United States Court of Appeals 

for the Federal Circuit ______________________ 

MINISTERIO ROCA SOLIDA,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

______________________ 

2014-5058

______________________ 

Appeal from the United States Court of Federal 

Claims in No. 1:12-cv-00541-EDK, Judge Elaine Kaplan.

______________________ 

Decided: February 26, 2015

______________________ 

JOSEPH F. BECKER, Center for Justice and Constitutional Litigation, Reno, Nevada, argued for plaintiffappellant. 

ANNA KATSELAS, Environment and Natural Resources 

Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented 

by ELIZABETH ANN PETERSON, SAM HIRSCH, GREGORY D.

PAGE, ANDREW C. MERGEN, KATHERINE J. BARTON. 

______________________ 

Before WALLACH, TARANTO, and CHEN, Circuit Judges.
 

2 MINISTERIO ROCA SOLIDA V. UNITED STATES

Opinion for the court filed by Circuit Judge WALLACH. 

Concurring opinion filed by Circuit Judge TARANTO. 

WALLACH, Circuit Judge.

This case presents the question of whether a suit 

brought against the United States in the United States 

Court of Federal Claims (“Claims Court”) must be dismissed for lack of subject matter jurisdiction because an 

earlier-filed related claim against the United States 

remains pending in a United States district court. Because the Claims Court correctly held jurisdiction is 

improper under these circumstances, this court affirms. 

BACKGROUND

In 2006, plaintiff-appellant Ministerio Roca Solida 

(“Roca Solida”), a non-profit religious organization, purchased a forty-acre parcel of land in Nevada. At the time 

of purchase, a desert stream flowed across the property, 

the water rights to which Roca Solida also purchased. 

The water supplied a recreational pond and was used for 

baptisms, among other uses. Roca Solida’s property is 

situated within a national wildlife refuge that is managed 

by the U.S. Fish and Wildlife Service (“FWS”). According 

to defendant-appellee United States, an FWS water 

restoration project completed in 2010 “restored [the] 

stream to its natural channel,” the effect of which was to 

divert the stream away from Roca Solida’s property, 

depriving it of water it would have otherwise enjoyed. 

Appellee’s Br. 2–3. 

In response, Roca Solida instituted two lawsuits 

against the United States. First, it brought suit in federal 

district court in Nevada, seeking declaratory, injunctive, 

and compensatory relief on the basis of alleged violations 

under the First and Fifth Amendments to the United 

States Constitution, and also “at least $86,639.00 in

damage[s]” under the Federal Tort Claims Act, 28 U.S.C. 
MINISTERIO ROCA SOLIDA V. UNITED STATES 3

§§ 1346(b), 2671–80. Appellant’s App. 41. Second, it 

brought suit two days later in the Claims Court, seeking 

declaratory relief and compensatory damages on the basis 

that the diversion project constituted an unlawful taking 

in violation of the Fifth Amendment and asserting FWS 

negligently executed the water diversion project, causing 

$86,639 in damages to “land, structures, and animals.” 

Id. at 14–15. 

The United States moved to dismiss the Claims Court 

action for lack of subject matter jurisdiction in light of the 

pending district court action under 28 U.S.C. § 1500 

(2006). The Claims Court dismissed the case without 

prejudice. Roca Solida timely appealed. This court has 

jurisdiction to review the decision of the Claims Court 

under 28 U.S.C. § 1295(a)(3) (2012).

DISCUSSION

I. Standard of Review

An order dismissing a case for lack of subject matter 

jurisdiction under 28 U.S.C. § 1500 is reviewed de novo. 

Trusted Integration, Inc. v. United States, 659 F.3d 1159, 

1163 (Fed. Cir. 2011). The plaintiff bears the burden of 

establishing jurisdiction. Taylor v. United States, 303 

F.3d 1357, 1359 (Fed. Cir. 2002). 

II. Jurisdiction Is Barred by Statute 

The Claims Court “has no jurisdiction over a claim if 

the plaintiff has another suit for or in respect to that 

claim pending against the United States or its agents.” 

United States v. Tohono O’Odham Nation, 131 S. Ct. 

1723, 1727 (2011). This rule derives from 28 U.S.C. 

§ 1500, which states: 

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 
 

4 MINISTERIO ROCA SOLIDA V. UNITED STATES

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 (emphasis added). Two inquiries are 

required when determining whether § 1500 applies: “(1) 

whether there is an earlier-filed suit or process pending in 

another court, and, if so, (2) whether the claims asserted 

in the earlier-filed case are for or in respect to the same 

claim(s) asserted in the later-filed Court of Federal 

Claims action.” Brandt v. United States, 710 F.3d 1369, 

1374 (Fed. Cir. 2013) (internal quotation marks and 

citation omitted). Roca Solida does not dispute the suit 

filed in Nevada district court constitutes an earlier-filed 

suit for purposes of the first inquiry. 

With respect to the second inquiry, the Supreme 

Court has explained that “[t]wo suits are for or in respect 

to the same claim, precluding jurisdiction in the [Claims 

Court], if they are based on substantially the same operative facts, regardless of the relief sought in each suit.” 

Tohono, 131 S. Ct. at 1731 (emphases added). That is, the 

two co-pending suits need not be identical. See id. at 1728

(quoting Keene Corp. v. United States, 508 U.S. 200, 212 

(1993)) (“The phrase ‘in respect to’ . . . ‘make[s] it clear 

that Congress did not intend the statute to be rendered 

useless by a narrow concept of identity.’”). In addition, it 

is irrelevant whether the relief sought in the two copending suits is the same or different (e.g., injunction 

versus money damages). Id. at 1731. All that matters is 

that the two suits be based on “substantially the same 

operative facts.” Id. 

In this case, the Claims Court found the two pending 

actions “[met] the standard set forth in Tohono,” i.e., they 

were “‘based on substantially the same operative facts.’” 
MINISTERIO ROCA SOLIDA V. UNITED STATES 5

Ministerio Roca Solida v. United States, No. 12-541L, at 3 

(Fed. Cl. Jan. 15, 2014) (quoting Tohono, 131 S. Ct. at 

1731). The Claims Court noted “the claims in both actions arise from [Roca Solida’s] ownership of the same 

parcel of land and water and its alleged injuries as a 

result of the same FWS water diversion project,” and also 

noted the two complaints used “virtually identical language.” Id. 

In Plaintiff’s Opposition to United States’ Motion to 

Dismiss, Roca Solida argued takings claims “do not (necessarily) subsume other claims arising from the same 

nucleus of operative fact.” Appellant’s App. 53 (emphasis 

added); see id. at 59. On appeal, Roca Solida repeats this 

language, see Appellant’s Br. 14, also noting its 

“[c]omplaints are similar because they describe the same 

errant project,” Reply Br. 10. Although Roca Solida 

criticizes the “same operative facts” standard articulated 

in Tohono, it does not argue that its co-pending suits are 

not based on substantially the same operative facts. See 

Reply Br. 8 (“The Tohono [C]ourt’s notion that claims are 

identical if they arise from the same transaction or have a 

substantial overlap in the operative facts is deeply 

flawed . . . .”). 

This court concludes Roca Solida’s two co-pending 

suits are based on substantially the same operative facts. 

Jurisdiction in the Claims Court is therefore barred under 

§ 1500.

III. Appellant’s Arguments Are Precluded by Binding 

Precedent

Roca Solida presents three principal arguments challenging, in effect, the Supreme Court’s interpretation of 

§ 1500. These arguments relate to Congressional intent, 

pre-Tohono judicial interpretation of § 1500, and the 

extent to which the rule of Tohono fulfills the goals of 

judicial economy. Roca Solida additionally attempts to 
 

6 MINISTERIO ROCA SOLIDA V. UNITED STATES

distinguish Tohono on the basis that Tohono did not 

involve a statute of limitations and the present matter 

does. Each of these arguments is addressed in turn. 

A. Tohono Represents Binding Precedent, 

Notwithstanding Appellant’s Assertions of 

Congressional Intent

First, Roca Solida argues “Congress did not intend for 

§ 1500 to put plaintiffs to a choice between two nonduplicative remedies.” Appellant’s Br. 17. It notes § 1500 was 

enacted during the aftermath of the Civil War to prevent 

duplicative lawsuits that could have allowed plaintiffs to 

“obtain[] twice what they deserved.” Id. at 18. Unlike 

such duplicative remedies, Roca Solida asserts, its desired 

remedies are nonduplicative because it seeks only to be 

made whole.1 Id. at 21. Roca Solida maintains it cannot 

1 In its brief, Roca Solida asserts that “denying access to judicial remedies that allow persons to be made 

whole according to the Constitution will only further 

encourage aggrieved parties to vindicate their own 

rights. . . . Southern Nevadans have seen recently exactly 

what such self-vindication of rights may look like and 

judicial actions fostering such scenes should not be encouraged.” Appellant’s Br. 12. During oral argument, 

counsel conceded this statement was written in the light 

and context of a possibility that disappointed litigants 

“may take up arms.” Oral Arg. at 1:55–2:12, Roca Solida 

v. United States, available at http://oralarguments.cafc.

uscourts.gov/default.aspx?fl=2014-5058.mp3. Appellant’s 

brief, dated May 12, 2014, was filed in the wake of an 

armed protest in southern Nevada by supporters of a 

rancher named Cliven Bundy against the Bureau of Land 

Management. See, e.g., Jeff German, Sheriff: FBI Is 

Investigating Threats Made to Law Enforcement During 

Bundy Showdown, Las Vegas Review-Journal (May 8, 

 
MINISTERIO ROCA SOLIDA V. UNITED STATES 7

“be made whole even once,” id. at 21, “[b]ecause the Court 

of Claims may not entertain claims for declaratory and 

injunctive relief[2] . . . just as the [d]istrict [c]ourt may not 

compensate a temporary or permanent taking where 

damages exceed $10,000,” id. at 17. 

Roca Solida explains it is seeking injunctive relief 

(which the Claims Court cannot provide) in the district 

court, and only if injunctive relief is denied will it seek 

monetary compensation for the permanent loss of water 

(which, if the amount exceeds $10,000, the district court 

cannot provide) in the Claims Court. Appellant’s Br. 21. 

It notes it has requested a stay in the Claims Court 

pending the outcome in the district court. Id. at 5; see 

also Appellant’s App. 16.

In requesting relief that parallels the present case in 

important ways, the plaintiff in Tohono brought suit in 

2014), http://www.reviewjournal.com/news/bundy-blm/

sheriff-fbi-investigating-threats-made-law-enforcementduring-bundy-showdown. Such inflammatory language is 

inappropriate. 

2 See Tohono, 131 S. Ct. at 1729 (“[T]he [Claims 

Court] has no general power to provide equitable relief 

against the Government or its officers.”); id. at 1734 

(Sotomayor, J., concurring) (“[A]n action seeking injunctive relief to set aside agency action must proceed in 

district court, but a claim that the same agency action 

constitutes a taking of property requiring just compensation must proceed in the [Claims Court].”); Brady v. 

United States, 541 Fed. App’x 991, 992 (Fed. Cir. 2013) 

(Plaintiff’s “requests for declaratory and injunctive relief 

are also outside the jurisdiction of the Claims Court.”); 

Hoopa Valley Tribe v. United States, 596 F.2d 435, 443 

(Ct. Cl. 1979) (“[T]he Court of Claims has no jurisdiction 

of suits for injunctions or declaratory judgments.”).

 
 

8 MINISTERIO ROCA SOLIDA V. UNITED STATES

United States district court, alleging federal officials 

breached their fiduciary duty in managing tribal assets 

and requesting an accounting, i.e., equitable relief. 

Tohono, 131 S. Ct. at 1727. In a simultaneous action 

before the Claims Court, the plaintiff sought money 

damages on the basis of allegations of “almost identical 

violations of fiduciary duty.” Id. 

Holding the Claims Court lacked jurisdiction pursuant to § 1500, the Tohono Court found irrelevant the fact 

that there was no “remedial overlap.” Id. at 1728. Plaintiffs may not avoid the jurisdictional bar of § 1500, the 

Court stated, “by carving up a single transaction into 

overlapping pieces seeking different relief,” such as equitable relief in the district court and damages in the 

Claims Court. Id. at 1730. 

The Supreme Court in Tohono gave due consideration 

to Congressional intent, explaining the context and original purpose of the predecessor to § 1500. Tohono, 131 S.

Ct. at 1728. It is true, as Roca Solida points out, that 

concurring and dissenting opinions in Tohono expressed 

views regarding Congressional intent that may have been 

contrary to those expressed by the majority. Justice 

Sotomayor, in a concurrence joined by Justice Breyer, 

read “[t]he legislative history [of § 1500 to] confirm[]

Congress’ intent to preclude requests for duplicative

relief.” Tohono, 131 S. Ct. at 1736 (Sotomayor, J., concurring) (emphasis added). Justice Ginsburg stated in her 

dissent that “[w]hen Congress bars a plaintiff from obtaining complete relief in one suit . . . and does not call for 

an election of remedies, Congress is most sensibly read to 

have comprehended that the operative facts give rise to 

two discrete claims.” Id. at 1739 (Ginsburg, J., dissenting). These concurring and dissenting opinions, of course, 

do not negate the binding nature of the majority opinion. 
MINISTERIO ROCA SOLIDA V. UNITED STATES 9

B. The Pre-Tohono Judicial Interpretation of 

§ 1500 on Which Roca Solida Relies Is No 

Longer Good Law

Roca Solida relies on this court’s decision in Loveladies Harbor, Inc. v. United States, 27 F.3d 1545 (Fed. 

Cir. 1994), for the proposition that “it would not be sound 

policy to force plaintiffs to forego monetary claims in order 

to challenge the validity of Government action, or[, conversely,] to preclude challenges to the validity of Government action in order to protect a constitutional claim for 

compensation.” Appellant’s Br. 24 (quoting Loveladies, 27 

F.3d at 1556). 

As the Claims Court correctly noted, however, Loveladies’ holding that § 1500 does not preclude Claims 

Court jurisdiction so long as the “pending action in another court seeks distinctly different relief,” id. at 1549, was 

effectively overruled by Tohono. It provides no solace to 

Roca Solida. 

C. Policy Considerations Do Not Allow This 

Court to Ignore Binding Precedent 

In a related argument, Roca Solida asserts “‘actions 

seeking different forms of relief that Congress has made 

available exclusively in different courts are not [redundant]’” and therefore not inefficient. Appellant’s Br. 25 

(quoting Tohono, 131 S. Ct. at 1737 (Sotomayor, J., concurring)). Similarly, it notes “‘federal courts have ample 

tools at their disposal, such as stays, to prevent . . . burdens [such as parallel discovery]” that might arise from 

co-pending suits. Id. (quoting Tohono, 131 S. Ct. at 1737 

(Sotomayor, J., concurring)). However, just as the concurring and dissenting opinions in Tohono do not diminish 

the binding nature of the Tohono majority opinion, neither do their policy considerations. 
 

10 MINISTERIO ROCA SOLIDA V. UNITED STATES

In effect, Roca Solida argues the Supreme Court’s majority opinion was erroneous and unsound policy. However, “this is not the appropriate forum” in which to advance 

such an argument, “[h]owever well or ill-founded [it] may 

be.” Korczak v. United States, 124 F.3d 227, 1997 WL 

488751, at *2 (Fed. Cir. 1997) (unpublished table decision). “We are duty bound to follow the law given us by 

the Supreme Court unless and until it is changed.” Id. 

D. Tohono Has Not Been Effectively Distinguished

Roca Solida also attempts to distinguish Tohono on 

the basis that Tohono did not involve a statute of limitations because Congress through special legislation has 

provided “the statute of limitations on Indian trust mismanagement claims shall not run until the affected tribe 

has been given an appropriate accounting.” Tohono, 131

S. Ct. at 1731. By contrast, Roca Solida asserts, its takings claims based on the diversion of water beginning in 

August 2010 would begin to be barred in August 2016 by 

the six-year statute of limitations generally applicable to 

all claims before the Claims Court. See 28 U.S.C. § 2501. 

However, the Supreme Court in Tohono explicitly 

considered and rejected the argument that § 1500 should 

be interpreted more flexibly where the limited and nonoverlapping jurisdictions of the district court and Claims 

Court work a “hardship” on the plaintiff. It stated: “Even 

were some hardship to be shown [such as incomplete 

relief resulting from the running of a statute of limitations], considerations of policy divorced from the statute’s 

text and purpose could not override its meaning.” 

Tohono, 131 S. Ct. at 1731; id. at 1730 (“There is no merit 

to the Nation’s assertion that the interpretation adopted 

here cannot prevail because it is unjust, forcing plaintiffs 

to choose between partial remedies available in different 

courts.”) (emphasis added). Although Roca Solida argues 

this statement is dictum (because no statute of limitations 
MINISTERIO ROCA SOLIDA V. UNITED STATES 11

was at issue in Tohono), this court has previously recognized “the Supreme Court has made clear that the statutory language of § 1500 leaves no room to account for such 

hardship.” Cent. Pines Land Co. v. United States, 697 

F.3d 1360, 1367 n.6 (Fed. Cir. 2012). 

As Judge Taranto’s concurring opinion indicates, the 

Supreme Court in Tohono did not explicitly address the 

situation where a plaintiff is prevented from asserting a 

right under the United States Constitution by the interplay between § 1500 and a statute of limitations. Although Roca Solida asserts it is being forced to “choose 

between: (1) tort damages and injunctive relief to stop 

ongoing and future constitutional violations [including 

First Amendment violations] . . . or (2) compensation for a 

‘taking’ [under the Fifth Amendment],” Appellant’s Br. 10, 

it concedes the statute of limitations will not run until 

August 2016, id. at 7 n.9. While the considerations and 

analysis presented in the concurring opinion may have 

merit, the constitutional question is not sufficiently ripe 

for review. 

CONCLUSION

The Claims Court does not have jurisdiction over Roca 

Solida’s claim because a similar claim remains pending in 

a United States district court, because the district court 

claim is based on “substantially the same operative facts” 

as those in the Claims Court proceeding, and because, 

under Tohono, it is irrelevant that the relief sought in 

each forum is nonoverlapping or would work a hardship 

in the form of incomplete relief. For these reasons, the 

decision of the Claims Court is 

AFFIRMED
United States Court of Appeals 

for the Federal Circuit ______________________ 

MINISTERIO ROCA SOLIDA,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

______________________ 

2014-5058

______________________ 

Appeal from the United States Court of Federal 

Claims in No. 1:12-cv-00541-EDK, Judge Elaine Kaplan.

______________________ 

TARANTO, Circuit Judge, concurring. 

I agree that we should affirm the Court of Federal 

Claims’ dismissal of Roca Solida’s Tucker Act case under 

28 U.S.C. § 1500, based on the construction of that section’s language in United States v. Tohono O’Odham 

Nation, 131 S. Ct. 1723 (2011). I join the court’s opinion. 

I do so, however, with the recognition that this application of § 1500 may soon present a substantial constitutional question about whether federal statutes have 

deprived Roca Solida of a judicial forum to secure just 

compensation for a taking; that avoidance of such constitutional questions can sometimes support adoption of 

statutory constructions that would otherwise be rejected; 

that neither Tohono nor other authorities squarely address § 1500’s application when it raises the constitution-
2 MINISTERIO ROCA SOLIDA v. US

al question lurking here; but that we need not pursue 

special-construction possibilities now—not just because 

the problem is not present at the moment, but because 

there may be avenues open to addressing the constitutional question if it arises in the dispute between Roca 

Solida and the government. 

To summarize: The combination of three statutes—(1) 

§ 1500 as construed in Tohono; (2) the Tucker Act’s sixyear statute of limitations, 28 U.S.C. § 2501, which is 

jurisdictional and not subject to general equitable tolling;

and (3) the Little Tucker Act’s $10,000 cap on justcompensation claims in district courts, 28 U.S.C. 

§ 1346(a)(2)—threatens to deprive Roca Solida of the 

opportunity to secure complete relief for what (we must 

assume on the motion to dismiss) might be a taking of its 

property. That is because the six-year period allowed for 

bringing a Tucker Act suit in the Court of Federal Claims 

(which is not limited by dollar amount) may well end 

before the § 1500 bar on doing so is lifted by completion of 

the Nevada district-court action. But if that occurs, Roca 

Solida may have remedies. One possibility, highly problematic but not foreclosed by today’s decision, is invocation of the transfer statute, 28 U.S.C. § 1631, to transfer 

to the Court of Federal Claims (when the § 1500 bar ends) 

the takings claim Roca Solida timely filed in the district 

court, a claim broad enough to encompass Roca Solida’s 

full claim for just compensation for a permanent or temporary taking. If a full just-compensation remedy is 

statutorily unavailable, the district court may be entitled

to adjudicate the permanent-taking claim and order 

return of the property if it finds a taking. And if restorative relief is incomplete, as by leaving a temporary taking 

uncompensated, questions would arise about whether 

tolling of the statute of limitations might be recognized to 

avoid unconstitutionality or whether the combination of 

remedy-depriving statutes is unconstitutional as applied. 
MINISTERIO ROCA SOLIDA v. US 3

It is hardly implausible that the two-forum waterdiversion dispute here will arrive at a point at which 

those issues will have to be addressed if raised: according 

to the government, the six-year limitations period ends in 

August 2016, and neither party has said that the Nevada 

case is positively likely to end by then. Nevertheless, the 

troubling potential-loss-of-Fifth-Amendment-rights issues 

are at present contingent—they may not ripen: the Nevada case may be over by August 2016, and that case may 

definitively establish the non-existence of a taking that 

requires just compensation. Perhaps the likelihood that 

such issues will arise, here and more generally, would 

permit us to consider, in the present appeal, a constitutional-avoidance exception to § 1500’s otherwise-required 

application. But I do not think it advisable to pursue that 

question now, partly because, uncertain and complex as 

they may be, there are at least some possibilities for Roca 

Solida to secure partial or complete relief even if the 

Nevada case is still blocking a suit in the Court of Federal 

Claims in August 2016. I therefore elaborate on the 

problems hovering on the horizon and possible remedial 

solutions to those problems.

A 

Roca Solida has proceeded in what appears to be a 

sensible way, perhaps the only way possible under federal 

statutes, to try to secure complete judicial relief for the 

water diversion that it claims was unlawful on several 

grounds, including several constitutional grounds. 

Roca Solida has made clear that its main aim has 

been to secure restoration of the diverted stream to the 

path it once took through Roca Solida’s land. In district 

court, it has sought injunctive and declaratory relief from 

the government’s diversion of the stream, and among its 

grounds it has invoked the First Amendment’s Free

Exercise Clause and the Fifth Amendment’s Due Process 

Clause. But as long as the Tucker Act remedy for just 
4 MINISTERIO ROCA SOLIDA v. US

compensation is available in the Court of Federal Claims, 

Roca Solida may not invoke the Fifth Amendment’s 

Takings Clause to obtain restoration of the water in 

district court, because the Fifth Amendment, insofar as it 

applies here, does not bar takings, only takings without 

just compensation. See Blanchette v. Conn. Gen. Ins. 

Corps., 419 U.S. 102, 127 (1974).1 And Roca Solida could 

not bring a claim for water restoration in the Court of 

Federal Claims, whose Tucker Act jurisdiction, including 

particularly its takings-claim jurisdiction, is limited to 

monetary relief as relevant here. See United States v. 

King, 395 U.S. 1, 3 (1969); see also Acadia Technology, 

Inc. v. United States, 458 F.3d 1327, 1331 (Fed. Cir. 2006)

(just-compensation claim assumes alleged taking itself 

was not wrongful; challenges alleging wrongfulness of 

alleged taking must be brought elsewhere). 

Roca Solida has also sought just-compensation damages, both in district court and in the Court of Federal 

Claims. The damages claim in the district court would, at 

a minimum, address the alleged temporary taking that 

would come to an end if Roca Solida were to succeed in 

achieving its primary, restoration objective; and when 

filed, it was plausibly valued at no more than $10,000, the 

limit for district court jurisdiction under the Little Tucker 

Act. But the claim is written broadly enough to cover a 

claim of both permanent and temporary taking. At the 

1 Roca Solida has not argued in the Nevada case 

that the water diversion could be reversed by injunction 

on the Takings Clause ground that it was not for a “public 

use.” Cf. Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 543 

(2005) (“[I]f a government action is found to be impermissible—for instance because it fails to meet the ‘public use’ 

requirement or is so arbitrary as to violate due process—

that is the end of the inquiry. No amount of compensation can authorize such action.”).

 
MINISTERIO ROCA SOLIDA v. US 5

same time, Roca Solida brought the present Court of 

Federal Claims takings case under the Tucker Act. That 

claim would address the request for just compensation for 

a permanent taking, plausibly valued at more than 

$10,000, if the non-takings claims for restoration in the 

district court fail. It also could provide just compensation

for a temporary taking if, though the water got restored, 

the passage of time were to raise the value of the temporary-taking claim to more than $10,000.

The Court of Federal Claims case would never need to 

be adjudicated if, for example, Roca Solida obtained

restoration of the water in the district court and sought no 

more than $10,000 in just compensation for any uncured

taking. Smith v. Orr, 855 F.2d 1544, 1553 (Fed. Cir. 

1988). Accordingly, Roca Solida immediately asked the 

Court of Federal Claims to stay its Tucker Act case. But

Roca Solida might not obtain restoration of the water in 

the district-court case, and even a temporary-taking claim 

might grow in value to more than $10,000 given that the 

stream diversion occurred in 2010. Should Roca Solida 

seek just compensation in excess of $10,000 for either a 

temporary or permanent taking, the Court of Federal 

Claims appears to be the exclusive judicial forum for 

obtaining it, at least if this court’s conclusion in Smith v. 

Orr, 855 F.2d at 1552, about the loss of initially proper 

Little Tucker Act jurisdiction when the claim rises in 

value above $10,000 were applied broadly. See Christopher Vill., L.P. v. United States, 360 F.3d 1319, 1332 (Fed. 

Cir. 2004); but cf. pp. 12–13, infra (noting question about 

Smith’s scope and soundness). 

Under 28 U.S.C. § 2501, “[e]very claim of which the 

United States Court of Federal Claims has jurisdiction 

shall be barred unless the petition thereon is filed within 

six years after such claim first accrues.” The government 

contends that the takings claim accrued in August 2010. 

Oral Argument at 24:30–24:40, Ministerio Roca Solida v. 

United States, 2014-5058; see John R. Sand & Gravel Co. 
6 MINISTERIO ROCA SOLIDA v. US

v. United States, 457 F.3d 1345, 1357 (Fed. Cir. 2006), 

aff’d, 552 U.S. 130 (2008). Under that assumption, the 

six-year period ends in August 2016. The Nevada case 

may well extend beyond that date. In that event, applying § 1500 as construed in Tohono would block Roca 

Solida’s ability to initiate an action in the Court of Federal Claims until the statute of limitations has run.

There would be no such bar if equitable tolling were 

available to suspend the running of the clock. But the 

Supreme Court has recently held that it is not. John R. 

Sand & Gravel Co. v. United States, 552 U.S. 130, 136–39 

(2008);2 see FloorPro, Inc. v. United States, 680 F.3d 1377, 

1382 (Fed. Cir. 2012). As a result, because Roca Solida is 

pursuing its constitutional and other claims for relief in 

district court—claims that it cannot bring and consolidate 

in the Court of Federal Claims—the combination of 

§ 1500, § 2501, and § 1346(a)(2), under the governing 

general standards and considered by themselves, may 

soon eliminate Roca Solida’s access to a judicial forum for 

obtaining just compensation for what may be a taking. 

B 

A substantial constitutional question would be raised 

if federal statutes forced a claimant to choose between 

securing judicial just compensation for a taking of property and pursuing constitutional and other legal claims that 

challenge, and if successful could reverse, the underlying 

action alleged to constitute a taking. See Blanchette, 419 

U.S. at 148–49 (withdrawing the Tucker Act remedy, 

without a corresponding guarantee of just compensation, 

may “raise serious constitutional questions”). Although, 

2 John R. Sand involved a takings claim, but there 

was no discussion in the Court’s opinion of any contention 

that the plaintiff faced a statutory impediment to presenting its takings claim within the six-year period.

 
MINISTERIO ROCA SOLIDA v. US 7

as a general matter, it is the sovereign’s prerogative to 

“prescribe the terms and conditions on which it consents 

to be sued, and the manner in which the suit shall be 

conducted,” Beers v. Arkansas, 20 How. 527, 529 (1858), 

the Fifth Amendment’s Takings Clause has long been 

treated as guaranteeing a just-compensation remedy, not 

just an underlying right. Notably, in First English Evangelical Lutheran Church of Glendale v. County of Los 

Angeles, the Supreme Court rejected the government’s 

argument that “the prohibitory nature of the Fifth 

Amendment . . . combined with principles of sovereign 

immunity, establishes that the Amendment itself is only a 

limitation on the power of the Government to act, not a 

remedial provision.” 482 U.S. 304, 316 n.9 (1987). The 

Court explained that, to the contrary, precedent “make[s] 

clear that it is the Constitution that dictates the remedy 

for interference with property rights amounting to a 

taking.” Id.; see also Richard H. Fallon, Jr. et al., Hart & 

Wechsler’s the Federal Courts and the Federal System

718–19 (6th ed. 2009) (characterizing the Takings Clause 

as establishing a constitutional remedy).3 

Other, more general authorities may have a bearing 

on the constitutional questions that may arise in August 

2016. One line of authority concerns congressional deprivation of judicial relief for constitutional violations. The 

Court has repeatedly noted “the ‘serious constitutional 

question’ that would arise if a federal statute were con3 In a related vein is the longstanding exception for 

unconstitutional takings to the general rule that a statutory waiver of sovereign immunity is required to permit 

an official-capacity suit against a federal officer to restore 

property to its rightful owner. Malone v. Bowdoin, 369 

U.S. 643, 647–48 (1962); Larson v. Domestic & Foreign 

Commerce Corp., 337 U.S. 682, 690, 696–97 (1949); United States v. Lee, 106 U.S. 196, 221–23 (1882).

 
8 MINISTERIO ROCA SOLIDA v. US

strued to deny any judicial forum for a colorable constitutional claim.” Elgin v. Dep’t of Treasury, 132 S. Ct. 2126, 

2132 (2012); Webster v. Doe, 486 U.S. 592, 602–03 (1988). 

Another line of authority concerns the impermissibility of 

imposing “unconstitutional conditions” in various circumstances, including those involving alleged takings. The 

Court has explained that it has held “in a variety of 

contexts that ‘the government may not deny a benefit to a 

person because he exercises a constitutional right.’ ” 

Koontz v. St. Johns River Water Mgmt. Dist., 133 S. Ct. 

2586, 2594 (2013). Cf. Simmons v. United States, 390 

U.S. 377, 394 (1968) (in particular criminal-case context, 

deeming it “intolerable that one constitutional right 

should have to be surrendered in order to assert another”).

I do not address how those and perhaps other authorities would apply if federal statutes were to preclude Roca 

Solida from obtaining a judicial award of just compensation for a taking because it pursued its constitutional and 

other legal claims in district court. Rulings in this area 

have often been tightly bound to case-specific facts, as 

established by a fully developed factual record. In particular, I do not address whether it is relevant that Roca 

Solida first sued in August 2012, two years after the 

August 2010 completion of the water-diversion project. I 

also put aside, for purposes of this opinion, the possibility 

that § 1500 would not have applied if Roca Solida had 

filed in the Court of Federal Claims before, rather than 

two days after, filing in district court.4 I conclude only 

4 I put that aside because the government can hardly contend that Roca Solida could easily have avoided 

§ 1500 difficulties by reversing the order of filing, although Tecon Eng’rs, Inc. v. United States, 343 F.2d 943 

(Ct. Cl. 1965), supports such a contention. See Brandt v. 

United States, 710 F.3d 1369, 1379 n.7 (Fed. Cir. 2012) 

 
MINISTERIO ROCA SOLIDA v. US 9

that serious questions are raised by the apparent combined effect of § 1500, § 2501, and § 1346(a)(2), under 

their general governing interpretations, on what may well 

be Roca Solida’s situation a year and a half from now.

The substantiality of the constitutional questions 

raises a natural follow-on question: whether § 1500 

should be given a distinctively narrow application when 

necessary to avoid those questions. Statutes have sometimes been given constructions as applied to particular 

situations to avoid substantial constitutional problems, 

even when other considerations, including textual considerations, pointed the other way. See, e.g., Bond v. United 

States, 134 S. Ct. 2077, 2088–90 (2014); Jinks v. Richland

County, 538 U.S. 456 (2003); Raygor v. Regents of Univ. of 

Minn., 534 U.S. 533 (2002); NLRB v. Catholic Bishop of 

Chicago, 440 U.S. 490, 200 (1979). 

C 

Neither the Supreme Court nor this court has addressed whether § 1500 should be applied in such circumstances. Tohono did not involve a takings claim (it 

involved a breach-of-trust claim) under the Tucker Act. 

(Tecon “remains the law of this circuit”; holding that a 

case was not “pending” during the time between the 

district court’s judgment and the filing of a notice of 

appeal). The government has argued that Tecon’s orderof-filing rule is no longer good law, invoking Tohono, 131 

S. Ct. at 1729–30, and UNR Indus., Inc. v. United States, 

962 F.2d 1013, 1023 (Fed. Cir. 1992) (en banc). Brief for 

the United States at 33–36, Brandt v. United States, 2012 

WL 1943736 (Fed. Cir. 2012); United States’ Combined 

Petition for Panel and En Banc Rehearing, at 9–14, 

Brandt, 710 F.3d 1369 (Jun. 10, 2013) (No. 12-5050), 

denied, Aug. 19, 2013; see Brandt, 710 F.3d at 1380–82 

(Prost, J., concurring) (Tecon should be overruled).

 
10 MINISTERIO ROCA SOLIDA v. US

Keene Corp. v. United States, 508 U.S. 200 (1993), did 

involve a takings claim among the Tucker Act claims at 

issue, but the court did not have before it or address a 

contention that applying § 1500 to bar the Tucker Act 

suit, in combination with the statute of limitations, 

§ 2501, might force the claimant to choose between giving 

up a just-compensation claim and giving up other legal 

claims, including other constitutional claims. Indeed, the 

government in Keene, addressing the possibility that a 

Tucker Act claim might be untimely when the § 1500 bar 

ended, represented that “equitable tolling of the statute of 

limitations may be available” for a plaintiff with such a 

claim. Brief for the United States at 40–41, Keene, 508 

U.S. 200 (No. 92-166), 1993 WL 290106, at *40–41. Only 

fifteen years later did the Court hold, at the government’s 

urging, that § 2501 is jurisdictional and thus not susceptible to equitable tolling. John R. Sand, 552 U.S. at 139. 

Other Supreme Court decisions likewise do not address whether § 1500 might properly be read not to bar a 

Tucker Act suit when a contrary holding, in combination 

with the statute of limitations, would force the claimant 

to choose between giving up a just-compensation claim 

and giving up other legal claims, including other constitutional claims. See Matson Nav. Co. v. United States, 284 

U.S. 352, 354 (1932) (Court of Claims action founded upon 

breach of contract); Corona Coal Co. v. United States, 263 

U.S. 537, 539 (1924) (Court of Claims action founded upon 

act of Congress); In re Skinner & Eddy Corp., 265 U.S. 86, 

91 (1924) (Court of Claims action founded upon breach of 

contract). Nor, evidently, is the issue decided in rulings 

by this court and its predecessors. 

D 

The foregoing constitutional questions, and their potential consequences for construing § 1500, do not have to 

be faced at present. The scenario making the constitutional questions seemingly serious ones may not arise. 
MINISTERIO ROCA SOLIDA v. US 11

And as a general matter, a “‘longstanding principle of 

judicial restraint requires that courts avoid reaching 

constitutional questions in advance of the necessity of 

deciding them.’” Camreta v. Greene, 131 S. Ct. 2020, 

2031 (2011) (quoting Lyng v. Northwest Indian Cemetery 

Protective Assn., 485 U.S. 439, 445 (1988)). Although 

application of that principle sometimes requires a judgment call about the degree of contingency involved, the 

appropriateness of applying it here is reinforced by the 

conclusion that, even with the dismissal under § 1500,

Roca Solida has several possible (not to say certain or 

clear) paths to seeking partial or complete judicial relief. 

One possible path to explore can be seen by broadening the statutory focus, beyond § 1500, § 2501, and 

§ 1346(a)(2), to include the transfer statute, § 1631—but 

§ 1500 might well block that path. Putting § 1500 to one 

side for a moment, it may be that § 1631 would allow the 

transfer to the Court of Federal Claims of the takings 

claim filed in district court in 2012, once that claim rose 

in value to more than the $10,000 allowed under the 

Little Tucker Act; and if so, the resulting Court of Federal 

Claims action would be treated, for statute-of-limitations 

purposes, as if it had been filed in 2012. 28 U.S.C. § 1631 

(“[w]henever” a court “finds that there is a want of jurisdiction,” it “shall, if it is in the interest of justice, transfer 

such action” to a court “in which [it] could have been 

brought at the time it was filed,” where it “shall proceed 

as if it had been filed in . . . [the transferee court] on the 

date upon which it was actually filed in . . . [the transferor 

court]”). Although transfers are not obligatory, avoidance 

of statute-of-limitations problems (which a re-filing after 

a dismissal might present) is “[a] compelling reason for 

transfer,” Texas Peanut Farmers v. United States, 409 

F.3d 1370, 1374 (Fed. Cir. 2005), as is the interest in 

providing the constitutionally guaranteed judicial forum 

for a claim for just compensation for a taking. 
12 MINISTERIO ROCA SOLIDA v. US

But § 1500 creates a problem for the transfer possibility. We have held that, in the transfer situation, (a) 

§ 1631 requires asking whether § 1500 would have 

blocked the transferred claim if it had been filed in the 

Court of Federal Claims at the same time the untransferred claims were filed in the district court and (b) 

§ 1500 applies to simultaneously filed claims. See United 

States v. County of Cook, 170 F.3d 1084, 1090–91 (Fed. 

Cir. 1999); see also Griffin v. United States, 590 F.3d 

1291, 1293 (Fed. Cir. 2009); Harbuck v. United States, 378 

F.3d 1324, 1328 (Fed. Cir. 2004). Under that approach, a 

transfer of the takings claim here, even after termination 

of the rest of the Nevada action, would seem to raise this 

question: would § 1500 have barred the filing of the

takings claim in the Court of Federal Claims in 2012 

simultaneously with the filing in the Nevada district 

court of all the claims currently in the Nevada case except 

the takings claim? That is not the question presented to 

us today, but the Tohono standard appears to be a significant obstacle to Roca Solida’s obtaining a favorable answer.5 

Another possible path is through the district court’s 

adjudication of the full takings claim, regardless of 

amount—but this path itself contains an apparent obstacle, albeit one of uncertain breadth and solidity. As to the 

possibility: Longstanding precedent holds that, in general,

satisfaction of statutory jurisdictional prerequisites is to 

be “tested by the facts as they existed when the action is 

brought.” Smith v. Sperling, 354 U.S. 91, 93 n.1 (1957); 

5 Pursuit of a transfer might also raise other issues, 

such as how to preserve the takings claim’s transferability—perhaps severance and a stay of the takings claim in 

district court, see Fed. R. Civ. P. 21—until the rest of the 

Nevada action is no longer pending.

 
MINISTERIO ROCA SOLIDA v. US 13

see Grupo Dataflux v. Atlas Global Grp., L.P., 541 U.S. 

567, 570 (2004) (the “time-of-filing rule is hornbook law”); 

Keene, 508 U.S. at 209. Under that principle, it may be 

that Roca Solida’s takings claim in the district court, 

proper when filed because plausibly then valued at no 

more than $10,000, can still be adjudicated in district 

court and support an award of more than $10,000 if 

warranted by post-filing events. 

An obstacle to that conclusion, however, is this court’s 

decision in Smith v. Orr, which concluded, in the context 

of an employee’s claim for backpay, that a district court

would lose Little Tucker Act jurisdiction once the amount 

claimed “accrued to greater than $10,000.” 855 F.2d at 

1553. Perhaps Smith v. Orr should be limited to barring 

claims, such as backpay claims based on fixed salary 

payments, where the non-contingent facts alleged make it 

effectively certain from the outset that the amount at 

issue will exceed $10,000. Cf. St. Paul Mercury Indem. 

Co. v. Red Cab Co., 303 U.S. 283, 288–89 (1938) (Regarding one jurisdictional minimum, “the sum claimed by the 

plaintiff controls if the claim is apparently made in good 

faith. It must appear to a legal certainty that the claim is 

really for less than the jurisdictional amount to justify 

dismissal.”). Smith v. Orr itself cited only backpay cases

in reaching its conclusion, 855 F.2d at 1553 nn. 42–45, 47, 

and we have not applied Orr outside those circumstances. 

See Simanonok v. Simanonok, 918 F.2d 947, 950–51 (Fed. 

Cir. 1990). Moreover, a leading scholar, discussing Smith 

v. Orr, has stated that “the proposition that a court may 

take and then lose trial jurisdiction due to the mere 

passage of time may be questioned in light of” Keene and 

Grupo Dataflux. Gregory C. Sisk, Litigation With The 

Federal Government 238 (4th ed. 2006). 

Alternatively, or in addition, perhaps a special constitutional-avoidance tolling of the § 2501 statute of limitations is justified, despite the general absence of equitable 

tolling. There may be an argument for such tolling on a 
14 MINISTERIO ROCA SOLIDA v. US

ground that borrows from the essential principles stated 

in decisions allowing injunctive relief if the Tucker Act 

remedy has been withdrawn: “it cannot be doubted that 

the [Tucker Act] remedy to obtain compensation from the 

Government is as comprehensive as the requirement of the 

Constitution” and “the true issue is whether there is 

sufficient proof that Congress intended to prevent such 

recourse.” Blanchette, 419 U.S. at 127, 126 (internal 

quotation marks omitted; emphases as in Blanchette). It 

is open to serious question whether Congress intended to 

prevent just-compensation relief for a taking through the 

combination of § 1500, § 2501, and § 1346(a)(2). If that 

combination precludes such relief, even when also considering the transfer statute, it might be that the combination should be held unconstitutional as applied, allowing 

suit for more than $10,000 either in district court or in 

the Court of Federal Claims when the § 1500 bar ends.

Aside from the possibility of an as-applied constitutional invalidation, if Roca Solida eventually lacks statutory means of obtaining just compensation in court, it 

may have a forward-looking judicial remedy should it 

prove that its property was taken. Notably, it may be 

that the district court can entertain a takings claim to 

restore the diverted water if the just-compensation remedy is not available. The unavailability of a justcompensation remedy generally allows otherwiseauthorized litigation to obtain forward-looking curative 

relief against an alleged taking. See Horne v. Dep’t of 

Agric., 133 S. Ct. 2053, 2063 (2013); Eastern Enterprises 

v. Apfel, 524 U.S. 498, 521–22 (1998) (plurality opinion) 

(where monetary relief against the government is not “an 

available remedy,” equitable relief for a taking is “within 

the district courts’ power”); Duke Power Co. v. Carolina 

Envtl. Study Grp., Inc., 438 U.S. 59, 71 n.15 (1978) (affirming the district court’s subject-matter jurisdiction 

under 28 U.S.C. § 1331(a) to entertain a request for a 

declaratory judgment that, because the Price-Anderson 
MINISTERIO ROCA SOLIDA v. US 15

Act “does not provide advance assurance of adequate 

compensation in the event of a taking, it is unconstitutional”). See also supra p. 7 n.3.6 The district court may 

consider whether such restoration relief is available under 

those authorities if Roca Solida can no longer maintain a 

Tucker Act case in August 2016.

The important and deeply rooted interest in the effectiveness of a constitutional guarantee—here, of a justcompensation remedy for a taking—would be well served

if the answers to the how-to-secure-relief questions turned 

out to be clear should they have to be faced. Unfortunately, it is easy to imagine that the costs, uncertainties, and 

delays of litigating over forum, procedure, and remedies

will be substantial—burdens addressed, though probably 

not fully lifted, by the availability of interest as a part of a 

just-compensation award (see Kirby Forest Indus., Inc. v. 

United States, 467 U.S. 1, 10–11 (1984)) and the availability of attorney’s fees (see 42 U.S.C. § 4654(c); Bywaters v. 

6 Apart from the Malone/Larson/Lee authorization 

of injunctive relief, the Administrative Procedure Act 

waives sovereign immunity for challenges to federal 

agency action by certain persons “seeking relief other 

than money damages,” 5 U.S.C. § 702, and generally 

authorizes district courts to “set aside agency action . . . found to be . . . contrary to a constitutional right,” 

§ 706, when the challenged action is “final agency action 

for which there is no other adequate remedy in a court,” § 

704. See Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2204 (2012); 

Bennett v. Spear, 520 U.S. 154, 175 (1997). The preclusion of an adequate Tucker Act damages remedy might 

satisfy the § 704 precondition. The government has not 

suggested that its position in this two-forum dispute is 

that the employee who executed the diversion project 

acted beyond her statutory authority. 

 
16 MINISTERIO ROCA SOLIDA v. US

United States, 670 F.3d 1221 (Fed. Cir. 2012)). Complexity, lack of clarity, splitting of jurisdiction, and § 1500’s 

rigid rule are features of the current legal landscape at 

issue here, and the practical effect of those features may 

easily be to cause loss or abandonment of meritorious 

constitutional claims. But because there is some possibility that Roca Solida will have remedies available if needed, I conclude that we should apply § 1500 as construed in 

Tohono rather than grapple more definitively with the 

constitutional questions that are not yet certain to arise 

in this dispute.