Lead Opinion
delivered the opinion of the Court.
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.
r — 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), 5 U. S. C. § 8132, of money paid by Keene to claimants covered by the Act. For this, Keene sought restitution of “the amounts of money which have been, or which may be, recouped by [the United States] from claimants from judgments and settlements paid by Keene,” App. 37, as well as an injunction against the Government’s collection of FECA refunds thereafter. This suit suffered dismissal in September 1981, on the basis of sovereign immunity, which the court held unaffected by any waiver found in the Federal Tort Claims Act, the Suits in Admiralty Act, and the Public Vessels Act. The Court of Appeals affirmed, Keene Corp. v. United States,
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 28 U. S. C. § 1500 in moving to dismiss both Keene I and Keene II, as well as like actions by five other asbestos product manufacturers. With trial imminent in the Johns-Manville cases, the Court of Federal Claims initially granted the motion to dismiss only as to them. Keene Corp. v. United States,
HH HH
The authority cited for dismissing Keene’s complamts for want of jurisdiction was 28 U. S. C. § 1500 (1988 ed., Supp. IV):
“The United States Court of Federal Claims shall not have jurisdiction of any claim for or in respect to which*206 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 §8 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,
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,
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.,
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,
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,
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.
Keene nonetheless argues, for the first time in its merits brief,
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,
The Court of Appeals, to be sure, announced that it was overruling five cases: Tecon Engineers, Inc. v. United States,
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
The judgment of the Court of Appeals is
Affirmed.
Notes
Keene actually filed its complaints in the old Court of Claims. Soon thereafter, Congress transferred the trial functions of the Court of Claims to a newly created “United States Claims Court.” Federal Courts Improvement Act of 1982, § 133, 96 Stat. 39-41. The Claims Court has just been renamed the “United States Court of Federal Claims.” See Court of Federal Claims Technical and Procedural Improvements Act of 1992, § 902, 106 Stat. 4616. To avoid confusion, we will refer to the trial court in this case by its latest name.
When Keene filed its complaints, §1600 referred to the “Court of Claims” rather than the “United States Court of Federal Claims.” See 28 U. S. C. § 1600 (1976 ed.). Section 1500 has since been amended twice, first to substitute “United States Claims Court” for “Court of Claims,” Federal Courts Improvement Act of 1982, § 133(e)(1), 96 Stat. 40, and then to substitute “Court of Federal Claims” for “Claims Court,” Court of Federal Claims Technical and Procedural Improvements Act of 1992, § 902(a), 106 Stat. 4516. See also n. 1, supra.
On this score, Keene cites Newman-Green, Inc. v. Alfonzo-Larrain,
We do not decide whether the statute also continues to bar a plaintiff from prosecuting a claim in the Court of Federal Claims while he has pending a later-filed suit in another court "for or in respect to” the same claim. Cf. Tecon Engineers, Inc. v. United States,
We have had one other encounter with this statute, in Matson Navigation Co. v. United States,
Because the issue is not presented on the facts of this case, we need not decide whether two actions based on the same operative facts, but seeking completely different relief, would implicate § 1500. Cf. Casman v. United States,
Keene argued in its petition for certiorari that the claim it raised in its third-party action in Miller was not based on the same facts as its complaint in Keene I. Keene did not press this argument after we granted the writ, and, in any event, we see no reason to disturb the rulings to the contrary by both courts below. See
It is not that Keene has not tried to meet the objection. Keene assumes, contrary to the plain text, that the statute here is not jurisdictional, arguing instead that it was meant to supplement the formalistic 19th-century concept of res judicata. According to Keene, res judicata would not have barred a cotton claimant from instigating an action against a federal officer who had acted for the Government, even though the claimant had lost an otherwise identical action against the Government itself (and vice versa), the difference between the named defendants being significant at that time. On the assumption that the statute eliminated nonidentity of parties defendant as a barrier to the application of res judicata, Keene then argues that causes of action were treated as identical in those days if the same evidence was used to prove multiple claims. On this view of the law, Keene concludes, multiple cotton claims would have been treated as the same, and the statute would have barred the Court of Claims suit, just as Congress intended. Reply Brief for Petitioner 7. Even on its own terms, however, this argument fails, for the Court of Claims in 1868 had no jurisdiction to try a tort action for conversion, however similar it might have been for res judicata purposes to the statutory action within that court’s jurisdiction. Accordingly, under Keene’s claim-splitting theory, the conversion action would not have been treated as identical with the statutory action; each would have survived, leaving the statute useless to solve the problem Congress was addressing.
Keene claims that its view represents “well-established law,” citing Allied Materials & Equipment Co. v. United States,
The questions on which we granted certiorari contain no direct mention of prospectivity, see Pet. for Cert, i, although Keene did argue in its petition that Tecon Engineers should be overruled only prospectively, see Pet. for Cert. 13, and the Court of Appeals did consider, and reject, the argument that its ruling should only be prospectively applied, see
We note that both the Brown and Hossein courts failed to consider the possibility that the District Court, in such a situation, could transfer the case to the Court of Federal Claims under a statute first adopted in 1960. See Act of Sept. 13, 1960, § 1, 74 Stat. 912 (codified at 28 U. S. C. § 1406(c) (1964 ed.)); Act of Apr. 2, 1982, § 301(a), 96 Stat. 55 (codified at 28 U.S.C. §1631).
Brown and Hossein do not survive our ruling today, for they ignored the time-of-filing rule discussed in Part II-A, supra.
Keene also asks the Court to “make clear that, if Keene refiles the same claims, equitable tolling would be available to eliminate any limitations bar.” Brief for Petitioner 45. But any response to this request would be an advisory opinion.
A recent attempt to repeal §1500 failed in Congress. See S. 2521, 102d Cong., 2d Sess., § 10(c) (1992); 138 Cong. Rec. S4830-S4832 (Apr. 2, 1992).
Dissenting Opinion
dissenting.
In my opinion, 28 U. S. C. § 1500 does not require the Court of Federal Claims to dismiss an action against the United States simply because another suit on the same claim was once, but is no longer, pending in district court. Rather, the plaintiff may continue to pursue his claim so long as there is no other suit pending when the Court of Federal Claims decides the motion to dismiss. Neither the text nor the history of the statute demands more of the plaintiff than that he make an “election either to leave the Court of Claims or to leave the other courts” at that time.
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,
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.
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,
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,
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.
Senator Edmunds explained the purpose of the provision that is now § 1500, as follows:
‘“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 Gong. Globe, 40th Cong., 2d Sess., 2769 (1868).
Sections immediately following §1500 use similar language with respect to other types of claims. See 28 U. S. C. §§ 1503, 1508.
“At the present time, therefore, the only claim for just compensation pending in a court is that stated in the plaintiffs’ petition in this court.
“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 28 U. S. C. § 1500 requires us to deprive plaintiffs of the only forum they have in which to test their demand for just compensation.” Brown,
See also Boston Five Cents Savings Bank, FSB v. United States,
As Justice Holmes pointed out, in a similar context, “no one would say that the words of the Mississippi statute of frauds, ‘An action shall not be brought whereby to charge a defendant,' go to the jurisdiction of the court. Of course it could be argued that logically they had that scope, but common sense would revolt.” Fauntleroy v. Lum,
The Court seeks to minimize these concerns by suggesting that the Brown line of cases on which petitioner relies would not in any event apply here, because petitioner’s District Court action was not dismissed on the grounds that it fell within the exclusive jurisdiction of the Court of Federal Claims. Ante, at 216-217. In my view, Brown, and cases like it, do not warrant such a narrow reading, but stand instead for the broader proposition that a former district court action, once dismissed, no longer bars adjudication in the Court of Federal Claims. See n. 2, supra; National Steel & Shipbuilding Co. v. United States,