Ministerio Roca SOLIDA, Plaintiff-Appellant v. UNITED STATES, Defendant-Appellee.
No. 2014-5058.
United States Court of Appeals, Federal Circuit.
Feb. 26, 2015.
1351
Because this court finds the PTO‘s construction of the statute reasonable, we reject Gilead‘s contention that the regulation is overbroad and an unreasonable interpretation of the statute.
CONCLUSION
For the foregoing reasons, the district court‘s decision is
AFFIRMED
Joseph F. Becker, Center for Justice and Constitutional Litigation, Reno, Nevada, argued for plaintiff-appellant.
Anna Katselas, Environment and Natural Resources Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by Elizabeth Ann Peterson, Sam Hirsch, Gregory D. Page, Andrew C. Mergen, Katherine J. Barton.
Before WALLACH, TARANTO, and CHEN, Circuit Judges.
Opinion for the court filed by Circuit Judge WALLACH. Concurring opinion filed by Circuit Judge TARANTO.
This case presents the question of whether a suit brought against the United States in the United States Court of Federal Claims (“Claims Court“) must be dismissed for lack of subject matter jurisdiction because an earlier-filed related claim against the United States remains pending in a United States district court. Because the Claims Court correctly held jurisdiction is improper under these circumstances, this court affirms.
BACKGROUND
In 2006, plaintiff-appellant Ministerio Roca Solida (“Roca Solida“), a non-profit religious organization, purchased a forty-acre parcel of land in Nevada. At the time of purchase, a desert stream flowed across the property, the water rights to which Roca Solida also purchased. The water supplied a recreational pond and was used for baptisms, among other uses. Roca Solida‘s property is situated within a national wildlife refuge that is managed by the U.S. Fish and Wildlife Service (“FWS“). According to defendant-appellee United States, an FWS water restoration project completed in 2010 “restored [the] stream to its natural channel,” the effect of which was to divert the stream away from Roca Solida‘s property, depriving it of water it would have otherwise enjoyed. Appellee‘s Br. 2-3.
In response, Roca Solida instituted two lawsuits against the United States. First, it brought suit in federal district court in Nevada, seeking declaratory, injunctive, and compensatory relief on the basis of alleged violations under the First and Fifth Amendments to the United States Constitution, and also “at least $86,639.00 in damage[s]” under the Federal Tort Claims Act,
The United States moved to dismiss the Claims Court action for lack of subject
DISCUSSION
I. Standard of Review
An order dismissing a case for lack of subject matter jurisdiction under
II. Jurisdiction Is Barred by Statute
The Claims Court “has no jurisdiction over a claim if the plaintiff has another suit for or in respect to that claim pending against the United States or its agents.” United States v. Tohono O‘Odham Nation, — U.S. —, 131 S.Ct. 1723, 1727, 179 L.Ed.2d 723 (2011). This rule derives from
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.
With respect to the second inquiry, the Supreme Court has explained that “[t]wo suits are for or in respect to the same claim, precluding jurisdiction in the [Claims Court], if they are based on substantially the same operative facts, regardless of the relief sought in each suit.” Tohono, 131 S.Ct. at 1731 (emphases added). That is, the two co-pending suits need not be identical. See id. at 1728 (quoting Keene Corp. v. United States, 508 U.S. 200, 212, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993)) (“The phrase ‘in respect to‘... ‘make[s] it clear that Congress did not intend the statute to be rendered useless by a narrow concept of identity.‘“). In addition, it is irrelevant whether the relief sought in the two co-pending suits is the same or different (e.g., injunction versus money damages). Id. at 1731. All that matters is that the two suits be based on “substantially the same operative facts.” Id.
In this case, the Claims Court found the two pending actions “[met] the standard set forth in Tohono,” i.e., they were “based on substantially the same operative facts.” Ministerio Roca Solida v. United States, 114 Fed.Cl. 571, at 575 (2014) (quoting Tohono, 131 S.Ct. at 1731). The Claims Court noted “the claims in both actions arise from [Roca Solida‘s] ownership of the same parcel of land and water and its alleged injuries as a result of the same FWS water diversion project,” and also noted the two complaints used “virtually identical language.” Id.
This court concludes Roca Solida‘s two co-pending suits are based on substantially the same operative facts. Jurisdiction in the Claims Court is therefore barred under
III. Appellant‘s Arguments Are Precluded by Binding Precedent
Roca Solida presents three principal arguments challenging, in effect, the Supreme Court‘s interpretation of
A. Tohono Represents Binding Precedent, Notwithstanding Appellant‘s Assertions of Congressional Intent
First, Roca Solida argues “Congress did not intend for
Roca Solida explains it is seeking injunctive relief (which the Claims Court cannot provide) in the district court, and only if injunctive relief is denied will it seek monetary compensation for the permanent loss of water (which, if the amount exceeds $10,000, the district court cannot provide) in the Claims Court. Appellant‘s Br. 21. It notes it has requested a stay in the Claims Court pending the outcome in the district court. Id. at 5; see also Appellant‘s App. 16.
In requesting relief that parallels the present case in important ways, the plaintiff in Tohono brought suit in United States district court, alleging federal officials breached their fiduciary duty in managing tribal assets and requesting an accounting, i.e., equitable relief. Tohono, 131 S.Ct. at 1727. In a simultaneous action before the Claims Court, the plaintiff sought money damages on the basis of allegations of “almost identical violations of fiduciary duty.” Id.
Holding the Claims Court lacked jurisdiction pursuant to
The Supreme Court in Tohono gave due consideration to Congressional intent, explaining the context and original purpose of the predecessor to
B. The Pre-Tohono Judicial Interpretation of § 1500 on Which Roca Solida Relies Is No Longer Good Law
Roca Solida relies on this court‘s decision in Loveladies Harbor, Inc. v. United States, 27 F.3d 1545 (Fed.Cir.1994), for the proposition that “it would not be sound policy to force plaintiffs to forego monetary claims in order to challenge the validity of Government action, or[, conversely,] to preclude challenges to the validity of Government action in order to protect a constitutional claim for compensation.” Appellant‘s Br. 24 (quoting Loveladies, 27 F.3d at 1556).
As the Claims Court correctly noted, however, Loveladies’ holding that
C. Policy Considerations Do Not Allow This Court to Ignore Binding Precedent
In a related argument, Roca Solida asserts “‘actions seeking different forms of relief that Congress has made available exclusively in different courts are not [redundant]‘” and therefore not inefficient. Appellant‘s Br. 25 (quoting Tohono, 131 S.Ct. at 1737 (Sotomayor, J., concurring)). Similarly, it notes “federal courts have ample tools at their disposal, such as stays, to prevent ... burdens [such as parallel discovery]” that might arise from co-pending suits. Id. (quoting Tohono, 131 S.Ct. at 1737 (Sotomayor, J., concurring)). However, just as the concurring and dissenting opinions in Tohono do not diminish the binding nature of the Tohono majority opinion, neither do their policy considerations.
In effect, Roca Solida argues the Supreme Court‘s majority opinion was erroneous and unsound policy. However, “this is not the appropriate forum” in which to advance such an argument, “[h]owever well or ill-founded [it] may be.” Korczak v. United States, 124 F.3d 227, 1997 WL 488751, at *2 (Fed.Cir.1997) (unpublished table decision). “We are duty bound to follow the law given us by the Supreme Court unless and until it is changed.” Id.
D. Tohono Has Not Been Effectively Distinguished
Roca Solida also attempts to distinguish Tohono on the basis that Tohono did not involve a statute of limitations because Congress through special legislation has provided “the statute of limitations on Indian trust mismanagement claims shall not run until the affected tribe has been given an appropriate accounting.” Tohono, 131 S.Ct. at 1731. By contrast, Roca Solida asserts, its takings claims based on the diversion of water beginning in August 2010 would begin to be barred in August 2016 by the six-year statute of limitations generally applicable to all claims before the Claims Court. See
However, the Supreme Court in Tohono explicitly considered and rejected the argument that
As Judge Taranto‘s concurring opinion indicates, the Supreme Court in Tohono did not explicitly address the situation where a plaintiff is prevented from asserting a right under the United States Constitution by the interplay between
CONCLUSION
The Claims Court does not have jurisdiction over Roca Solida‘s claim because a similar claim remains pending in a United States district court, because the district court claim is based on “substantially the same operative facts” as those in the Claims Court proceeding, and because, under Tohono, it is irrelevant that the relief sought in each forum is nonoverlapping or would work a hardship in the form of incomplete relief. For these reasons, the decision of the Claims Court is
AFFIRMED
TARANTO, Circuit Judge, concurring.
I agree that we should affirm the Court of Federal Claims’ dismissal of Roca Solida‘s Tucker Act case under
To summarize: The combination of three statutes—(1)
It is hardly implausible that the two-forum water-diversion dispute here will arrive at a point at which those issues will have to be addressed if raised: according to the government, the six-year limitations period ends in August 2016, and neither party has said that the Nevada case is positively likely to end by then. Nevertheless, the troubling potential-loss-of-Fifth-Amendment-rights issues are at present contingent—they may not ripen: the Nevada case may be over by August 2016, and that case may definitively establish the non-existence of a taking that requires just compensation. Perhaps the likelihood that such issues will arise, here and more generally, would permit us to consider, in the present appeal, a constitutional-avoidance exception to
A
Roca Solida has proceeded in what appears to be a sensible way, perhaps the only way possible under federal statutes, to try to secure complete judicial relief for the water diversion that it claims was unlawful on several grounds, including several constitutional grounds.
Roca Solida has made clear that its main aim has been to secure restoration of the diverted stream to the path it once took through Roca Solida‘s land. In district court, it has sought injunctive and declaratory relief from the government‘s diversion of the stream, and among its grounds it has invoked the First Amendment‘s Free Exercise Clause and the Fifth Amendment‘s Due Process Clause. But as long as the Tucker Act remedy for just compensation is available in the Court of Federal Claims, Roca Solida may not invoke the Fifth Amendment‘s Takings Clause to obtain restoration of the water in district court, because the Fifth Amendment, insofar as it applies here, does not bar takings, only takings without just compensation. See Blanchette v. Conn. Gen. Ins. Corps., 419 U.S. 102, 127, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974).1 And Roca Solida could not bring a claim for water restoration in the Court of Federal Claims, whose Tucker Act jurisdiction, including particularly its takings-claim jurisdiction, is limited to monetary relief as relevant here. See United States v. King, 395 U.S. 1, 3, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969); see also Acadia Technology, Inc. v. United States, 458 F.3d 1327, 1331 (Fed.Cir.2006) (just-compensation claim assumes alleged taking itself was not wrongful; challenges alleging wrongfulness of alleged taking must be brought elsewhere).
Roca Solida has also sought just-compensation damages, both in district court and in the Court of Federal Claims. The damages claim in the district court would, at a minimum, address the alleged temporary taking that would come to an end if Roca Solida were to succeed in achieving
The Court of Federal Claims case would never need to be adjudicated if, for example, Roca Solida obtained restoration of the water in the district court and sought no more than $10,000 in just compensation for any uncured taking. Smith v. Orr, 855 F.2d 1544, 1553 (Fed.Cir.1988). Accordingly, Roca Solida immediately asked the Court of Federal Claims to stay its Tucker Act case. But Roca Solida might not obtain restoration of the water in the district-court case, and even a temporary-taking claim might grow in value to more than $10,000 given that the stream diversion occurred in 2010. Should Roca Solida seek just compensation in excess of $10,000 for either a temporary or permanent taking, the Court of Federal Claims appears to be the exclusive judicial forum for obtaining it, at least if this court‘s conclusion in Smith v. Orr, 855 F.2d at 1552, about the loss of initially proper Little Tucker Act jurisdiction when the claim rises in value above $10,000 were applied broadly. See Christopher Vill., L.P. v. United States, 360 F.3d 1319, 1332 (Fed.Cir.2004); but cf. pp. 12-13, infra (noting question about Smith‘s scope and soundness).
Under
There would be no such bar if equitable tolling were available to suspend the running of the clock. But the Supreme Court has recently held that it is not. John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 136-39, 128 S.Ct. 750, 169 L.Ed.2d 591 (2008);2 see FloorPro, Inc. v. United States, 680 F.3d 1377, 1382 (Fed.Cir.2012). As a result, because Roca Solida is pursuing its constitutional and other claims for relief in district court—claims that it cannot bring and consolidate in the Court of Federal Claims—the combination of
A substantial constitutional question would be raised if federal statutes forced a claimant to choose between securing judicial just compensation for a taking of property and pursuing constitutional and other legal claims that challenge, and if successful could reverse, the underlying action alleged to constitute a taking. See Blanchette, 419 U.S. at 148-49 (withdrawing the Tucker Act remedy, without a corresponding guarantee of just compensation, may “raise serious constitutional questions“). Although, as a general matter, it is the sovereign‘s prerogative to “prescribe the terms and conditions on which it consents to be sued, and the manner in which the suit shall be conducted,” Beers v. Arkansas, 61 U.S. 527, 529, 20 How. 527, 529, 15 L.Ed. 991 (1858), the Fifth Amendment‘s Takings Clause has long been treated as guaranteeing a just-compensation remedy, not just an underlying right. Notably, in First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987), the Supreme Court rejected the government‘s argument that “the prohibitory nature of the Fifth Amendment ... combined with principles of sovereign immunity, establishes that the Amendment itself is only a limitation on the power of the Government to act, not a remedial provision.” Id. at 316 n. 9. The Court explained that, to the contrary, precedent “make[s] clear that it is the Constitution that dictates the remedy for interference with property rights amounting to a taking.” Id.; see also Richard H. Fallon, Jr. et al., Hart & Wechsler‘s the Federal Courts and the Federal System 718-19 (6th ed.2009) (characterizing the Takings Clause as establishing a constitutional remedy).3
Other, more general authorities may have a bearing on the constitutional questions that may arise in August 2016. One line of authority concerns congressional deprivation of judicial relief for constitutional violations. The Court has repeatedly noted “the ‘serious constitutional question’ that would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim.” Elgin v. Dep‘t of Treasury, — U.S. —, 132 S.Ct. 2126, 2132, 183 L.Ed.2d 1 (2012); Webster v. Doe, 486 U.S. 592, 602-03, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988). Another line of authority concerns the impermissibility of imposing “unconstitutional conditions” in various circumstances, including those involving alleged takings. The Court has explained that it has held “in a variety of contexts that ‘the government may not deny a benefit to a person because he exercises a constitutional right.‘” Koontz v. St. Johns River Water Mgmt. Dist., — U.S. —, 133 S.Ct. 2586, 2594, 186 L.Ed.2d 697 (2013). Cf. Simmons v. United States, 390 U.S. 377, 394, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) (in particular criminal-case context, deeming it “intolerable that one constitutional right should have to be surrendered in order to assert another“).
I do not address how those and perhaps other authorities would apply if federal statutes were to preclude Roca Solida from obtaining a judicial award of just compensation for a taking because it pursued its constitutional and other legal claims in district court. Rulings in this area have often been tightly bound to case-specific facts, as
The substantiality of the constitutional questions raises a natural follow-on question: whether
C
Neither the Supreme Court nor this court has addressed whether
Other Supreme Court decisions likewise do not address whether
D
The foregoing constitutional questions, and their potential consequences for construing
One possible path to explore can be seen by broadening the statutory focus, beyond
But
Another possible path is through the district court‘s adjudication of the full takings claim, regardless of amount—but this path itself contains an apparent obstacle, albeit one of uncertain breadth and solidity. As to the possibility: Longstanding precedent holds that, in general, satisfaction of statutory jurisdictional prerequisites is to be “tested by the facts as they existed when the action is brought.” Smith v. Sperling, 354 U.S. 91, 93 n. 1, 77 S.Ct. 1112, 1 L.Ed.2d 1205 (1957); see Grupo Dataflux v. Atlas Global Grp., L.P., 541 U.S. 567, 570, 124 S.Ct. 1920, 158 L.Ed.2d 866 (2004) (the “time-of-filing rule is hornbook law“); Keene, 508 U.S. at 209. Under that principle, it may be that Roca Solida‘s takings claim in the district court, proper when filed because plausibly then valued at no more than $10,000, can still be adjudicated in district court and support an award of more than $10,000 if warranted by post-filing events.
An obstacle to that conclusion, however, is this court‘s decision in Smith v. Orr, which concluded, in the context of an employee‘s claim for backpay, that a district court would lose Little Tucker Act jurisdiction once the amount claimed “accrued to greater than $10,000.” Id. at 1553. Perhaps Smith v. Orr should be limited to barring claims, such as backpay claims based on fixed salary payments, where the non-contingent facts alleged make it effectively certain from the outset that the amount at issue will exceed $10,000. Cf. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89, 58 S.Ct. 586, 82 L.Ed. 845 (1938) (Regarding one jurisdictional minimum, “the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.“). Smith v. Orr itself cited only backpay cases in reaching its conclusion, 855 F.2d at 1553 nn. 42-45, 47, and we have not applied Orr outside those circumstances. See Simanonok v. Simanonok, 918 F.2d 947, 950-51 (Fed.Cir.1990). Moreover, a leading scholar, discussing Smith v. Orr, has stated that “the proposition that a court may take and then lose trial jurisdiction due to the mere passage of time may be questioned in light of” Keene and Grupo Dataflux. Gregory C. Sisk, Litigation With The Federal Government 238 (4th ed.2006).
Alternatively, or in addition, perhaps a special constitutional-avoidance tolling of the
Aside from the possibility of an as-applied constitutional invalidation, if Roca Solida eventually lacks statutory means of obtaining just compensation in court, it may have a forward-looking judicial remedy should it prove that its property was taken. Notably, it may be that the district court can entertain a takings claim to restore the diverted water if the just-compensation remedy is not available. The unavailability of a just-compensation remedy generally allows otherwise-authorized litigation to obtain forward-looking curative relief against an alleged taking. See Horne v. Dep‘t of Agric., — U.S. —, 133 S.Ct. 2053, 2063, 186 L.Ed.2d 69 (2013); Eastern Enterprises v. Apfel, 524 U.S. 498, 521-22, 118 S.Ct. 2131, 141 L.Ed.2d 451 (1998) (plurality opinion) (where monetary relief against the government is not “an available remedy,” equitable relief for a taking is “within the district courts’ power“); Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 71 n. 15, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978) (affirming the district court‘s subject-matter jurisdiction under
The important and deeply rooted interest in the effectiveness of a constitutional guarantee—here, of a just-compensation remedy for a taking—would be well served if the answers to the how-to-secure-relief questions turned out to be clear should they have to be faced. Unfortunately, it is easy to imagine that the costs, uncertainties, and delays of litigating over forum, procedure, and remedies will be substantial—burdens addressed, though probably not fully lifted, by the availability of interest as a part of a just-compensation award (see Kirby Forest Indus., Inc. v. United States, 467 U.S. 1, 10-11, 104 S.Ct. 2187, 81 L.Ed.2d 1 (1984)) and the availability of attorney‘s fees (see