Keene Corporation v. United States, No. 92-166

• Court: United States Supreme Court
• Writing for the Court: SOUTER, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, BLACKMUN, O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. STEVENS
• Citation: 124 L.Ed.2d 118,508 U.S. 200,113 S.Ct. 2035
• Parties: KEENE CORPORATION, Petitioner, v. UNITED STATES
• Docket Number: No. 92-166
• Decision Date: 24 May 1993

508 U.S. 200 113 S.Ct. 2035 124 L.Ed.2d 118 KEENE CORPORATION, Petitioner,

v.

UNITED STATES.

No. 92-166. Argued March 23, 1993. Decided May 24, 1993. Syllabus ^*

Petitioner Keene Corporation has been sued by thousands of plaintiffs alleging injury from exposure to asbestos fibers and dust released from Keene products. Claiming that it was following Government specifications in including asbestos within products supplied to Government projects, and that it actually bought asbestos fiber from the Government, Keene filed two complaints against the United States in the Court of Federal Claims to recoup some of the money it was paying to litigate and settle the asbestos suits. At the time it filed each of the complaints, Keene had a similar claim pending in another court; the other actions were dismissed before the Court of Federal Claims ordered the dismissals at issue here. The Court of Federal Claims dismissed both cases on the authority of 28 U.S.C. § 1500, which prohibits it from exercising jurisdiction over a claim "for or in respect to which" the plaintiff "has [a suit or process] pending" in any other court, finding that Keene had the same claims pending in other courts when it filed the cases. The Court of Appeals affirmed.

Held: Section 1500 precludes Court of Federal Claims jurisdiction over Keene's actions. Pp. ____.

(a) In applying the jurisdictional bar here by looking to the facts existing when Keene filed each of its complaints, the Court of Federal Claims followed the longstanding principle that a court's jurisdiction depends upon the state of things at the time the action is brought. Mollan v. Torrance, 22 U.S. (9 Wheat.) 537, 539, 6 L.Ed. 154. Keene gives no convincing reason for dispensing with this rule in favor of one that would look to the facts at the time of the Court of Federal Claims' ruling on a motion to dismiss. Although some of the provisions surrounding § 1500 use the phrase "jurisdiction to render judgment," § 1500 speaks of "jurisdiction," without more; this fact only underscores the Court's duty to refrain from reading into the statute a phrase that Congress has left out. Keene's appeal to statutory history is no more availing, since Congress expressed no clear intent that a shift in the provision's language from "file or prosecute" to "jurisdiction" indicated a change in the substantive law. Pp. ____.

(b) For the purposes of a possible dismissal under § 1500, claims must be compared to determine whether the plaintiff has a suit pending in another court "for or in respect to" the claim raised in the Court of Federal Claims. That comparison turns on whether the plaintiff's other suit is based on substantially the same operative facts as the Court of Federal Claims action, at least if there is some overlap in the relief requested, see, Ex parte Skinner & Eddy Corp., 265 U.S. 86, 44 S.Ct. 446, 68 L.Ed. 912; Corona Coal Co. v. United States, 263 U.S. 537, 44 S.Ct. 156, 68 L.Ed. 431, not on whether the actions are based on different legal theories, see British American Tobacco Co. v. United States, 89 Ct.Cl. 438 (per curiam ). Since this interpretation of § 1500's immediate predecessor represented settled law when Congress reenacted the "for or in respect to" language in 1948, the presumption that Congress was aware of the earlier judicial interpretations and, in effect, adopted them is applied here. Thus, the Court rejects Keene's theory that § 1500 does not apply here because the other pending suits rested on legal theories that could not have been pleaded in the Court of Federal Claims. Pp. ____.

(c) There is no need to address the question whether the Court of Appeals' construction of § 1500 is "a new rule of law" that ought to be applied only prospectively under the test set out in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296, because Keene's claims were dismissed under well-settled law. Finally, Keene's policy arguments should be addressed to Congress. Pp. ____.

962 F.2d 1013 (CA Fed.1992), affirmed.

SOUTER, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, BLACKMUN, O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. STEVENS, J., filed a dissenting opinion.

Richard G. Taranto, Washington, DC, for petitioner.

Lawrence G. Wallace, Washington, DC, for respondent.

Justice SOUTER delivered the opinion of the Court.

Keene Corporation has been sued by thousands of plaintiffs alleging injury from exposure to asbestos fibers and dust released from products made by Keene and by a company it acquired. In trying to recoup some of the money it was paying to litigate and settle the cases, Keene filed two complaints against the United States in the Court of Federal Claims.¹ When it filed each complaint, however, Keene had a similar claim pending against the Government in another court. We hold that 28 U.S.C. § 1500 consequently precludes Court of Federal Claims jurisdiction over Keene's actions and affirm the dismissal of its complaints.

I

Through its subsidiary Keene Building Products Corporation, Keene manufactured and sold thermal insulation and acoustical products containing asbestos, as did a company it acquired in 1968, Baldwin-Ehret-Hill, Inc. In the mid-1970's, plaintiffs began suing Keene in tort, alleging injury or death from exposure to asbestos fibers. In a typical case filed against Keene and other defendants in the District Court for the Western District of Pennsylvania, Miller v. Johns-Manville Products Corp., No. 78-1283E, the plaintiff alleged, on behalf of the estate of one Dzon, that the decedent had died of lung cancer caused by asbestos fibers and dust inhaled during employment in 1943 and 1944. In June 1979, Keene filed a third-party complaint against the United States, alleging that any asbestos products to which Dzon was exposed had been supplied to the Government in accordance with specifications set out in Government contracts, and seeking indemnification or contribution from the Government for any damages Keene might have to pay the plaintiff. This third-party action ended, however, in May 1980, when the District Court granted Keene's motion for voluntary dismissal of its complaint.

In the meantime, in December 1979, with the Miller third-party action still pending, Keene filed the first of its two complaints in issue here, seeking damages from the United States in the Court of Federal Claims "for any amounts which have been, or which may be recovered from Keene by the claimants, by settlement or judgment." Keene Corp. v. United States, No. 579-79C (Keene I ), App. to Pet. for Cert. H15. The "claimants" are defined as the plaintiffs in the more than 2,500 lawsuits filed against Keene "by persons alleging personal injury or death from inhalation of asbestos fibers contained in thermal insulation products" manufactured or sold by Keene or its subsidiaries. Id., at H3. Keene alleges conformance with Government specifications in the inclusion of asbestos within the thermal insulation products Keene supplied to Government shipyards and other projects funded or controlled by the Government, and Keene further claims that the Government even sold it some of the asbestos fiber used in its products. Keene's theory of recovery is breach by the United States of implied warranties in contracts between the Government and Keene, a theory only the Court of Federal Claims may entertain, given the amount of damages requested, under the Tucker Act, 28 U.S.C. § 1491(a)(1).

Keene's next move against the Government came the following month when it filed a 23-count complaint in the District Court for the Southern District of New York. Keene Corp. v. United States, No. 80-CIV-0401(GLG). The pleadings tracked, almost verbatim, the lengthy factual allegations of Keene I, but the action was recast in terms of various tort theories, again seeking damages for any amounts paid by Keene to asbestos claimants. Keene also added a takings claim for the Government's allegedly improper recoupment, under the Federal Employees' Compensation Act (FECA), 5 U.S.C. § 8132, of money paid by Keene to claimants covered by the Act. For this, Keene sought restitution of "the amounts of money which have been, or which may be, recouped by [the United States] from claimants from judgments and settlements paid by Keene," App. 37, as well as an injunction against the Government's collection of FECA refunds thereafter. This suit suffered dismissal in September 1981, on the basis of sovereign immunity, which the court held unaffected by any waiver found in the Federal Tort Claims Act, the Suits in Admiralty Act, and the Public Vessels Act. The Court of Appeals affirmed, Keene Corp. v. United States, 700 F.2d 836 (CA2 1983), and we denied certiorari, 464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983).

Only five days before the Southern District's dismissal of that omnibus action, Keene returned to the Court of Federal Claims with the second of the complaints in issue here. Keene Corp. v. United States, No. 585-81C (Keene II ). Although this one, too, repeats many of the factual allegations of Keene I, it adopts one of the theories raised in the Southern District case, seeking payment for "the amounts of money that [the United States] has recouped" under FECA from asbestos claimants paid by Keene. App. to Pet. for Cert. F10-F11. Again, the recoupments are said to be takings of Keene's property without due process and just compensation, contrary to the Fifth Amendment. See 28 U.S.C. § 1491(a)(1) (covering, inter alia, certain claims "founded . . . upon the Constitution").

After the Court of Federal Claims raised the present jurisdictional issue sua sponte in similar actions brought by Johns-Manville, the Government invoked 28 U.S.C. § 1500 in moving to dismiss both Keene I and Keene II, as well as like actions by five other asbestos product manufacturers. With trial imminent in the Johns-Manville cases, the Court of Federal...