Loveladies Harbor, Inc. v. U.S.

• Decision Date: 24 May 1994
• Docket Number: No. 91-5050,91-5050
• Citation: 27 F.3d 1545
• Parties: , 24 Envtl. L. Rep. 20,938 LOVELADIES HARBOR, INC. and Loveladies Harbor, Unit D, Inc., Plaintiffs-Appellees, v. The UNITED STATES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1545

27 F.3d 1545

62 USLW 2743, 24 Envtl. L. Rep. 20,938

LOVELADIES HARBOR, INC. and Loveladies Harbor, Unit D, Inc. Plaintiffs-Appellees, v. The UNITED STATES, Defendant-Appellant.

No. 91-5050.

United States Court of Appeals Federal Circuit.

May 24, 1994.

Review Denied, Suggestion for Rehearing In Banc

Declined Sept. 29, 1994.

Kevin J. Coakley, Connell, Foley & Geiser, Roseland, NJ, argued for plaintiffs-appellees. With him on the brief were Stephen D. Kinnard and Ernest W. Schoellkopff.

Robert L. Klarquist, Attorney, Lands & Natural Resources Div., Dept. of Justice, Washington, DC, argued for defendant-appellant. With him on the brief were Lois J. Schiffer, Acting Asst. Atty. Gen., Environmental & Natural Resources Div., John A. Bryson, Fred Disheroon and Gary S. Guzy.

James S. Burling, Ronald A. Zumbrun and Robin L. Rivett, Pacific Legal Foundation, Sacramento, CA, were on the brief for amicus curiae, Pacific Legal Foundation.

Roland L. Skala, Weeks & Skala, Yakima, WA, was on the brief for amicus curiae, Cascade Development Co., Inc.

Paula K. Smith, Asst. Utah Atty. Gen., and Jan Graham, Utah Atty. Gen., Salt Lake City, UT, and Cheri Jacobus, Chief Asst. Atty. Gen., Anchorage, AK, and Charles E. Cole, Alaska Atty. Gen., Juneau, AK, were on the brief for amicus curiae, States of Utah and Alaska.

Virginia S. Albrecht, Albert J. Beveridge, III and David S. Isaacs, Beveridge & Diamond, P.C., Washington, DC, and Mary V. DiCrescenzo, Nat. Ass'n of Home Buildings, Washington, DC, were on the brief for amicus curiae, Nat. Ass'n of Home Builders.

Richard Dauphinais, Native American Rights Fund, Washington, DC, and Yvonne T. Knight and Patrice Kunesh, Native American Rights Fund, Boulder, CO, were on the brief for amicus curiae, Cheyenne-Arapaho Tribes of Oklahoma.

Charles F. Lettow, Michael R. Lazerwitz and Michael A. Mazzuchi, Cleary, Gottlieb, Steen & Hamilton, Washington, DC, were on the brief for amicus curiae, Dico, Inc.

Thomas H. Shipps, Maynes, Bradford, Shipps & Sheftel, Durango, CO, and Scott B. McElroy and Alice E. Walker, Greene, Meyer & McElroy, P.C., Boulder, CO, were on the brief for amicus curiae, Southern Ute Indian Tribe.

George W. Miller, Walter A. Smith, Jr., Jonathan L. Abram and Jonathan S. Franklin, Hogan & Hartson, Washington, DC, were on the brief for amicus curiae, Whitney Benefits, Inc. and Peter Kiewit Son's Co.

Daniel J. Popeo and Paul D. Kamenar, Washington Legal Foundation, and W. Lawrence Wallace and Carolyn M. White, Vinson & Elkins, Washington, DC, were on the brief for amicus curiae, Washington Legal Foundation, The Allied Educational Foundation, Senator Steve Symms, Senator Conrad Burns and Senator Jesse Helms.

Thomas D. Searchinger, Environmental Defense Fund, New York City, was on the brief for amicus curiae, Environmental Defense Fund.

Before ARCHER, Chief Judge, ^* and RICH, NIES, NEWMAN, MAYER, MICHEL, PLAGER, LOURIE, CLEVENGER, RADER, and SCHALL, Circuit Judges.

PLAGER, Circuit Judge.

This case first came before the court as a regulatory takings case. The United States Government (Government) appealed from the

                merits of a decision of the Court of Federal Claims, which had granted monetary relief to a property owner, Loveladies Harbor, Inc. and Loveladies Harbor, Unit D, Inc.  (collectively, Loveladies), as a consequence of the Government's denial of a wetlands development permit.  In light of an intervening decision by this court on an unrelated matter, the Government moved to dismiss for lack of jurisdiction.  The court has taken the jurisdictional dispute in banc.   We hold that this court has jurisdiction over the matter.  The panel decision on the merits of the dispute will be issued in a separate opinion
                

BACKGROUND

The facts of the case, insofar as they are relevant to the jurisdictional question, may be summarized as follows. ¹ Plaintiffs Loveladies own a wetlands tract located on Long Beach Island, Ocean County, New Jersey. Loveladies sought a fill permit, pursuant to Sec. 404 of the Clean Water Act, ² from the Army Corps of Engineers (Corps). The Corps denied the permit. Loveladies challenged the validity of that permit denial in a proceeding in federal district court under Sec. 554 of the Administrative Procedure Act (APA). ³ The challenge proved unsuccessful. ⁴

Loveladies appealed the decision of the trial court to the Court of Appeals for the Third Circuit, which affirmed the judgment for the Government. ⁵ Loveladies then proceeded with a suit in the Court of Federal Claims which they had filed the year before. ⁶ (By consent of the parties, prosecution of the suit had been stayed pending the outcome of the district court litigation.) In their Court of Federal Claims suit, Loveladies maintained that the permit denial constituted a taking of private property, and that the Fifth Amendment of the Constitution required the Government to compensate Loveladies. The Court of Federal Claims agreed, and awarded Loveladies compensation of $2,658,000 plus interest. ⁷ The Government appealed the award to this court.

After a panel of the court heard oral argument in this case, but before an opinion was issued, the full court sitting in banc decided UNR Industries, Inc. v. United States, 962 F.2d 1013 (Fed.Cir.1992) (UNR ). That case was taken on certiorari by the Supreme Court and affirmed. Keene Corp. v. United States, --- U.S. ----, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993) (UNR/ Keene ). In UNR this court undertook a comprehensive review of the jurisprudence surrounding 28 U.S.C. Sec. 1500, which in pertinent part states:

The United States [Court of Federal Claims] shall not have jurisdiction of any claims 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....

Based on our decision in UNR, but prior to the decision of the Supreme Court in UNR/Keene, the Government moved in this court to vacate the judgment in favor of Loveladies. The Government in its motion argued that UNR compelled the conclusion that, since the suit in the Court of Federal Claims had been filed while the appeal in the earlier district court suit was still pending, Sec. 1500 In opposition to the Government's motion, Loveladies argued that UNR did not compel that conclusion for several reasons, including that the same claims were not involved and that Casman v. United States, 135 Ct.Cl. 647 (1956) and like cases, distinguishing claims on the basis of the relief sought, supported jurisdiction.

bars the jurisdiction of the Court of Federal Claims over the cause.

Because of the importance of the issue, and the fact that other pending cases raise the same issue, ⁸ this court, sitting in banc, by order dated September 28, 1993, called for briefs and subsequently heard oral argument regarding the jurisdiction of the Court of Federal Claims, and by derivation the jurisdiction of this court, over this matter. After considering the briefs and arguments of the parties, and those of the several amici, ⁹ we conclude that the Court of Federal Claims had jurisdiction over the cause, and the appeal on the merits of that court's decision is properly before this court. The Government's motion to dismiss is denied.

DISCUSSION

I.

As a preliminary matter, we observe that our decision in UNR does not constrain our decision today. Appellants in UNR, asbestos manufacturers, filed suit against the United States in the district court seeking money damages based on tort claims. They then filed in the Court of Federal Claims for money damages based on certain contracts they had with the Government. Both suits arose out of the same underlying events. Appellants challenged the longstanding rule that suits involving the same operative facts and seeking the same relief were the same "claims" for purposes of Sec. 1500, even if based on different legal theories. See British American Tobacco Co. v. United States, 89 Ct.Cl. 438 (1939) (British American ).

Appellants in UNR raised another issue. Appellants' contractual claims had been filed, but not acted upon, when their district court claims were dismissed. Thus, when the Government moved to dismiss their claims in the Court of Federal Claims pursuant to Sec. 1500, appellants had no pending claims. Appellants hence argued that jurisdiction in the Court of Federal Claims was barred only if a claim was pending when the Government moved to dismiss under Sec. 1500. In UNR, this court rejected both of appellants' contentions.

The Supreme Court on certiorari agreed. In UNR/Keene, the Supreme Court held that Sec. 1500 precluded the Court of Federal Claims from exercising jurisdiction over the manufacturers' contract-based claims against the United States, because the manufacturers' tort claims were still pending in district court when suit in the Court of Federal Claims was filed. The question of whether another claim is "pending" for purposes of Sec. 1500 is determined at the time at which the suit in the Court of Federal Claims is filed, not the time at which the Government moves to dismiss the action.

When this court decided UNR, we chose "to revisit the jurisprudence encumbering this statute." Id., 962 F.2d at 1021. In so doing, we declared "overruled" a number of cases, including Casman. UNR, 962 F.2d at 1022 n. 3. The Supreme Court took exception to our efforts. "Because the issue is not presented on the facts of this case, we need not decide whether two actions based on the same operative facts, but seeking completely As the Supreme Court has reminded us, anything we said in UNR regarding the legal import of cases whose factual bases were not properly before us was mere dictum, and therefore we will not accord it stare decisis effect. The Government can draw no comfort in this case from the holding of UNR, as affirmed in UNR/Keene. The issue the Government raises, and which is now properly before us on the facts of this case, is whether Sec. 1500 denies jurisdiction to...