KEENE CORP. v. UNITED STATES
No. 92-166
SUPREME COURT OF THE UNITED STATES
Argued March 23, 1993—Decided May 24, 1993
508 U.S. 200
Deputy Solicitor General Wallace argued the cause for the United States. On the brief were Acting Solicitor General Bryson, Assistant Attorney General Gerson, Deputy Solicitor General Mahoney, Robert A. Long, Jr., and Barbara C. Biddle.*
*Briefs of amici curiae urging reversal were filed for the State of Alaska by Charles E. Cole, Attorney General, and Ronald G. Birch; for the State of Hawaii by Robert A. Marks, Attorney General, and Steven S. Michaels, Deputy Attorney General; for the Chamber of Commerce
Don S. Willner and Thomas M. Buchanan filed a brief for C. Robert Suess et al. as amici curiae.
Keene Corporation has been sued by thousands of plaintiffs alleging injury from exposure to asbestos fibers and dust released from products made by Keene and by a company it acquired. In trying to recoup some of the money it was paying to litigate and settle the cases, Keene filed two complaints against the United States in the Court of Federal Claims.1 When it filed each complaint, however, Keene had a similar claim pending against the Government in another court. We hold that
I
Through its subsidiary Keene Building Products Corporation, Keene manufactured and sold thermal insulation and acoustical products containing asbestos, as did a company it acquired in 1968, Baldwin-Ehret-Hill, Inc. In the mid-
In the meantime, in December 1979, with the Miller third-party action still pending, Keene filed the first of its two complaints in issue here, seeking damages from the United States in the Court of Federal Claims “for any amounts which have been, or which may be recovered from Keene by the claimants, by settlement or judgment.” Keene Corp. v. United States, No. 579-79C (Keene I), App. to Pet. for Cert. H15. The “claimants” are defined as the plaintiffs in the more than 2,500 lawsuits filed against Keene “by persons alleging personal injury or death from inhalation of asbestos fibers contained in thermal insulation products” manufactured or sold by Keene or its subsidiaries. Id., at H3. Keene alleges conformance with Government specifications in the inclusion of asbestos within the thermal insulation products Keene supplied to Government shipyards and other projects funded or controlled by the Government, and Keene further claims that the Government even sold it some of the asbestos fiber used in its products. Keene‘s theory of recovery is breach by the United States of implied warran-
Keene‘s next move against the Government came the following month when it filed a 23-count complaint in the District Court for the Southern District of New York. Keene Corp. v. United States, No. 80-CIV-0401(GLG). The pleadings tracked, almost verbatim, the lengthy factual allegations of Keene I, but the action was recast in terms of various tort theories, again seeking damages for any amounts paid by Keene to asbestos claimants. Keene also added a takings claim for the Government‘s allegedly improper recoupment, under the Federal Employees’ Compensation Act (FECA),
Only five days before the Southern District‘s dismissal of that omnibus action, Keene returned to the Court of Federal Claims with the second of the complaints in issue here. Keene Corp. v. United States, No. 585-81C (Keene II). Although this one, too, repeats many of the factual allegations of Keene I, it adopts one of the theories raised in the Southern District case, seeking payment for “the amounts of money that [the United States] has recouped” under FECA from asbestos claimants paid by Keene. App. to Pet. for
After the Court of Federal Claims raised the present jurisdictional issue sua sponte in similar actions brought by Johns-Manville, the Government invoked
II
The authority cited for dismissing Keene‘s complaints for want of jurisdiction was
“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.”2
The lineage of this text runs back more than a century to the aftermath of the Civil War, when residents of the Confederacy who had involuntarily parted with property (usually cotton) during the war sued the United States for compensation in the Court of Claims, under the Abandoned Property Collection Act, ch. 120, 12 Stat. 820 (1863). When these cotton claimants had difficulty meeting the statutory condition that they must have given no aid or comfort to participants in the rebellion, see § 3 of the Act, they resorted to separate suits in other courts seeking compensation not from the Government as such but from federal officials, and not under the statutory cause of action but on tort theories such as conversion. See Schwartz, Section 1500 of the Judicial Code and Duplicate Suits Against the Government and Its Agents, 55 Geo. L. J. 573, 574-580 (1967). It was these duplicative lawsuits that induced Congress to prohibit anyone from filing or prosecuting in the Court of Claims “any claim ... for or in respect to which he ... shall have commenced and has pending” an action in any other court against an officer or agent of the United States. Act of June 25, 1868, ch. 71, § 8, 15 Stat. 77. The statute has long outlived the cotton claimants, having been incorporated
Keene argues it was error for the courts below to apply the statute by focusing on facts as of the time Keene filed its complaints (instead of the time of the trial court‘s ruling on the motion to dismiss) and to ignore differences said to exist between the Court of Federal Claims actions and those filed in the District Courts. Neither assignment of error will stand.
A
Congress has the constitutional authority to define the jurisdiction of the lower federal courts, see Finley v. United States, 490 U.S. 545, 548 (1989), and, once the lines are drawn, “limits upon federal jurisdiction ... must be neither disregarded nor evaded,” Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). In § 1500, Congress has employed its power to provide that the Court of Federal Claims “shall not have jurisdiction” over a claim, “for or in respect to which” the plaintiff “has [a suit or process] pending” in any other court. In applying the jurisdictional bar here by looking to the facts existing when Keene filed each of its complaints, the Court of Federal Claims followed the longstanding principle that “the jurisdiction of the Court depends upon the state of things at the time of the action brought.” Mollan v. Torrance, 9 Wheat. 537, 539 (1824) (Marshall, C. J.); see Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 69 (1987) (opinion of SCALIA, J.); St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289-290 (1938); Minneapolis & St. Louis R. Co. v. Peoria & P. U. R. Co., 270 U.S. 580, 586 (1926).
While acknowledging what it calls this “general rule” that subject-matter jurisdiction turns on the facts upon filing,
Keene‘s next appeal, to statutory history, is no more availing. The immediate predecessor of § 1500, § 154 of the Judicial Code of 1911, provided that “[n]o person shall file or prosecute in the Court of Claims ... any claim for or in respect to which he ... has pending in any other court any suit or process ....” Act of Mar. 3, 1911, ch. 231, § 154, 36 Stat. 1138. With this express prohibition against filing claims for which another suit was pending, there could, of course, have been no doubt that at least a time-of-filing rule applied. See Shapiro v. United States, 168 F.2d 625, 626 (CA3 1948) (§ 154 “forbids the filing” of a Little Tucker Act
The statutory notion of comparable claims is more elusive. By precluding jurisdiction over the claim of a plaintiff with a suit pending in another court “for or in respect to” the same claim, § 1500 requires a comparison between the claims raised in the Court of Federal Claims and in the other lawsuit. The exact nature of the things to be compared is not illuminated, however, by the awkward formulation of § 1500. Nor does it advance the ball very far to recognize from the statute‘s later reference to “the cause of action alleged in such suit or process,” that the term “claim” is used here synonymously with “cause of action,” see Black‘s Law Dictionary 247 (6th ed. 1990) (defining “claim” as “cause of action“), since, as both parties admit, “cause of action,” like “claim,” can carry a variety of meanings. See Brief for Petitioner 18; Brief for United States 15; see also Johns-Manville Corp., 855 F.2d, at 1560.
Fortunately, though, we can turn to earlier readings of the word “claim” as it appears in this statute. The phrase “any claim ... for or in respect to which” has remained unchanged since the statute was first adopted in 1868, see Act of June 25, 1868, ch. 71, § 8, 15 Stat. 77, and prior encounters with § 154 of the Judicial Code of 1911, the immediate predecessor to § 1500, shed some light on the issue. Corona Coal Co. v. United States, 263 U.S. 537 (1924), was an action brought against the United States in the Court of Claims, seeking compensation for coal requisitioned by the Government. Before bringing its appeal to this Court, the plaintiff sued the President‘s agent in Federal District Court, “the causes of action therein set forth being the same as that set forth in the [Court of Claims] case.” Id., at 539. After noting that the causes of action “arose out of” the same factual setting, we applied § 154 and dismissed the
Inc. v. United States, 962 F.2d 1013, 1030, n. 5 (CA Fed. 1992) (Plager, J., dissenting).
A few years later, the Court of Claims settled a key question only foreshadowed by Skinner & Eddy: whether § 154 applied when the Court of Claims action and the “other” suit proceeded under different legal theories. In British American Tobacco Co. v. United States, 89 Ct. Cl. 438 (1939) (per curiam), after the plaintiff had surrendered his gold bullion to the Government (in compliance with executive orders and regulations that took this country off the gold
These precedents demonstrate that under the immediate predecessor of § 1500, the comparison of the two cases for purposes of possible dismissal would turn on whether the plaintiff‘s other suit was based on substantially the same operative facts as the Court of Claims action, at least if there was some overlap in the relief requested.6 See Skinner & Eddy, supra; Corona Coal, supra. That the two actions were based on different legal theories did not matter. See British American Tobacco, supra. Since Keene has given us no reason to doubt that these cases represented settled law when Congress reenacted the “claim for or in respect to which” language in 1948, see 62 Stat. 942, we apply the presumption that Congress was aware of these earlier judicial interpretations and, in effect, adopted them. Lorillard v. Pons, 434 U.S. 575, 580 (1978); cf. United States v. Powell, 379 U.S. 48, 55, n. 13 (1964) (presumption does
Keene nonetheless argues, for the first time in its merits brief,7 that “[a] claim brought outside the [Court of Federal Claims] is ‘for or in respect to’ a claim in the [Court of Federal Claims only] when claim-splitting law would treat them as the same—i. e., require them to be joined in a single suit—if the two claims were both brought against the United States.” Brief for Petitioner 20. Under this theory, § 1500 would not apply to a Court of Federal Claims plaintiff unless his suit pending in the other court rested on a legal theory that could have been pleaded (as Keene‘s could not have been) in the Court of Federal Claims. But this reinterpretation of § 1500 is bound to fail, not because novelty is always fatal in the construction of an old statute, but because the novel proposition in Keene‘s suggested reading would have rendered the statute useless, in all or nearly all instances, to effect the very object it was originally en-
Finally, Keene takes the tack that if we adopt the Court of Appeals‘s construction of § 1500, we will be announcing “a new rule of law” that ought to be applied only prospectively under the test set out in Chevron Oil Co. v. Huson, 404 U.S. 97 (1971). Brief for Petitioner 42-43. Even assuming that this call for “pure prospectivity,” see James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 544 (1991) (opinion of SOUTER, J.), might fairly fall within the questions presented,10 there is no need to address it because, as the Government points out, Keene‘s claims were dismissed under well-settled law.
The Court of Appeals, to be sure, announced that it was overruling five cases: Tecon Engineers, Inc. v. United States, 170 Ct. Cl. 389, 343 F.2d 943 (1965), cert. denied, 382 U.S. 976 (1966); Casman v. United States, 135 Ct. Cl. 647 (1956); Boston Five Cents Savings Bank, FSB v. United States, 864 F.2d 137 (CA Fed. 1988); Brown v. United States, 175 Ct. Cl. 343, 358 F.2d 1002 (1966) (per curiam); and Hossein v. United States, 218 Ct. Cl. 727 (1978) (per curiam). And while Keene contends that nothing less than these repudiations of precedent would have sufficed to dismiss its suits, we read the five cases as supporting neither Keene‘s position that the Court of Federal Claims had jurisdiction over its cases nor its plea for pure prospectivity of the overruling decision.
Johns-Manville Corp., supra, at 1562-1563; Los Angeles Shipbuilding & Drydock Corp. v. United States, 138 Ct. Cl. 648, 652, 152 F. Supp. 236, 238 (1957); Hill v. United States, 8 Cl. Ct. 382, 386-388 (1985). Accordingly, Keene‘s appeal to “well-established law” is misplaced.
IV
We have said nothing until now about Keene‘s several policy arguments, and now can only answer that Keene addresses the wrong forum. It may well be, as Keene argues, that § 1500 operates in some circumstances to deprive plaintiffs of an opportunity to assert rights that Congress has generally made available to them “under the complex legal and jurisdictional schemes that govern claims against the Government.” Brief for Petitioner 15. The trial judge in this case was not the first to call this statute anachronistic, see 12 Cl. Ct., at 205; A. C. Seeman, Inc. v. United States, 5 Cl. Ct. 386, 389 (1984), and there is a good argument that, even when first enacted, the statute did not actually perform the preclusion function emphasized by its sponsor, see Schwartz, 55 Geo. L. J., at 579. But the “proper theater” for such arguments, as we told another disappointed claimant many years ago, “is the halls of Congress, for that branch of the government has limited the jurisdiction of the Court of Claims.”14 Smoot‘s Case, 15 Wall. 36, 45 (1873). We enjoy no “liberty to add an exception ... to remove
The judgment of the Court of Appeals is
Affirmed.
JUSTICE STEVENS, dissenting.
In my opinion,
Section 1500 is not itself a grant of jurisdiction to the Court of Federal Claims. That function is performed by other sections of the Judicial Code immediately preceding § 1500, which give the court “jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regu-
The text of § 1500 simply provides that the Court of Federal Claims “shall not have jurisdiction” over a claim “. . . which” the plaintiff ... “has pending” in any other court ... ,” Ante, at 207 (emphasis added). Accordingly, so long as a plaintiff has pending another suit in another court, the Court of Federal Claims may not adjudicate the plaintiff‘s claim, even though its subject matter would otherwise bring it within the court‘s jurisdiction. The Government may invoke this exception by putting such a plaintiff to his choice: either “leave the other courts,” n. 1, supra, or forgo farther proceedings in the Court of Federal Claims. If the plaintiff declines to leave the other courts, then the Court of Federal Claims is without jurisdiction to proceed with the case before it, though it may retain the case on its docket pending disposition of the other action. Hossein v. United States, 218 Ct. Cl. 727 (1978). But if the plaintiff does dismiss his other action, then the Court of Federal Claims is free to decide his case. Section 1500 was so construed over a quarter
It is true that an earlier version of § 1500 provided that a claimant may not “file or prosecute” an action in the Court of Federal Claims while another action is pending. Ante, at 208. That original text, however, did not prescribe the consequences of a prohibited filing. In view of the fact that the text did not then mention the word “jurisdiction,” there is nothing to suggest that pendency of another action would have to be treated as a defect warranting automatic dismissal.4 Instead, given the plain statement of the legislation‘s sponsor that he intended to force an election of remedies before trial, see n. 1, supra, this earlier language is fairly construed as giving the Government the right to avoid duplicative litigation by having the Court of Claims action
In any event, when the text of § 1500 was revised in 1948, Congress removed the prohibition on filing. The Court nevertheless assumes that the section should be construed as originally drafted, because Congress did not intend the 1948 revisions of the Judicial Code to make substantive changes in the law. See ante, at 209. In fact, the 1948 revision did work a significant substantive change by enlarging the class of suits subject to dismissal to include suits against the United States, as well as suits against its agents. See ante, at 212, n. 6; Matson Navigation Co. v. United States, 284 U.S. 352, 355-356 (1932); see also Schwartz, Section 1500 of the Judicial Code and Duplicate Suits Against the Government and Its Agents, 55 Geo. L. J. 573, 579-580 (1967). But even if it were the case that Congress intended no substantive change in 1948, that would mean only that the present text is the best evidence of what the law has always meant, and that the language of the prior version cannot be relied upon to support a different reading.
In my judgment, the Court of Claims properly construed § 1500 in 1966 when it held that the provision merely requires claimants to choose between alternative pending claims before proceeding to trial. See Brown, 175 Ct. Cl., at 348, 358 F.2d, at 1004. The statute limits the power of the Court of Federal Claims to render judgments, and thus the ability of a plaintiff to prosecute simultaneous actions against the Government, but it does not prevent the Court of Federal Claims from allowing a case to remain on its docket until the claimant has made the required election. Even if I did not agree with this interpretation of § 1500, however, I would nevertheless endorse it here, as litigants have a right to rely on a longstanding and reasoned judicial construction of an important statute that Congress has not seen fit to alter. See McNally v. United States, 483 U.S. 350,
Admittedly, this is a badly drafted statute. Viewed against a legal landscape that has changed dramatically since the days of the cotton claimants, see ante, at 206-207, it does not lend itself easily to sensible construction. Moreover, the Court‘s interpretation of § 1500 today may have the salutary effect of hastening its repeal or amendment. Nevertheless, a reading that is faithful not only to the statutory text but also to the statute‘s stated purpose is surely preferable to the harsh result the Court endorses here. Accordingly, I respectfully dissent.
Notes
“‘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.‘” UNR Industries, Inc. v. United States, 962 F.2d 1013, 1018 (CA Fed. 1992) (quoting 81 Cong. Globe, 40th Cong., 2d Sess., 2769 (1868).
“In these circumstances we grant the motions for rehearing, vacate our prior order dismissing the petition, and now deny the defendant‘s motion to dismiss. Our earlier order of dismissal was predicated on the fact that the other ‘claim remains pending in the said District Court.’ That is no longer true, and the claim is no longer ‘pending in any other court.’ In this situation, we do not believe that
See also Boston Five Cents Savings Bank, FSB v. United States, 864 F.2d 137, 139 (CA Fed. 1988) (staying Court of Federal Claims action while District Court action pending); Prillman v. United States, 220 Ct. Cl. 677, 679 (1979) (same).