The Need to Reform
28 U.S.C. § 1500

Emily Schleicher Bremer
Jonathan R. Siegel

September 19, 2012
This report was prepared for the consideration of the Administrative Conference of the United States. The views
expressed are those of the authors and do not necessarily reflect those of the members of the Conference or its
committees.

ADMINISTRATIVE CONFERENCE
OF THE UNITED STATES

THE NEED TO REFORM 28 U.S.C. § 1500
Emily Schleicher Bremer* and Jonathan R. Siegel**
“It is as much the duty of Government to render prompt justice against itself, in
favor of citizens, as it is to administer the same between private individuals.”
— President Abraham Lincoln 1
“Mister Bumble might have made his judgment—that the law is an ass—less
conditional if the operation of Title 28, Section 1500 had been explained to him.”
— Honorable Eric G. Bruggink 2
Table of Contents
Introduction ................................................................................................................................... 2
I.
Background: Procedural Obstacles in Suits Involving the Government..................... 8
A. Parties Seeking Relief Against the United States Face Special Difficulties......................... 8
B. The Reason Such Difficulties Arise and Persist ................................................................. 10
C. The Role of the Administrative Conference ........................................................................ 11
II.
The Core Problem: Section 1500 Unfairly Forces Election Among Potentially
Meritorious Claims ......................................................................................................... 12
A. Jurisdiction Over Claims Against the Government ............................................................ 12
B. The History, Purposes, and Operation of Section 1500 ..................................................... 14
C. Section 1500’s Core Problem: It Deprives Plaintiffs of Their Day in Court for No Good
Purpose ............................................................................................................................... 17
III.
Further Problems: Section 1500’s Procedural Traps .................................................. 20
A. The Determinative Role of Timing in Section 1500’s Application ..................................... 20
B. The Simultaneous Filing Rule ............................................................................................ 22
C. Application of the Simultaneous Filing Rule to Transferred Claims ................................. 22
D. Intra-CFC Split: Are Claims Filed on the Same Day Per Se “Simultaneous”? ................ 24
E. Intra-CFC Split: Is an Action “Pending” When Time Remains to Appeal? ...................... 26
F. Defining “Claim”: A Case Study in Jurisprudential Volatility ......................................... 26
IV.
The Need to Reform Section 1500 ................................................................................. 29
A. Identity and Measure of the Parties and Claims Affected by Section 1500 ....................... 29
B. Examples of Viable Duplicative Claims ............................................................................. 31
*

Attorney Advisor, Administrative Conference of the United States.

**

Professor of Law and F. Elwood and Eleanor Davis Research Professor of Law, George Washington
University Law School; former Director of Research & Policy, Administrative Conference of the
United States. The authors prepared this report in their capacity as Conference staff, but the views expressed are
those of the authors and do not necessarily reflect those of the members of the Conference or its committees.
1

Cong. Globe, 37th Cong., 2d Sess., App. 2 (1861). This statement, which was included in President
Lincoln’s remarks to Congress advocating for the Court of Claims to have the power to render final judgments, see
infra at note 66 and accompanying text, is engraved on the wall at the entrance to the building shared by the Federal
Circuit and the Court of Federal Claims.

2

Vaizburd v. United States, 46 Fed. Cl. 309, 309 (2000) (citing Charles Dickens, “Oliver Twist,” chapter

51).

1

C. Criticism of Section 1500 ................................................................................................... 34
V.
Reforming Section 1500.................................................................................................. 36
A. Policies Reform of Section 1500 Should Further ............................................................... 36
1. Plaintiffs Suing the United States Should Be Permitted to Pursue Multiple Claims ..... 36
2. Plaintiffs Suing the United States Should Enjoy the Benefits of the Transfer Statute... 39
B. Potential Solutions ............................................................................................................. 39
1. Comprehensive Jurisdictional Reform ........................................................................... 39
2. Repeal Section 1500 ....................................................................................................... 43
3. Replace Section 1500 ..................................................................................................... 46
4. Eliminate the Timing Work-Around .............................................................................. 49
5. Amend Section 1500 ...................................................................................................... 51
6. Judicial Amelioration ..................................................................................................... 52
7. Department of Justice Amelioration .............................................................................. 53
VI.
Conclusion ....................................................................................................................... 54
Introduction
This Report examines 28 U.S.C. § 1500, a statute that restricts the jurisdiction of the
United States Court of Federal Claims (CFC). 3 Section 1500 is unfair to plaintiffs suing the
United States. The statute leads to dismissal of cases for reasons unrelated to their merits, while
serving little valid purpose. Contrary to the general rule that applies to other kinds of plaintiffs, 4
Section 1500 may require plaintiffs suing the United States to elect among claims, and it may
cause them to lose potentially meritorious claims. The statute has been strongly criticized by
judges, lawyers, and academics. It causes results that are unjust and irrational. It should be
repealed.
Section 1500 is part of the group of statutes that govern the jurisdiction of the CFC. The
CFC is a specialized court for private claims against the federal government. It has exclusive
jurisdiction over contract claims and most other claims against the United States for monetary
relief based on a statute or the Constitution. 5 In contrast, Congress has provided that other types

3

The CFC has taken several forms over the course of its history. From 1855 to 1982, it was the United States
Court of Claims; from 1982 to 1992, it was the United States Claims Court; and since 1982, it has been the United
States Court of Federal Claims. For purposes of simplicity, this Report will use the court’s current name, the CFC,
even when discussing activities or decisions undertaken during a time when the court went by a different name.
4

See Fed. R. Civ. P. 18(a) (permitting plaintiffs to join as many claims as they have against a defendant).

5

See 28 U.S.C § 1491(a)(1) (vesting jurisdiction in the CFC to hear claims against the United States founded
upon the Constitution, acts of Congress, regulations of executive departments, or implied or express contracts). But
see id. § 1346(a)(2) (granting district court concurrent jurisdiction to hear contract claims against the United States
for up to $10,000).

2

of claims against the government, including tort claims and claims for equitable relief, must be
brought in district court. 6
This division of jurisdiction may pose a problem when a plaintiff has a claim that may be
characterized in more than one way 7 or has multiple claims against the United States arising out
of a single incident. For example, a plaintiff may believe the government’s conduct constitutes a
tort, a breach of contract, and a violation of statute, or may believe it is one of the three without
being sure of which. For such plaintiffs, figuring out where to file each claim can be difficult.
Section 1500 causes significant problems for such plaintiffs. The statute divests
the CFC of subject matter jurisdiction over any “claim” that a plaintiff “has pending in any other
court.” 8 The full text of the statute currently provides that:
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 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. 9
The courts have interpreted “claim” for purposes of Section 1500 by reference to the operative
facts underlying the claim and not by the plaintiff’s legal theory. 10 Thus, Section 1500 may
prevent a plaintiff from bringing a claim in the CFC if the plaintiff has a claim based on the same
facts pending in another court, even if in that other court the plaintiff relies on a different legal
theory. The statute would, for example, prohibit the CFC from hearing a contract claim against
the United States if, at the time he filed the claim, the plaintiff had a tort claim against the United
States pending in district court based on the same facts.
Section 1500 causes confusion and injustice because a plaintiff may have multiple claims
against the United States arising out of a single incident and may be required to bring these
claims to different courts. If such a plaintiff simply brings each such claim to the court in which
6

See 28 U.S.C. § 1346(b)(1) (granting district courts exclusive jurisdiction over tort claims against the
United States); Bowen v. Massachusetts, 487 U.S. 879, 905 (1988) (“[W]e have stated categorically that ‘the Court
of Claims has no power to grant equitable relief.’” (quoting Richardson v. Morris, 409 U.S. 464, 465 (1973) (per
curiam))).
7

See, e.g., Bowen, 487 U.S. at 898-901 (holding that district courts may hear certain claims against the
United States for monetary relief, provided the monetary relief does not constitute “money damages”).
8
9

28 U.S.C. § 1500.
Id.

10

United States v. Tohono O’odham Nation, 563 U.S. ___ (2011), slip op. at 5; Keene Corp. v. United States,
508 U.S. 200, 212 (1993).

3

it is cognizable, section 1500 may require the CFC to dismiss the claims presented to it. The
statute may, therefore, require a plaintiff to elect among claims and may cause a plaintiff to lose
potentially meritorious claims against the federal government.
Even more confusingly, under current law, there are “work-arounds” that permit a
plaintiff to pursue all such claims successfully, but only if the plaintiff correctly determines
which claims belong in which court and carefully brings the claims in the right order. Under
existing law, if a plaintiff files a claim against the United States in the CFC and later files a claim
based on the same facts in district court, both cases may proceed, 11 but if the plaintiff does the
reverse—files first in district court and then later in the CFC—the CFC case must be
dismissed. 12 Further complications arise if the plaintiff files both claims on the same day, 13 or if
the plaintiff files all the claims in district court and some get transferred to the CFC. 14
These highly technical rules lead to the illogical result that the validity of claims may turn
on the order in which they are filed. The rules make Section 1500 into a trap for unwary
plaintiffs. Under current law, sophisticated counsel who are familiar with the intricacies of
Section 1500 can use the “order-of-filing” work-around to protect their clients’ claims from
dismissal in the CFC, but parties who have less knowledgeable counsel or who appear pro se can
easily fall into Section 1500’s traps. 15
Section 1500 affects a wide variety of plaintiffs with many different kinds of claims.
Federal employees, property owners, businesses, local governments, and Indian tribes are
affected; sophisticated litigants and pro se plaintiffs have fallen into Section 1500’s traps.
Examples of the diverse parties and claims affected include:

11
12

Hardwick Bros. Co. II v. U.S., 72 F.3d 883, 886 (Fed. Cir. 1995).
Keene, 508 U.S. at 209.

13

Claims filed simultaneously are dismissed, see United States v. Cnty. of Cook, 170 F.3d 1084, 1090-91
(Fed. Cir. 1999), but there is an intra-CFC split as to whether claims filed on the same day are necessarily
simultaneous. Compare Passamaquoddy Tribe v. United States, 82 Fed. Cl. 256, 270-71 (2008) (holding that cases
filed the same day are deemed to be filed simultaneously) with United Keetoowah Band of Cherokee Indians v.
United States, 86 Fed. Cl. 183, 190 (2009) (holding that a court must investigate the exact time of filing).
14

Claims transferred to the CFC are deemed to have been filed simultaneously with the claims filed in district
court and therefore may be dismissed. Cnty. of Cook, 170 F.3d at 1090-91; Griffin v. United States, 590 F.3d 1291,
1293-95 (Fed. Cir. 2009).

15

A recent Supreme Court decision called the order-of-filing work-around into question and suggested that it
may be judicially eliminated. United States v. Tohono O’odham Nation, 563 U.S. ___ (2011). As this report
discusses, such a change would make the law of Section 1500 less illogical, but more unfair. It would eliminate the
illogical rule under which the validity of claims depends on the order of filing, but only by unfairly dismissing more
claims.

4

●

A federal employee who sued the government in district court under both the
Equal Pay Act and Title VII of the Civil Rights Act of 1964. Her Equal Pay Act
claim was transferred to the CFC—and was dismissed under Section 1500. 16

●

Property owners who sued in the CFC, claiming the government had taken their
property without just compensation. Their claim was dismissed because they had
previously sued in district court on a tort theory. 17

●

A government contractor that filed a bid protest in the CFC. The case was
dismissed because the plaintiff had previously sued in district court under the
Administrative Procedure Act—even though the district court had already
dismissed on the ground that the plaintiff’s exclusive remedy was in the CFC. 18

●

A local government, sued by the United States over taxation of certain federal
office buildings, that counterclaimed for the taxes it believed it was owed. The
counterclaims were transferred to the CFC—and dismissed under Section 1500. 19

●

An Indian tribe that sued in the CFC for breach of trust. Its claims were dismissed
because it sued on similar claims in district court on the same day. 20

Results such as these are often unforeseeable and unfair—and they run contrary to
fundamental principles of modern civil procedure. Plaintiffs are generally permitted to pursue all
claims they may have against a single defendant and are not required to “elect” among claims. 21
Moreover, Congress designed the transfer statute to protect plaintiffs from losing their rights by
filing in the wrong court. These principles should apply against the United States as they do
against any other defendant. Plaintiffs should not be required to choose among potentially valid
claims and abandon some claims as the price of pursuing others. They should not lose their day
in court simply because they mistakenly characterize their claims or file in the wrong court. 22

16

Griffin, 590 F.3d 1295.

17

Vaizburd v. United States, 46 Fed. Cl. 309 (2000). These plaintiffs ultimately recovered by suing in the
CFC again after their district court proceedings had concluded, Vaizburd v. United States, 67 Fed. Cl. 257 (2005),
which highlights how pointless the original dismissal was.

18

Vero Technical Support v. United States, 94 Fed. Cl. 784 (2010). See also Keene, 508 U.S. 200
(manufacturer’s contractual and takings claims against the United States dismissed because the company had also
sued the government in district court on tort theories).
19
20
21

Cnty. of Cook, 170 F.3d at 1091-92.
Passamaquoddy Tribe, 82 Fed. Cl. 256.
See Fed. R. Civ. P. 18(a).

22

Cf. Elgin v. Dep’t of Treasury, 567 U.S. ___ (2012), slip op. at 11 (declining to interpret a jurisdictional
statute in a manner that would only permit plaintiffs “to pursue constitutional claims in district court at the cost of
forgoing other, potentially meritorious claims” in another forum and would deprive plaintiffs and courts “of clear
guidance about the proper forum for the [plaintiff’s] claims at the outset of the case”).

5

Nor should the order in which a plaintiff files his claims determine whether he will get a hearing
on their merits.
Section 1500’s unfair results are particularly troubling because they serve no good
purpose. The statute is a vestige of the Civil War, first passed in 1868 to prevent plaintiffs from
seeking two chances to recover by suing an individual federal official, usually in tort, in one
court, and suing the United States on the same facts in the CFC. Under the law of preclusion as it
then existed, a judgment in the case against the government officer would not have preclusive
effect in the CFC case. 23 This rule is no more: modern preclusion doctrine holds that a judgment
in a suit against a federal officer is preclusive in a related, subsequent case against the
government itself, and vice versa. Section 1500 is further rendered unnecessary in modern times
because most tort actions against government officials are forbidden, 24 and plaintiffs usually sue
the government directly. Indeed, in nearly all cases applying Section 1500, the plaintiff’s two
cases are against the government.
Section 1500 has long been subject to widespread criticism. Federal judges have
characterized the statute as a “trap for the unwary” 25 that has “outlived its purpose.” 26 They have
characterized the dismissals Section 1500 compels as “neither fair nor rational” 27 and have
critiqued “the injustice that often results in the application of this outdated and ill-conceived
statute.” 28 They have referred to Section 1500’s “awkward formulation,” 29 called it “a badly
drafted statute,” and suggested that it would be “salutary” to repeal or amend it. 30 They have
criticized the government for using the statute to lay traps for unsuspecting plaintiffs. 31 One
judge even remarked that the statute would justify the famous conclusion that “the law is an
23

See Matson Nav. Co. v. United States, 284 U.S. 352, 355-56 (1932); Conn. Dep’t of Children and Youth
Servs. v. United States, 16 Cl. Ct. 102, 104 (1989); David Schwartz, Section 1500 of the Judicial Code and
Duplicate Suits Against the Government and Its Agents, 55 Geo. L.J. 573, 578 (1967).
24

See 28 U.S.C. § 2679.

25

Griffin v. United States, 621 F.3d 1363, 1364 (Fed. Cir. 2010) (Plager, J., dissenting); Berry v. United
States, 86 Fed. Cl. 24, 29 (2009) (Block, J.); Lan-Dale Co. v. United States, 85 Fed. Cl. 431, 433 (2009) (calling the
statute a “monumental” trap for the unwary) (Wheeler, J.); Griffin v. United States, 85 Fed. Cl. 179, 181 (2008)
(Allegra, J.), aff’d, 590 F.3d 1291 (Fed. Cir. 2009); Passamaquoddy Tribe, 82 Fed. Cl. at 262 (Bush, J.); d’Abrera v.
United States, 78 Fed. Cl. 51, 56 n.10 (2007) (Lettow, J.); Vaizburd, 46 Fed. Cl. at 310 (Bruggink, J.).

26

Griffin, 621 F.3d at 1364 (Plager, J., dissenting); see also Low v. United States, 90 Fed. Cl. 447, 455
(2009); Griffin, 85 Fed. Cl. at 181 & n.1; Passamaquoddy Tribe, 82 Fed. Cl. at 262; A.C. Seaman, Inc. v. United
States, 5 Cl. Ct. 386, 389 (1984).
27
28
29

Vaizburd, 46 Fed. Cl. at 311.
Low, 90 Fed. Cl. at 455.
Keene, 508 U.S. at 210.

30

Id. at 222 (Stevens, J., dissenting); see also United States v. Tohono O’odham Nation, 563 U.S. ___ (2011)
(Sotomayor, J., concurring in the judgment), slip op. at 11 (calling for “congressional attention to the statute”).
31

Vaizburd, 46 Fed. Cl. at 309-10 (“The untutored might suspect that the United States government would
not rely on traps for the unwary to avoid having to respond to its citizens. Not so.”).

6

ass.” 32 Scholars have been equally critical of Section 1500, and have called for its repeal or
reform since as early as 1967. 33 And some members of Congress have tried to repeal the
statute. 34 These efforts apparently failed only because the repeal proposal was bundled with more
controversial changes to the CFC’s jurisdiction. 35
This Report considers possible ways to reform Section 1500 and concludes that the best
solution is for Congress to repeal the statute. Repeal would leave plaintiffs free, as they should
be, to pursue all the claims they may have against the United States arising out of a given
incident. It would eliminate the risk that legitimate claims might get dismissed because of the
interaction between Congress’s complicated jurisdictional scheme and the pointless technicalities
of Section 1500. The interest Section 1500 was originally intended to serve—preventing
duplicative suits on the same facts with no preclusion—would be better vindicated by modern
preclusion doctrines. And even though repealing Section 1500 would permit some duplicative
litigation, (a) current law already permits such duplication, provided the plaintiff files his claims
in the right order; (b) plaintiffs, who would likely prefer to litigate all related claims in one
proceeding, should not be punished for duplication resulting from Congress’s decision to create
separate forums with exclusive jurisdiction over different kinds of claims against the United
States; and (c) courts can mitigate the costs of such duplication using familiar preclusion
doctrines and the inherent judicial power to manage the docket by, for example, staying one case
while a related case proceeds.
This Report proceeds in six parts. Part I explains the Conference’s ongoing project of
identifying and eliminating purposeless procedural obstacles that arise in lawsuits involving the
government. Part II details how Section 1500 fits within this broader context and operates as a
purposeless procedural trap. Part III details further problems posed by Section 1500, as
interpreted and applied by the courts. Part IV argues that Section 1500 is in need of reform,
while Part V analyzes several ways in which the goal of reform could be accomplished. Finally,
Part VI concludes by summarizing the Report’s recommendations for how best to reform Section
1500.

32

Id. at 309 (“Mister Bumble might have made his judgment—that the law is an ass—less conditional if the
operation of Title 28, Section 1500 had been explained to him.”) (citing CHARLES DICKENS, OLIVER TWIST).
33

See Paul Frederic Kirgis, Section 1500 and the Jurisdictional Pitfalls of Federal Government Litigation, 47
AM. U. L. REV. 301 (1997); Payson R. Peabody, Thomas K. Gump, and Michael S. Weinstein, A Confederate Ghost
That Haunts the Federal Courts: The Case for Repeal of 28 U.S.C. § 1500, 4 FED. CIR. B.J. 95 (1994); Schwartz,
supra note 23.
34

See supra note 251 and accompanying text.

35

See Robert Meltz, The Impact of Eastern Enterprises and Possible Legislation on the Jurisdiction and
Remedies of the U.S. Court of Federal Claims, 51 ALA. L. REV. 1161, 1172 (2000).

7

I.

Background: Procedural Obstacles in Suits Involving the Government

Before we consider the problems Section 1500 poses for plaintiffs, we briefly explain
how the statute fits within a larger context of a general problem of procedural difficulties arising
in lawsuits involving the government.
A.

Parties Seeking Relief Against the United States Face Special Difficulties

The path to relief for those injured by wrongful conduct of the United States is often
strewn with obstacles resulting from intricate procedural requirements. In addition to the normal
procedural requirements any plaintiff faces, a plaintiff seeking relief from the United States may
have to navigate administrative exhaustion requirements, 36 the distribution of jurisdiction among
different courts based on the nature of the claim, 37 the numerous exceptions to the various
waivers of the government’s sovereign immunity, 38 and other complex, technical requirements.
A misstep can cost a plaintiff her rights. 39
Congress has intentionally designed some of these special procedural requirements. For
example, Congress deliberately requires plaintiffs with different types of claims against the
United States to go to different courts—generally speaking, contract claims must go to the CFC;
tort claims must go to the district courts. 40 Similarly, Congress deliberately requires a plaintiff
with a tort claim against the United States to present that claim to the appropriate federal agency
administratively before proceeding in court. 41
Plaintiffs face other procedural difficulties, however, that have arisen unintentionally.
These procedural requirements can result from a slip of the pen by Congress, a strict judicial
36

See, e.g., 28 U.S.C. § 2675(a) (requiring the presentation of an administrative claim as a prerequisite to suit
under the Federal Tort Claims Act); § 2401(b) (requiring such administrative claim to be filed within two years after
the action accrues).

37

See 28 U.S.C. § 1346(b)(1) (vesting jurisdiction in the district courts to consider tort claims against the
United States), § 1491(a)(1) (vesting jurisdiction in the Court of Federal Claims to hear claims against the United
States founded upon the Constitution, acts of Congress, regulations of executive departments, or implied or express
contracts).
38

See, e.g., 28 U.S.C. § 2680 (listing exceptions to the waiver of sovereign immunity provided by the Federal
Tort Claims Act); § 1491(c) (excepting cases against the Tennessee Valley Authority from the jurisdiction of the
court of Federal Claims).

39

See, e.g., 28 U.S.C. § 2401(b) (tort claims against the United States are “forever barred” if not
administratively presented within two years after they accrue).

40

28 U.S.C. §§ 1346(b)(1), 1491(a)(1). This system is sometimes criticized, see, e.g., Steven L. Schooner,
The Future: Scrutinizing the Empirical Case for the Court of Federal Claims, 71 Geo. Wash. L. Rev. 714 (2003),
but there is no doubt that Congress chose it.

41

28 U.S.C. § 2675(a). This rule reflects Congress’ judgment that administrative exhaustion will ease court
congestion, avoid unnecessary litigation, and promote fair and expeditious settlement of tort claims against the
United States. See S. Rep. No. 1327, 89th Cong., 2d Sess. 6 (1966).

8

interpretation, or the unforeseen interaction among requirements imposed by different statutes or
rules. Such procedural requirements may be difficult to discern at the start of litigation and may
serve no particular social or policy goal. But they may nonetheless cost a plaintiff her rights.
An example illustrates how unfair and purposeless these unintentional procedural hurdles
can be. Consider a federal employee who believes he has been subject to unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964. Such an employee must
first seek administrative relief and, if relief is denied, may then file a lawsuit in federal court. 42 In
the lawsuit, the named defendant must be “the head of the [plaintiff’s employing] department,
agency, or unit.” 43 This requirement is easy enough to satisfy, but some plaintiffs incorrectly
name their employing agency, and not its head, as the defendant. For example, a plaintiff might
sue the Postal Service instead of the Postmaster General, 44 or the Department of Veterans Affairs
instead of the Secretary of Veterans Affairs. 45
No social purpose or policy is served by requiring a federal employee who allegedly
suffered employment discrimination to sue the head of his employing agency rather than the
agency itself. The claim’s merits are unrelated to whether the complaint’s caption is “Jones v.
Postmaster General” or “Jones v. Postal Service.” And yet, prior to 1991, failing to properly
caption the case could cost a federal employee his day in court. Courts strictly interpreted the
requirement that the only proper defendant was the head of the employing agency, and by the
time the plaintiff discovered he had named the wrong defendant, the short statute of limitations
(only 30 days at that time) would typically have run. The error could be fatal because some
courts held that an amendment to the complaint to name the proper defendant did not relate back
to the date of filing. 46
The example above also shows that purposeless procedural traps can be fixed. Indeed,
this particular trap was fixed in 1991, when Rule 15 of the Federal Rule of Civil Procedure was
modified to allow more generous relation back of amendments adding the United States, or an

42
43
44

42 U.S.C. § 2000e-16(c).
Id. (emphasis added).
E.g., Rys v. U.S. Postal Service, 886 F.2d 443 (1st Cir. 1989).

45

E.g., Bell v. Veterans Admin. Hosp., 826 F.2d 357 (5th Cir. 1987) (the Veterans Administration was the
predecessor of the Department of Veterans Affairs, and its Administrator was the predecessor of the Secretary of
Veterans Affairs).

46

E.g., Rys, 886 F.2d at 445-48; Bell, 826 F.2d at 360-61. There was a circuit spilt on this issue. Some circuits
permitted relation back of an amendment naming the proper defendant. E.g., Warren v. Dep’t of Army, 867 F.2d
1156 (8th Cir. 1989).

9

officer or agency thereof, as a defendant in a lawsuit. 47 The Administrative Conference seeks to
find purposeless procedural traps and recommend similarly straightforward ways to fix them.
B.

The Reason Such Difficulties Arise and Persist

Why do procedural difficulties like the one explained above arise? And when they arise,
why are they not swiftly remedied? Writing on this topic nearly fifty years ago, the distinguished
administrative law scholar and treatise writer Kenneth Culp Davis attributed the problem to two
factors: lack of central planning and the government’s tactical advantage as a repeat player in the
system.
In Davis’s day, procedural difficulties in suits against the government were far worse
than they are now. He was writing before the Administrative Procedure Act was amended in
1976 to waive the government’s sovereign immunity in suits seeking relief other than money
damages. 48 During that time, many plaintiffs seeking relief against allegedly unlawful
government action were forced to use the clumsy device of fictitiously naming a government
officer as the defendant. 49 This artificial device—now largely forgotten as to federal officials 50—
avoided the sovereign immunity barrier, but created innumerable procedural difficulties. Courts
faced knotty questions, including whether relief could be obtained against a local official rather
than a national official (which implicated proper venue), or what happened if the nominal
defendant died or resigned from office (some courts held that the action abated and refused to
continue it against the defendant’s official successor). 51
Davis observed that no public policy justified these procedural difficulties. The reason
they existed, he said, was “not that someone on behalf of the Government has made a malevolent
decision against convenience and in favor of inconvenience,” but rather “that the system we have
evolved has been planned by no one.” 52 Davis also attributed procedural difficulties in
government litigation to the imbalance in the representation of the parties. The government has
an advantage because “Government lawyers can and do give sustained attention to contriving
technical ways to defeat plaintiffs,” whereas “[r]epresentatives of plaintiffs . . . typically have
47

See Fed. R. Civ. P. 15(c)(2); Advisory Committee Notes to 1991 Amendments to Fed. R. Civ. P. 15. In the
same year, the period for a federal employee to bring suit in court after receiving an unfavorable disposition of an
administrative Title VII claim was extended to 90 days. See 42 U.S.C. § 2000e-16.
48

See 5 U.S.C. § 702.

49

See Kenneth Culp Davis, Suing the Government by Falsely Pretending to Sue an Officer, 29 U. Chi. L.
Rev. 435 (1962).
50

Plaintiffs must still use the officer suit fiction to evade the barrier of sovereign immunity with respect to
state governments. See Ex parte Young, 209 U.S. 123 (1908); Cent. Va. Cmty. College v. Katz, 546 U.S. 356, 378
n.14 (2006) (referring to the doctrine as an “expedient fiction”) (internal quotation omitted).
51

See id.; Jonathan R. Siegel, Suing the President: Nonstatutory Review Revisited, 97 Colum. L. Rev. 1612,
1622-65 (1997).

52

Davis, supra note 49, at 439-40.

10

only occasional litigation against the Government” and “are often baffled by the technical
complexities.” 53 That is, government counsel, driven by a lawyer’s natural desire to win cases,54
persuade courts to create and maintain technical complexities, which they then use to win more
cases.
Davis noted that government lawyers can, and sometimes do, further their larger
obligation to pursue justice rather than to win a particular case. They sometimes forego the
opportunity to win on a procedural technicality and argue instead that the plaintiff should be
permitted to proceed to the merits. 55 On the whole, however, Davis suggested that “[n]either the
lawyers nor the judges normally have occasion to look at the perspectives of the system. If they
were to do so, they would see the absurdity of most of the technicalities.” 56
Although the 1976 amendments to the Administrative Procedure Act considerably
ameliorated the problems that Professor Davis described, his fundamental point remains valid.
Purposeless procedural obstacles arise without design in actions involving the United States, and
they persist because there is normally no force within the system dedicated to correcting them.
C.

The Role of the Administrative Conference

The Administrative Conference of the United States is well positioned to act as a force
for eliminating purposeless procedural obstacles in suits involving government. Most procedural
obstacles exist for a reason, and some cases must be dismissed to serve the larger policy goal of a
procedural rule. But it is important that there be such a larger policy goal. Dismissing a case
because of a procedural rule that serves no purpose or causes more harm than good is an
injustice. Purposeless procedural obstacles should be identified and eliminated—and this task fits
within the Conference’s statutory mission. This mission includes making recommendations “to
the end that private rights may be fully protected.” 57 As a public-private partnership, 58 the
Conference’s perspective permits it to promote solutions appropriate for both the government
and private parties.
The Conference has historically played an important role in resolving procedural
difficulties that arise in lawsuits involving the government. For example, the important 1976
amendments to the APA mentioned above, which waived sovereign immunity for claims seeking

53
54

Id. at 440.
Id. at 441.

55

Id.; see also, e.g., Stevens v. Dep’t of Treasury, 500 U.S. 1, 9-10 (1991) (explaining government
concession that a federal employee who brings an administrative complaint of age discrimination need not wait for
the proceeding to conclude before suing in court).
56
57
58

Davis, supra note 49, at 440.
5 U.S.C. § 591(1).
See 5 U.S.C. § 593(b) (describing the composition of the Administrative Conference).

11

other than money damages, grew out of a Conference recommendation. 59 The Conference has
also recommended other ways to simplify procedures in suits involving the federal
government. 60
In keeping with its mission and history, the Conference has taken up an ongoing project
of identifying and recommending elimination of purposeless procedural obstacles in litigation
involving the government. As the rest of this Report discusses, 28 U.S.C. § 1500 is the first
candidate for this project.
II.

The Core Problem: Section 1500 Unfairly Forces Election Among Potentially
Meritorious Claims

Section 1500’s core problem is that it unfairly causes plaintiffs to lose their right to bring
potentially meritorious claims against the federal government. The statute as applied exacerbates
the difficulty of determining the proper forum for a claim against government and significantly
increases the potential costs of a plaintiff’s jurisdictional misstep. Several factors contribute to
this problem: different kinds of claims against the United States must go to different courts;
multiple claims may arise out of the same incident; claims may be difficult to characterize; and
Section 1500, as interpreted by the courts, imposes unpredictable, highly technical rules.
A.

Jurisdiction Over Claims Against the Government

The first factor that contributes to Section 1500’s core problem is that plaintiffs with
claims against the United States are required to take different kinds of claims to different courts.
Generally, tort claims and claims for equitable relief must go to district court, 61 and contract
claims and most other claims for monetary relief based on a statute or the Constitution must go
to the CFC. 62

59

See ACUS Recommendation 69-1, Statutory Reform of the Sovereign Immunity Doctrine. The legislative
history of the 1976 amendments notes the role played by the Administrative Conference in their adoption. See H.R.
Rep. No. 1656, 94th Cong., 2d Sess. 1-10 (1976).
60

See, e.g., ACUS Recommendation 82-3, Federal Venue Provisions Applicable to Suits Against the
Government; ACUS Recommendation 80-5, Eliminating or Simplifying the “Race to the Courthouse” in Appeals
from Agency Action; ACUS Recommendation 68-7, Elimination of Jurisdictional Amount Requirement in Judicial
Review.
61

See 28 U.S.C. § 1346(b)(1) (granting district courts exclusive jurisdiction over tort claims against the
United States); Bowen, 487 U.S. 879, 905 (1988) (“[W]e have stated categorically that ‘the Court of Claims has no
power to grant equitable relief.’” (quoting Richardson v. Morris, 409 U.S. 464, 465 (1973) (per curiam))).
62

See 28 U.S.C § 1491(a)(1) (vesting jurisdiction in the CFC to hear claims against the United States founded
upon the Constitution, acts of Congress, regulations of executive departments, or implied or express contracts); but
see id. § 1346(a)(2) (granting district court concurrent jurisdiction to hear contract claims against the United States
for up to $10,000).

12

The first predecessor to the CFC, the Court of Claims, 63 was created in 1855 to relieve
pressure on Congress because “the only recourse available to private claimants was to petition
Congress for relief.” 64 Initially, the CFC was empowered only to review private claims and
recommend to Congress how to resolve them. 65 But in 1863, acting on President Lincoln’s
recommendation, Congress granted the CFC authority to issue final judgments. 66 The CFC’s
institutional role was further entrenched in 1887, when Congress comprehensively reformed the
CFC’s jurisdiction and procedures 67 “to ‘give the people of the United States what every
civilized nation of the world has already done—the right to go into the courts to seek redress
against the Government for their grievances.’” 68 Since then, Congress has enacted a number of
statutes that have cemented the CFC’s role as a specialized court for claims against government.
Today, the CFC remains a court of limited—but important and complex—jurisdiction.
Under the Tucker Act, the CFC has jurisdiction over “any claim against the United States
founded either upon the Constitution, or any Act of Congress or any regulation of an executive
department, or upon any express or implied contract with the United States, or for liquidated or
unliquidated damages in cases not sounding in tort.” 69 The Indian Tucker Act grants the CFC
jurisdiction over similar types of claims brought by “any tribe, band, or other identifiable group
of American Indians.” 70 The picture becomes more complex with the “Little Tucker Act,” which
grants district courts concurrent jurisdiction with the CFC over monetary claims against the
government for $10,000 or less. 71 Gaps in the CFC’s jurisdiction lend further complexity. For

63

As explained above, the CFC has taken several forms, and gone by several different names, over the course
of its history, but this Report refers to it exclusively as the “CFC” to avoid confusion. See supra note 3.

64

United States v. Mitchell, 463 U.S. 206, 212 (1983); see also Glidden, 370 U.S. at 552 (“The Court of
Claims was created . . . primarily to relieve the pressure on Congress caused by the volume of private bills.”).

65

See Glidden, 370 U.S. at 553.

66

Mitchell, 463 U.S. at 213; see also Cong. Globe, 37th Cong., 2d Sess., App. 2 (1861) (“[W]hile the [C]ourt
[of Claims] has proved to be an effective and valuable means of investigation, it in great degree fails to effect the
object of its creation, for want of power to make its judgments final. . . . I commend to your careful consideration
whether this power of making judgments final may not properly be given to the court.”). The “purpose to liberate the
Court of Claims from [Congress] and the Executive” was further demonstrated in 1863, when Congress, in response
to a Supreme Court case refusing to exercise judicial review, repealed a provision granting the Secretary of State
revisory authority over Court of Claims judgments. Glidden, 370 U.S. at 554.
67

Mitchell, 463 U.S. at 213.

68

Id. at 213-14 (quoting 18 Cong. Rec. 2680 (1887) (remarks of Rep. Bayne)); see also Act of Mar. 3, 1887,
24 Stat. 505 (permitting “the bringing of suits against the Government of the United States”).

69

28 U.S.C. § 1491(a)(1).

70

28 U.S.C. § 1505. The Indian Tucker Act grants the CFC jurisdiction “whenever such claim is one arising
under the Constitution, laws or treaties of the United States, or Executive orders of the President, or is one which
otherwise would be cognizable in the Court of Federal Claims
71

See 28 U.S.C. § 1346(a)(2). If the amount of a claim against the government is more than $10,000, the CFC
retains exclusive jurisdiction. Christopher Vill., L.P. v. United States, 360 F.3d 1319, 1332-33 (Fed. Cir. 2004).

13

example, the CFC generally lacks jurisdiction to grant equitable relief, 72 hear tort claims, 73 and
consider “claims based on contracts implied in law, as opposed to those implied in fact.” 74 Even
these omissions, however, are not absolute. From time to time, Congress has legislated to permit
the CFC to exercise jurisdiction over certain actions or claims, sometimes in equity, where the
court’s lack of jurisdiction has proven to cause injustice. 75 These individual legislative fixes,
though well-intentioned and beneficial for particular claimants, have contributed to a statutory
scheme that is, from a broad, systemic perspective, extremely complex.
The statutory scheme governing this important court’s jurisdiction thus turns out to be
quite complicated. 76 The intricacies of the system frequently cause plaintiffs to legitimately
doubt whether a claim belongs in district court or the CFC. 77 Even the basic rule that tort claims
go to district court and contract claims go to the CFC is not always so easy to apply, because
whether a particular claim is best characterized as a tort claim or a contract claim can be a tough
call. 78 Thus, even before we get to the special problem of Section 1500, the division of
jurisdiction between district court and the CFC poses significant challenges for plaintiffs.
B.

The History, Purposes, and Operation of Section 1500

Particularly for a plaintiff with multiple claims against government arising out of the
same incident, Section 1500 transforms the difficult task of navigating the division of jurisdiction
between the district courts and the CFC into a truly daunting endeavor. For these plaintiffs, a
seemingly minor error may prove fatal to one or more claims. Consider the plaintiff who believes
the government’s conduct in a single incident constitutes a tort, a breach of contract, and a
violation of statute—or believes it is one of the three without being sure of which. Such a
plaintiff may naturally want to pursue all potential claims in the proper court, and thus bring
72

E.g., Bowen v. Massachusetts, 487 U.S. 879, 905 (1988) (“[W]e have stated categorically that ‘the Court of
Claims has no power to grant equitable relief.’” (quoting Richardson v. Morris, 409 U.S. 464, 465 (1973) (per
curiam))); see also Smoot’s Case, 82 U.S. (15 Wall.) 36, 45 (1872) (stating that litigant’s “appeals to . . .
magnanimity and generosity, to abstract ideas of equity . . . are addressed in vain to this court,” because “[t]heir
proper theatre is the halls of Congress, for that branch of the government has limited the jurisdiction of the Court of
Claims to cases arising out of contracts express or implied”).
73
74
75
76

See 28 U.S.C. § 1491(a)(1).
Mitchell, 463 U.S. at 218 (citing Merritt v. United States, 267 U.S. 338, 341 (1925)).
See, e.g., 28 U.S.C. § 1491(a)(2).
See generally Kirgis, supra note 33, at 312-20.

77

See, e.g., Bowen, 487 U.S. at 898-901 (holding that district courts may hear certain claims against the
United States for monetary relief, provided the monetary relief does not constitute “money damages”).

78

See, e.g., U.S. Marine, Inc. v. United States, 2012 WL 2052953 (5th Cir. 2012); Union Pacific R. Co. v.
United States ex rel. U.S. Army Corps of Engineers, 591 F.3d 1311 (10th Cir. 2010). In each case, the district court
awarded damages to the plaintiff on a tort claim against the United States, but the court of appeals reversed on the
ground that the claim was really a contract claim within the exclusive jurisdiction of the CFC. See 2012 WL
2052953 at *1; 591 F.3d at 1313.

14

some claims in district court, and others in the CFC. If he mischaracterizes his claims,
misunderstands the jurisdictional division between the courts, files his claims in the wrong order,
or simply experiences an unexpected and unforeseeable series of events before one court or the
other, Section 1500 may require the CFC to dismiss his claims. At best, he must then go through
the hassle and expense of re-litigation; at worst, he will find himself with no forum that will hear
his claim(s).
Section 1500 prevents the CFC from hearing a “claim” that a plaintiff also “has pending
in any other court.” 79 The Supreme Court has directed lower courts to interpret “claim” for
purposes of Section 1500 in reference to “operative facts” underlying the claim, and not by the
legal theory of the claim. 80 As the Federal Circuit has explained, “[f]or the Court of Federal
Claims to be precluded from hearing a claim under § 1500, the claim pending in another court
must arise from the same operative facts.” 81
Section 1500’s earliest predecessor was enacted in the wake of the Civil War to address a
particular res judicata problem arising out of a high volume of claims for restitution for property,
mostly cotton, seized by the government during the war. 82 The Captured and Abandoned
Property Collection Act 83 “authorized the Federal Government to seize and confiscate private
property in the rebel states” so that the property could be sold to fund the war effort. 84 The Act
further provided that property owners, often referred to as “cotton claimants,” could seek
restitution in the CFC. To succeed on such a claim, however, the owner had to “prove that the
property was not used to aid the Confederacy.” 85 Those who had difficulty fulfilling this
statutory requirement often “resorted to separate suits in other courts seeking compensation not
from the Government as such but from federal officials . . . on tort theories such as
conversion.” 86 That is, in addition to suing the government itself under the Act, these claimants
sued an individual federal officer in tort.

79

28 U.S.C. § 1500.

80

United States v. Tohono O’odham Nation, 563 U.S. ___ (2011), slip op. at 5. In Tohono, the Supreme
Court retreated from its previous holding that “claim” was defined in relation to both the operative facts alleged and
the relief requested. See Keene Corp. v. United States, 508 U.S. 200, 212 (1993).
81

Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1551 (Fed. Cir. 1994); see also United States v.
Tohono O’odham Nation, 563 U.S. ___ (2011), slip op. at 5 (holding that Section 1500 applies where there is factual
overlap, even if there is no remedial overlap).
82

See generally, e.g., Peabody, supra note 33, at 98-102.

83

Keene, 508 U.S. at 206 (citing Abandoned Property Collection Act, ch. 120, 12 Stat. 820 (1863)); Harbuck,
378 F.3d at 1328; United Keetoowah Band, 86 Fed. Cl. at188; see generally Schwartz, supra note 23, at 574-580
(examining the historical context in which the statute originated).

84
85
86

Peabody, supra note 33, at 98.
Id.
Keene, 508 U.S. at 206 (citing Schwartz, supra note 23, at 574-580)

15

The practice of many cotton claimants to seek restitution in both the CFC and the district
court was troubling because, at that time, a judgment against the individual federal officer in
district court would have no preclusive effect in the CFC action against the United States, and
vice versa. 87 Thus, a cotton claimant could sue a government officer in tort, lose, and then start
over again in the Court of Claims, without being bound by the judgment in the first action. This
practice of duplicative litigation also raised the possibility of a double recovery, 88 and provided a
way for claimants to evade the requirement that they prove in the CFC action that their property
had not be used to aid the rebellion. 89
Congress enacted Section 1500 to address this problem. By forcing the cotton claimants
to make an election between the two independent options for seeking restitution, the statute filled
the apparent gap in res judicata. The only legislative history, the remarks of the bill’s author,
Vermont Senator Edmunds, explains:
The object of this amendment is to put to their election that large
class of persons having cotton claims particularly, who have sued
the Secretary of the Treasury and the other agents of the
Government in more than a hundred suits that are now pending,
scattered over the country here and there, and who are here at the
same time endeavoring to prosecute their claims, and have filed
them in the Court of Claims, so that after they put the Government
to the expense of beating them once in a court of law they can turn
around and try the whole question in the Court of Claims. The
object is to put that class of persons to their election either to leave
the Court of Claims or to leave the other courts. I am sure
everybody will agree to that. 90
Although some modern cases have suggested that Section 1500’s purpose is simply to prevent
duplicative litigation, 91 the statute appears to have been “designed only to provide a substitute

87

See Matson, 284 U.S. at 355-56; Conn. Dep’t of Children and Youth Servs. v. United States, 16 Cl. Ct. 102,
104 (Cl. Ct. 1989); Schwartz, supra note 23 at 578.
88
89

See Peabody, supra note 33, at 101.
Keene, 508 U.S. at 206.

90

81 Cong. Globe, 40th Cong., 2d Sess. 2769 (1868), quoted in UNR Indus., Inc. v. United States, 962 F.3d
1013, 1018 (1992) (en banc), aff’d sub nom. Keene, 508 U.S. 200; see also Matson, 284 U.S. at 355-56.

91

E.g., United States v. Tohono O’odham Nation, 563 U.S. ___ (2011), slip op. at 7; U.S. Home Corp. v.
United States, 92 Fed. Cl. 401, 410 (2010).

16

for the absent rule of res judicata in successive suits against a government officer and against the
Government.” 92
C.

Section 1500’s Core Problem: It Deprives Plaintiffs of Their Day in Court for
No Good Purpose

Section 1500’s core problem is that it often prevents plaintiffs from pursuing all their
claims against the government, and it does so for no valid reason. If a plaintiff has multiple
potential claims against the United States arising out of a single incident, and tries to pursue
them by simply bringing each to the court in which it is apparently cognizable, the plaintiff may
be surprised to learn that Section 1500 requires the CFC to dismiss the claims presented to it. As
noted above, claims arising out of the same facts are considered the same “claim” for purposes of
Section 1500. Thus, if, for example, a plaintiff had a tort claim and a contract claim against the
United States arising out of a single incident, and the plaintiff simply filed the tort claim in
district court, and then filed the contract claim in the CFC, section 1500 would require the CFC
to dismiss.
Plaintiffs are more likely to have multiple claims against government that are cognizable
in different courts today than when Section 1500 was originally enacted. As the Supreme Court
recently explained, when Section 1500 was originally enacted, “the CFC had a more limited
jurisdiction than it does now,” and the district courts were not empowered to adjudicate claims
against the government in any circumstances. 93 Section 1500 has not changed much “even as
changes in the structure of the courts made suits on the same facts more likely to arise.” 94
The effects of Section 1500 are particularly troubling given that the res judicata problem
Section 1500 was initially designed to solve no longer exists. Evolution in preclusion doctrine,
combined with the inherent judicial power to manage the docket by staying or dismissing
duplicative suits, renders Section 1500 unnecessary. The considerable jurisdictional litigation
Section 1500 engenders—and the dismissals it requires—thus serve no good purpose.
Section 1500’s original purpose—“to provide a substitute for the principle of res judicata,
believed to be absent in successive suits against a government officer and the Government,” 95—
has been rendered obsolete by evolution in the doctrine of res judicata. 96 Res judicata, “[a]
92

Schwartz, supra note 23, at 578; see also Matson, 284 U.S. at 355-56 (“[T]he declared purpose of the
section . . . was only to require an election between a suit in the Court of Claims and one brought in another court
against an agent of the Government, in which the judgment would not be res adjudicata in the . . . Court of
Claims.”).

93
94
95

United States v. Tohono O’odham Nation, 563 U.S. ___ (2011), slip op. at 6.
Id.
Schwartz, supra note 23, at 599; see Matson Nav. Co. v. United States, 284 U.S. 352, 355-56 (1932).

96

Compare Schwartz, supra note 23, at 600 (explaining, in 1967, that “[t]he law is tending toward [a] rule of
res judicata” that would operate “as a replacement for Section 1500”), with Peabody, supra note 33, at 109

17

fundamental precept of common-law adjudications,” provides that “a final judgment on the
merits bars further claims by parties or their privies based on the same cause of action.” 97 This
core manifestation of the doctrine is often referred to as “claim preclusion.” A related doctrine,
“issue preclusion,” also known as “collateral estoppel,” is not dependent on an identity of claims,
but provides more broadly that “once an issue is actually and necessarily determined by a court
of competent jurisdiction, that determination is conclusive in subsequent suits based on a
different cause of action involving a party to the prior litigation.” 98 Both variants of res judicata
“preclude parties from contesting matters that they have had a full and fair opportunity to
litigate,” and thereby protect against the “expense and vexation” of duplicative litigation,
“conserve[] judicial resources, and foster[] reliance on judicial action by minimizing the
possibility of inconsistent decisions.” 99
Today, it is well established that a government and its officers, at least in their official
capacities, are in privity for purposes of res judicata. 100 Thus, a judgment in a suit against a
federal officer in his official capacity will bind the United States government, and vice versa.101
This principle, which has emerged in approximately the last half-century, fulfills the primary
purpose of Section 1500: where a claimant files the same claim against the government in the
CFC and a government official in a district court, the judgment in one court will have preclusive
effect in the other. 102
Where claim preclusion is inapplicable because all the claims brought in the CFC and the
district court are not identical, but overlap or are intimately related, the modern doctrine of issue
preclusion would step in to serve any remaining, legitimate purpose of Section 1500. This may
be a relatively common occurrence because, as discussed previously, Congress’ scheme for
dividing subject matter jurisdiction between the CFC and the district courts often leaves
claimants in the position of having multiple claims, some of which are within the exclusive
jurisdiction of the CFC, and some of which are within the exclusive jurisdiction of the district
(observing, in 1994, that “[t]he doctrine of res judicata already works to prevent re-litigation of the same claim
against the United States”).
97

Montana v. United States, 440 U.S. 147, 153 (1979).

98

Id.; see also United States v. Mendoza, 464 U.S. 154, 158 (1984) (explaining issue preclusion as providing
that “once a court has decided an issue of fact or law necessary to its judgment, that decision is conclusive in a
subsequent suit based on a different cause of action involving a party to the prior litigation”).
99

Montana, 440 U.S. at 153-54.

100

Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 402-03 (1940); see generally 18 JAMES WM.
MOORE ET AL., MOORE’S FEDERAL PRACTICE § 131.40(3)(e)(ii)(A) (“A government official sued in his or
her official capacity is considered to be in privity with the government.”).
101

See, e.g., Gregory v. Chehi, 843 F.2d 111, 120 (3d Cir. 1988) (explaining that government officials sued in
their official capacity “may invoke a [prior] judgment in favor of the governmental entity as may that body itself”).

102

Another statute, Section 2519 of the Judicial Code, helpfully provides that “[a] final judgment of the [CFC]
against any plaintiff shall forever bar any further claim, suit, or demand against the United States arising out of the
matters involved in the case or controversy.” 28 U.S.C. § 2519.

18

court. Issue preclusion, which has radically evolved since Section 1500 was enacted, is a
“judicially-developed doctrine” that extends the effects of preclusion beyond claims to issues
necessarily decided in previous litigation. 103 Like claim preclusion, issue preclusion may be used
offensively, “when a plaintiff seeks to foreclose a defendant from relitigating an issue the
defendant has previously litigated unsuccessfully,” or defensively, “when a defendant seeks to
prevent a plaintiff from relitigating an issue the plaintiff has previously litigated
unsuccessfully.” 104 Either way, it is a flexible tool courts can use to vindicate precisely the
interests typically cited as justifying Section 1500.
Section 1500 has, therefore, outlived its original purpose. The kind of situation Senator
Edmunds worried about in 1868 rarely arises today. Today, the incentive to sue a federal officer
in tort in district court, while simultaneously suing the government in contract in the CFC, is
significantly reduced because most tort actions against government officers are forbidden. 105
Indeed, in most cases where Section 1500 applies, the plaintiff has not separately sued the
government and a government officer, but has brought two suits in different courts against the
government itself. Here, ordinary principles of preclusion apply. In addition, because of the
developments in the law of preclusion, a judgment in a suit against a federal officer would have
appropriate preclusive effect in a related, subsequent case against the government itself.
To dismiss claims under Section 1500 when it no longer serves its purpose is unjust. A
basic principle of modern civil procedure is that plaintiffs are permitted to pursue all the claims
that they may have against a single defendant and are not required to “elect” among claims.106
This rule should be as valid against the United States as against any other defendant. By
depriving plaintiffs of potentially meritorious claims on the ground that they have filed related
claims elsewhere, Section 1500 works an injustice.
In its recent decision in Tohono, the Supreme Court focused on a different purpose
Section 1500 may today serve (even if it was not the statute’s original purpose), namely, the need
“to save the Government from burdens of redundant litigation.” 107 It is true that, in the absence
of Section 1500, plaintiffs could simultaneously bring separate lawsuits against the government,
one in district court and one in the CFC, on claims arising from the same facts. The costs of such
duplicative litigation are a legitimate concern. But Section 1500’s remedy of dismissing the CFC
lawsuit is too harsh. As explained in more detail later in this Report, fairer options are available.
103

Mendoza, 464 U.S. at 158; see also Thomas v. Gen. Servs. Admin., 794 F.2d 661, 664 (Fed. Cir. 1986)
(explaining that issue preclusion applies where “(i) the issue previously adjudicated is identical . . . , (ii) that issue
was ‘actually litigated’ in the prior case, (iii) the previous determination of that issue was necessary to the enddecision then made, and (iv) the party precluded was fully represented in the prior action”).

104
105
106
107

Mendoza, 464 U.S. at 159 n.4.
See 28 U.S.C. § 2679.
See Fed. R. Civ. P. 18(a).
United States v. Tohono O’odham Nation, 563 U.S. ___ (2011), slip op. at 7.

19

For example, one of the courts can stay its proceedings until the other is finished. This and
similar options would mitigate costs of duplicative litigation without unjustly depriving a
plaintiff of the ability to pursue potentially legitimate claims. 108 Indeed, it is unfair to punish a
plaintiff for bringing suit against the United States in two different courts when the plaintiff is
simply doing what is required by Congress’ jurisdictional scheme. 109
Thus, Section 1500 unfairly causes plaintiffs with multiple claims against the United
States to lose potentially meritorious claims. It is no longer needed to serve its original purpose
of filling a gap in the doctrine of res judicata. And it is an unfairly harsh and overbroad method
of reducing the costs of duplicative lawsuits that are only required because of the division of
jurisdiction between the CFC and the district courts.
III.

Further Problems: Section 1500’s Procedural Traps

The previous section described the core problem with Section 1500: it may cause
plaintiffs who have multiple claims against the United States arising from a single incident to
lose meritorious claims simply by bringing each claim to the court in which it is cognizable. But
Section 1500 causes other problems, too. Combined with its torturous history of judicial
interpretation, the statute causes a series of complexities that exacerbate the basic problem. As
this section shows, Section 1500, as applied to the various permutations of cases that can arise,
yields results that are bizarre and unfair.
A.

The Determinative Role of Timing in Section 1500’s Application

As noted above, Section 1500 may oust the CFC of jurisdiction if a plaintiff files claims
arising out of a single incident in multiple courts. But, curiously, current law permits a “workaround,” which enables plaintiffs with multiple claims against the United States to pursue all
such claims, provided they file them in the right order. The availability of this work-around—to
those able to find it—makes Section 1500’s application all the more illogical.
Under current law, Section 1500’s application is determined as of the time the plaintiff
files his complaint in the CFC. 110 Under this “time-of-filing” rule, 111 which originated in Tecon
108
109

See Part V.A.1, infra.
See id.

110

See Keene, 508 U.S. at 209. Early decisions were to the contrary: a later-filed district court action was held
to divest the CFC of jurisdiction. See Corona Coal Co. v. United States, 263 U.S. 537, 539-40 (1924); Ex Parte
Skinner & Eddy Corp., 265 U.S. 86, 96 (1924); see also Kirgis, supra note 33, at 321 n.122 (explaining the history
of “uncertainty as to timing” of suits in the application of Section 1500). The tide turned in Tecon Engineers, Inc. v.
United States, 343 F.2d 943, 949 (Ct. Cl. 1965), a decision that may have been driven by the Federal Circuit’s
disapproval of a plaintiff who was blatantly attempting to manipulate the court’s jurisdiction by filing a district court
action and then using the filing to get out of its earlier filed CFC action, see id. at 944, 949.
111

E.g., Nez Perce Tribe, 83 Fed. Cl. at 190 (“After Keene was decided, the Federal Circuit has accepted that
Section 1500 incorporates a time-of-filing requirement.”).

20

Engineers, Inc. v. United States, 112 Section 1500 bars a plaintiff’s claim if it was pending in
district court at the time of filing in the CFC, even if the district court dismisses the action before
the CFC adjudicates a motion to dismiss under Section 1500. On the other hand, “a later filed
district court action d[oes] not oust the [CFC] of jurisdiction under § 1500.” 113
The resulting rule provides that if a plaintiff “[f]ile[s] a lawsuit in [the CFC] on Monday
and another involving the same claims in the U.S. district court on Tuesday, . . . all is
jurisdictionally well.” 114 But if the plaintiff does the reverse—files a lawsuit in district court on
Monday and another suit involving the same claims in the CFC on Tuesday—the CFC must
dismiss. The order of filing determines the outcome.
A sophisticated (or lucky) plaintiff can thus avoid Section 1500 simply by filing in the
right order. 115 The rule emphasizes that Section 1500 serves no valid purpose. Indeed, the rule
often operates as a trap for the unwary, resulting in the dismissal of suits filed by a plaintiff (or
counsel) who was ignorant of the rule or made a simple filing mistake. 116 This is unfair. And it
“makes no sense” in light of any plausible purpose served by Section 1500, 117 because
“[w]hether a suit on the same claim is filed before or after an action in the [CFC], the
Government’s defense of it involves duplicative effort.” 118
It should be noted that this rule was discussed in a case recently decided by the Supreme
Court, Tohono O’odham Nation v. United States. 119 This case presented questions regarding the
role of the plaintiff’s requested relief in interpreting “claim” as used in Section 1500. But the
government also asked the Supreme Court to take the opportunity to resolve the order of filing
anomaly by interpreting Section 1500 to require dismissal in the CFC whenever related claims
112

170 Ct. Cl. 389 (1965).

113

Hardwick Bros. Co. II v. United States, 72 F.3d 883, 886 (Fed. Cir. 1995). This rule originated in Tecon
Engineers, was briefly overruled by UNR, and ultimately resurrected in Loveladies. See id. at 885-86.
114

Griffin v. United States, 85 Fed. Cl. 179, 182 (2008); see also Breneman, 57 Fed. Cl. at 577 n.11 (“Cases in
this court that have involved later-filed district court actions have not been dismissed for lack of jurisdiction under §
1500 even if both claims were the same.”).
115

E.g., Low, 90 Fed. Cl. at 456 (“Had Plaintiff merely filed suit in this Court first, § 1500 would not have
been a concern.”).

116

See, e.g., Lan-Dale Co. v. United States, No. 03-1956C, 2009 U.S. Claims LEXIS 16, *10-11 (Jan. 29,
2009) (explaining what led plaintiff’s “former counsel” to “ma[k]e ‘a disastrous procedural error’ in filing the two
lawsuits simultaneously in different courts, in apparent ignorance of 28 U.S.C. § 1500” (internal footnote omitted)).
117

Keene Corp. v. United States, 12 Cl. Ct. 197, 215 (1987).

118

Id.; see also Low, 90 Fed. Cl. at 455 (“Unfortunately, due to a series of judicial decisions . . . , § 1500 in
practice often fails to produce its intended result. Rather than preventing a plaintiff from filing two actions seeking
the same relief for the same claims, § 1500 ‘merely requires that the plaintiff file its action in the Court of Federal
Claims before it files its district court complaint.’” (quoting Tohono O’odham, 559 F.3d at 1291))); Vaizburd, 46
Fed. Cl. at 311 n.4 (citing Tecon, 343 F.2d at 949) (“A later-filed claim in the district court, even though it raises the
same theoretical concerns, does not implicate Section 1500.”).
119

559 F.3d 1284 (Fed. Cir. 2009), cert. granted, 78 U.S.L.W. 3687 (Apr. 19, 2010) (No. 09-846).

21

are pending in district court, regardless of the order of filing. The Court declined this invitation,
noting that the rule was “not presented . . . because the CFC action [in Tohono] was filed after
the District Court suit.” 120 The Court nonetheless criticized the order of filing rule as having “left
the statute without meaningful force,” 121 stating that the Federal Circuit “was wrong to allow its
precedent to suppress the statute’s aims.” 122 This criticism could lead the Federal Circuit or the
Supreme Court to abolish the time-of-filing rule. But, at least for now, the rule remains.
B.

The Simultaneous Filing Rule

The unfairness of Section 1500 is further exacerbated by the Federal Circuit’s rule that
the statute applies not only if a plaintiff files a claim first in district court and then in the CFC,
but also if the plaintiff files in both courts simultaneously. 123 This rule, announced in United
States v. County of Cook, is based on a “view of appropriate policy” that some judges on the
Federal Circuit have criticized as “mistaken.” 124 In County of Cook, the court “endeavor[ed] to
further the established policies of Section 1500,” which the court identified as forcing plaintiffs
to choose between courts and protecting the government from duplicative suits. 125 The court did
not conclude these policies were actually furthered by interpreting “pending” to encompass
simultaneously filed claims. 126 Rather, the court concluded merely that “nothing suggests that
these policies would not . . . be promoted by precluding jurisdiction in the simultaneous filing
context.” 127 Thus, not only is it unclear that the result was required by the policy considerations
the court identified, but “those policy considerations are arguable at best.” 128
C.

Application of the Simultaneous Filing Rule to Transferred Claims

A particularly unfortunate detail of the “simultaneous filing” rule announced in County
of Cook is how it applies to claims transferred from district court to the CFC. A party with
multiple claims against the United States may erroneously file all such claims in district court,
even though some of the claims belong in the CFC. In such a case, the district court may invoke

120
121
122
123

United States v. Tohono O’odham Nation, 563 U.S. ___ (2011), slip op. at 7.
Id., slip op. at 6.
Id., slip op. at 7.
See Cnty. of Cook, 170 F.3d at 1087; Vaizburd, 46 Fed. Cl. at 311.

124

Griffin v. United States, 621 F.3d 1363, 1365 (Fed. Cir. 2010) (Plager, J., dissenting from denial of panel
rehearing and rehearing en banc).

125
126
127
128

Id.
Id. at 1091.
Id.
d’Abrera, 78 Fed. Cl. at 56 n.10.

22

the transfer statute, 28 U.S.C. § 1631, which is designed to save plaintiffs who file claims in the
wrong court. 129 Section 1500, however, may rob plaintiffs of the benefits of Section 1631.
The difficulty is that Section 1631 requires the transferee court to treat transferred claims
as though they had been filed in the transferee court on the date that they were actually filed in
the court from which they are transferred. 130 If a plaintiff files multiple claims against the
government in district court, but the district court determines that some (but not all) of those
claims are within the CFC’s jurisdiction, the district court may invoke Section 1631 to transfer
the claims to the CFC. But the CFC must treat the transferred claims as having been filed in the
CFC on the date they were filed in district court. That is, it must treat the transferred claims as if
they were simultaneously filed with the claims that remained in the district court. County of Cook
then requires the CFC to dismiss the transferred claims, provided they are the same “claims” that
remained in the district court. 131 Dismissal results despite the fact that the claims were
transferred to the CFC precisely because it was the proper court to hear them. 132
On the other hand, Section “1500 is not implicated when all of the claims in an action are
transferred to the” CFC. 133 This is “[p]resumably because . . . the district court proceeding is . . .
deemed never to have been filed.” 134
This application of Section 1500 to transferred claims “creates a significant trap for the
unwary,” 135 and undermines the purposes of the transfer statute, which was “enacted to cure
jurisdictional defects.” 136 The trap becomes apparent from a summary of the complicated rules
that have emerged from the interaction between Sections 1500 and 1631. These rules provide:
•

Where a plaintiff files in district court, and the district court subsequently
transfers all claims to the CFC, Section 1500 does not apply. 137

129

See Cnty. of Cook, 170 F.3d at 1089 (interpreting the transfer statute to “permit the transfer of less than all
of the claims in an action”).
130

See 28 U.S.C. § 1631 (providing that “the action or appeal shall proceed as if it had been filed in or noticed
for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from
which it is transferred”).

131
132
133
134
135

See Cnty. of Cook, 170 F.3d at 1090, 1091 & n.8.
Id. at 1090.
Id. at 1091 n.8.
Vaizburd, 46 Fed. Cl. at 311.
d’Abrera, 78 Fed. Cl. at 56 n.10.

136

Id. at 56 n.10; see also Griffin, 621 F.3d at 1364 (explaining how the Federal Circuit’s Section 1500
jurisprudence can defeat Section 1631’s purpose of permitting the transfer of claims filed in the wrong court because
of counsel’s “unfamiliar[ity] with the intricacies and complexities of federal jurisdiction”).

137

d’Abrera, 78 Fed. Cl. at 57.

23

•

Where a plaintiff files in district court, the district court dismisses all claims, and
the plaintiff subsequently files the same claim in the CFC, Section 1500 does not
apply. 138

•

Where a plaintiff files in district court, and the district court transfers only a
subset of the claims to the CFC, the claims are deemed simultaneously filed by
operation of section 1631, and Section 1500 applies. 139

•

This holds true even if the district court dismisses the remainder of the plaintiff’s
claims after having made the transfer to the CFC, because under Keene, the CFC
is required to assess its jurisdiction at the time of filing. 140

These complex rules are difficult to navigate and likely to result in the dismissal of claims filed
by unsophisticated litigants or litigants who honestly but erroneously thought the district court
had jurisdiction over their action.
The consequence is that, for a plaintiff who has multiple claims arising out of the same
operative facts, over which “jurisdiction might be split between a district court and” the CFC,
“the only safe alternative is . . . to file first in [the CFC], and thereafter to file in district court.” 141
Broadly speaking, then, County of Cook punishes unwary litigants by dismissing their claims
despite the purpose of Section 1631, while rewarding sophisticated litigants who file duplicative
suits despite the purported purposes of Section 1500.
D.

Intra-CFC Split: Are Claims Filed on the Same Day Per Se “Simultaneous”?

The harm wrought by the Federal Circuit’s simultaneous filing rule includes an intra-CFC
split over whether same-day filings should be treated as per se simultaneous, such that Section
1500 bars jurisdiction under County of Cook. 142 Presumably, a sophisticated plaintiff will avoid
the problem entirely by filing his claims in the proper order, on different days. Less sophisticated
plaintiffs, however, are likely to have their claims dismissed under the complicated simultaneous
filing rules. This disparity in the treatment of claims based on the plaintiff’s level of
sophistication is arbitrary.

138
139
140
141

Id. at 56 n.10; Vaizburd, 46 Fed. Cl. at 311.
Vaizburd, 46 Fed. Cl. at 311.
Id. at 311.
d’Abrera, 78 Fed. Cl. at 56 n.10.

142

See, e.g., United Keetoowah Band of Cherokee Indians v. United States, 86 Fed. Cl. 183, 190 (2009) (“The
lack of clarity in case law surrounding the meaning of ‘pending’ under Section 1500 has left the [CFC] divided
[into] two camps” regarding whether to “adopt[] a per se rule that a district court complaint filed the same day is
pending regardless of time of filing.” (internal citations omitted)).

24

A minority of CFC judges have adhered to the ancient maxim that the law knows no
fractions of a day, holding “that a District Court complaint filed the same day [as the complaint
filed in the CFC] is pending regardless of time of filing.” 143 Passamaquoddy Tribe v. United
States, 144 which exemplifies the minority rule, explained that some courts do not time stamp
complaints, 145 and that “construing § 1500 to require the taking of live testimony from paralegals
and filing clerks [to determine the precise timing of two filings] borders on the absurd.” 146 To
engage in “[s]uch an inquiry frustrates all notions of judicial economy,” particularly in response
to “[d]uplicative suits filed on the same day” and contrary to the purposes of Section 1500. 147
The majority view, however, “recognizes as dispositive the sequence of the two
complaints’ filing.” 148 These judges have concluded that where two complaints are “separately
carried to [the CFC] and to the district court by a delivery service . . . on the same day, as a
factual matter the sequence of filing should be determinable.” 149 That making this determination
may “require ‘extra’ work by the parties and the court” is of no moment for those judges who
read the statute to require the inquiry. 150
Even the majority approach, however, can result in seemingly arbitrary dismissals. For
example, in Nez Perce Tribe, a clerk testified that the time of filing in her court depends on
whether a “case manager is . . . at lunch or on the telephone or handling another project.” 151 An
unwary plaintiff may thus find herself the victim of both a confusing and fractured jurisprudence
and the vagaries of the clerk’s schedule on the day of filing. A knowledgeable plaintiff, however,
can avoid this fate by filing her complaints in the proper order on different days.

143
144
145
146

Id.
82 Fed. Cl. 256 (2008).
Id. at 272.
Id.

147

Id. “Nonetheless, because precedent is disputed on this issue, the court proceed[ed] to examine the
evidence of the sequence of the court filings,” id. at 272, concluding that the CFC action was later-filed and,
therefore, barred by Section 1500, id. at 280.
148

United Keetoowah Band, 86 Fed. Cl. at 190; see Nez Perce, 83 Fed. Cl. at 191; Ak-Chin Indian Cmty. v.
United States, 80 Fed. Cl. 305 (2008); Salt River Pima-Maricopa Indian Cmty. v. United States, No. 06-943L, 2008
WL 1883170 (Fed. Cl. Apr. 24, 2008); Breneman v. United States, 57 Fed. Cl. 571, 577 (2003); cf. Richmond,
Fredericksburg & Potomac R.R. Co. v. United States, 75 F.3d 648, 653 n.2 (Fed. Cir. 1996) (explicitly not reaching
the same-day filing question, but suggesting that the precise time of day of each filing would determine whether
Section 1500 applied).
149
150
151

Nez Perce Tribe, 83 Fed. Cl. at 191.
Id. at 193.
Id. at 193 (internal quotation marks omitted).

25

E.

Intra-CFC Split: Is an Action “Pending” When Time Remains to Appeal?

A case is “pending” for purposes of Section 1500 if it is pending in a court of appeals,152
and the CFC must therefore dismiss a claim if a claim based on the same facts, previously filed
by the plaintiff in district court, is still on appeal. CFC judges have, however, split over whether
an earlier-filed district court action is still “pending” after it has been dismissed on jurisdictional
grounds, but before the time to appeal the dismissal has expired. 153 The issue hasn’t come up
often, but could be outcome determinative if the statute of limitations will run on a plaintiff’s
CFC claim before the time for appealing the district court’s dismissal has expired. In such a case,
an honest plaintiff could be punished for his reasonable belief that the district court, and not the
CFC, has jurisdiction over his claims. 154 The CFC has suggested this result could be avoided if
the plaintiff “renounced” his right to appeal the district court decision before filing in the CFC. 155
But this might not be an equitable solution because it would require the plaintiff to forgo his
right to appeal a decision depriving him of one forum for his claim in order to pursue his claim in
a forum he believes lacks jurisdiction. Regardless of what the right rule is, however, a plaintiff
caught in this quandary today faces an uncertain outcome.
F.

Defining “Claim”: A Case Study in Jurisprudential Volatility

Another problem with Section 1500, exemplified in the history of the interpretation of
“claim,” is that the courts have created a highly unstable jurisprudence surrounding the statute.
Much of the problem with Section 1500 stems from the definition of the fundamental statutory
term, “claim.” As explained above, it is crucial to the problem posed by the statute that a “claim”
is defined by its underlying facts, and not by the legal theory attached to the claim. The courts
have vacillated among different interpretations, and have had such difficulty explaining the terms
of the statute that it seems unfair to expect plaintiffs to know what they are supposed to do. This
tumultuous judicial history strongly suggests that the statute is out-of-date, poorly written, and
insusceptible of rational judicial construction.
The first case to interpret “claim,” British American Tobacco Company, Ltd. v. United
suggested that the test should focus exclusively on whether the operative facts
States,
156

152

Coeur d’Alene Tribe v. United States, 102 Fed. Cl. 17, 25 (2011).

153

Compare Vero Technical Support, Inc. v. United States, 94 Fed. Cl. 784, 795 (2010) (holding that an
earlier filed district court action that is dismissed is still “pending” until the time to file a motion for reconsideration
or notice of appeal has run); Jachetta v. United States, 94 Fed. Cl. 277, 283 (2010) (same), with Young v. United
States, 60 Fed. Cl. 418, 425 (2004) (holding that “once a claim is dismissed or denied, it is no longer pending in
another court, for purposes of Section 1500, until a motion for reconsideration or notice of appeal is filed”).

154
155
156

See Vero Technical Support, 94 Fed. Cl. at 795 n.2.
Id. at 795.
89 Ct. Cl. 438 (1939).

26

underlying the plaintiff’s claims are the same. 157 This seemed straightforward, but a later
decision, Casman v. United States, 158 injected uncertainty into the doctrine. 159 Casman held that
Section 1500 was simply “inapplicable” 160 where a plaintiff filed two suits based on the same
operative facts, but in each court sought “entirely different” relief that only that court was
empowered to grant. 161 In such cases, the court reasoned, “the plaintiff obviously had no right to
elect between courts.” 162 Casman precipitated years of uncertainty about what kind of election
would render Section 1500 inapplicable—was it an election between legal theories (e.g., contract
versus tort) or an election between types of relief (e.g., monetary versus equitable)? 163 Some
cases suggested the former; 164 others suggested the latter. 165
The Federal Circuit first attempted to eliminate the confusion wrought by Casman in
1988, in Johns-Manville Corporation v. United States. 166 Here, several defendants in mass tort
litigation sought indemnification from the government “for injuries to shipyard workers exposed
to asbestos during World War II.” 167 The same defendants had previously filed indemnification
claims sounding in tort against the government in district court. 168 Because the claims filed in
both courts were based on the same operative facts and sought monetary relief—albeit under
different legal theories—the CFC dismissed the action under Section 1500. 169 In the course of
affirming that dismissal, the Federal Circuit undertook a comprehensive examination of the text,
legislative history, and judicial interpretations of Section 1500. While not overruling any of the
cases its decision appeared to undermine, the Federal Circuit “construe[d] the term ‘claim’ in 28
U.S.C. § 1500 to be defined by the operative facts alleged, not the legal theories raised.” 170 The
court further held that because the purpose of Section 1500 was to “force an election [of forum]

157
158
159
160
161
162
163

Id.; see also L.A. Shipbuilding & Drydock Corp. v. United States, 138 Ct. Cl. 648 (1957).
135 Ct. Cl. 647 (1956).
See Kirgis, supra note 33, at 323-326.
Casman, 135 Ct. Cl. at 650.
Id. at 649-50.
Id. at 650.
Kirgis, supra note 33, at 323; see Peabody, supra note 33, at 104.

164

See Hossein v. United States, 218 Ct. Cl. 727 (1978); Prillman v. United States, 220 Ct. Cl. 677 (1981);
Allied Materials & Equip. Co. v. United States, 210 Ct. Cl. 714 (1976).
165
166
167
168

See City of Santa Clara v. United States, 215 Ct. Cl. 890 (1977).
855 F.2d 1556 (Fed. Cir. 1988).
Id. at 1558.
See id.

169

See Kirgis, supra note 33, at 326-27 (citing Keene Corp. v. United States, 12 Cl. Ct. 197, 216-17 (1987),
aff’d sub nom. Johns-Manville Corp. v. United States, 855 F.2d 1556, 1560 (Fed. Cir. 1988)).
170

Johns-Manville, 855 F.2d at 1563.

27

where both forums could grant the same relief,” 171 the Casman exception remained good law
“where a different type of relief” was sought in each of two forums. 172
Less than four years after Johns-Manville, sitting en banc in UNR Industries, Inc. v.
United States, 173 the Federal Circuit, over a vigorous dissent, 174 undertook a sweeping reform of
its Section 1500 jurisprudence. 175 The case appeared to raise just two, relatively narrow
questions that available precedent was sufficient to answer. But the court’s analysis went much
further, beginning with a comprehensive examination of Section 1500’s text and legislative
history, 176 and including a thorough review of the “judicial development” of the doctrine, which
the majority described as “erratic.” 177 Of the mind that Section 1500 “is now so riddled with
unsupportable loopholes that it has lost its predictability” and “no longer serves its purposes,”178
the court explicitly overruled five cases it viewed as creating unsupportable judicial exceptions to
Section 1500. 179
The UNR revolution was short-lived—much of the precedent it overruled was good law
again in just over two years. The Supreme Court delivered the first blow when it reviewed UNR
in Keene v. United States. 180 Though affirming the Federal Circuit’s decision, the Court found “it
unnecessary to consider, much less repudiate” all the same Section 1500 precedents. 181
Following Keene, the Federal Circuit, in another en banc decision, Loveladies Harbor,182
explicitly reaffirmed the validity of three of the five cases overruled in UNR. 183 Loveladies
brought some measure of certainty to Section 1500—since then the rule has been that “[f]or the

171

Id. at 1564.

172

See id. at 1566; see also Bos. Five Cents Sav. Bank, FSB v. United States, 864 F.2d 137, 139 (1988) (citing
Johns-Manville as upholding the continued validity of the Casman exception for duplicative suits seeking different
relief).
173
174

962 F.2d 1013 (Fed. Cir. 1992).
See id. at 1026-30 (Plager J., dissenting).

175

Kirgis, supra note 33, at 332; see also Peabody, supra note 33, at 105 (“For whatever reason, the Federal
Circuit, sitting en banc, also took the opportunity in UNR to revisit five precedents that it viewed as judicially
created – and therefore illegitimate – exceptions to Section 1500’s textual meaning.”).
176
177
178
179
180

See UNR, 962 F.2d at 1017-19.
Id. at 1019.
Id. at 1021.
Peabody, supra note 33, at 105 & n.43.
508 U.S. 200 (1993).

181

Keene, 508 U.S. at 216 (quoting UNR, 962 F.2d at 1021). On the other hand, two of the cases overruled in
UNR “d[id] not survive [the] ruling [in Keene], for they ignored the time-of-filing rule.” Keene, 508 U.S. at 217.

182

27 F.3d 1545 (Fed. Cir. 1994).

183

Id. at 1549 (stating that “anything [the Federal Circuit] said in UNR regarding the legal import of cases
whose factual bases were not properly before [it] was mere dictum, and therefore [refused to] accord it stare decisis
effect”).

28

[CFC] to be precluded from hearing a claim under § 1500, the claim pending in another court
must arise from the same operative facts, and must seek the same relief.” 184
The doctrinal instability underlying the UNR-Keene-Loveladies debacle continued to
percolate for years, culminating in Tohono O’odham Nation v. United States, a case recently
decided by the Supreme Court. 185 This case once again raised the question of the proper role of
relief in the application of Section 1500. The Court’s decision clarifies and simplifies the inquiry
by holding that “[t]wo suits are for or in respect to the same claim, precluding jurisdiction in the
CFC, if they are based on substantially the same operative facts, regardless of the relief sought in
each suit.” 186
IV.

The Need to Reform Section 1500

Having explained the operation of Section 1500, this report now details the harms that the
statute causes. This part of the report surveys the kinds of plaintiffs Section 1500 has affected,
provides statistics on the number of cases dismissed under Section 1500, shows that Section
1500 can lead to the dismissal of otherwise potentially meritorious claims, and collects prior
judicial and scholarly criticism of Section 1500.
A.

Identity and Measure of the Parties and Claims Affected by Section 1500

Who is affected by Section 1500? Potentially, anybody. One might imagine the impact of
the statute would fall primarily on unsophisticated litigants, particularly pro se parties. In fact,
sophisticated businesses and pro se parties alike have fallen into the Section 1500 trap. The
statute has affected federal employees, property owners, businesses, local governments, and
Indian tribes. The following examples, previously set forth in the introduction to this Report,
show the broad array of parties who have had claims dismissed under Section 1500:

184
185
186
187

●

A federal employee who sued the government in district court under both the
Equal Pay Act and Title VII of the Civil Rights Act of 1964. Her Equal Pay Act
claim was transferred to the CFC—where it was dismissed under Section 1500. 187

●

Property owners who claimed in the CFC that the government had taken their
property without just compensation. Their claim was dismissed because they had
previously sued in district court based on a tort theory. 188

Id. at 1551.
559 F.3d 1284 (Fed. Cir. 2009), cert. granted, 78 U.S.L.W. 3687 (Apr. 19, 2010) (No. 09-846).
United States v. Tohono O’odham Nation, 563 U.S. ___ (2011), slip op. at 9.
Griffin, 590 F.3d 1291.

29

●

A government contractor that filed a bid protest claim in the CFC. The case was
dismissed because the plaintiff had previously sued in district court under the
Administrative Procedure Act—even though the district court had already
dismissed on the ground that the plaintiff’s exclusive remedy was in the CFC. 189

●

A local government, sued by the United States over taxation of certain federal
office buildings, that counterclaimed for the taxes it believed it was owed. The
counterclaims were transferred to the CFC—and then dismissed under Section
1500. 190

●

An Indian tribe that sued in the CFC for breach of trust. Its claims were dismissed
because it sued on similar claims in district court on the same day. 191

These examples show that Section 1500 impacts many different kinds of parties, and that many
different constituencies would benefit from Section 1500’s reform.
Statistics can also help measure the impact of Section 1500. Our search for cases
involving Section 1500 dismissals showed that, over the past five years, Section 1500 has
resulted in an average of at least 5.4 dismissals per year. 192 This number is likely an
underestimate because our search included only those cases available in Lexis and Westlaw.
Other Section 1500 dismissals may not appear in these databases because they were summarily
dismissed, dismissed via unpublished orders not included in the databases, or voluntarily
dismissed or otherwise settled when the plaintiff discovered the jurisdictional defect. 193
We located a total of 56 cases from the decade spanning from 2000 to 2010 in which the
CFC adjudicated a motion to dismiss under Section 1500. Of these, 38, or approximately 68%
were dismissed. In only nine of the 56 cases, or approximately 16%, did a claimant survive a
motion to dismiss under Section 1500 based on the court’s finding that the claim pending in the
district court was not the same claim, because of differences in the operative facts and/or the
relief sought in each forum. In another nine cases, or 16% of the total, claims survived a motion
to dismiss solely because the claimant was sophisticated (or lucky) enough to file his claims in
188

Vaizburd, 46 Fed. Cl. 309. These plaintiffs ultimately recovered by suing in the CFC again after their
district court proceedings had concluded, Vaizburd v. United States, 67 Fed. Cl. 257 (2005), which highlights how
pointless the original dismissal was.

189

Vero Technical Support, 94 Fed. Cl. 784; see also Keene, 508 U.S. 200 (1993) (manufacturer’s contractual
and takings claims against the United States dismissed because the company had also sued the government in district
court on tort theories).
190
191
192

Cnty. of Cook, 170 F.3d 1084.
Passamaquoddy Tribe, 82 Fed. Cl. 256.
See Appendix A.

193

In our research, we identified four cases in which the Federal Circuit affirmed a CFC decision dismissing
under Section 1500 that was not available on Lexis. See Appendix A at 2, 7.

30

the right order, i.e., by filing first in the district court and then in the CFC. 194 Finally, of only six
cases that were transferred to the CFC because the district court found the CFC was the proper
forum to hear the claims presented, four, or two-thirds, were subsequently dismissed by the CFC
under Section 1500. From these statistics it is clear that Section 1500 affects many plaintiffs,
often in ways that seem unfair. Section 1500 is likely to affect still more plaintiffs in the wake of
Tohono, which eliminated the CFC’s ability to retain jurisdiction over a claim that has the same
operative facts as a claim pending in district court based on differences in the relief sought in
each forum. If this Tohono rule had been in place, three additional cases would have been
dismissed, raising the total dismissal rate from 68% to 73%. 195 This effect is already observable
in the CFC. In one case, the rule announced in Tohono has worked particular hardship, requiring
the CFC to dismiss a case in which the plaintiffs had prevailed in a takings claims following 13
years of litigation, had been awarded an over $1.6 million judgment, and were just completing
the litigation by briefing a motion for attorney’s fees and costs. 196 The plaintiffs could not file a
new claim following the dismissal because the statute of limitations had long since run. 197
B.

Examples of Viable Duplicative Claims

The dilemma Section 1500 poses for plaintiffs is genuine. The statute’s burdens do not
fall only on plaintiffs who take a “kitchen sink” approach to litigation and bring every possible
claim against the government, regardless of merit. Rather, a plaintiff may have a reasonable
desire to file multiple claims against the government arising out a single incident and may be
unable to bring them all in a single court. Section 1500 may compel such plaintiffs to elect
among potentially meritorious claims.
There are two kinds of situations in which plaintiffs may reasonably wish to file
duplicative cases (i.e., two cases based on the same facts) against the government. First,
plaintiffs may have a viable claim against the government, but be in genuine, reasonable doubt
about how to characterize that claim. Characterized one way, the claim may belong in the CFC;
characterized a different way, the claim may belong in district court. Filing in both courts
ensures that the plaintiff will not lose his claim due to a reasonable characterization error.
Second, in some cases, plaintiffs may have two claims that are viable because Congress has
allowed them, but which cannot be joined in a single action because of the jurisdictional scheme
created by Congress. Section 1500 forces an unfair election between such viable claims.
A review of the Section 1500 cases listed in Appendix A to the Report reveals that
plaintiffs may have reasonable grounds for filing duplicative litigation against the government
with respect to numerous kinds of claims, including:
194
195
196
197

See infra Section III.A.
See Appendix A.
See Central Pines Land Co. v. United States, 99 Fed. Cl. 394 (2011).
See id. at 407.

31

•

Federal employees’ employment claims. 198 Despite Congress’s attempt to statutorily
ensure that such claims can be joined in a single action before the CFC, certain statutory
employment claims are today within the exclusive jurisdiction of the federal district
courts.

•

Property claims that may be characterized as either takings or tort claims. 199

•

Claims that may be characterized as either tort or contract claims. 200

•

Challenges to agency action that may arise under the Administrative Procedure Act, be
characterized as a bid protest, or both. 201

•

Claims against a government agency arising out of conduct that may constitute a breach
of contract (cognizable only in the CFC), and also violate the Lanham Act and Federal
Tort Claims Act (FTCA) (cognizable only in district court). 202

•

Claims for monetary and injunctive (including specific performance) relief arising out of
the government’s violation of a settlement agreement. 203

These difficulties in forum selection are not theoretical. Some specific examples will
illustrate the kinds of genuine problems Section 1500 causes for plaintiffs. First, a pair of cases
captioned Hansen v. United States 204 provides an excellent example of a plaintiff in genuine and
reasonable doubt about how to characterize—and thus determine the proper forum for—his
claims. These cases arose out of the Forest Service’s contamination of the plaintiff’s property, a
ranch in South Dakota, with a dangerous pesticide called ethylene dibromide (EDB). Twenty
years after using the chemical to kill beetles in the Black Hills National Forest, Forest Service
employees buried cans of it on federal property adjacent to Hansen’s ranch, thereby
contaminating the ranch’s groundwater. 205 In January 2002, Hansen filed a takings claim in the
CFC. Approximately ten months later, after exhausting administrative remedies, he filed in
district court under the Federal Tort Claims Act (FTCA). 206 Because the CFC action was filed
198

See, e.g., Griffin v. United States, 590 F.3d 1295 (Fed. Cir. 2009); Cooke v. United States, No. 1:06-cv00748-TCW (Fed. Cl.); Cooke v. Rosenker, No. 1:06-cv-01928-JDB (D.D.C).
199

See, e.g., Hansen v. United States, 65 Fed. Cl. 76, 83 (2005); Vaizburd v. United States, 46 Fed. Cl. 309

(2000).
200
201
202
203

See note 78, supra.
See, e.g., Vero Technical Support v. United States, 94 Fed. Cl. 784 (2010).
See, e.g., Trusted Integration, Inc. v. United States, 93 Fed. Cl. 94 (2010).
See, e.g., Lan-Dale Co. v. United States, 2009 U.S. Claims LEXIS 16 (2009).

204

The CFC case is Hansen v. United States, No. 1:02-cv-00021-LB (Fed. Cl.), and the district court case is
Hansen v. United States, No. 5:02-cv-05101-KES (D.S.D.)
205
206

Hansen, 65 Fed. Cl. at 83.
Id. at 93.

32

first, it was not barred by Section 1500, 207 and the district court stayed its proceedings pending
resolution of the CFC action. 208
The CFC’s treatment of Hansen’s claims in the ensuing proceedings attests to the genuine
difficulty of determining the proper forum. The government moved to dismiss the CFC action,
arguing the court had no jurisdiction to consider what was properly characterized as a tort claim,
not a taking. In a lengthy opinion rejecting this argument, the CFC explained that “[o]ne issue
that has over the decades divided this court is the distinction between torts and takings under the
Takings Clause of the Fifth Amendment.” 209 The court described the CFC and Federal Circuit’s
takings doctrine as a “Serbonian Bog” rife with disagreement and uncertainty regarding the
distinction between the two types of claims. 210 Hansen’s decision to file in both courts thus
appears to be a reasonable reaction to genuine confusion—even among judges—regarding
whether certain kinds of claims are properly characterized as tort or takings claims. Although the
Federal Circuit provided some further guidance on the distinction between tort and takings
claims after Hansen, 211 the distinction continues to be a source of disagreement and legitimate
doubt. 212
The characterization problem can also be seen in cases where the choice is between a tort
claim and a contract claim. In some cases, plaintiffs have sued the United States in tort and have
actually received an award in district court, only to learn on appeal that their claims were
properly characterized as contract claims that were within the exclusive jurisdiction of the
CFC. 213 Given that the courts themselves are thus in disagreement on the proper characterization
of certain claims, plaintiffs could legitimately be in doubt as to the proper characterization.
Another pair of cases, captioned Trusted Integration, Inc. v. United States, 214 demonstrate
that plaintiffs may have viable duplicative claims against the government. The Department of
207
208
209
210

Id. at 93 n. 27.
Id. at 93.
Id. at 79.
Id. at 80.

211

Moden v. United States, 404 F.3d 1335 (Fed. Cir. 2005) (holding that, in an inverse condemnation action, it
is not sufficient that government action was the likely cause of harm to plaintiff’s property; harm to plaintiff’s
property must be the “direct, natural, or probable result” of the government action).

212

See, e.g., Arkansas Game & Fish Comm’n v. United States, 648 F.3d 1377 (Fed. Cir. 2011) (denying
rehearing en banc in a case in which plaintiff’s claim was determined to be for a tort, not a taking, but with four
judges dissenting), cert. granted, 132 S. Ct. 1856 (2012); Placer Min. Co., Inc. v. United States, 98 Fed. Cl. 681, 687
(2011) (“Distinguishing between torts and takings can be a difficult exercise”); Mildenberger v. United States, 91
Fed. Cl. 217, 262 (2010) (“Without further development of the evidentiary record, the court cannot determine
whether the alleged invasion of plaintiffs’ upland parcels by odors is properly characterized as a taking or a tort.”)

213

See cases cited in note 78, supra.

214

Trusted Integration, Inc. v. United States, 93 Fed. Cl. 94 (2010); Trusted Integration, Inc. v. United States,
No. 1:09-cv-00898-RLW (D.D.C.).

33

Justice (DOJ) entered into a license agreement with Trusted Integration, a company that provides
a Federal Information Security Management Act (FISMA) compliance solution called
“TrustedAgent.” Several years into the license, DOJ and Trusted Integration entered into an
agreement allowing DOJ to include TrustedAgent as a component of a larger FIMSA compliance
solution. DOJ planned to submit this solution to OMB for designation as a “Center of
Excellence” (COE), which would require all agencies to purchase DOJ’s FISMA compliance
solution. Before submitting its solution to OMB, DOJ allegedly replaced the TrustedAgent
component with an alternative created by DOJ and based on TrustedAgent, without the
knowledge or consent of Trusted Integration. DOJ was selected as one of two COEs. 215
Section 1500, as interpreted by the courts and combined with the statute of limitations,
prevented Trusted Integration from litigating its multiple, seemingly viable, claims against DOJ.
In May 2009, Trusted Integration filed FTCA and Lanham Act claims in district court. In
November 2009, the company sued in the CFC, seeking monetary damages for breach of an oral
and implied-in-fact contract, breach of the original license agreement, and breach of the duty of
good faith and fair dealing. 216 The CFC dismissed based on Section 1500, 217 and the plaintiff
was ultimately deprived of any opportunity to litigate what appeared to be viable contract claims
against DOJ. 218
C.

Criticism of Section 1500

Section 1500 has been subject to widespread criticism. “[A] long line of plaintiffs [have]
critiqu[ed] the injustice that often results in the application of this outdated and ill-conceived
statute.” 219 Justices of the Supreme Court and judges on the Federal Circuit and the CFC have
criticized Section 1500 as an anachronistic 220 and “badly drafted statute” 221 that often operates as
a “trap for the unwary” 222 and results in dismissals that are “neither fair nor rational.” 223 These
215
216
217
218

Id. at 95-96.
Id. at 96.
Id. at 104.
See Trusted Integration, No. 1:09-cv-00898-RLW (D.D.C.).

219

Low v. United States, 90 Fed. Cl. 447, 455 (2009) (summarizing criticism of Section 1500 and collecting
authorities).

220

See, e.g., Keene, 508 U.S. at 222 (Stevens, J., dissenting) (“Viewed against a legal landscape that has
changed dramatically since the days of thee cotton claimants, [Section 1500] does not lend itself easily to sensible
construction.” (internal citation omitted)).

221

Id. at 222 (Stevens, J., dissenting).

222

Griffin, 621 F.3d at 1364 (Plager, J., dissenting from denial); see also Low, 90 Fed. Cl. at 455-56
(explaining how plaintiff and her counsel’s “ignorance of the long line of cases discussing the application of § 1500”
caused her to “los[e] the opportunity to have th[e] Court [of Federal Claims] review the potential merits of her
breach of contract claims”); Lan-Dale Co. v. United States, 85 Fed. Cl. 431, 433 (2009) (calling the statute a
“monumental” trap for the unwary); d’Abrera v. United States, 78 Fed. Cl. 51, 56 n.10 (2007) (describing Section
1500 as “a trap for the unwary”); Vaizburd v. United States, 46 Fed. Cl. 309, 309-10 (2000) (“The untutored might

34

judges agree the statute has “outlived its purpose.” 224 They have referred to Section 1500’s
“awkward formulation,” 225 suggesting it would be “salutary” to repeal or amend it. 226 They have
criticized the government for using the statute to lay traps for unsuspecting plaintiffs. 227 One
judge even remarked that the statute would justify the famous conclusion that “the law is an
ass.” 228
Scholars have uniformly criticized the statute, urging it be repealed or judicially
reformed. 229 Previous attempts to repeal Section 1500 during the 1990s 230—one of which
succeeded in the House but failed in the Senate for reasons unrelated to Section 1500 231—
suggest that the general antipathy toward Section 1500 can be found even in the halls of
Congress.
In the recent Tohono decision, more Supreme Court Justices joined in the chorus of those
who have criticized the statute. They noted that “[j]udges and commentators have long called for
congressional attention to the statute” 232 and observed that Tohono, by broadening Section
1500’s effects, “renders such attention all the more pressing.” 233 Even the Supreme Court itself
remarked that “[i]f . . . the statute leads to incomplete relief, and if plaintiffs . . . are dissatisfied,
they are free to direct their complaints to Congress.” 234 And so they should.

suspect that the United States government would not rely on traps for the unwary [such as Section 1500] to avoid
having to respond to its citizens. Not so.”).
223

Vaizburd, 46 Fed. Cl. at 311.

224

Griffin, 621 F.3d at 1364 (Plager, J., dissenting); see also Low v. United States, 90 Fed. Cl. 447, 455
(2009); Griffin, 85 Fed. Cl. at 181 & n.1; Passamaquoddy Tribe, 82 Fed. Cl. at 262; A.C. Seaman, Inc. v. United
States, 5 Cl. Ct. 386, 389 (1984).
225
226

Keene, 508 U.S. at 210
Id. at 222 (Stevens, J., dissenting).

227

Vaizburd, 46 Fed. Cl. at 309-10 (“The untutored might suspect that the United States government would
not rely on traps for the unwary to avoid having to respond to its citizens. Not so.”).

228
229

Id. at 309.
See supra note 33 (collecting articles critical of Section 1500).

230

See S. 2521, 102d Cong. § 10(c) (1992); S. 1355, 103d Cong. § 1(a) (1993); S. 135, 104th Cong. §
6(c)(2)(A) (1995); H.R. 489, 104th Cong. § 6(c)(2)(A) (1995); S. 371, 104th Cong. § 8(b)(1) (1995); S. 605, 104th
Cong. § 205(d)(2)(A) (1995); S. 343, 104th Cong. § 5(b)(2) (1995); S. 781, 105th Cong. § 205(d)(2)(A) (1997); S.
1256, 105th Cong. § 8(a)(2)(A) (1997); H.R. 992, 105th Cong. § 3(a) (as passed by House, Mar. 12, 1998); S. 2271,
105th Cong. § 6(a)(2)(A) (1998); S. 1028, 106th Cong. § 6(a)(2)(A) (1999).

231

See Meltz, supra note 35, at 1172.

232

United States v. Tohono O’odham Nation, 563 U.S. ___ (2011) (Sotomayor, J., concurring in the
judgment), slip op. at 12.

233
234

Id.
United States v. Tohono O’odham Nation, 563 U.S. ___ (2011), slip op. at 9.

35

V.

Reforming Section 1500

Section 1500 should be reformed. In this section, we first consider the characteristics of
an appropriate solution, and then evaluate several potential ways to reform the statute.
A.

Policies Reform of Section 1500 Should Further

Before examining possible solutions to the problems posed by Section 1500, it is
important to lay out the principles that a solution should serve. This section suggests that
plaintiffs suing the United States should, like all other plaintiffs, be permitted to pursue multiple
claims, and should enjoy the benefits of the transfer statute. 235 In examining these two
overarching principles, this section further suggests that, in the interests of the government,
plaintiffs, and courts, wasteful litigation over where to litigate should be minimized, duplicative
litigation should be discouraged, and the possibility of double recovery should be eliminated.
1.

Plaintiffs Suing the United States Should Be Permitted to Pursue Multiple
Claims

To determine how best to reform Section 1500, we must first ask whether a plaintiff with
multiple claims against the United States arising out of a single incident should be permitted to
pursue all such claims. The answer is yes. This is consistent with fundamental principles of our
legal system and is just. Moreover, vindicating the principle in the Section 1500 context would
reduce wasteful litigation over threshold questions of jurisdiction, and allow preclusion
principles and docket management to operate normally, which would reduce costs for the
government, plaintiffs, and the courts.
A fundamental principle of our system of civil litigation is that plaintiffs may pursue
multiple claims. In general, a plaintiff is permitted to aggregate all claims he may have against a
particular defendant and is not required to “elect” among claims. Federal Rule of Civil Procedure
18 embodies this basic principle by providing that “[a] party asserting a claim . . . may join, as
independent or alternative claims, as many claims as it has against an opposing party.” 236 If a
plaintiff believes that a single wrongful action by a defendant might constitute a tort, a breach of
contract, or a violation of a statute, the plaintiff is free to plead and pursue all three claims at
once. Of course, a plaintiff is limited to a single recovery—even a plaintiff who prevails on
multiple theories cannot recover more than his or her total damages. 237 But the plaintiff may
pursue all his claims simultaneously.

235

See 28 U.S.C. § 1631.

236

Fed. R. Civ. P. 18(a). Indeed, plaintiffs may even simultaneously pursue inconsistent claims, Fed. R. Civ.
P. 8(d)(3), or multiple claims some of which are contingent on the success of others, Fed. R. Civ. P. 18(b).

237

E.g., EEOC v. Waffle House, Inc., 534 U.S. 279, 297 (2002) (“It goes without saying that the courts can
and should preclude double recovery by an individual.” (internal quotation omitted)).

36

This principle is particularly important in cases where the law leaves unclear exactly
which claim is the right one to bring. A set of facts may give rise to multiple potential theories of
recovery, and a plaintiff may legitimately doubt exactly which theory a court might accept. The
federal procedural system, by allowing a plaintiff to proceed on multiple claims simultaneously,
protects plaintiffs against losing legitimate claims simply by mischaracterizing them.
The federal system of pleading and procedure is thus designed to protect plaintiffs against
the hazard of mischaracterizing their claims. Plaintiffs should win or lose cases on their merits
and should not be bounced out of court simply because of a pleading mistake. Allowing plaintiffs
to pursue multiple claims simultaneously is necessary to ensure justice.
Discussions of Section 1500 occasionally suggest it is appropriate to require a plaintiff to
“carefully assess his claims before filing” and choose among them. 238 It is true that Section 1500
was originally intended to require plaintiffs to make an election, 239 but only as a substitute for a
missing rule of res judicata. 240 Today, other developments have solved the res judicata problem,
and our system of litigation embraces the principle that it is unfair and inappropriate to require
plaintiffs to elect among potentially meritorious claims. So, suggestions that there is “no
harm” 241 in requiring plaintiff to elect among claims are incorrect.
Indeed, such suggestions are akin to reviving, in a narrow but important context, the
long-discredited common law system of the “forms of action.” Under the forms of action,
plaintiffs could not simply bring a generalized “civil action,” 242 but were required to choose a
particular “form of action” from among the highly complex and technical forms available. 243
Plaintiffs could not pursue multiple claims, but had to make their best guess as to which one
form of action would work for them, and a plaintiff who mistakenly sued in “trespass” instead of
“trespass on the case” would lose even if his claim was otherwise meritorious.
This archaic and unjust system of procedure has long been reformed. Section 1500,
however, imposes a similar requirement to choose among potentially valid claims, and it imposes
a penalty on plaintiffs who, for example, mistakenly believe they have a tort claim instead of a
takings claim. The suggestion that plaintiffs suing the United States, unlike all other plaintiffs,
should be made to choose among potentially valid claims, is unjust.

238

UNR, 962 F.2d at 1021.

239

E.g., Matson, 284 U.S. at 355-56 (explaining that “the declared purpose” of Section 1500 was “to require
an election” between two avenues to relief); Kirgis, supra note 33, at 323 (“[T]he purpose of the statute: to force an
election between suit in the [CFC] and suit in another court.”).
240
241
242
243

See supra notes 90 - 92 and accompanying text.
UNR, 962 F.2d at 1021.
See Fed. R. Civ. P. 2 (providing for just one form of action, the “civil action”).
F.W. Maitland, The Forms of Action at Common Law (1909).

37

The only possible justification for treating plaintiffs suing the United States differently
from all other kinds of plaintiffs is that the United States is different from other defendants in
that different kinds of claims against the United States must go to different courts. The rule
permitting most plaintiffs to bring multiple claims in a single action serves judicial convenience
and economy. But permitting a plaintiff suing the United States to pursue multiple claims may
lead to duplicative litigation, because the plaintiff may be compelled to bring some claims in
district court and others in the CFC.
The cost of any duplicative litigation that may result from this unique jurisdictional
circumstance is a legitimate concern. But there are three reasons why a plaintiff suing the United
States should be permitted to pursue multiple claims despite any cost of required duplicative
litigation. And, in examining these reasons, we shall see that the costs may not be so high.
First, duplication in litigation against the United States is not the plaintiff’s fault. Most
likely, the plaintiff would prefer to aggregate all of his or her claims in a single action, so as to
avoid duplication costs. Duplication results from Congress’s decision to authorize different kinds
of claims against the United States in different courts. It is not fair to insist the plaintiff bring tort
claims in one court and contract claims in another, and then complain of duplication when the
plaintiff does so.
Second, current law already permits duplication. As previously noted, plaintiffs may
pursue all their claims against the United States, provided they correctly characterize those
claims and file them in the right courts, in the right order. This rule is unfair because it lays a trap
for plaintiffs who mischaracterize their claims or who file them in the wrong court or in the
wrong order. If a plaintiff, harmed by the United States in a single incident, brings to the CFC all
the claims arising out of the incident that belong there, and then, the next day, files in district
court all claims that belong there, the plaintiff may proceed in both courts. The system is thus
currently tolerating duplication costs. Moreover, the rule that permits this duplication—Section
1500—is inefficient. The parties and the court spend time and resources litigating how to
characterize claims and determine the precise order of filings. This process is itself quite costly.
Third, the courts are well equipped to mitigate the costs of duplicative litigation. If a
plaintiff files a tort claim in district court and a contract claim in the CFC arising out of the same
facts, the courts may mitigate the costs of pursuing duplicate discovery and trial by, for example,
having one court stay its action while the other proceeds. Such a procedure is common in other
instances where related cases are simultaneously pending in different courts. And unlike the
inquiries required under Section 1500, this procedure is explicitly designed to reduce costs and
promote judicial economy.

38

2.

Plaintiffs Suing the United States Should Enjoy the Benefits of the
Transfer Statute

Plaintiffs suing the United States should also enjoy the benefit of the transfer statute,
Section 1631. The transfer statute reflects Congress’ judgment that a plaintiff, where possible,
should not lose a legitimate claim simply for filing it in the wrong court. Nothing in the statute
suggests that Congress intended this important principle to apply differently in suits involving
the government than it does in other suits. Again, plaintiffs should win or lose cases on the
merits, not on the basis of procedural missteps. Plaintiffs suing the United States should enjoy
the benefit of this important principle as much as any other plaintiff.
B.

Potential Solutions

We consider seven potential solutions to the purposeless procedural trap caused by
Section 1500: (1) comprehensively reform the legal regime regulating the division of jurisdiction
between the CFC and the district courts (including the possibility of extending supplemental
jurisdiction to the CFC and/or the district courts); (2) repeal Section 1500; (3) replace Section
1500 with an alternative statute; (4) eliminate the order-of-filing work-around; (5) amend Section
1500 to create a rule that better vindicates the statute’s policy goals; (6) judicially reform Section
1500 to ameliorate its bad effects; and (7) reform certain practices of the Department of Justice
to ameliorate Section 1500’s harms.
In the end, our recommended solution is for Congress simply to repeal Section 1500.
That solution would yield the benefit of fair treatment for plaintiffs suing the United States. It
would also entail the cost that the United States would be exposed to some duplicative litigation,
but the courts would be able to mitigate that cost in appropriate cases by, for example, staying
one of two duplicative suits while the other proceeds. We do not recommend a statutory
requirement that courts take such mitigative steps in all cases, because we believe that no
statutory formula can sufficiently capture all the different circumstances that may arise in
litigation. We therefore recommend leaving the matter to the sound discretion of the courts
involved. However, although repeal of Section 1500 is our recommended solution, we propose
statutory language that might implement other potential solutions, so that the Committee and the
Conference can have those options available.
1.

Comprehensive Jurisdictional Reform

Perhaps the broadest solution to the problems caused by Section 1500 would be
comprehensive reform of the jurisdictional divide between the CFC and the district courts to
permit a plaintiff with multiple claims against the United States to bring all such claims in a
single case. This solution may be intuitively appealing because the jurisdictional divide looms so
large in Section 1500’s problems. Such reform could be achieved in several ways. Congress
might expand the jurisdiction of the CFC to include all kinds of claims against the United States;

39

it might eliminate the CFC and give its jurisdiction to the district courts; or it might allow either
a district court or the CFC, when properly presented with a claim against the United States, to
exercise pendent jurisdiction over related claims that it would not normally be competent to hear.
Any of these solutions would eliminate the problem caused by Section 1500, while potentially
solving other problems as well. It might benefit plaintiffs by eliminating uncertainty about where
to sue the United States, benefit the government by eliminating duplicative litigation, and benefit
the judicial system by providing a simpler and more efficient way to litigate multiple claims
against the United States.
This Report neither closely examines nor recommends comprehensive jurisdictional
reform. Section 1500 is only one small piece of a much larger, complex jurisdictional puzzle.
The division of jurisdiction over different kinds of claims against the United States is of
extremely long standing. Fundamentally reforming the entire system for bringing claims against
the United States would be a tremendous undertaking, and more than is necessary to solve the
problems posed by Section 1500. Such fundamental reform would likely meet considerable
opposition and be difficult, if not impossible, to achieve.
A related, but more modest, potential solution to the Section 1500 quandary might
include extending supplemental jurisdiction to district courts, the CFC, or both. It is clear that
such an alternative would require legislation. One scholar critical of section 1500 has suggested
that the courts could ameliorate the statute’s harsh effects without new statutory authorization, 244
by using the existing supplemental jurisdiction statute, 28 U.S.C. § 1367, which, in relevant part,
provides that:
Except . . . as expressly provided otherwise by Federal statute, in
any civil action of which the district courts have original
jurisdiction, the district courts shall have supplemental jurisdiction
over all other claims that are so related to claims in the action
within such original jurisdiction that they form part of the same
case or controversy under Article III of the United States
Constitution.245
However, as the Ninth Circuit has observed, the statute “makes itself clear that its provisions do
not apply where another federal statute ‘expressly provide[s] otherwise.’” 246 The Tucker Act is

244

See Paul Frederic Kirgis, Section 1500 and the Jurisdictional Pitfalls of federal Government Litigation, 47
AM. U. L. REV. 301, 344-49 (1997).

245
246

28 U.S.C. § 1367(a).
United States v. Park Place Assocs., 563 F.3d 907, 934 (9th Cir. 2009).

40

such a statute. Courts have consistently held that Section 1367 does not override the Tucker
Act’s grant of exclusive jurisdiction to the CFC. 247
Supplemental jurisdiction could be granted only with respect to certain, particularly
problematic types of claims. Indeed, Congress has occasionally enacted targeted reforms
granting the CFC supplemental jurisdiction over particular types of claims where the lack of such
jurisdiction created recurrent problems. A good example of this arises in the employment
context. At one time, a federal employee with a grievance against his employer had to file two
suits in order to obtain full relief because only the CFC could order backpay, and only the district
court could issue equitable relief such as an order of reinstatement. 248 In 1972, Congress
amended the Tucker Act to enable the CFC “as an incident of and collateral to [a] judgment,
issue orders directing restoration to office or position, placement in appropriate duty or
retirement status, and correction of applicable records” in order “[t]o provide an entire remedy
and to complete the relief afforded by [a] judgment” against government. 249
Such targeted grants of supplemental jurisdiction may not, however, provide complete
relief, even as to the class of affected litigants. For example, a federal employee can, by virtue of
the 1972 amendment to the Tucker Act, seek back pay and reinstatement in the CFC. But today,
such a plaintiff may have a viable statutory claim of employment retaliation that can only be
litigated in district court. 250 Targeted reforms such as the 1972 amendment are, by their very
nature, designed to address particular jurisdictional difficulties that come to Congress’ attention
only after they have ensnared a number of litigants. Moreover, such reforms may not be
sufficient to prevent related jurisdictional difficulties that crop up later. Thus, while targeted
supplemental jurisdiction reforms can incrementally improve matters, they do not address the
broader problem of injustice created by the interaction between Congress’s jurisdictional scheme
and Section 1500.
The alternative, a broad grant of supplemental jurisdiction—to the district courts, the
CFC, or both—would be a significant departure from the existing jurisdictional scheme. Our
247

E.g., id. (“The circuits that have considered the issue have . . . rejected the argument . . . that the exclusive
jurisdiction granted to the Court of Federal Claims by the Tucker Act may be overridden by the general grant set
forth in § 1367.”); Pershing Div. of Donaldson, Lufkin & Jenrette Sec. Corp. v. United States, 22 F.3d 741, 744 (7th
Cir. 1994) (citing “several cases from other circuits which found that an express limitation embodied in the Tucker
Act cannot be overcome by supplemental jurisdiction”); Dia Navigation Co., Ltd. v. Pomeroy, 34 F.3d 1255 (3d Cir.
1994) (rejecting an argument “that the Claims Court’s exclusive jurisdiction is overridden by the Supplemental
Jurisdiction Act . . . in light of the Tucker Act’s explicit jurisdictional bar” (internal citation omitted)).
248

See, e.g., Casman v. United States, 135 Ct. Cl. 647 (1956); In re Prillman, 220 Ct. Cl. 677 (1979).

249

28 U.S.C. § 1367(a)(2); see also Polos v. United States, 556 F.2d 903, 906 (8th Cir. 1977) (explaining the
effect of the 1972 amendment to the Tucker Act).
250

See Cooke v. United States, No. 1:06-cv-00748-TCW (Fed. Cl.); Cooke v. Rosenker, No. 1:06-cv-01928JDB (D.D.C).

41

research suggests that such a fundamental modification of the existing jurisdictional scheme
would likely meet with substantial resistance. Indeed, previous attempts to repeal Section 1500
have failed precisely because they were coupled with more controversial modifications to the
CFC’s jurisdiction. 251
We do not recommend the supplemental jurisdiction option but, in case the Committee
disagrees, we offer draft statutes, modeled after 28 U.S.C. § 1367, as potential starting points:
Possibility A (grant supplemental jurisdiction to the CFC):
In any civil action of which the United States Court of Federal
Claims has original jurisdiction, the United States Court of Federal
Claims shall have supplemental jurisdiction over all other claims
against the United States that are so related to claims in the action
within such original jurisdiction that they form part of the same
case or controversy under Article III of the United States
Constitution. Such supplemental jurisdiction shall include claims
that would otherwise be within the exclusive jurisdiction of the
district courts.
Possibility B (grant supplemental jurisdiction to district courts):
(a) Except as provided in subsection (b), in any civil action of
which the district courts have original jurisdiction, the district
courts shall have supplemental jurisdiction over all other claims
that (i) are so related to claims in the action within such original
jurisdiction that they form part of the same case or controversy
under Article III of the United States Constitution and (ii) would
be within the original jurisdiction of the United States Court of
Federal Claims. Such supplemental jurisdiction shall include
claims that would otherwise be within the exclusive jurisdiction of
the United States Court of Federal Claims.
(b) The district courts may decline to exercise supplemental
jurisdiction over a claim under subsection (a) if-(1) the district court has dismissed all claims over which it has
original jurisdiction,
251

See Robert Meltz, The Impact of Eastern Enterprises and Possible Legislation on the Jurisdiction and
Remedies of the U.S. Court of Federal Claims, 51 ALA. L. REV. 1161, 1172 (2000).

42

(2) the claim over which the district court has original jurisdiction
appears to the district court to be insubstantial, or
(3) in exceptional circumstances, there are other compelling
reasons for declining jurisdiction.
(c) The period of limitations for any claim asserted under
subsection (a), and for any other claim in the same action that is
voluntarily dismissed at the same time as or after the dismissal of
the claim under subsection (a), shall be tolled while the claim is
pending and for a period of 30 days after it is dismissed.

2.

Repeal Section 1500

The best solution—and one that has drawn substantial, albeit not universal, support over
the years—is to repeal Section 1500. This solution would eliminate the difficulties created by
Section 1500 and prevent plaintiffs from losing legitimate claims for reasons unrelated to their
merits. It would allow plaintiffs suing the United States, like plaintiffs suing any other defendant,
to pursue all potential claims that they might have. It would eliminate the anomaly of having the
CFC’s ability to hear claims depend on the order of filing. And it would permit plaintiffs suing
the United States to enjoy the benefits of the transfer statute.
Repealing Section 1500 would reap a variety of benefits. Most fundamentally, it would
eliminate the need for plaintiffs suing the United States to elect among potentially viable claims.
It would also eliminate a major source of confusion and unfairness for litigants and help clarify
the CFC’s jurisdiction. 252 It would prevent a significant amount of wasteful litigation over
jurisdiction, 253 while protecting plaintiffs from losing their day in court as a result of a simple
filing error. 254 Repealing the statute would also level the playing field along two dimensions.
First, it would prevent pro se plaintiffs and plaintiffs represented by counsel unfamiliar with the
intricacies of Section 1500 from getting caught in its traps. Second, it would level the playing
field between the government—the ultimate repeat player before the CFC—and all plaintiffs.
This equalization, accomplished via the simplification of procedural rules that appear to serve
little purpose, would be consistent with the purpose of the CFC, i.e., providing a specialized
forum for the adjudication of monetary claims against the government.
252

See S. Rep. No. 104–90, at 114–15 (1995).

253

See Appendix A; see also Bowen, 487 U.S. at 930 (Scalia, J., dissenting) (“Nothing is more wasteful than
litigation about where to litigate, particularly when the options are all courts within the same legal system that will
apply the same law.”).

254

See 141 Cong. Rec. S2334 (daily ed. Feb. 8, 1995) (statement of Sen. Howell Heflin).

43

As previously explained, litigants, scholars, judges, and legislators have repeatedly
suggested or urged that Congress should repeal Section 1500. 255 In the 1990’s, there were several
unsuccessful legislative efforts to act on this suggestion. In introducing S. 781 in 1997, Senator
Hatch pointed out that Section 1500 is so poorly drafted and has led to so many hardships that
Justice Stevens has called for its repeal in Keene. 256 Some may object to repealing Section 1500
because it is generally reasonable to prevent litigants from pursuing the same claim in two
different courts 257 or manipulating federal court jurisdiction. 258 But, as the discussion above
demonstrates, Section 1500 does not serve these goals efficiently or fairly. Moreover, the law has
evolved considerably since Section 1500 was first enacted. In the statute’s absence, other judicial
doctrines, such as issue preclusion, and docket management tactics, including stays of
proceedings and statutorily authorized transfers, would better serve the purported purposes of
Section 1500.
The doctrines of res judicata provide flexible tools judges could use to fulfill the purposes
of Section 1500 in a more precise, fair way. Section 1500 was crafted as a crude substitute for res
judicata in a time when that principle was not thought to apply to prevent duplicative litigation
against a government official in one court, and the government itself in another. Time has proven
the statute to be a blunt and unjust instrument that poorly and inconsistently serves its original
purposes. In their modern forms, the doctrines of claim preclusion and issue preclusion provide a
far superior alternative—one that is both flexible and explicitly defined by reference to sound
judicial policy. “Although neither judges, the parties, nor the adversary system performs
perfectly in all cases,” 259 repealing Section 1500 and allowing the sophisticated doctrines of
claim preclusion and issue preclusion to take its place would better vindicate the purported
policy goals of that statute, while eliminating the substantial unfairness and waste that has been
wreaked by the statute’s blunt, anachronistic rule.
In applying preclusion principles in the absence of Section 1500 courts would, of course,
have to take care to give judgments of other courts the preclusive effect that they should have,
and no more. For example, if, in a world without Section 1500, a plaintiff sued the government
in tort (in district court) and in contract (in the CFC), on claims arising out of the same facts, and
the district court dismissed on the ground that the facts alleged by the plaintiff did not make out a
tort claim, the plaintiff should be free to continue in the CFC on a contract theory. On the other
hand, if the district court tries the tort claim and the plaintiff loses because the court determines
255
256

See supra Section II.C.
143 Cong. Rec. S5005 (daily ed. May 22, 1997) (statement of Sen. Orrin Hatch).

257

The Tucker Act Shuffle Relief Act of 1997 Before the Subcomm. on Immigration and Claims of the H.
Comm. on the Judiciary, 105th Cong. (1997) (testimony of Professor Echeverria of Georgetown University Law
Center).

258

The Tucker Act Shuffle Relief Act of 1997 Before the Subcomm. on Immigration and Claims of the H.
Comm. on the Judiciary, 105th Cong. (1997) (testimony of Assistant Attorney General Eleanor Acheson).

259

Blonder-Tongue Labs., Inc. v. Univ. of Illinois Found., 402 U.S. 313, 329 (1971).

44

that the plaintiff’s facts are wholly invented and the plaintiff never suffered any loss at all, the
plaintiff would be barred from proceeding in the CFC. 260
Moreover, if the plaintiff were to win in both courts, the courts would permit the plaintiff
to enforce only a single judgment. Our review of existing duplicative litigation suggests there is
minimal likelihood that a plaintiff can obtain a double recovery against the government by suing
in two courts for different claims arising out of the same facts. None of the duplicative cases
reviewed resulted in a double recovery for the plaintiff. As explained above, courts are typically
aware that the case before them has a duplicate counterpart in another court. And sometimes,
though not always, counsel for the government is the same in each case. As the Report
previously noted, courts generally adjust awards to ensure that a plaintiff does not recover
twice. 261 As long as they aware of the related cases—and it appears they typically are—there is
no reason to believe courts will allow double recoveries to flow from duplicative litigation.
Courts also have other tools they can use to reduce or eliminate any potential practical
problems associated with repealing Section 1500, including the danger of inconsistent
judgments, increased costs and burden on the government, and threats to judicial economy. 262 A
court could use its inherent power manage its docket to stay an action pending conclusion of
litigation of the same or related claim in the other forum. 263 Indeed, the CFC has stayed
260

The “jurisdictional competency” exception to preclusion would not prevent the second court from giving
appropriate preclusive effect to the judgment in the first case. While a second court may decline to give claim
preclusive effect to the judgment of a first court that would have lacked jurisdiction to consider the claim being
presented to the second court, the first court’s lack of jurisdiction over that claim would not prevent the second court
from giving the first case appropriate issue preclusive effect. Compare, e.g., Golden Pacific Bancorp v. United
States, 15 F.3d 1066 (Fed. Cir. 1994) (declining to apply claim preclusion to a takings claim that was not within the
jurisdiction of the court hearing a previous case arising out of the same facts) with Martin v. United States, 30 Fed.
Cl. 542, 546, 551 (1994) (giving issue preclusive effect, in a takings case, to a previous judgment by a district court);
see also Bailey v. United States, 94 Fed. Appx. 828, 831-33 (Fed. Cir. 2004) (rejecting government’s argument for
claim preclusion because district court had no jurisdiction to consider contract claim in prior civil forfeiture action,
but rejecting government’s issue preclusion argument on the merits, rather than on the basis of limits on the district
court’s jurisdiction).

261

E.g., EEOC v. Waffle House, Inc., 534 U.S. 279, 297 (2002) (“It goes without saying that the courts can
and should preclude double recovery by an individual.” (internal quotation omitted)).
262

Cf. S. Rep. No. 104–90, at 114–15 (1995) (suggesting, in past efforts to repeal Section 1500, that members
of Congress have not been particularly concerned about the potential for duplicative litigation in the statute’s
absence).
263

E.g., Proctor & Gamble Co. v. Kraft Foods Global, Inc., 549 F.3d 842, 848-49 (Fed. Cir. 2008) (“The
Supreme Court has long recognized that district courts have broad discretion to manage their dockets, including the
power to grant a stay of proceedings.” (citing Landis v. N. Am. Co., 299 U.S. 248, 254-55 (1936))); Curtis v.
Citibank, N.A., 226 F.3d 133, 138 (2d Cir. 2000) (“As part of its general power to administer its docket, a district
court may stay or dismiss a suit that is duplicative of another federal court suit.”); Leyva v. Certified Grocers of
Cal., Ltd., 593 F.2d 857, 863-64 (9th Cir. 1979) (explaining that “[a] trial court may, with propriety, find it is
efficient for its own docket and the fairest course for the parties to enter a stay of an action before it, pending
resolution of independent proceedings which bear upon the case,” regardless of “whether the separate proceedings

45

proceedings in actions involving duplicative claims not subject to Section 1500. 264 DOJ, which is
responsible for defending the federal government against private claims, could help courts
identify instances in which issue preclusion, transfer, or docket management is warranted. It
could do this by keeping track of potentially duplicative cases and moving for stays or other
judicial relief in appropriate circumstances. 265 This would significantly reduce any potential
burden associated with duplicative litigation that would go forward in the absence of Section
1500.
For these reasons, this Report recommends that Section 1500 be repealed.
3.

Replace Section 1500

Simple repeal of Section 1500, as suggested in the previous section, would entail the cost
that the United States would be exposed to duplicative litigation. Another alternative would be to
replace Section 1500 with a statute that attempts to mitigate this cost by permitting, or even
mandating, a stay of litigation in one court while litigation in the other court proceeds.
As noted in the previous section, we believe that courts would, in appropriate cases, issue
such stays without statutory prompting. Indeed, one way to evaluate what would happen if
Section 1500 were repealed is to examine how courts manage duplicative litigation currently
permitted under the statute (recall that duplicative litigation is currently permitted provided the
CFC case is filed first). The CFC’s “experience reflects that, in the wide majority of instances
where two related suits are filed in different courts, one of them is stayed.” 266 A close review of
the CFC and district court dockets in the 18 cases identified in Appendix A to the Report as
having survived a motion to dismiss under Section 1500 reveal great variety in how courts
handle the issue. A few examples are illustrative. In Hansen, the takings-tort case arising out of
the Forest Service’s contamination of a private ranch’s groundwater, a judicial stay of
proceedings reduced the burden of the duplicative litigation. As noted above, the plaintiff filed
first in the CFC, and in the district court months later, and the district court issued a stay while
proceedings moved forward in the CFC. 267 In the end, the district court case was dismissed after
are judicial, administrative, or arbitral in character,” and without finding that “the issues in such proceedings are
necessarily controlling of the action before the court”).
264

See, e.g., Boston Five Cents, 864 F.2d at 140 (reversing Section 1500 dismissal and remanding to CFC with
instructions to stay action pending related litigation in district court); Hossein, 218 Ct. Cl. 727, 729 (1978)
(suspending litigation for six months pending related litigation in a district court “for reasons of comity and
avoidance of piecemeal litigation”); City of Santa Clara, 215 Ct. Cl. 890 (1977) (holding that Section 1500 did not
bar suit, but granting government’s “alternative motion to stay . . . proceedings pending the outcome of litigation . . .
being pursued in the district court”).
265

See infra Section V.B.7.

266

Kaw Nation of Oklahoma v. United States, 2012 U.S. Claims LEXIS 79, *59 (Feb. 29, 2012); see also id.
at *59 n.30 (collecting examples of duplicative cases in which stays have been granted).
267

See Hansen, 65 Fed. Cl. at 93.

46

the parties reached a settlement requiring the government to pay the plaintiff $250,000. In other
cases, litigation has proceeded independently to completion in both courts. 268 In still other cases,
one court has ordered Alternative Dispute Resolution (ADR), resulting in a settlement that
narrowed the issues and helped bring proceedings in the second court to a swifter end. 269
Despite the variation in how courts manage existing duplicative litigation, a few trends
emerged from our review. First, both courts were typically aware of the duplicative litigation.
The CFC’s awareness was evident from the Section 1500 motion practice, but most of the district
court dockets revealed similar awareness of the duplication. This may be because plaintiffs are
required to identify related cases when they file a case in federal court. 270 Second, stays of
litigation were frequently entered, often to give the parties time to discuss settlement in related
cases. In some cases, it was difficult to determine why a stay or extension was entered, but by
reviewing the orders and related motions or status reports, we were able to confirm that the
reason for delay was to permit the parties to work out a settlement that would cover both cases.
Additionally, several cases were referred to ADR, sometimes successfully, to enable the parties
to reach a comprehensive settlement. Finally, often, but not always, the same attorneys
represented the government in both cases. This overlap, or lack thereof, appears to depend upon
the identity of the defendant in both cases, as well as where each case was filed.
The variety of management techniques in use suggests it would be difficult to design a
statutory, one-size-fits-all rule that would effectively reduce the burdens of duplication that may
arise in such a wide variety of cases. Indeed, it appears the flexibility available in the status quo
enables courts to appropriately tailor docket management practices to suit the needs of the parties
and court in particular cases. It enables courts to stay or transfer a case when doing so is in the
interests of judicial economy, while preserving the courts’ ability to proceed with a case when
parallel litigation appears to have stalled in the other forum. 271 This may support the Report’s
conclusion that allowing courts to use their inherent power to manage the docket, guided by
experience and superior knowledge of the individual case and parties, provides the best
opportunity for reducing the burdens of duplicative litigation.
However, if the Committee is of the view that statutory guidance is needed, such a statute
could provide:

268

See Cooke v. United States, No. 1:06-cv-00748-TCW (Fed. Cl.); Cooke v. Rosenker, No. 1:06-cv-01928JDB (D.D.C).
269

See OSI, Inc. v. United States, No. 1:04-cv-01210-MCW (Fed. Cl.); OSI, Inc. v. United States, No. 2:98cv-00920-MEF-WC (M.D. Ala.).
270

See United States Courts, Form JS-44, Civil Cover Sheet at 2, available at http://www.uscourts.gov/
uscourts/FormsAndFees/Forms/JS044.pdf.
271

See Court of Federal Claims Technical and Procedural Improvements Act, Hearing on S. 2521 Before the
S. Comm. on the Judiciary, 102nd Cong. 59 (Apr. 29, 1992) (statement of Hon. Loren Smith, Chief Judge, U.S.
Claims Court).

47

Whenever a civil action is pending in the United States Court of
Federal Claims and the plaintiff or his assignee also has pending in
any other court (as defined in section 610 of this title), for or in
respect to the same claim, any action or appeal against the United
States or an agency or officer thereof, the court in which such
action or appeal was later filed shall, if it is in the interest of
justice, stay such action or appeal until the previously filed action
or appeal has terminated. If such actions or appeals were filed
simultaneously (including at any times on the same day), the
United States Court of Federal Claims action shall be deemed to
have been filed first.
This language is adapted from Section 1631 (the transfer statute) and Section 1500. Another
option would remove “if it is in the interest of justice,” thereby eliminating the court’s discretion
to determine whether a stay is appropriate. The language could also be modified to specify that
the district court (or the CFC) should stay litigation, rather than using the order of filing to
determine which court should stay and which should proceed with litigation. Alternatively, the
choice of which suit to stay could be given to the plaintiff, who would be required to make a
choice once the two suits were simultaneously pending.
A different option would be to enact a statute directing courts to use preclusion principles
to minimize the costs of duplicative litigation. Such a statute could provide that:
Whenever a plaintiff pursues, simultaneously or otherwise, a case
in the United States Court of Federal Claims and a related case in
another court, both courts shall give due effect to the doctrines of
claim preclusion and issue preclusion and shall appropriately limit
or adjust the remedies they provide so as to do justice. For
purposes of this section, a “related case” may include a case
against the United States or against any person who, at the time
when the cause of action alleged in such case arose, was, in respect
thereto, acting or professing to act, directly or indirectly under the
authority of the United States.
A reform proposal along these lines may allay concerns regarding the potential costs of
duplicative litigation that would be permitted if Section 1500 were repealed. On the other hand,
it appears such a statute may not be necessary because courts already possess authority to take
appropriate steps to achieve that end. Indeed, crafting a statutory solution carries a risk of
unintended consequences.

48

4.

Eliminate the Timing Work-Around

Of all the complex rules associated with Section 1500, the least defensible is the rule that
if a plaintiff files the same claims in district court and in the CFC, both cases can proceed if the
CFC case is filed first, but the CFC case must be dismissed if the district court case is filed first.
This bizarre rule operates a trap for unwary plaintiffs and serves no valid purpose.
This Report has suggested that this anomaly be corrected by repealing section 1500, but
the anomaly could also be corrected in the opposite direction, by amending or reinterpreting the
statute to bar simultaneous litigation of the same claim in district court and the CFC regardless of
which is filed first. Like repealing Section 1500, this approach would have the virtue of
eliminating the strange and unjust feature of existing doctrine that makes the CFC’s jurisdiction
depend on the order of filing. The Federal Circuit attempted to so reinterpret Section 1500 in
UNR, 272 and the Supreme Court, in its recent Tohono decision, suggested (without holding) that
it disapproves of the time-of-filing rule. 273 So the rule may in the future be judicially reversed.
Eliminating the time-of-filing rule (judicially or otherwise), however, is not a solution to
the problems posed by Section 1500. Indeed, it would exacerbate those problems. It would make
Section 1500 more logical, but less fair. While resolving some of Section 1500’s subsidiary
problems, this “solution” would exacerbate the statute’s core problem: it would require many
more plaintiffs to elect among potentially valid claims.
Today, knowledgeable plaintiffs can avoid the injustice of Section 1500 by filing in the
CFC first. Only the unwary are subject to its unjust effect. If the time-of-filing rule were
eliminated, then all plaintiffs with multiple claims against the United States arising out of the
same facts, but cognizable only different courts, would be required to elect among their claims.
As previously explained, such a requirement would be unfair and would contradict basic
principles of our system of civil procedure. It would give new strength to an outdated rule and
waste an opportunity to move toward a fairer and more efficient way to reduce the costs of the
duplicative litigation that results from the jurisdictional divide between the CFC and the district
courts.
It is also worth observing that, even if the order-of-filing rule were eliminated, some
plaintiffs would still be able to achieve a “work-around” that would permit them to bring all their
claims. If a plaintiff brought suit in either the district court or the CFC, and managed to complete
the litigation before the statute of limitations on the claims that belonged in the other court
expired, the plaintiff would then be free to sue in the other court. Such a litigation strategy would
272

See UNR, 962 F.2d at 1023.

273

Tohono, 563 U.S. ___ (2011), slip. op. at 6-7. The Court did not issue a holding on the time-of-filing rule
because it was not presented in the Tohono case. Id.; see also Brief for the Petitioner at 37 n.8, United States v.
Tohono O’odham Nation, 559 F.3d 1284 (Fed. Cir. 2009), cert. granted, 78 U.S.L.W. 3687 (Apr. 19, 2010) (No. 09846) (urging the Court to abolish the time-of-filing rule).

49

expose the plaintiff to the significant risk that the first litigation (including any necessary
appeals) would run on too long.
An examination of the duplicative cases currently permitted under the time-of-filing rule
shows that many plaintiffs would not be able to sequentially litigate district court and CFC
claims within the CFC’s six-year statute of limitations. For example, several of the Indian trust
cases that remain pending after Tohono have been before both the district court and the CFC for
nearly six years. 274 Another example is Fire-Trol Holdings v. United States Forest Service,
which involved an APA claim in district court and a simultaneous bid protest action in the
CFC. 275 The district court action was filed on October 21, 2003, and the district court completed
its proceedings quickly, dismissing the case for lack of subject matter jurisdiction on August 13,
2004. The plaintiffs appealed to the Ninth Circuit, however, waiting until October 19, 2006 for
oral argument. The Ninth Circuit issued a decision (with unusual speed) 276 on November 2,
2006, affirming the case in part, but also reversing in part, and remanding to the district court for
further proceedings. The litigation ended shortly thereafter, but only because the plaintiff was
forced to withdraw on January 31, 2007, in accord with an agreement disposing of the
company’s assets. Had the plaintiff chose to litigate the APA and bid protest claims sequentially,
and had been able to complete the litigation, it seems unlikely that it could have litigated the
district court case to completion in the Ninth Circuit in the approximately 19 months that would
have remained in the CFC statute of limitations. A third example is Bailey v. United States,
which involved a claim for breach of contract based on a criminal attorney’s claim that he was
supposed to be paid for a criminal representation out of assets seized in civil forfeiture in
connection with the criminal case. 277 The district court case was filed on February 28, 1994, and
Bailey’s part in it was not closed out until November 8, 2004, more than a decade later. And his
CFC action took more than seven and a half years to complete, from the time it was filed on
October 22, 1996 until an appeal to the Federal Circuit was completed and the mandate issued to
the CFC on April 19, 2004.
The potential for sequential litigation nonetheless shows that fixing the timing workaround would simply replace the current anomaly with a lesser anomaly. Instead of plaintiffs
being permitted to raise all their claims, but only if they brought them in the right order, they
would be permitted to raise all their claims, but only if they managed to litigate them speedily.
But the speed of litigation, like the order of filing, should not affect the ability to bring claims.
274

See, e.g., Ak-Chin Indian Community v. United States, No. 1:06-cv-02245-TFH (D.D.C.), 1:06-cv-00932ECH (Ct. Fed. Cl.).
275

See No. 2-03-cv-02039-JAT (D. Ariz.), No. 1:05-cv-00205-LAS (Ct. Fed. Cl.).

276

It typically takes approximately 12-20 months for a civil appeal in the Ninth Circuit to progress from the
notice of appeal to oral argument, and another three months to a year from oral argument to decision. See U.S. Court
of Appeals for the Ninth Circuit, Frequently Asked Questions 17, 18, available at http://www.ca9.
uscourts.gov/content/faq.php.
277

See 1:94-cr-01009-MP-5 (N.D. Fla.), 1-96-cv-00666-MBH (Ct. Fed. Cl.).

50

This solution may reduce some of the costs of duplicative litigation, but only indirectly
and without eliminating the costs of Section 1500 litigation. And it would exacerbate the core
injustice of denying plaintiffs the right to pursue all available claims against the United States.
Thus, it is not the best solution.
5.

Amend Section 1500

Another option is to replace or amend Section 1500 to impose a requirement that better
serves the purposes of Section 1500, while avoiding the uncertainty and injustice that has
plagued the statute. Such a requirement could take a variety of forms. For example, an influential
article published in 1967 urged an alternative “statute providing that issues decided in a suit
against an agent of the United States, in which the United States participated by providing
counsel for the defendant, shall be res judicata in a suit between the plaintiff or those in privity
with him and the United States,” and vice versa. 278 The suggestion was reiterated in a 1994
article, in which the authors stated that “if Congress were truly interested in preventing two
claims, where one is a claim against a federal official and the other is a claim against the United
States,” a more effective solution would be replace Section 1500 “with a statute that stipulated
that an adjudicated claim against a United states officer was res judicata in a subsequent
proceeding against the United States.” 279 As previously explained, however, the law of
preclusion has already evolved to embrace this principle. A statute embodying the same principle
would thus be superfluous.
Moreover, a difficulty with this solution is that, as the examples in this Report
demonstrate, there are so many different possible permutations of facts that it is difficult to
capture them all in a fixed set of words that will correctly resolve all cases. If Congress desired
to amend Section 1500 to remove its jurisdictional bar, but to retain an instruction to apply
preclusion appropriate rules of preclusion, it might consider using open-ended language that left
it up to the courts to resolve cases correctly, perhaps something such as:
(a) The jurisdiction of the United States Court of Federal Claims
over any case shall not be affected by the filing or pendency of a
related case in any other court.
(b) Whenever a plaintiff pursues, simultaneously or otherwise, a
case in the United States Court of Federal Claims and a related
case in another court, both courts shall give due effect to the
doctrines of claim preclusion and issue preclusion and shall
appropriately limit or adjust the remedies they provide so as to do
justice.
278
279

Schwartz, supra note 23, at 601.
See Peabody, supra note 33, at 110.

51

(c) For purposes of subsection (b), a “related case” may include a
case against the United States or against any person who, at the
time when the cause of action alleged in such case arose, was, in
respect thereto, acting or professing to act, directly or indirectly
under the authority of the United States.
This hybrid option might serve the goals of Section 1500, while leveraging existing judicial
doctrines to further the cause.
The difficulty with amending or replacing Section 1500 is that, at best, it might be
redundant, and, at worst, it could cause greater, unforeseeable problems. To the extent issue
preclusion and the inherent judicial power to manage the docket can accomplish the purposes of
Section 1500, any statute incorporating such tools may not add value. And enshrining these tools
into statute may reduce the flexibility necessary for the courts to tailor the rules to fill any void
left by Section 1500. Some of these risks could be mitigated by artful drafting, but that can be a
dangerous game: the more complicated a statutory solution becomes, the greater the
opportunities for manipulation and perversion of the statute’s intended policy goals. These
dangers may be reduced by repealing the statute, but holding off on replacing it until time and
practice demonstrate whether there is a problem in need of a statutory solution and, if so, what
that solution ought to look like. But the apparent reasonableness of this wait-and-see approach is
countered by the possibility that the legislature might not be willing to revisit the statute down
the road.
6.

Judicial Amelioration

Until Congress repeals Section 1500, or if it fails to do so, the courts could ameliorate
some of Section 1500’s unfairness by reforming precedent to improve both fairness and
predictability. This could take several forms. One option, discussed in detail above, would be to
eliminate the order of filing work-around. This would level the playing field among litigants, but
would do so by extending the illogic of Section 1500 to capture more litigants. A different, and
rather extreme, proposal Professor Kirgis has put forward would have courts extend pendent
jurisdiction principles to enable litigants to seek relief on all their claims in either the CFC or a
Federal district court. 280 But such officious intermeddling with Congress’s scheme for dividing
jurisdiction between the CFC and the district courts would be inconsistent with a variety of
statutes and generally appears to exceed the courts’ authority. It might also be an overbroad
solution to a relatively narrow problem.
A more modest option, which is within the court’s power and has the potential to do
much good, is for the Federal Circuit to reverse County of Cook. This case, which adopted the
simultaneous filing rule and applied it to claims filed in the CFC by operation of the transfer
280

See Kirgis, supra note 33, at 344-49.

52

statute, “needlessly extended the reach of § 1500.” 281 Some Federal Circuit judges have urged it
be reversed. Dissenting from denial of panel rehearing and rehearing en banc in Griffin v. United
States, Judge Plager, joined by Judge Newman, charged that “[t]he rule of law created by County
of Cook should be overturned,” and took their colleagues to task for passing up “an opportunity
to correct th[is] unjust error in our precedent.” 282 Judge Plager explained that “[d]ue to the
evolving law of pleading and jurisdiction including doctrines such as res judicata and collateral
estoppel, § 1500 has long outlived its purpose, and has been described many times as now being
little more than a ‘trap for the unwary.’” 283 County of Cook “unnecessarily widened the trap.”284
Judge Plager observed that “Congress thus far has not heeded calls for the repeal of § 1500,” and
the Federal Circuit cannot “undo the basic mischief inherent in” the statute. “[B]ut [the court]
need not make matters worse for pleaders who inadvertently fall afoul of the federal
jurisdictional maze.” 285
Our research revealed that under the law as currently interpreted, two-thirds of locatable
cases that were transferred to the CFC and then faced a motion to dismiss under Section 1500
were dismissed. 286 Moreover, County of Cook unfairly punishes scrupulous plaintiffs who file in
the district court, and not in the CFC, precisely because they wish to litigate in only one forum
and believe the district court is proper. When their understanding of jurisdiction requirements
turns out to be wrong, the transfer statute ought to protect their interests. But under County of
Cook, it does not. Rather, these litigants may find there is no forum available to adjudicate their
claim(s). While reversing County of Cook would not solve all of Section 1500’s problems, it
would at least remedy the confusion and unfairness the decision has contributed to Section 1500
jurisprudence.
7.

Department of Justice Amelioration

If Section 1500 is repealed, DOJ can take steps to reduce the costs of duplicate suits. DOJ
could use electronic docketing or other tools to keep track of cases and identify potentially
duplicative litigation. 287 Then, in appropriate cases, DOJ could move for a stay of proceedings or
appeal to judicial doctrines such as issue preclusion to further judicial economy and obviate the
need for relitigation of issues already decided.

281
282
283
284
285
286
287

Griffin, 621 F.3d. at 1366 (Plager, J., dissenting).
Id. at 1365 (Plager, J., dissenting).
Id. at 1364 (Plager, J., dissenting) (footnote omitted).
Id. at 1365 (Plager, J., dissenting).
Id. at 1366 (Plager, J., dissenting).
See Appendix A.
141 Cong. Rec. S2334 (daily ed. Feb. 8, 1995) (statement of Sen. Howell Heflin).

53

VI.

Conclusion

The time to reform Section 1500 has come. Since it was originally enacted, preclusion
doctrines have evolved to fill the gap that the statute was initially intended to address. Today, the
statute’s only ostensibly valid purpose is to reduce the costs of simultaneous suits against the
government. But it does not serve this purpose well, and it causes significant unfairness in the
process. A better and more just approach would be to repeal Section 1500 and allow the courts to
use preclusion principles and their inherent power to manage the docket to ensure access to
justice while reducing the costs to the government of duplicative litigation. We urge the
Committee to recommend this superior approach to Congress.

54

Appendix A

Appendix A
Application of Section 1500 in the Court of Federal Claims: 2000-2010 1
Case

Transferred

Survived
(Diff. Facts)

Survived
(Diff. Relief)

Survived
(Order of Filing)

Dismissed
on § 1500

Disposition
on Appeal

2010
Vero Technical Support, Inc. v.
United States, No. 10-575C, 94 Fed.
Cl. 784
Jachetta v. United States, No. 10105L, 94 Fed. Cl. 277

X

Trusted Integration, Inc. v. United
States, No. 09-759 C, 93 Fed. Cl. 94

X

X

U.S. Home Corp. v. United States,
No. 09-63 C, 92 Fed. Cl. 401
Mastrolia v. United States, No. 09462C, 91 Fed. Cl. 369

X

X

Zhao v. United States, No. 09-463C,
91 Fed. Cl. 95

X

1

Includes all cases appearing in Lexis in which the Court of Federal Claims (“CFC”) adjudicated a motion to dismiss under 28 U.S.C. § 1500. Cases not
reported in the Lexis database do not appear in this data set.

A-1

Case

Transferred

Survived
(Diff. Facts)

Survived
(Diff. Relief)

Survived
(Order of Filing)

Dismissed
on § 1500
X

0

1

1

0

5

Torre v. United States, No. 09-CV0791

2010 TOTALS

Disposition
on Appeal
Affirmed
(2010 U.S.
App. LEXIS
21073)* 2

2009
Low v. United States, No. 09-532C,
90 Fed. Cl. 447
Woodson v. United States, No. 09-263
C, 89 Fed. Cl. 640
Berry v. United States, No. 08-330 C,
86 Fed. Cl. 750, 86 Fed. Cl. 24
Haudenosaunee v. United States, No.
06-909L, 2009 U.S. Claims LEXIS
370
United Keetoowah Band of Cherokee
Indians v. United States, No. 06-936L,
86 Fed. Cl. 183
Lan-Dale Co. v. United States, No.
03-1956C, 2009 U.S. Claims LEXIS
16
Schmitt v. United States, No. 08-CV917
2009 TOTALS
2

X
X
X
X

X

X

X

X

1

0

0

A star (“*”) denotes cases for which we were unable to locate any CFC decision on Lexis.

A-2

3

4

Affirmed
(373 F.
App’x 66)*

Case

Transferred

Survived
(Diff. Facts)

Survived
(Diff. Relief)

Survived
(Order of Filing)

Dismissed
on § 1500

Disposition
on Appeal

X

Affirmed;
en banc
denied
(w/dissent)

2008
Griffin v. United States, No. 07-318C,
85 Fed. Cl. 179; Affirmed by Griffin
v. United States, 2009 U.S. App.
LEXIS 28381 (Fed. Cir., Dec. 28,
2009); Rehearing En Banc Denied by
621 F.3d 1363 (Fed. Cir. 2010)
Swanson v. United States, No. 08-360
L, 2008 U.S. Claims LEXIS 502
Yankton Sioux Tribe v. United States,
No. 05-1291 L, 84 Fed. Cl. 225
Ramah Navajo Sch. Bd., Inc. v.
United States, No. 08-19C, 83 Fed. Cl.
786
Nez Perce Tribe v. United States, No.
06-910L, 83 Fed. Cl. 186
E. Shawnee Tribe v. United States,
No. 06-917, 82 Fed. Cl. 322; Reversed
by, Remanded by Eastern Shawnee
Tribe v. United States, 2009 U.S. App.
LEXIS 20722 (Fed. Cir., Sept. 17,
2009); panel rehearing denied by E.
Shawnee Tribe v. United States, 598
F.3d 1326 (Fed. Cir. 2010)
Salt River Pima-Maricopa Indian
Cmty. v. United States, No. 06-943L,
2008 WL 1883170

X

X
X
X

X
X

X

A-3

Reversed by
panel

Case
Passamaquoddy Tribe v. United
States, No. 06-942 L, 82 Fed. Cl. 256
Moorehead v. United States, No. 07654 C, 81 Fed. Cl. 353
Whalen v. United States, No. 07707C, 80 Fed. Cl. 685
Shafer v. United States, No. 08-103 C,
2008 U.S. Claims LEXIS 463
Ak-Chin Indian Cmty. v. United
States, No. 06-932 L, 80 Fed. Cl. 305
2008 TOTALS

Transferred

Survived
(Diff. Facts)

Survived
(Diff. Relief)

Survived
(Order of Filing)

X

Dismissed
on § 1500
X

Disposition
on Appeal

X
X
X
X

2

0

0

3

9

2007
Tohono O'Odham Nation v. United
States, No. 06-944L, 79 Fed. Cl. 645;
Reversed by, Remanded by Tohono
O'odham Nation v. United States, 559
F.3d 1284 (Fed. Cir. 2009), cert.
granted, 130 S. Ct. 2097 (Apr. 19,
2010) (No. 09-846).
Schweitzer v. United States, No. 07791C, 2007 U.S. Claims LEXIS 427

X

X

d'Abrera v. United States, No. 06427C, No. 07-365C, 78 Fed. Cl. 51

X

X

Cooke v. United States, No. 06-748C,
77 Fed. Cl. 173

X

X

X

A-4

Reversed
(diff. relief);
Supreme
Court
currently
reviewing

Case

Transferred

Survived
(Diff. Facts)

Survived
(Diff. Relief)

Survived
(Order of Filing)

Fiebelkorn v. United States, No. 07-18
C , 76 Fed. Cl. 438
Schrader v. United States, No. 06384C, 75 Fed. Cl. 242

X

2007 TOTALS

3

Dismissed
on § 1500
X

X

2

1

0

4

2006
Hall v. United States, No. 05-517C,
74 Fed. Cl. 391

X

Forsgren v. United States, No. 041223 L, 73 Fed. Cl. 135

X

OSI, Inc. v. United States, No. 041210C, 73 Fed. Cl. 39

X

Chapman Law Firm Co. v. United
States, No. 06-473C, 72 Fed. Cl. 14
Heritage Minerals, Inc. v. United
States, No. 03-2228L, 71 Fed. Cl. 710

X

X

Williams v. United States, No. 051123C, 71 Fed. Cl. 194

X

Firebaugh Canal Water Dist. v. United
States, No. 05-262L, 70 Fed. Cl. 593

X
A-5

Disposition
on Appeal

Case
Hirel Connectors, Inc. v. United
States, No. 05-1170 C, 70 Fed. Cl.
239
2006 TOTALS

Transferred

Survived
(Diff. Facts)

Survived
(Diff. Relief)

Survived
(Order of Filing)

Dismissed
on § 1500

Disposition
on Appeal

X
0

1

2

0

5

2005
De Leon v. United States, No. 05606C, 69 Fed. Cl. 336

X

Smith v. United States, No. 04-1685C,
2005 U.S. Claims LEXIS 486
Hansen v. United States, No: 02-21L,
65 Fed. Cl. 76
Fire-Trol Holdings, LLC v. United
States, 05-205C, 65 Fed. Cl. 32
Snyder v. United States, No. 04-1006
T, 63 Fed. Cl. 762
2005 TOTALS

X

Affirmed
per curiam

X
X

X
X

0

1

1

1

3

2004
Young v. United States, No. 021368C, 60 Fed. Cl. 418

X

Holloway v. United States, No. 031821C, 60 Fed. Cl. 254

X

Lan-Dale Co. v. United States, No.
03-1956C, 60 Fed. Cl. 299

X
A-6

Affirmed

Case

Transferred

Survived
(Diff. Facts)

Survived
(Diff. Relief)

Survived
(Order of Filing)

Whyte v. United States, No. 03-856C,
59 Fed. Cl. 493
2004 TOTALS

Dismissed
on § 1500
X

0

0

0

1

3

Disposition
on Appeal

2003
Samish Indian Nation v. United
States, No. 02-1383 L, 58 Fed. Cl. 114
Harbuck v. United States, No. 021829C, 58 Fed. Cl. 266
Breneman v. United States, No. 021854 L, 57 Fed. Cl. 571
Agustin v. United States, No. 00-335C

2003 TOTALS

X
X
X
X

0

0

0

1

Affirmed
(92 F.
App’x 786)*

3

2002
Frasier v. United States, No. 02-5164

2002 TOTALS

X

0

0

0

0

1

2001
Esch v. United States, No. 00-529 C,
49 Fed. Cl. 631
2001 TOTALS

X
0

0

0
A-7

0

1

Affirmed
(67 F.
App’x 594)*

Case

Bailey v. United States, No. 96-666,
46 Fed. Cl. 187
2000 TOTALS

Transferred

Survived
(Diff. Facts)
2000

Survived
(Diff. Relief)

Survived
(Order of Filing)

Dismissed
on § 1500

0

0

0

Disposition
on Appeal

X
0

1

ANALYSIS OF TOTALS

5
6
Transferred
56
Cases Reviewed

4 of 6
(~66%)
Dismissed
Following
Transfer

5

9 3 of 56
(~16%)
Survived Based on
Different Facts and/or
Different Relief

9 of 56
(~16%)
Survived Based
on Order of Filing

38
(~68%)
Dismissed

18
(~32%)
Survived Motion to Dismiss

3

One of these cases, Cooke v. United States, 77 Fed. Cl. 173 (2007), survived a motion to dismiss due to differences in both facts and relief sought.

A-8