United States v. Tohono O’odham Nation

(Slip Opinion) OCTOBER TERM, 2010 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
UNITED STATES v. TOHONO O’ODHAM NATION
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
No. 09–846. Argued November 1, 2010—Decided April 26, 2011
Respondent Tohono O’odham Nation (Nation) filed suit in Federal Dis
trict Court against federal officials who managed tribal assets held in
trust by the Federal Government, alleging violations of fiduciary duty
and requesting equitable relief. The next day, the Nation filed this
action against the United States in the Court of Federal Claims
(CFC), alleging almost identical violations and requesting money
damages. The CFC case was dismissed under 28 U.S. C. §1500,
which bars CFC 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 in another court. The Federal Circuit reversed,
finding that the two suits were not for or in respect to the same claim
because, although they shared operative facts, they did not seek over
lapping relief.
Held:
1. Two suits are for or in respect to the same claim, precluding CFC
jurisdiction, if they are based on substantially the same operative
facts, regardless of the relief sought in each suit. Pp. 2–9.
(a) Since 1868, Congress has restricted the jurisdiction of the
CFC and its predecessors when related actions are pending else
where. Keene Corp. v. United States, 508 U.S. 200, 212, 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,” but it reserved the question
whether the jurisdictional bar operates if suits based on the same op
erative facts do not seek overlapping relief. The rule now codified in
§1500 was first enacted to curb duplicate lawsuits by residents of the
Confederacy who, in seeking to recover for cotton taken by the Fed
eral Government, sued the Government in the Court of Claims and,
2 UNITED STATES v. TOHONO O’ODHAM NATION
Syllabus
at the same time, sued federal officials in other courts, seeking tort
relief for the same actions. Section 1500’s robust response to this
problem bars CFC jurisdiction not only if the plaintiff sues on an
identical claim elsewhere, but also if the other action is related but
not identical. The phrase “in respect to” does not resolve all doubt as
to the bar’s scope, but it suggests a broad prohibition, regardless of
whether “claim” carries a special or limited meaning. Pp. 2–4.
(b) Keene permits two constructions of “for or in respect to” the
same claim, 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 where the other ac
tion is against a “person who, . . . when the cause of action . . . arose,
was, in respect thereto, acting” under color of federal law. But at the
time that a cause of action arose, the person could not act in respect
to the relief requested, for no complaint was yet filed. Although the
phrase at issue involves a “claim” rather than a cause of action, there
is reason to think that both phrases refer to facts alone and not to re
lief. As Keene explained, “ ‘claim’ is used here synonymously with
‘cause of action,’ ” 508 U.S., at 210. And if the phrase that uses
“cause of action,” the more technical term, does not embrace the con
cept of remedy, it is reasonable to conclude that neither phrase does.
Pp. 4–5.
(c) This reading also makes sense in light of the CFC’s unique
remedial powers. Because the CFC is the only judicial forum for
most nontort requests for significant monetary relief against the
United States and because it has no general power to provide equita
ble relief against the Government or its officers, a statute aimed at
precluding duplicate CFC suits would be unlikely to require remedial
overlap. Remedial overlap was even more unusual when §1500’s rule
was first enacted in 1868. The Federal Circuit could identify no pur
pose the statute served in light of that court’s precedent. But courts
should not render statutes nugatory through construction. The stat
ute’s purpose is clear from its origins—the need to save the Govern
ment from redundant litigation—and the conclusion that two suits
are for or in respect to the same claim when they share substantially
the same operative facts allows the statute to achieve that aim. Con
centrating on operative facts is also consistent with the doctrine of
claim preclusion, or res judicata. The Nation errs in arguing that
this Court’s interpretation unjustly forces plaintiffs to choose be
tween partial remedies available in different courts. The Nation
could have recovered any losses in the CFC alone. Even if some
hardship were shown, this Court “enjoy[s] no ‘liberty to add an excep
tion . . . to remove apparent hardship.’ ” Keene, supra, at 217–218.
Cite as: 563 U. S. ____ (2011) 3
Syllabus
Pp. 5–9.
2. The substantial overlap in operative facts between the Nation’s
District Court and CFC suits precludes jurisdiction in the CFC. Both
actions allege that the United States holds the same assets in trust
for the Nation’s benefit, and they describe almost identical breaches
of fiduciary duty. Pp. 9–10.
559 F.3d 1284, reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, THOMAS, and ALITO, JJ., joined. SOTOMAYOR, J., filed
an opinion concurring in the judgment, in which BREYER, J., joined.
GINSBURG, J., filed a dissenting opinion. KAGAN, J., took no part in the
consideration or decision of the case.
Cite as: 563 U. S. ____ (2011) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–846
_________________
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 an
other 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
2 UNITED STATES v. TOHONO O’ODHAM NATION
Opinion of the Court
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 de
scribed the same trust assets and the same fiduciary
duties that were the subject of the District Court com
plaint. And it alleged almost identical violations of fiduci
ary 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 re
spects 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
Cite as: 563 U. S. ____ (2011) 3
Opinion of the Court
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 re
quires substantial factual overlap without more.
Congress first enacted the jurisdictional bar now codi
fied in §1500 to curb duplicate lawsuits brought by resi
dents 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 Aban
doned 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 Govern
ment 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
4 UNITED STATES v. TOHONO O’ODHAM NATION
Opinion of the Court
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 prob
lem first presented by the cotton claimants. It bars juris
diction 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 for
mer 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 op
erative 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.
Cite as: 563 U. S. ____ (2011) 5
Opinion of the Court
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 tech
nical 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 reme
dial 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 rea
son, a statute aimed at precluding suits in the CFC that
6 UNITED STATES v. TOHONO O’ODHAM NATION
Opinion of the Court
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 reen
acted 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 commit
ment 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 exam
ple, 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 proceed
ing so long as the action in the CFC, or at that time the
Cite as: 563 U. S. ____ (2011) 7
Opinion of the Court
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 prece
dent 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 bur
dens 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 sub
stantially the same operative facts allows the statute to
achieve its aim. Keene, supra, at 206. Developing a fac
tual 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 be
cause 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
8 UNITED STATES v. TOHONO O’ODHAM NATION
Opinion of the Court
statute would operate in similar fashion. The now
accepted test in preclusion law for determining whether
two suits involve the same claim or cause of action de
pends 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 de
mands 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 reme
dies 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
Cite as: 563 U. S. ____ (2011) 9
Opinion of the Court
the affected tribe has been given an appropriate account
ing. 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 permit
ted 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 man
ner 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 com
plaints 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 jurisdic
tional 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.
10 UNITED STATES v. TOHONO O’ODHAM NATION
Opinion of the Court
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 pre
cludes 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 limita
tions is no bar. In the meantime, and in light of the sub
stantial 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 judg
ment 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.
Cite as: 563 U. S. ____ (2011) 1
SOTOMAYOR, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–846
_________________
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. Ac
cordingly, 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 plain
tiff’s actions share a common factual basis but seek differ
ent 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.
2 UNITED STATES v. TOHONO O’ODHAM NATION
SOTOMAYOR, J., concurring in judgment
I
Section 1500 bars jurisdiction in the CFC over “any
claim for or in respect to which the plaintiff . . . has pend
ing 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 dif
ferent 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 Na
tion’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 com
plaint 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 appro
priate to order equitable restitution of those assets”). The
Nation’s CFC complaint is fairly read to do the same. The
——————
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.
Cite as: 563 U. S. ____ (2011) 3
SOTOMAYOR, J., concurring in judgment
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
——————
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.
4 UNITED STATES v. TOHONO O’ODHAM NATION
SOTOMAYOR, J., concurring in judgment
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 judg
ment). 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 opin
ion, 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. Massachu
——————
3 Themajority 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 compli
cated 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 out
weigh 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.
Cite as: 563 U. S. ____ (2011) 5
SOTOMAYOR, J., concurring in judgment
setts, 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 Love
ladies 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
——————
4 Congress has since enacted legislation to permit plaintiffs in Cas
man’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”).
6 UNITED STATES v. TOHONO O’ODHAM NATION
SOTOMAYOR, J., concurring in judgment
the same operative facts, but seeking completely different
relief, would implicate §1500,” our decision in Keene ex
pressly 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 unat
tractive 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 limi
tations on her takings claim, see 28 U.S. C. §2501, does
not expire before the district court action is resolved.5
——————
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 Na
tion’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
Cite as: 563 U. S. ____ (2011) 7
SOTOMAYOR, J., concurring in judgment
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 jurisdic
tion 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
——————
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 equita
ble 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 mis
management 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 de
8 UNITED STATES v. TOHONO O’ODHAM NATION
SOTOMAYOR, J., concurring in judgment
understood the term “claim” in §1500 to describe the
particular relief sought in the Court of Claims. Cf. Com
missioner 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, Con
gress enacted the statute to prevent “duplicative lawsuits”
brought by the so-called “cotton claimants” in the after
math 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
——————
mand 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 unliqui
dated 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).
Cite as: 563 U. S. ____ (2011) 9
SOTOMAYOR, J., concurring in judgment
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 endeav
oring 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 ex
clusively in two different courts. In such a case, “the
whole question” could not be tried in either court.
——————
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.
10 UNITED STATES v. TOHONO O’ODHAM NATION
SOTOMAYOR, J., concurring in judgment
2
None of the majority’s reasons for its contrary construc
tion of the statute is convincing. First, the majority rea
sons 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 com
pensation on a takings theory in the CFC); supra, at 1–3
(seeking restitution and disgorgement in the District
——————
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.
Cite as: 563 U. S. ____ (2011) 11
SOTOMAYOR, J., concurring in judgment
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) (seek
ing tort damages in the District Court and contract dam
ages 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 duplica
tive relief, or different forms of relief that are available
entirely in one court, are redundant; actions seeking dif
ferent 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 discov
ery, 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 opera
tive facts is consistent with the principles of claim preclu
sion 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 plain
tiff 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 plain
tiff was unable to rely on a certain theory of the case or to
12 UNITED STATES v. TOHONO O’ODHAM NATION
SOTOMAYOR, J., concurring in judgment
seek a certain remedy or form of relief in the first action
because of the limitations on the subject matter jurisdic
tion 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 juris
diction 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 conclu
sive 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 jurisdic
tion 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 unnec
essarily 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
Cite as: 563 U. S. ____ (2011) 13
SOTOMAYOR, J., concurring in judgment
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.
Cite as: 563 U. S. ____ (2011) 1
GINSBURG, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–846
_________________
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 mat
ters 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,*
——————
* “ ‘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.
2 UNITED STATES v. TOHONO O’ODHAM NATION
GINSBURG, J., dissenting
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 obtain
ing 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 em
ployee, complaining of wrongful termination, sought rein
statement 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 opin
ion concurring in the judgment, I do not agree with her
conclusion that §1500 bars the Nation’s CFC action.
Cite as: 563 U. S. ____ (2011) 3
GINSBURG, J., dissenting
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. Ordinar
ily, 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 com
panion 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.