United Keetoowah Band of Cherokee Indians v. United States
104 Fed. Cl. 180
Fed. Cl.2012Background
- Government renewed motion to dismiss under 28 U.S.C. §1500; Court previously denied a similar motion in 2009.
- Plaintiff United Keetoowah filed a CFC breach of fiduciary duty complaint on Dec. 29, 2006, and a parallel District Court complaint the same day.
- Questions center on whether United Keetoowah is a proper successor-in-interest to the Historic Cherokee and the applicability of Tecon’s sequence of filing rule.
- Tohono O’odham Nation v. United States (2011) addressed the claim prong but the court rejects applying its dicta to undermine Tecon for the pending prong.
- Court stayed proceedings during successor-in-interest proceedings and allowed discovery on other issues; it later denied the renewed motion to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Tohono O’odham overruns Tecon on the pending prong. | Keetoowah argues Tecon remains controlling; Tohono O’odham dicta not binding. | Government argues Tohono O’odham overrides Tecon on both prongs. | Tohono O’odham dicta not binding; Tecon remains controlling. |
| Whether Tecon’s sequence of filing rule applies to the two suits filed on the same day. | Keetoowah maintains Tecon applies, depriving jurisdiction only if suit filed in other court first. | Government contends Tecon should be overridden or distinguished. | Tecon applies; jurisdiction remains with the CFC only if the other suit was commenced first. |
| Whether Passamaquoddy’s per se approach applies here. | Plaintiff argues Passamaquoddy not triggered where sequence is discernible. | Government urges Passamaquoddy as automatic for simultaneous filings. | Passamaquoddy not applicable when sequence is undisputed (here, Keetoowah filed first). |
| Whether Tecon is consistent with the plain meaning of §1500 and Mollan’s rationale. | Keetoowah asserts Tecon aligns with Mollan and the statute’s text. | Government disputes Tecon as consistent with the text. | Tecon is consistent with §1500 and Mollan. |
Key Cases Cited
- Tecon Engineers, Inc. v. United States, 343 F.2d 943 (Ct.Cl.1965) (sequence of filing rule under §1500 for dual suits)
- Keene Corp. v. United States, 508 U.S. 200 (U.S. 1993) (revived Tecon; §1500 not disturbed)
- Tohono O’odham Nation v. United States, 131 S. Ct. 1723 (2011) (addressed claim prong; dicta on pending prong not controlling)
- Corona Coal Co. v. United States, 343 F.2d 950 (D.C. Cir. 1965) (not decisive for priority in §1500)
- Skinner & Eddy Corp. v. United States, 265 U.S. 86 (1924) (early §1500 precursor; priority principles)
- Loveladies Harbor, Inc. v. United States, 27 F.3d 1545 (Fed. Cir. 1994) (recognizes some exceptions; per se rule limited by Tecon)
- Passamaquoddy Tribe v. United States, 82 Fed.Cl. 256 (Fed. Cir. 2008) (per se approach; distinguished when sequence is clear)
- Kaw Nation of Oklahoma v. United States, 103 Fed.Cl. 613 (2012) (framework for Passamaquoddy applicability; policy considerations)