ELR Citation: ELR 21413
No(s). s. 89-1638 et al (Fed. Cir. Apr 23, 1992)

The court, on rehearing en banc, rules that 28 U.S.C. §1500 precludes jurisdiction in the Claims Court if the same claim is pending in another court at the time the complaint is filed in the Claims Court, regardless of when an objection is raised or acted on. The court also holds that if the same claim is filed in another court after the complaint is filed in the Claims Court, the Claims Court is by that action divested of jurisdiction, regardless of when the court memorializes the fact by order of dismissal. The court also holds that if the same claim has been finally disposed of by another court before the complaint is filed in the Claims Court, ordinary rules of res judicata and available defenses apply. Thus, the court overrules case law, including Casman v. United States, 135 Ct. Cl. 647 (1956), Tecon Engineers, Inc. v. United States, 343 F.2d 943 (Ct. Cl. 1965), Brown v. United States, 358 F.2d 1002 (Ct. Cl. 1966), Hossein v. United States, 218 Ct. Cl. 727 (1978), Boston Five Cents Savings Bank, FSB v. United States, 864 F.2d 137 (Fed. Cir. 1988), and other decisions holding the same. The appellants, manufacturers of asbestos products or suppliers of asbestos, sued in the Claims Court for indemnification by the government against liabilities incurred in personal injury suits brought against them by shipyard workers exposed to asbestos.

The court first observes that its decision is necessary because §1500 is now rife with judicially created exceptions and rationalizations to the point that it no longer serves its intended legislative purposes to force parties to elect which forum to bring their actions in, and to prevent simultaneous dual litigation against the government. Although the exceptions that have grown up around §1500 may be the result of the perceived harshness of the statute, the court notes that it sees no harm in requiring a party to carefully assess her claims before filing and choosing the forum best suited to the merits of the claims and the applicable statutes of limitations. Moreover, the court observes that stare decisis is not a reason to avoid revisiting the jurisprudence encumbering the statute.

The court next finds that although the original statute has been reincorporated into amendments regarding the jurisdiction of the Claims Court, the current version, §1500, remains virtually unchanged concerning the strict jurisdictional bar. Moreover, the court notes that although it may seem unfair to now deprive the claimants of the only forum to test their demand, that does not justify rewriting the statute to expand jurisdiction. Thus, the court overrules Brown, wherein the Claims Court sought to avoid the harshness of the jurisdictional bar by reinstating the plaintiffs' case in the Claims Court after the district court dismissed. Congress did not want to dictate the order in which a claimant files suits in the Claims Court and another court on the same claim, but wanted to discourage him from doing so altogether.

The court, noting that it is undertaking a comprehensive effort to set out the proper interpretation of a jurisdictional statute, a matter that the court may resolve without the parties seeking to have it resolved, next overrules Tecon, which allowed jurisdiction in the Claims Court when the same claim was later filed in another court. The court next holds that the word "claim" in §1500, which prohibits plaintiffs from having pending any Claims Court claims "for or in respect to which" they had claims pending in district courts, does not refer to a legal theory, but to a set of underlying facts. Section 1500 applies to all claims on whatever theories that arise from the same operative facts. A contrary conclusion would permit plaintiffs to evade the strictures of §1500 by drafting complaints in separate suits based on minor differences in facts, which, in reality, relate to the same dispute. Thus, the court affirms the holding in Johns-Manville Corp. v. United States, 855 F.2d 1556 (Fed. Cir. 1988), which held that the plaintiffs' Tucker Act claim before the Claims Court involved the same operative facts in respect to the tort claim in the district court, and thus divested jurisdiction in the Claims Court.

The court next holds that a petition for writ of certiorari to the U.S. Supreme Court is a pending suit or process that divests the Claims Court of jurisdiction. Finally, the court declines to apply its ruling only prospectively, because the Claims Court is absolutely without authority to decide any case that does not fit within its statutory grant of jurisdiction, even if the parties would otherwise incur hardship. A court lacks discretion to consider the merits of a case over which it is without jurisdiction, and thus, by definition, a jurisdictional ruling may never be made prospectively only.

Another judge, adding additional views, would hold that because the decision in Ball v. United States, 137 F. Supp. 740 (Ct. Cl. 1956), which held that the pendency of a suit in district court could not toll the running of the statute of limitations on the cause of action in the Claims Court, is so interdependent on Casman, which has been overruled, Ball is seriously eroded.

A dissenting judge would hold that the court has improperly imported into the statute a rigid application that is not supported either by the legislative history or Congress' original purpose.

Counsel for Plaintiffs-Appellants
Joe G. Hollingsworth, William J. Spriggs, Paul G. Gaston
Spriggs & Hollingsworth
1350 I St. NW, Ste. 900, Washington DC 20005
(202) 898-5800

Counsel for Plaintiff-Appellant
John H. Kazanjian, John E. Kidd
Anderson, Kill, Olick & Oshinsky
666 Third Ave., New York NY 10017
(212) 850-0700

Counsel for Defendant-Appellee
Robert M. Loeb, Barbara C. Biddle
Civil Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Amicus Curiae
Sidney S. Rosdeitcher, David G. Bookbinder, Theodore F. Haas
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas, New York NY 10019
(212) 373-3000

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