enacted the section 1500's predecessor two months before the statute ran in APCA and perhaps after the statute ran for bringing a tort suit against officials under the cases -- the statute that this Court construed in Mitchell.

So it wasn't simply that duplicative relief was at issue, Congress was actually forcing you to make a choice in cases where the types of relief are quite different.

And the type of relief, for instance, that you would get in a suit against an agent of the United States, what you get out of that suit is not a pot of money; the court does not say at the end of the case, here you go, you asked for $1,000, here it is.

The court enters an order; it enters a judgment.

It says,

"Defendant, perhaps Tony Yang, officer of the government, you pay $100 million, $50 million. "

It doesn't mean much to the plaintiff if they get at Tony Yang as an individual.

This is very different relief than a money judgment against the United States.

It's not the same relief.

And in fact, we don't normally think of a claim as embodying a particular type of relief, which is the submission of the trial here.

Justice Ruth Bader Ginsburg: I -- I'm not sure I understand your answer to my question.

Assuming you had a recovery under the -- for the -- confiscated cotton, under the one route you had a recovery.

You could not sue again under the other route without -- leaving aside 1500, because the claim would be precluded.

Anthony Yang: That might have been true in one direction but maybe not in the other.

And let me explain.

The -- I'm not sure that there was an instance of this happening because of section 1500's existence, but if you had, for instance, obtained damages against an individual agent in a suit and you still could have brought suit within the Abandoned -- Abandoned Property Collection Act, the Abandoned Collection Property Act provided a statutory trust for the owner of the cotton.

It's not at all clear that that would have been precluded.

There may well have been, but for the statute of limitations problem, the ability to get a double recovery.

But nevertheless, I mean, our submission ultimately turns on our understanding of the text of this statute, which is quite broad.

The text not only precludes--

Chief Justice John G. Roberts: --Well, but it's not -- it's not as broad as your test,

"arising out of the same operative facts. "

It doesn't say that; it says

"any claim for and respect to which. "

And it seems to me that the facts of this case draw that precise distinction.

When you are asking for an accounting, you are not raising any claims about people doing anything bad at all.

You are just saying, let me know what I've got.

And then when you bring a claim for -- for money because of mismanagement of the trust, that's -- that's quite different.

Anthony Yang: --I -- that's -- that's true in some cases of an accounting.

It's not true on these complaints.

The complaints here are -- they have the sense of a kitchen sink type of a pursuit of these claims against the United States.

The district court case is not simply seeking an accounting of old money, as the Tribe submits.

It actually alleges a whole slew of breaches, including the breach to -- to -- of failure to invest money properly, failing to put it to its highest use, says the true balances would be far greater but for these breaches.

It specifically seeks a--

Chief Justice John G. Roberts: Is that -- is that to assert the basis about why an accounting should be required?

Anthony Yang: --No, because back -- the counts -- these are back on pages 90 and 91a of the petition appendix.

The Tribe not only seeks an accounting, but it also seeks an order to comply with all other fiduciary duties determined by the court.

This is paragraph 42.

It goes on to say that the tribe is not only entitled to object and essentially challenge the accounting, but it's entitled to any other equitable relief that might be appropriate in light of the -- the court's decision in the case.

So the tribe is in no way trying in the district court simply to seek an accounting.

Just like in the Court of Federal Claims, it's not simply looking to what they claim to be new money.

The specific allegations in the CFC complaint say that there has been no money for the -- no accounting for the revenue collected.

Chief Justice John G. Roberts: Well, what is the -- maybe I don't know enough about what an accounting is.

But why would it be other equitable relief to which they are entitled if they simply say, we want to know what we've got?

Anthony Yang: The tribe--

Chief Justice John G. Roberts: And they can get -- and then it may be a basis for a further claim that, if that's all we've got, where did the rest of it go, and that might be the Court of Claims action.

But it does strike me that they are different -- claims for different relief.

Anthony Yang: --It -- it should be that way if there were a narrowly tailored APA-type-like suit in district court, but that's not this.

The tribe's complaints both invoke, for instance, the Cobell litigation which has been going on in -- in D.C. for quite some time, and are modeled on the same types of broad claims that are at issue at Cobell.

This is not a simple case where there is agency action withheld and a court says: Agency, you had X duty; do it.

This is a -- a situation where the tribe is seeking to impose itself on age-old decisions that have been made a long time ago and to seek to revisit them and at the end of the day restate their accounts to reflect what they think should be in the trust fund.

This parallels in both the Federal Circuit -- the Court of Federal Claims and the district court suit.

There is substantial overlap in the operative facts.

As the two judges -- the only two judges to have addressed this--

Chief Justice John G. Roberts: Is it accounting what should have been in the trust fund or what actually is?

You say give me an accounting of the trust fund.

Does the officer go back and just add up the bank accounts and value the land and all that?

Or--

Anthony Yang: --Well, there's a difference--

Chief Justice John G. Roberts: --does he go back and say, well, this should be there but it's not?

Anthony Yang: --The -- there is a difference between the parties, and I don't think it's been fully fleshed out here, about what an accounting is.

The statute at issue that the tribe invokes for the accounting in our view provides a prospective obligation for the government to provide quarterly statements of what's coming in and out of the account going forward.

Chief Justice John G. Roberts: Going forward.

Anthony Yang: Going forward, not going back, and only with respect to moneys that were deposited or invested under a specific statutory authority that involves deposits that were made in banks.

So in our view -- you know, our view and the tribe's view I think are quite different in terms of what's at issue in the district court case.

And unfortunately, that's not the case that's before you here.

But what we're trying to do is say whether or not there is substantial overlap between the two.

And--

Chief Justice John G. Roberts: Well, are you at cross-purposes on those two issues?

When it comes to what an accounting is, you want to say, oh, that's just going forward; when it comes to this 1500 question you want to say they're the same as the money damages, which goes backward?

Anthony Yang: --No, I don't think we are at cross-purposes.

What we are saying is what the complaint alleges.

We don't control how the tribe seeks to assert rights.

We think that the complaint may be overbroad, but that's not the correct question.

I mean, this Court in Keene, for instance, addressed suits which had been dismissed because they were improperly brought in district court, and those suits in district court were sufficient to trigger section 1500's jurisdictional bar simply because they were asserting claims that overlapped with the claims that were at issue in the CFC.

Justice Anthony Kennedy: Do you read the claim in section 1500 the same way that it should be -- or do you think we should read it the same way in 1500 and 12(b)(6), failure--

Anthony Yang: I think so.

I mean--

Justice Anthony Kennedy: --Whether or not you've stated a claim upon which relief can be granted?

Anthony Yang: --Right, which draws a distinction between the claim and the relief, right?

If relief were the particular type of relief, as the tribe asserts, the rule would simply say "failure to state a claim", because you would have failed to state a certain element, a necessary element, of the claim.

Instead, it says

"failure to state a claim upon which relief can be granted. "

And I think that -- that keys into the other important provision of rule -- the Civil Rules for this purpose, which is Rule 54(c), which makes clear that the relief that might be initially stated in a complaint is not the relief that is at issue in the case.

The relief that comes at issue in the case is the relief that the -- that is proven, whether it be at summary judgment or at trial.

And even if, for instance, you ask for a dollar in damages in your complaint, it may well be that at trial you establish your entitlement to injunctive relief or damages far in excess.

Justice Ruth Bader Ginsburg: But not so, not so here, because of the way Congress has set up the authority of each court.

You could never -- what is it, 54(c) or--

Anthony Yang: (C).

Justice Ruth Bader Ginsburg: --54(c) is the relief to which you were entitled.

The only relief to which you were entitled in the one court, the Court of Claims, is compensatory damages.

So there isn't a question of some other form of relief.

You have to go to another forum to get different relief.

Anthony Yang: Well, yes and no.

The district court complaint, for instance -- and again, we contest this, but they seek a restatement of their accounts.

They seek remedies such as equitable disgorgement and the like.

These are monetary remedies that go, again, to the same types of issues.

Justice Antonin Scalia: But I also thought that the Court of Claims could give--

Anthony Yang: All of these claims could be brought--

Justice Antonin Scalia: --Could be brought--

Anthony Yang: --in the Court of Claims.

Justice Antonin Scalia: --They can give injunctive relief where that's necessary.

Anthony Yang: That's correct, but if you have a claim, for instance -- taking the old money/new money framework, which we don't think is borne out by the complaints, but even if we were correct, if they were seeking so-called old money in district court -- that is, money that should have been there, but was improperly allocated and therefore didn't show up in their account -- they could also bring a claim under the Indian Tucker Act claiming that there was some breach of duty under a statute or regulation, clear and -- this is a Navajo Nation-type question -- and you could get an accounting through -- in order to determine the proper amount that should be there.

So this is a way -- the problem that we have here, particularly in these cases where there's an allegation of 100 years of trust duties going back, and simultaneously litigating these cases in courts that might have different views on discovery obligations, different views of the law on various point cases.

One of the cases that we cite in the appendix to the petition, the Ak-Chin case, the CFC ordered discovery, for instance, that we have to conduct a review of 33,000 boxes of materials from the archives.

Although we claim there is an APA case going on in district court, the plaintiffs are seeking discovery there.

We are fighting it.

But this type of duplicative legislation and burden on the government is precisely what Congress in 1868 said: If you are going to bring suit--

Justice Stephen G. Breyer: Is there any instance you've been able to think of where an Indian tribe could have a claim for money of some kind and some other kind of relief that they seek where they couldn't get it all in the Court of Claims?

Anthony Yang: --A declaratory judgment, for instance.

Some -- many -- some of these cases arise--

Justice Stephen G. Breyer: Declaratory judgment.

Is there anything else?

Anthony Yang: --Um -- well, I mean, you wouldn't be able to get injunctive relief.

Justice Stephen G. Breyer: No injunctive relief.

Anthony Yang: Not normally in the Court of Claims.

There are exceptions.

Justice Stephen G. Breyer: No matter what.

Okay.

Well, then they have a problem, because they might want -- they might want some money and they want an injunction.

So what are they supposed to do?

Anthony Yang: There is no question that section 1500 may put a plaintiff at a difficult choice.

Justice Stephen G. Breyer: That's a big choice.

Anthony Yang: It's a choice that has existed since 1868, when Congress--

Justice Ruth Bader Ginsburg: To test that choice -- it's pretty stark in the Casman case, where Congress said back pay is for the Claims Court, reinstatement for the district court.

But your position is that under your reading of Casman -- let's forget about Congress's amendment.

Under your reading of the statute, the Casman decision was wrong and the plaintiff had to choose either back pay or reinstatement; there was no way to get both.

Anthony Yang: --That's correct.

And I think that was this Court's suggestion at the end of Keene, when the Court recognized that because there are complicated jurisdictional regimes that apply when you sue the government, the Court explained there may well be situations where this precludes a plaintiff from seeking all the relief that you would otherwise be able to get if you could bring suit separately.

And the Court in Keene said: Look, if there is apparent hardship -- this is following its decision in Corona Coal, which is 1924.

If there is a hardship in the statute, it is a question that must be directed to Congress, because Congress is the one that set this up, this jurisdictional limit.

And the jurisdictional limit that existed in 1868, remember, was a very difficult choice.

Justice Stephen G. Breyer: Your basic point is this: You're just saying it's too bad, go to Congress.

But you don't deny the basic point, which is that an Indian tribe may think the Bureau of Indian Affairs has really mismanaged everything and what they would like is some money, and also they want an injunction so they won't do it again.

And now your view is, it's true, there is no way they can get that, because they have to go to two different courts, and really in your view they can't go to two different courts, period.

Anthony Yang: Well, let me qualify--

Justice Stephen G. Breyer: And hardship is definite.

It's just you are saying, that's what Congress wanted.

Anthony Yang: --The hardship may be there.

The hardship is less now than it was in 1868 because of the language of the statute--

Justice Stephen G. Breyer: Why isn't it just as bad as what I just said?

Anthony Yang: --Because you might be able to bring, for instance, an APA suit that completes before the six-year statute of limitations ends.

And frankly, we don't think that that's an unusual thing, for an APA action to be brought promptly, even with an appeal.

APA actions, again, if it's limited to the administrative record as they should, you can go straight to a summary judgment-like procedure--

Justice Antonin Scalia: You have to extend a case that I didn't agree with when it came out.

You have to extend Bowen in order to achieve that.

Does the government want to extend Bowen?

Anthony Yang: --No, no.

I'm not suggesting that that was a proper suit.

But what you could do is you could pursue it and it could complete and still be -- there would still be time to bring a suit in the Court of Federal--

Justice Antonin Scalia: You could complete it to a denial of recovery?

Anthony Yang: --Perhaps, that's right.

We think these suits--

Justice Antonin Scalia: I don't think that's any comfort to the Indian tribe, do you?

Anthony Yang: --Well, but that's precisely what they are seeking to do here, and we just disagree whether that relief is available in district court.

And the question here is whether you can simultaneously pursue it.

Let me be clear.

These cases in our view should almost all be brought normally in the Court of Federal Claims.

These cases are seeking money for past actions and that's precisely what the Court of Federal Claims should address.

However, a number of plaintiffs like to try their hand at more than one court and they bring simultaneous suits, just as Tucker -- the cotton claimants did in the 1860's, where Congress provided for a general statute, very broadly worded.

It applies to any claim for and in respect to which any suit or process is pending in any other court against the U.S. or any person acting or professing to act as its agents.

It's a very broad statute.

Chief Justice John G. Roberts: It's not -- I mean, you are putting a pejorative spin on what they are doing, saying, you know, many plaintiffs like to take a chance in more than one court.

But your response to Justice Breyer suggests that that's a tough choice if you have to choose between injunctive relief or damages.

That's not them trying to, you know, get the same -- take two bites at the apple.

Anthony Yang: In some cases, it's is a tough choice.

Casman would have been a very difficult choice.

But as this Court suggested in Keene, the question goes to Congress, and when Congress addressed the question it decided relief of that sort should be brought all in the Court of Claims.

But in this case, this is not a case where we think particular hardship would be had, because the tribe could pursue its claims in the Court of Federal Claims and probably should be doing that if it simply--

Justice Sonia Sotomayor: So why isn't our rule simply -- what is so wrong with a rule that says if you can bring it in the Court of Claims you have to, but if there's relief that you can't secure there you can have two lawsuits?

What is so irrational about that?

Anthony Yang: --Well, that doesn't square--

Justice Sonia Sotomayor: If there is no double recovery possible.

Anthony Yang: --But that doesn't square even with the history of what Congress is trying to target.

The relief that was available in the Court of Claims in the 1860's in the Abandoned Property Collection Act was a very limited--

Justice Sonia Sotomayor: We have already gone through that because most of those claims would have had some element of double recovery, that might have precluded a second action.

The point that I raised was if there is a chance of potential double recovery, you can't breach, what's wrong with that?

Anthony Yang: --I don't think it squares with the text of the statute, which is broader than, doesn't provide for a claim, it doesn't provide for relief, it doesn't speak to double recovery.

If Congress was intending to target that specific problem it could have done so in a much more direct manner.

Mr. Chief Justice, I would like to reserve the remainder of my time.

Chief Justice John G. Roberts: Thank you, Mr. Yang.

Ms. Spinelli.

ORAL ARGUMENT OF DANIELLE SPINELLI ON BEHALF OF THE RESPONDENT

Ms Spinelli: Mr. Chief Justice, and may it please the Court:

Two suits are for or in respect to the same claim under Section 1500, only if they stem from the same operative facts and seek duplicative relief.

And in response to the Government's argument, I would like to explain why that's the best reading of Section 1500's text, as well as the only reading that harmonizes Section 1500 with the overall jurisdictional and remedial scheme.

Congress has made a broad range of remedies available to Plaintiffs wronged by the Government.

And it's directed Plaintiffs to seek certain remedies only in the Court of Federal Claims, and certain remedies only in the district court.

The Government's reading of Section 1500 assumes that Congress intended to penalize Plaintiffs for following that direction by barring them from the only forum where they can obtain money damages.

But nothing in the statute's text or history suggests that Congress intended to create such a nonsensical scheme.

Justice Antonin Scalia: Your argument assumes that there is available in the district courts injunctive relief under the Administrative Procedure Act, and that is far from clear, even after Bowen, it's far from clear if you had any business being in the district court anyway.

And so in a way we are resolving a very strange question, that is if as is not clear, you have a right to sue in the district courts for an injunction, can that suit proceed because of 1500 when there is a suit pending in the Court of Claims and that is sort of an abstract question.

Ms Spinelli: Justice Scalia, it is disputed whether or not the district court has jurisdiction to entertain the Nation's claims there.

The Government has a move to dismiss on that ground, that motion is pending.

We don't believe that the district court's jurisdiction over the claims raised in the district court is a question that this Court needs to face.

Rather, the question here is whether the Court of Federal Claims has jurisdiction over the claims brought in the CFC.

And that turns not on whether the district court has jurisdiction, but on whether duplicative relief is sought in both suits.

Justice Stephen G. Breyer: The main thrust that I was raising was does this really get the Tribe into trouble?

They have to forego one kind of relief for another.

So what about injunctive relief, that's what he thought of, and Justice Scalia raises the point, well, they are not going to be entitled to injunctive relief anyway because the APA doesn't provide it, if I understand that correctly.

So you are giving up the null set.

You were giving up the null set.

Ms Spinelli: No, not at all, Justice Breyer.

First of all, we would contest that we are not entitled to the relief that the Nation sought in the district court.

We believe that the Nation is entitled to that relief.

Justice Stephen G. Breyer: But it couldn't get it in the court -- in the claims?

Ms Spinelli: Correct.

Justice Stephen G. Breyer: It couldn't get that kind of relief in the Court of Claims?

Ms Spinelli: Correct.

Justice Stephen G. Breyer: Yes, it could.

Ms Spinelli: No, no, no.

You are right that it could not.

The relief that is being sought in the district court is primarily an accounting.

An accounting is inherently an equitable remedy, a remedy that under trust law the trustee owes to the beneficiary to provide the beneficiary with all the information necessary for him to protect his rights.

Justice Anthony Kennedy: Isn't it well established that part of the jurisdiction of the equity court when it requires an accounting is to give damages for breach of the trustee's duty?

That's Hornbook.

Ms Spinelli: That may well be the case, Justice Kennedy, in common law trust suits.

That wasn't requested--

Justice Anthony Kennedy: No, I'm talking about historically in equity.

No.

Historically in equity the trustee who breaches the trustee's duty in the equity court is required to give damages.

Ms Spinelli: --You are correct that normally, that in the past--

Justice Anthony Kennedy: It's not common law, it's not common law, it's equity.

It's old law, it's equity.

Ms Spinelli: --Correct.

You are correct that in the days of the divided bench suit for breach of trust were brought in equity.

I don't think we need to parse that finely here, because the question here is whether or not the Tribe has sought duplicative relief in both courts.

Justice Antonin Scalia: Isn't that unrealistic?

You don't want an accounting for the sake of having an accounting so that you can put the accounting in your desk.

Oh, look it, they stole $1,000,000,000 from us.

You want to get the $1,000,000,000.

If the suits are directed at the same object, and it is fanciful to think there is this separate suit for an accounting.

The object of that suit is the same thing as the object of the suit in the Court of Claims.

Ms Spinelli: With respect, Justice Scalia, that is not the case.

The accounting has enormous benefit entirely apart from any monetary relief that it might ultimately lead to.

The Nation, as well as other tribes who have brought these kinds of suits, lack basic information about what they own, what the metes and bounds of their lands are, what leases have been granted, how long they last, what easements and rights of way have been granted over their land, what the status is of their mineral rights and timber rights.

All of this is information that the Tribe needs and that Congress recognized in the Indian Trust Fund Management Reform Act that the Tribe needs in order to exercise its Federally granted right to decide how it's assets are best managed, and the longer that that accounting is delayed, the more the Nation is harmed by the inability to do that, the inability to decide whether certain funds should be withdrawn from trusts held by the United States, the inability to decide whether it should bring claims against third-parties.

So there's real value to the accounting that's entirely separate from any monetary relief.

And the accounting is not sought in the Court of Federal Claims.

The Court of Federal Claims has long held that it lacks jurisdiction to grant that kind of pre-liability historical accounting.

Although--

Chief Justice John G. Roberts: Can you get the accounting in conjunction with the claim of damages?

Maybe the Court of Federal Claims, you can't go there and say, look, I want an accounting, but you can say I have been wronged over the century and I would like to find out to what extent, and before you can figure that out you actually have to have an accounting.

Can't the Court of Federal Claims get an accounting in that context?

Ms Spinelli: --The Court of Federal Claims can order something called an accounting in aid of judgment.

Despite the similar terminology, they are not at all the same.

An accounting of the type that's being sought in the district court is a remedy by itself.

It's a remedy that the beneficiary is entitled to once its received or denied, that's a final order that can be appealed.

Chief Justice John G. Roberts: Okay.

It's a remedy, but is it terribly different from what the accounting the Court of Federal Claims would order to figure out how much--

Ms Spinelli: It is because it requires the trustee to provide all information about the trust that might be relevant to the beneficiary, and it does so without requiring the beneficiary to prove any mismanagement.

By contrast--

Justice Antonin Scalia: Were those accountings available before the Administrative Procedure Act was passed?

Is the jurisdictional basis for that the waiver of sovereign immunity that allows you to demand an accounting from the United States?

Is that just the APA?

Ms Spinelli: --The waiver of sovereign immunity that is being asserted in the district court is the APA, that's correct.

Justice Anthony Kennedy: What about this--

Justice Antonin Scalia: So you didn't have a right to that before the APA was passed?

Ms Spinelli: In the district court, no.

Justice Antonin Scalia: Either in the district court nor in the Court of Claims.

So this is not an unthinkable situation, is it?

Ms Spinelli: It's a little bit more complicated--

Justice Antonin Scalia: It was thought about for a century, anyway.

Ms Spinelli: --It's a little bit more complicated than that because prior to -- prior to the Court of Federal Claims in its current incarnation, certain claims for an accounting could have been brought before the Indian Claims Commission, but -- I mean that's going a little far afield.

The -- at any rate Congress has now recognized specifically by statute that this is something that Tribes need, and that's the right that the Nation is seeking to enforce in the district court action.

Justice Antonin Scalia: Well, why have -- you say Congress has specifically recognized it by statute.

You're referring to the APA?

Ms Spinelli: No, I'm referring to the 1994 Indian Trust Fund Management Reform Act, which specifically required the Department of the Interior to provide Tribal beneficiaries with certain statements, certain accountings regarding their--

Justice Antonin Scalia: But did not provide for a lawsuit against -- against the government.

Ms Spinelli: --They did not -- they did not expressly do so, no.

Justice Anthony Kennedy: --When you are in the CFC, don't you get -- you aren't you asking for compensation for losses and injuries from the commingling or the misappropriation of assets?

Ms Spinelli: No, Justice Kennedy, in the Court of Federal Claims, as a close reading of the complaint will show, the Nation is requesting four specific kinds of relief.

First it's asking for damages from the United States' failure to lease its mineral rights for fair market value.

That's count 1.

Count 2 is seeking damages from the United States' failure to obtain fair market value for leases of its land.

Count 3 is seeking damages from the United States' failure to invest judgment funds in a timely way and to obtain the maximum interest rate; and count 4 asserts a similar claim for damages with respect to the trust fund.

Justice Anthony Kennedy: But your brief makes the -- seems to make the point that that's all just interest on capital.

It's not for lost capital.

But even as you described it, it sounds to me that you get damages for loss of capital plus interest.

Ms Spinelli: It's -- it's not just interest, you are correct.

I mean, maybe if I give an example this will make things a little bit clearer.

Say that the government sold a stand of timber belonging to the Nation for $20, even though the stand of timber was worth $40.

It then deposited it into the trust account, $10.

The suit in the district court seeks an accounting and a restatement of the accounts and to the extent appropriate and available, equitable restitution of the $10 that was missing from the account.

The suit in the CFC seeks to recover the $20 that the United States should have earned, had it acted as a prudent fiduciary when it was selling the stand of timber.

And the Nation is entitled to both sums of money, but they are different, and because the money sought in the two courts is different, the relief is not duplicative.

Justice Anthony Kennedy: My problem is that I read the CFC complaint as including both.

I will take a look at it.

And I intruded on Justice Breyer's question.

Justice Stephen G. Breyer: What I'm trying to work out still in my mind, is if you say, look, Indian Tribe: You have to go to the court of claims, period.

Period.

You can't go to these other courts, I mean unless you give up the court of claims.

Is the Indian Tribe going to really lose something it needs?

Ms Spinelli: Yes.

Justice Stephen G. Breyer: I know you think yes.

I realize that.

[Laughter]

And, what I want to ask you about--

Ms Spinelli: Yes.

Justice Stephen G. Breyer: --is in section 2--

Ms Spinelli: I apologize.

Justice Stephen G. Breyer: --of 1491 there is a sentence which says, about the court of claims, in any case including the 1505 Tucker Act, the court shall have the power to remand appropriate matters to any administrative or executive body or official with such direction as it is may deem proper and just.

Now that seems awfully broad, so I'm thinking now, if they want money, they can get the money from the court of claims.

If they want something like an injunction, they could ask the court of claims, tell the executive branch to behave the way we think they have to under the law and there's your authority.

Ms Spinelli: Justice Breyer--

Justice Stephen G. Breyer: I'm just quoting.

Now what's -- I want to know the response.

Ms Spinelli: --Justice Breyer, you're -- you are exactly right about what 1491(a)(2) provides, but it also provides that any such relief can be ordered only as an incident of and collateral to a judgment of a claim of which the Court of Federal Claims otherwise has jurisdiction.

Justice Stephen G. Breyer: Well, you want money; that causes the problem.

If you don't want any money, you don't have a problem.

You Just forget about it.

Ms Spinelli: And notwithstanding this language--

Justice Stephen G. Breyer: Yes.

Ms Spinelli: --the court of claims has continued to hold that it lacks jurisdiction to grant an equitable pre-liability accounting.

All that it can do is after liability for certain acts of mismanagement has been proven, calculate damages for those specific acts of mismanagement.

Now--

Justice Sonia Sotomayor: I'm not sure I understand.

You could not bring in the court of claims the old money claims, and why?

That the government mismanaged--

Ms Spinelli: --Well, two -- two things, Justice Sotomayor.

We believe that the Nation could not bring the old money claims in the Court of Federal Claims because it has held repeatedly that it lacks jurisdiction to grant an equitable accounting.

However, I don't believe the answer to that question matters, because the issue here is not--

Justice Sonia Sotomayor: --It does, because why couldn't you simply have said, they owe us that original extra 10 bucks -- $10, and we want it?

What -- what--

Ms Spinelli: --Dividing -- well, it is clear that the accounting sought in the district court couldn't have been obtained in the court of claims.

And it made sense to seek the old money as the court of appeals called it, in conjunction with the accounting, because the accounting is what should reveal what is missing from the account.

And that's the reason, and not for any manipulative or forum-shopping purpose, that the Nation split its complaint the way it did.

Now to be sure, there is some fuzziness about the jurisdictional line between the Court of Federal Claims and the district court.

There is no doubt about that.

The Nation did its best to negotiate that and filed its complaints in good faith.

We believe that that question doesn't need to be addressed by this Court, because the only question section 1500 asks is whether the two suits are for or in respect to the same claim, by which we think it means are they for or in respect to the same demand for relief.

Here--

Justice Ruth Bader Ginsburg: The government says the statute is simple.

It says you can't have two suits simultaneously, or you can't when the CFC suit is the -- the second one.

And Mr. Yang told me that yes, the government thinks that in the Casman case there was a choice, you can sue for reinstatement in the district court, you can sue for back pay in the claims court, but you cannot get both.

And when Congress realized that that's what was happening, Congress did not adopt a two -- didn't bless the two-state -- two court solution.

Congress said, there will be one lawsuit.

It will all be in the claims court, and they can grant both the back pay and the reinstatement.

So the two-suit approach was rejected, I guess, in -- in Congress's response to Casman.

Ms Spinelli: --With respect, Justice Ginsburg, I would disagree.

I think that action by Congress in the 1972 Remand Act strongly supports the conclusion that Congress has implicitly acquiesced in this construction of section 1500.

Congress -- you are right, Congress decided not to say go ahead with your two suits in two different courts.

It thought that was too burdensome for the plaintiff; rather it amended the Tucker Act to permit the plaintiff to pursue both remedies in the Court of Federal Claims.

But that shows that Congress was well aware of the Casman holding, and it did not make any change to the statute to cast the holding into doubt, that where two remedies are available in two different courts, one can pursue them by bringing simultaneous suits in the two different courts.

All that it did is make it easier for plaintiffs in that specific situation to get full relief.

Beyond that, in 1982--

Justice Antonin Scalia: Well, excuse me, it didn't make it easier.

You -- you had to bring them both in the court of claims, no?

You didn't still have the option of -- of still bringing two different suits, did you?

Ms Spinelli: --No, I think after -- after the amendment--

Justice Antonin Scalia: You had to go to the court of claims.

Ms Spinelli: --Yes.

I mean, other -- otherwise that would raise a claim-splitting problem.

Justice Antonin Scalia: No, but if they were just making it easier, they -- they would have said, you know, you can do either one.

Ms Spinelli: Well, I mean, clearly the easier path is to have one suit.

I don't think any plaintiff wants to be forced to bring two suits to obtain two different remedies, both of which it needs, at double the expense and, you know, double the anxiety.

But I think what's significant about the 1972 action is that Congress did absolutely nothing to suggest that it disagreed with the Casman holding.

And the same is true in 1982, when Congress completely revamped the entire jurisdictional scheme, changed the jurisdiction of the claims court very much, and yet left section 1500 entirely untouched.

And that makes sense.

I mean, just to turn to the text for a minute, the key word, as I think this Court said in Keene, is the word "claim".

"Claim" can mean a lot of different things.

It can sometimes mean the set of operative facts from which a right to relief arises, which I believe is at least implicitly what the government is saying.

It can also mean a demand for relief; for instance, in this Court's cases regarding Article 3 standing, it's routinely said that plaintiff has to establish standing separately for each claim, which means for each form of relief sought.

The reason that is the correct reading of section 1500 is because of the nature of the jurisdictional scheme.

The Court of Federal Claims has always been a court of limited jurisdiction.

It can only grant certain remedies, primarily money damages.

And the word 1500, has been read by this Court to mean a demand for relief.

Justice Ruth Bader Ginsburg: That would be inconsistent with the definition of "claim" in the federal rules, I think.

Ms Spinelli: Yes, I think the definition of "claim" in the federal rules -- I think that's a different definition of "claim".

I think what we have here is a narrower definition that was first established in the 19th century through this Court's decisions construing the Tucker Act and its predecessors.

Given that the word 1500 as having the same meaning.

Justice Antonin Scalia: If you give it that narrow meaning, however, the government says you are contradicting what was the case with regard to the cotton suits.

That, in fact, some of them were asking for funds from this -- money from this common fund, and others were seeking relief against the individuals who had taken the cotton or replanted the cotton.

Those are different claims, as you define "claim", anyway.

Ms Spinelli: I don't think that is our definition of "claim", but let me explain.

We don't dispute that certain cotton claimants, you know, brought writs of conversion of trespass.

Some may have brought writs of replevin or detinue seeking the cotton itself back.

The relevant fact is that the suit saying

"I want my 100 bales of cotton back. "

and the suit saying

"I would like money to compensate me for my loss of 100 bales of cotton. "

seek duplicative relief.

And--

Justice Antonin Scalia: That is different from the word "claim".

I mean, if you are hanging the whole thing on the word "claim", you gave me a very plausible alternate definition of "claim".

But your case does not follow that.

Your case hinges on duplicative relief, which is something quite different.

I don't know any definition of "claim" that is synonymous with duplicative relief.

Ms Spinelli: --The word 1500 refers to claims over which the Court of Federal Claims has jurisdiction, just as it does in the Tucker Act.

There is no express limitation in the Tucker Act on the relief that can be granted.

The word "claim" has been read implicitly to incorporate a limitation on the kind of relief that can be granted.

Therefore, in section 1500, a suit for or in respect to a claim in the Court of Federal Claims must mean a suit for or in respect to a demand for relief that the Court of Claims can grant, and where duplicative relief is being sought, that falls within the language of the statute.

It falls within the overall jurisdictional scheme which directs plaintiffs to bring suits for different relief in different courts, and it also appears with cotton claimants.

The cotton claimants were seeking duplicative relief, and that's the concern that Congress aimed at.

Congress was not faced in 1868 with a situation in which plaintiffs had been directed to seek different non-duplicative remedies, remedies that weren't substitutes for one another but complimented one another in two different courts.

Justice Stephen G. Breyer: I had under the impression that sometimes they sued for some money out of a fund, which would have been partial, and other times they sued for the value of the cotton, and other times they sued for the cotton itself, which in certain circumstances could have been worth a lot more.

By the time of suit, it went up.

I mean, do we know it was always duplicative in those cotton suits?

Ms Spinelli: I believe we do know it was always duplicative, notwithstanding the fact that the amount that one might recover might differ.

Justice Stephen G. Breyer: Well, if the amount differs, then, why do you suppose the cotton belonged to the Indian Tribe?

On the one hand, they want an accounting out of the money ever earned out of this cotton in the past and on the other hand, they want what the cotton is worth in the future on the--

Ms Spinelli: That is not--

Justice Stephen G. Breyer: --That's Justice Scalia's question.

Ms Spinelli: --That is not duplicative.

What is duplicative is a remedy that is either the same, or a remedy that serves as a substitute for another remedy.

And what this Court has said, though, is that even if it's not a completely full substitute -- even if, say, the damages sought in one court are less than the damages sought in another -- if they are duplicative relief for the same injury, they are barred by section 1500.

And I think that is completely consistent with the holding in Keene.

In Keene, the plaintiff was bringing multiple suits against the United States in different courts for duplicative relief, money, and compensation for funds it had paid out to asbestos claimants.

And notwithstanding the fact that it brought some of those suits on a contract theory and some of those suits on an equitable tort theory of indemnification, the statute barred those.

But Keene was not faced with a situation in which the plaintiffs were forced, as in Casman, to proceed in two different courts to obtain different relief.

And another particularly good example is an example of a regulatory taking suit, in which if a plaintiff wants to challenge the legality of government regulation affecting his property, he needs to do that in the district court under the APA.

And according to the government, he cannot bring a suit for just compensation in the Court of Federal Claims until that district court suit is completed and any appeal is completed and any cert petition is completed, by which time the six-year statute of limitations on the just compensation claim may very well have expired.

Justice Anthony Kennedy: But in your case -- now, let's assume the government prevails.

You go to the CFC, and you prevail on everything.

You get all the findings in your favor and so forth.

There is some relief that you don't get.

I take it, unless I am missing something, that you could then, after the CFC suit is finished, go to district court and say: Now we want this added protection, this added relief.

Ms Spinelli: The reason--

Justice Anthony Kennedy: And the statute wouldn't have run generally, because if you are seeking the injunction, it's only latches bars you, and you are not barred by latches because you couldn't have gone sooner.

Ms Spinelli: --There are a couple of reasons why that doesn't work, Justice Kennedy.

First of all, the Nation needs the accounting now.

I mean, it's as if in Casman, Casman had been told, well, you know, first get reinstated -- I'm sorry -- first get your backpay; then go get reinstated.

He needs his job back now not later -- the Nation needs the accounting now, not later.

In addition, if it were the case that the accounting uncovered additional mismanagement, this statute of limitations, the six-year statute of limitations might well expire while the district court suit for an accounting is pending, those suits tend to last a very long time.

Indeed in the Indian Claims Commission they have been known to last for up to 50 years.

And it would force the Nation to run the risk of losing its right to damages.

We don't believe that's what Congress had in mind.

It doesn't harmonize Section 1500 with the remainder of the statutory scheme.

It's not mandated by the history of the statute, and it simply doesn't make sense.

Unless there are further questions, we ask for the judgment be affirmed.

Chief Justice John G. Roberts: --Thank you, counsel.

Mr. Yang, you have four minutes remaining.

REBUTTAL ARGUMENT OF ANTHONY YANG ON BEHALF OF THE PETITIONER

Anthony Yang: Thank you, Mr. Chief Justice.

The Tribe is unable to identify a textual basis for its same relief defense to the court of federal claims.

If it's definition of claim is as narrow and circumscribed as it defines, it wouldn't capture the cotton claim.

Moreover, putting aside the definition of claim, the statute applies when there is a pending suit or process in another court.

That is not only for the claim, but in respect to the claim.

That substantially broadens the statute.

Two, there are two problems with the same relief test that's as a practical matter.

In order to determine whether the same relief is being sought in the other court, which is the relevant question under their test, you have to ask, what relief would be sought in district court.

But Rule 54(c) makes clear that the relief which is available in district court is not specified by the complaint, it's whatever develops through the case.

So you might not know until the very end whether duplicative relief is being sought.

Secondly, if you are going to limit the relief that is available in the district court based on what the court of claims' view is of the district court's jurisdiction to issue relief, you are inviting the court of federal claims and the federal circuit to be opining on the jurisdiction of the district court under the APA, in very complicated cases which involve questions of Bowen, Utah Wilderness, this is not the way that you would construe normally a jurisdictional statute.

The specter of 50-year old suits proceeding simultaneously in the court of federal claims in district court certainly would have motivated, or spoken to the Congress that enacted Section 1500's predecessor in 1868.

Chief Justice John G. Roberts: Do you agree with your friend that there are differences between the accounting you can get in the district court and the accounting you can get in the court of federal claims as a prelude to monetary damages?

Anthony Yang: I'm not exactly sure the differences that they are pointing to.

There are differences in terms of the procedure and what is a relief.

The other you would have to show that there was some kind of a breach and you get a full kind of accounting to quantify damages that relate -- in aid of judgment.

But at the end of the day, the example, losing $10 and you collect 20 but only debit -- put 10 on the books, that is a claim which is cognizable in the court of federal claims if they have a money mandating statute of regulations.

Justice Antonin Scalia: They don't even know who has hunting leases and--

Anthony Yang: That's what discovery -- that's what discovery is for.

The Ak-Chin case, for instance.

33,000 boxes of discovery we have to go through in terms of a discovery request in the court of federal claims.

This is done -- this is the way cases normally proceed.

They do not proceed on dual tracks where the very premise of liability in the court of federal claims is being litigated in district court, or they are seeking to challenge, you know, an accounting.

Accounting normally would be, you know, here's an account of your -- your assets, but they're seeking to challenge it.

If you went back to equity, for instance.

A trustee does, as an equitable matter, have a duty to account when requested.

But the cost of the accounting is taken out of the trust corpus.

That's not what is going on here.

They are trying to seek to use the APA to force something which we don't think is authorized under statute as a secondary means of discovery for the same claims that are at issue in the court of federal claims.

That type of duplicative litigation and the burden on the federal courts is precisely what Section 1500 was intended to prevent against, and in the absence of a textual basis for the same relief test that the court of federal claims or federal circuit adopted here I think is fatal to the case.

Justice Anthony Kennedy: But the accounting doesn't come out of the trust corpus if there is misfeasance, the trustee has to pay the damages for that?

Anthony Yang: I can't speak to that, Justice Kennedy, that is possible.

I'm just not that versed in equity jurisprudence to be able to give you a definitive answer.

Justice Ruth Bader Ginsburg: What about the Loveladies situation?

Anthony Yang: In Loveladies, if I may answer.

Chief Justice John G. Roberts: Sure.

Anthony Yang: Loveladies involved a district court claim for a declaration that the action wasn't taken.

The district court taking declaration which was ultimately disposed of, but at the same time that Loveladies was seeking does assert a claim for just compensation in the court of federal claims.

Chief Justice John G. Roberts: Thank you, Mr. Yang, Ms. Spinelli.

The case is submitted.

Print this transcript Transcript: 

Justice Kennedy: The -- the Tohono O'odham Nation is an Indian tribe with federal recognition.

The Nation's main reservation is in the Sonoran Desert, which is in Southern Arizona.

And counting this and other reservation lands, the Nation's land holdings are approximately 3 million acres.

The case turned on a relationship between two suits that the Indian Nation filed.

First, the Nation sued federal officers in United States District Court for alleged violations of fiduciary duty with respect to tribal assets that the Government holds in trust.

Second and on the next day, the Nation sued the United States in the Court of Federal Claims for the same violations.

Now, a federal statute, which was enacted in 1868, is designed to limit duplicate suits against the Government.

The statute bars jurisdiction in the Court of Federal Claims over any claim "for or in respect to" which the plaintiff has another suit pending in another court.

And so here, the question to be resolved is what it means for two suits to be "for or in respect to" the same claim.

In a case called Keene versus United States, this Court held that two suits are “for 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."

Keene therefore narrows the permissible constructions of the statute to one of two interpretations, either the statute requires substantial factual and some remedial overlap, or it requires substantial factual overlap without more.

The Court opinion today concludes that factual overlap is sufficient to trigger the statute's jurisdictional bar.

The text of the statute precludes jurisdiction in the Court of Federal Claims not only the plaintiff sues on an identical claim elsewhere, that is a suit for the same claim -- but also if the plaintiff's other action is related but not identical, that is a suit "in respect to" the same claim.

The meaning of the phrase "in respect to" is not immediately apparent but it does suggest the broad prohibition on redundant lawsuits, and for the reasons the opinion explains, the statutory phrase refers to facts, not remedies.

Hence, the statute bars jurisdiction in the Court of Federal Claims, when the plaintiff has a suit based on substantially the same operative facts, it's pending elsewhere and here, the Nation's two suits involve almost identical operative facts, they relate to the same trust assets, and they describe almost identical alleged breaches of fiduciary duty.

The Court of Federal Appeals' action -- the Court of Federal Claims' action must therefore be dismissed.

The contrary judgment of the Court of Appeals for the Federal Circuit is reversed.

Justice Sotomayor has filed an opinion concurring in the judgment, in which Justice Breyer joins.

Justice Ginsburg has filed a dissenting opinion.

Justice Kagan took no part in consideration or decision of the case.