Kaw Nation of Oklahoma v. United States, No. 06-934L

Decision Date29 February 2012
Docket NumberNo. 06-934L
CourtU.S. Court of Appeals — District of Columbia Circuit


No. 06-934L

United States Court of Federal Claims

Filed: February 29, 2012

Tribal trust case; Motion to dismiss under RCFC 12(b)(1); 28 U.S.C. § 1500; Tecon Engineers - "order-of-filing"; Tecon remains good law - neither expressly nor impliedly overruled by Tohono O'odham; Tecon ruling consistent with plain meaning of section 1500; Legislative history of section 1500 does not contradict its plain meaning; Policy considerations do not warrant abandonment of either the statute or Tecon's interpretation thereof; "Same-day-filing" rule of Passamaquoddy Tribe rejected; Motion denied.


Kennis Monte Bellmard, II, McCormick & Bryan, P.L.L.C., Edmond, Oklahoma, for plaintiff.

Terry M. Petrie, Environment and Natural Resources Division, United States Department of Justice, and Jared Pettinato (argued), Office of the Solicitor, United States Department of the Interior, with whom was Assistant Attorney General Ignacia S. Moreno, for defendant.


This is one of several cases in which defendant has moved to dismiss a plaintiff's complaint under RCFC 12(b)(1), asserting that the subsequent filing of a district court action serves to divest this court of subject matter jurisdiction over an earlier-filed case under 28 U.S.C. § 1500, as interpreted in United States v. Tohono O'odham Nation, 131 S. Ct. 1723 (2011). For the reasons that follow, this court denies defendant's motion, as it finds, relying on binding precedent, that section 1500 is inapplicable to the case sub judice.

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The facts required here are simple and few.1

The Kaw Nation of Oklahoma (the Nation or plaintiff) alleges that the United States (defendant) has breached its duties as trustee of certain assets of the Nation, resulting in financial losses.2 The original complaint that plaintiff filed with this court on December 29, 2006, sought an accounting, declaratory and injunctive relief, as well as monetary compensation. Hours after commencing this action, the Nation filed a separate action in the United States District Court for the Western District of Oklahoma, The Kaw Nation of Oklahoma v. Kempthorne, No. 5:06-cv-01437-W (W.D. Okla. filed December 29, 2006), alleging what appear to be the same operative facts and seeking similar relief (e.g., an accounting, declaratory and injunctive relief). For purposes of this motion, defendant has stipulated that the action in this court was filed before the companion action was commenced in the district court.

On March 23, 2007, plaintiff filed an amended complaint, which seeks money damages, declaratory judgment, and injunction. On January 25, 2008, this court, at the request of both parties, stayed this matter and referred the case to alternative dispute resolution. In a series of orders, the district court did essentially the same. On July 1, 2011, defendant filed a motion to lift the stay and to dismiss plaintiff's complaint for lack of subject matter jurisdiction under 28 U.S.C. §1500. Defendant has not moved to dismiss the companion district court action and the stay in that case remains in effect. See The Kaw Nation v. Kempthorne, No. 5:06-cv-01437-W (W.D. Okla. Jan. 13, 2012).


Deciding a motion to dismiss "starts with the complaint, which must be well-pleaded in that it must state the necessary elements of the plaintiff's claim, independent of any defense that may be interposed." Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir. 1997); see also Bell Atl. Corp., 550 U.S. at 554-55. In particular, the plaintiff must establish that the court has subject matter jurisdiction over its claims. Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). Here, defendant claims that jurisdiction is lacking owing to the application of 28 U.S.C. § 1500.

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"It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction." United States v. Mitchell, 463 U.S. 206, 212 (1983). The Nation asserts federal subject-matter jurisdiction under the Indian Tucker Act (as it is colloquially known), 28 U.S.C. § 1505. That Act provides:

The United States Court of Federal Claims shall have jurisdiction of any claim against the United States accruing after August 13, 1946, in favor of any tribe . . . whenever such claim is one arising under the Constitution, laws or treaties of the United States, or Executive orders of the President, or is one which otherwise would be cognizable in the Court of Federal Claims if the claimant were not an Indian tribe, band, or group.

28 U.S.C. § 1505. The reference in this provision to "which otherwise would be cognizable in the Court of Federal Claims" incorporates the Tucker Act, 28 U.S.C. § 1491. United States v. Navajo Nation, 537 U.S. 488, 503 n.10 (2003). The latter provision, in turn, grants this court "jurisdiction to render judgment upon 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 . . . ." 28 U.S.C. § 1491(a)(1). "If a claim falls within the terms of the [Indian] Tucker Act," the Supreme Court has held, "the United States has presumptively consented to suit." Mitchell, 463 U.S. at 216; see also United States v. Navajo Nation, 537 U.S. at 503; Gregory C. Sisk, "Yesterday and Today: Of Indians, Breach of Trust, Money, and Sovereign Immunity," 39 Tulsa L. Rev. 313, 316-17, 320 (2003).

Section 1500 of Title 28 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.

28 U.S.C. § 1500. "[T]he words of the statute are plain," the Supreme Court long ago stated, "with nothing in the context to make [its] meaning doubtful." Corona Coal Co. v. United States, 263 U.S. 537, 540 (1924); see also Johns-Manville Corp. v. United States, 855 F.2d 1556, 1565 (Fed. Cir. 1988), cert. denied, 489 U.S. 1066 (1989). Those words speak in terms of subject matter jurisdiction and, as later described by the Supreme Court, "bar jurisdiction over the claim of a plaintiff who, upon filing [with the Court of Federal Claims], has an action pending in any other court 'for or in respect to' the same claim." Keene Corp. v. United States, 508 U.S. 200, 209 (1993); see also Nez Perce Tribe v. United States, 83 Fed. Cl. 186, 189 (2008). To determine whether this statute applies here, the court must answer two fundamental questions:

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(i) whether the district court action was "pending" at the time jurisdiction under section 1500 is measured; and (ii) if so, whether the claims presented to the district court were the same as those in the instant case. See Griffin v. United States, 85 Fed. Cl. 179, 184 (2008), aff'd, 621 F.3d 1363 (Fed. Cir. 2010); Firebaugh Canal Water Dist. v. United States, 70 Fed. Cl. 593, 597 (2006).

The answer to first of these questions is controlled by Tecon Engineers, Inc. v. United States, 343 F.2d 943 (Ct. Cl. 1965), cert. denied, 382 U.S. 976 (1966). In that case, the plaintiff、s were displeased with the progress of their case before the Court of Claims and decided to take their dispute elsewhere. They filed suit in a district court and then sought to dismiss their earlier-filed Court of Claims case under section 1500, claiming that the latter court lost jurisdiction once the plaintiffs elected to bring suit in district court. Id. at 946. The Court of Claims disagreed, holding that the later-filed district court suit did not oust it of jurisdiction to hear the prior-filed Tucker Act claim - a holding sometimes referred to as the "order-of-filing rule." The court observed that this construction of section 1500 was consistent with "[t]he long established rule of comity . . . that the court . . . which first obtains and exercises . . . jurisdiction, retains jurisdiction until a final judgment is entered." Id. at 946. It then traced the legislative history of the statute back to its roots in 1868. Id. at 946-49. Regarding this history, it noted that reading the "has pending" language as not being triggered by a later-filed district court suit comports with the original version of section 1500, which talked in terms of a suit that an individual "shall have commenced and has pending." Id. at 949. Based upon this analysis, the Court of Claims concluded that "the only reasonable interpretation of [section 1500] is that it serves to deprive this court of jurisdiction of any claim for or in respect to which plaintiff has pending, in any other court any suit against the United States, only when the suit shall have been commenced in the other court before the claim was filed in this court." Id. The court then dismissed the plaintiff's complaint with prejudice.

The Federal Circuit repudiated Tecon in its en banc decision in UNR Indus. Inc. v. United...

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