proceed on that basis in the morning may please the court i mean the yang i'm appearing on behalf of the united states when this court case was previously before the court the court held that the try to case and case in the court of federal claims the court case  that there have been a number of cases that truck trust case is proceeding in the district court some of them have been put on ice pending the resolution of motions to dismiss in other cases so the government this case has been one of the cases that no substantial action has been taken by well it is the government's too that the district court lacks jurisdiction yes although the the answer to that is a little complicated lacks jurisdiction to pursue the claims as we that have been pursued in these indian trust cases to encompass a type of what's called a historical account and going back and revisiting transactions in some cases back  hundred years and determining whether there was wrongdoing on the thesis in the government either collecting or investing that type of case we believe it was well in excess of the the a p a jurisdiction of the district claims other than money damages and when these king suits are brought the often either have a catchall seeking all other equitable relief or they also express we have a cough action seeking restatement of a cow and we think that that type of will be felt in the early would be one that is not other than money damages because under the supreme court's decision in department of the army versus fox the relevant inquiry is whether they are seeking specific relief or substitute relief and we believe that that is substitute really with respect to seven zero for the supreme court's leading surgeon of course is bowen versus massachusetts but this court has since opined on it and i believe in there you had a case called christopher village back in two thousand and four which discussed the question of adequate really no other adequate relief intersection seventy four and in these types of cases where the plaintiffs in district court is seeking a declaration essentially of violations of certain duties that could be then carried across town to the court of federal claims we believe that that actually is it's kind of an improper claim this case was the meaning of claim and it went on to say that the relevant question legal question was whether chasm and understanding of claim as requiring an inquiry into the relief saw was the appropriate  must have cases that arise from the same operative facts and seek the same relief the court then went on to proceed to apply that same relief inquiry in the context of the government's argument it rejected the government's argument that the cases same monetary relieve because they are but he claims the court first noted that the district court agreed with the government in the district court case that the takings claim in count one was without legal significance because the court lecturer stiction and dismissed that plan and then the relevant in the relevant portion of lovelady's analysis and this is on page fifteen fifty four if you clue the court concludes the prayer for a declaration of a taking for which the first count was the predicate for tone of this panel the panel in its opinion for this case specifically noted on you know it so i think on page thirteen eleven we applied it to one of the tests for jurisdiction or six was brought and seen applied section fifteen hundred specifically addressed the question whether section fifty hunters inquiry was somehow changed because the district court case had been dismissed and the jurisdictional dismissal doesn't come within the key rule because lovelady's did that in the context of the foundation of ways of working on which is when the reliefs was relevant the relief it was inconsistent with france equipment and the court in what ways never attempted to distinguish france and i thought it would be odd if they sought to overrule it it was inconsistent with the application in killeen and it is also inconsistent and we can suit there is never i've never understood the word pending to imply pending with jurisdiction and in fact congress used the term jurisdiction in section fifteen hundred two referred to the jurisdiction of the court of federal claims it would be very but not before them and it's not before this court but even before tikhon the court of claims and i want decisions had applied section fifteen hundred in the tikhon instance where the district court suit was brought after the in my view there is some question whether tikhon is good law because it is not an decision overruling the prior decisions of this court but even if not there is a secondary question with whether tikhon should remain good law and that being litigated in other court cases right now and i'm sure will come to this court in appropriate case soon but what we have here is not a t current situation we have a situation and just briefly the statute actually used to say  fifteen hundred that you need a kind of a clear express statement by congress to change the rules in the only two supreme court cases prior i believe it was both skinner and eddie and corona court in applying the section fifteen hundred in the tikkun instance where the district court case was brought second so there's all kinds of reasons why tikhon is wrong and we can have that discussion will be an interesting one in a subsequent case but what we're talking about here is an on time situation the motive of the problem on the travel revelation your honest question raises a bunch of points and i'd like to address and i'm only the first is a presumption that if a hardship results the court should somehow find a way around the hardship that has been rejected now thrice three times in the supreme court corona kohl keen and to who now the court specifically addressed it that the policy considerations regarding hardship are for congress to decide and that the role of the courts is to apply the statute as written and that hardship m when they proceed on the administrative record they move rather expeditiously summary judgment a court rules you can get in the mind run of normal a p a cases both a district court suit reaching final judgment and in gratian is that the government should not be put to the burden of defending itself when it suits were arise from the same operative facts and that flows also from the fact that the united states a sovereign waves its sovereign immunity upon the terms and conditions upon which congress prescribes and then that sets for in limits the federal court's jurisdiction to hear planes against the united states until here which i recognize is case of six dash t v two one six two in the docket sheet over each time shawnee dated july twenty fourth two thousand and eight it's an entry for proceedings held before judge james robertson is the answer that there isn't a pending case before the d c circuit about this now i don't i'm not aware of a pending certain circuit case raising seventy two and seventy four in the d c circuit frankly has rejected a lot of the government's arguments in this regard we think  fact that this is a limited way i'm sorry the legislative history i think also points pretty strongly in the direction of congress's intent to make the jurisdiction of the other corner irrelevant because what congress was doing in eight hundred sixty eight was simultaneously in congress after the civil war this is actually discussed in some way in our library and on it which is available online but the relevant point is that senator edwards made clear that of those hundred or so suits that section fifty one hundred ultimately was the ones targeted some had been brought in the secretary of treasury had been served and others which remember this is brought all across the united states have been brought by the secretary had not yet been sort of with process and therefore the  recently sitting on the docket waiting for the secretary to write on his worst through the rule of interest action be served and congress wanted to put a stop to all that and that's why section fifteen hundred troops triggered not only by any suit but any suit or process process is pending not been served then section fifteen hundred still applies and of course if you haven't been served there is no personal jurisdiction that's an agent so the legislative history i think points very strongly in the direction  between subject matter and personal jurisdiction let alone any jurisdiction with respect to the other court so i think it would be a very difficult interpretive path to get to appropriate under any circumstances to defer resolution of the court of federal claims he's pending the outcome of the government's jurisdictional argument in the district well i think that would be fine in the face of actually because ki moon addressed the question of whether or you know how do you approach the question of what when these other cases pending and seemed specifically addressed southern district of new york case that was dismissed for one of jurisdiction because there was no waiver of sovereign immunity can specifically cites to the second circuit opinion affirming that judgment and applies in the case section fifteen hundred and says that we look to the point which to see if the action was was followed and remembering has a choice now i mean it can killing was i think quite clear in its ruling lovelady's could be construed in multiple ways we think the most reasonable way is to construe lovelady's in light of the suggestion that a possibility exists that this proceeding would have to be stayed until such time as the government jurisdictional arguments are in fact addressed by the district court i want to make sure that i understand whether or not you think this case is an appropriate vehicle for that given that their government has not even made a motion for lack of jurisdiction in this case so whether or not you think this court would be in good standing to say it should be stayed in then we would order the district court to address an issue that no honor but i don't think that distinction frankly withstand scrutiny the court were to make that distinction i think it would be one that would be very difficult to justify finally the i would like to discuss if i might court and the court were to say we think the district court's jurisdiction is somehow question will therefore we're not going to dismiss this report otherwise by section fifteen hundred you would lead to the absurd result that you have two cases pending going forward or could be even on the i guess that's true but i don't think that pending can be fairly construed to say state it's not handing it state i mean i guess the government is taking the position that penguin was a mean home no pending pending until it is dismissed now then the question is what's the effect if there's any overlap you know in you know if the district court cases in as this case was filed eight days before the court of federal claims let's say it was dismissed you know it tomorrow what would be a good legal impact of that well he answers that question squarely hold that you look to the court of federal claims filing once the court of federal claims loses jurisdiction it doesn't who would be you don't get jurisdiction out of suits simultaneously and then have the litigant dismiss one and revive the other when the statute pardons the c f c s jurisdiction and this is not dissimilar in another context where for instance you feel lost we're not saying that in some instances section fifty one hundred might be dark results that was specifically framed before the supreme court in tono as well as in keene in the supreme court made clear that any hardship that might result is a question for congress because congress who legislative grace has allowed litigants to sue the united states in this very specialized court which dates back to section fifteen hundred that's doing the court with a sliver of congress's power under the appropriations clause to the indian trust mismanagement litigation has not gone particularly well for the government in those cases on judge roberts and his ruled that there is jurisdiction in district courts when presented with that issue counsel is correct in that that motion has not been brought in connection with this particular case but after five years of litigation and efforts to resolve the issue of shiny case fifteen hundred she just finally got pace so that there are going to see one hundred eleven trust mismatch in cases pending in the both c f c and the district court and i may be wrong with the numbers but i think there are about fifty or fifty five in a district  court and about forty that are in both course there are many many cases that fall in the same situation and the keychain situation where someone filed to me the c f c first men in a district court will be in my view will be brought up by the case law the lovelady's intersection which she does survive jazz your question i believe that when we were here two and a half years ago we talked about we talked about relief almost exclusively i in one or other court entirely and so these cases are filed where they are and it's all relief driven now the relief is out of the out of the picture i believe that on in the single problem approach  that these are chinese complaints do present different operative facts and and should survive even a fifteen hundred analysis well it that approach would certainly not leave the tribe without a remedy if in fact there was no interest action in the district court i suppose paragraph into hall no the supreme court's to ho know should the nation choose to dismiss the latter action or upon that actions completion the nation is free to file suit again in the c if the statute of limitations is no bar what that doesn't say is if the nation should choose to dismiss the district court action or upon that actions completion the c f c case is allowed to continue to proceed it says you could refile the supreme court does not allow for the option of continuing the proceeding in the c of c but it would absolutely recognize and accept a refiling once the district court case is gone doesn't that kind of preclude the lovelady's argument that is being discussed here about whether or not the c f c case that was pending at the same time as the district court case could  you don't believe that that indicates their view that you would have to refile to restart the c f c action as opposed to being able to just continue the one that has been  well i think with the supreme court suggested there was an option and you have the also you think that this sentence should be interpreted as you have the option to refile or alternatively you also have the option to continue the same suit w two while the district court action is pending the very next sentence says should the district court action be completed or dismissed then you could refile the c f c you don't think those two sentences in conjunction preclude  court from continuing the c f c action after the district court action is dismissed as opposed to requiring a new suit to be filed i think it falls short of requiring that the new suit be filed i wish they would here really we have a situation where we're talking about different conduct being analyzed in both cases in the district court we're so we're talking about the obligation of the niceties cover to provide trust county that is the only contact and whether or not if an accounting has been issued whether or not it is a true complete and effective counting or into law it's entirely different than what has been set forth in the  complaint which is transactional driven all the conduct that has to be analyzed in the in the c f c case is was the conduct of the government with in respect to collecting rents investing appropriate level and act of the judiciary those are two entirely different factual scenarios same operative different operative facts there are some of course same the same background facts that is neither affecting the analysis on that basis but didn't you already have your day in court on this i mean the opinion that we issued of course it's been vacated now but here's the quote the plaintiff here does not persuasively dispute that the claims in the district court in the c f c arise from the same set of operative facts so i mean you argued this last time you were here and the majority that you lose on the operative fact question that your argument didn't persuasively raise a dispute there so the supreme court didn't put any gloss on what it means to be operative facts that would in any way as far as i can tell and to ho no suggest that the court was wrong in that decision so if we are not going to conclude or i would like the opportunity to provide some supplemental briefing on some of them to several more jurisdiction which i think it's important but there's no motion there has been no dismissal here in the district court seven zero two seven fo issue only exists after a district court has dismissed for lack of jurisdiction the question then becomes can the action continue even though it might have been improper when filed or not but that those that affects just don't exist in this a different action in the district court where the issue of jurisdiction has not even been raised by either party in that case even though the government says it may well raise that issue we are going to tell the court felt things it must stay it and now how are we really going to control the district court action how long is this case going to be stayed given that no party has actually raised the jurisdictional issue in the district court case so hello hello it seems it seems that would be a peculiar exercise of our appellate with already over the trial management process of the lower court that we supervise i don't see how we could possibly do that as it's a quandary but i would tell you that  that the statue limitations ran at the end of two thousand and six that would have to be revisited of course structure limitations would be the main pivotal issue initial issue in the refining of these cases absolutely over there has been yes i believe that the tribes would survive that challenge but it's and i know the arguments on both sides the issues which trigger cases argument is whether or not that constituted those accountings cost to recount legal accounting thereby triggering the statute the first place an argument that suggests was not the case and there's other arguments to indicate that as long as the government is is a trustee to the his decision for years while everybody sits on the case and does nothing and that does seem to be problematic so the question is if there's some mechanism to bring this to an early all of a court of appeals decisions which might be overruled by overruling the case that comes before the court the court gives the court of appeals i do believe that i respect the opportunity to apply the supreme court's mandate