82 Fed. Cl. 256 | Fed. Cl. | 2008
OPINION
The court has before it Defendant’s Motion to Dismiss Pursuant to 28 U.S.C. § 1500, for which an evidentiary hearing was held February 1, 2008. Briefing on defendant’s motion was re-opened for simultaneous post-hearing sur-reply briefs, filed on March 20, 1998. For the reasons stated below, defendant’s motion to dismiss for lack of jurisdiction is granted and plaintiffs complaint in this court must be dismissed, without prejudice.
BACKGROUND
On December 29, 2006, the last day the Clerk’s Office of the United States Court of Federal Claims (COFC or CFC) was open for business in 2006, plaintiff filed a complaint (Compl. or Passamaquoddy COFC) before this court requesting damages for breaches of trust by the United States. The same day, plaintiff filed a complaint (DDC Compl. or Passamaquoddy DDC) in the United States District Court for the District of Columbia (DDC) also requesting relief related to breaches of trust responsibilities by the United States. See Passamaquoddy Tribe of Maine v. Kempthorne, No. 1:06-cv-02240-JR. The court must determine whether 28 U.S.C. § 1500 (2000), in the circumstances of these filings, removes jurisdiction over plaintiffs claims in the subject matter. The relevant text of the statute is reproduced here:
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____
Id. Putting aside, for the moment, the question of whether the claim in another court must be the same or, alternatively, merely have some overlap with the one filed in this court, as a general proposition the jurisdictional bar in § 1500 is triggered when there is a pending claim in a district court at the time the “same” claim is filed in this court.
Plaintiffs counsel has now faced § 1500 challenges to three other tribal trust cases he filed in this court on December 29, 2006, for different tribal plaintiffs. The underlying facts of these multiple filings, and the decisions made on the § 1500 issue in these cases, are necessary to the court’s analysis in the subject matter. The court briefly discusses the facts of each of the cases filed here by plaintiffs counsel on December 29, 2006, and the disposition of the § 1500 jurisdictional challenges decided thus far. The court undertakes a more thorough examination of the evidentiary disputes related to these cases infra.
Tohono O’odham Nation v. United States, No. 06-944 L
Unlike the other cases filed here by plaintiffs counsel on December 29, 2006, Tohono O’odham Nation v. United States, No. 06-944 L (Tohono O’odham COFC), posed no dispute, factual or legal, as to whether a ease was pending in the United States District Court for the District of Columbia at the time the Tohono O’odham ease was filed here. On December 28, 2006, plaintiffs counsel filed Tohono O’odham Nation v. Kempthorne, No. 1:06-cv-02236-JR (Tohono O’odham DDC), in the district court. The next day, December 29, 2006, Tohono O’odham COFC was filed here. Thus the suit in the district court was pending, for one day, when Tohono O’odham COFC was filed in this court, and the only issue before the court was whether the overlap in claims was sufficient to defeat jurisdiction here. See Tohono O’odham Nation v. United States, 79 Fed.Cl. 645, 654 (2007) (Tohono O’odham I) (“The feature of section 1500 that is controverted here is the question of whether the complaints involve the same ‘ “claim.” ’ ”), appeal docketed, No. 08-5043 (Fed.Cir. Feb. 20, 2008).
For this tribal plaintiff, counsel filed two complaints on December 29, 2006. One, Ak-Chin Indian Community v. United States, No. 06-932 L (Ak-Chin COFC), was filed in this court. The other, Ak-Chin Indian Community v. Kempthorne, No. 1:06-cv-02245-JR (Ak-Chin DDC), was filed in the United States District Court for the District of Columbia. The parties hotly disputed whether the district court filing was pending when the Ak-Chin COFC complaint was filed in this court. The parties also differed as to whether the operative facts and relief requested overlapped enough to potentially trigger the § 1500 jurisdictional bar. A brief review of both of these disputes is instructive.
As to whether Ak-Chin DDC was pending when Ak-Chin COFC was filed, this type of dispute poses two questions, one legal, and one evidentiary. First, does the term “has pending,” as used in § 1500, require a court to examine the order of filing for same-day filings, or, do two same-day filings in and of themselves, regardless of the order of filings on that day, satisfy the statutory element of having a suit pending in another court, which would then deprive this court of jurisdiction over its case if the other elements of § 1500 are met? The court in Ak-Chin disposed of this question rather succinctly:
Defendant argues, without precedential authority, that “an action in another court should be deemed ‘pending’ if it was filed on the same day as a complaint in this court.” The court respectfully disagrees and will not further address the issue in this Opinion.
Ak-Chin Indian Cmty. v. United States, 80 Fed.Cl. 305, 308 n. 4 (2008) (Ak-Chin 7) (citation to defendant’s brief omitted). The court will return to this legal question, infra.
Assuming, arguendo, that the order of filing of two same-day filings must be established to determine whether the “has pending” element of § 1500 is satisfied, some level of evidentiary inquiry is required if the parties cannot agree as to the sequence of the same-day filings. This, indeed, is the evidentiary issue that confronted the Ak-Chin I court, and the final resolution of this issue required discovery, briefing, an evidentiary hearing, oral argument, and post-hearing briefing.
In Ak-Chin I, the court found Ms. Apple-gate to be “a credible witness,” and that her time-line for the filings of Ah-Chin COFC and Ah-Chin DDC on December 29, 2006 was “not implausible or inconsistent with the record.” 80 Fed.Cl. at 313. Because Ms. Applegate testified that she filed Ah-Chin COFC before Akr-Chin DDC, the court con-
Just as in Tohono O’odham I, the Ak-Chin I court engaged in a lengthy comparison of the complaints filed in the district court and this court. The court identified similarities between these documents, noting that the claims “involve the same parties, the same trust corpus, and the same allegations that the government breached its trust responsibilities.” Ak-Chin I, 80 Fed.Cl. at 317. The court concluded that the two complaints were “based on the same operative facts.” Id.
As to the relief requested in each court, the court held that “the results sought in each action include overlapping relief.” Id. at 321. The court approved of the reasoning in Tohono O’odham I which identified a request, in similar complaints filed by the same counsel in both the district court and this court, for monetary relief related to the government’s breach of trust duties.
Salt River Pima-Maricopa Indian Community v. United States, No. 06-943 L
Again, plaintiffs counsel filed two suits on December 29, 2006. One, Salt River Pima-Maricopa Indian Community v. United States, No. 06-943 L (Salt River COFC), was filed in this court. The other, Salt River Pima-Maricopa Indian Community v. Kempthorne, No. 1:06-cv-02241-JR (Salt River DDC), was filed in the United States District Court for the District of Columbia. Once again, the parties hotly disputed whether the district court complaint was pending when Salt River COFC was filed in this court. The parties also disputed whether the claims in the two courts overlapped so as to trigger the § 1500 bar, but the court did not reach this issue.
To resolve the § 1500 question in Salt River COFC, the court ordered discovery, briefing, a formal evidentiary hearing for receiving the testimony of plaintiffs paralegal, Ms. Applegate,
The court rejected defendant’s argument that a same-day filing in a district court is per se “pending” for the purposes of § 1500, noting that this court had previously rejected that argument. Salt River Pima-Maricopa Indian Cmty. v. United States, No. 06-943 L, 2008 WL 1883170, at *5 (Fed.Cl. Apr. 24, 2008) (Salt River I) (citing Breneman v. United States, 57 Fed.Cl. 571, 574, 576-77 (2003), aff'd on other grounds, 97 Fed.Appx.
The Salt River I court thoroughly discussed the types of documentary evidence before it, and the informal and formal testimony it had received in hearings. In the end, two aspects of that evidence appeared to be pivotal. First, Ms. Applegate was found to be a credible witness. Salt River I, 2008 WL 1883170, at *15. Second, the court decided that the numbering of receipts for the complaints filed in this court, and an inconsistency in Ms. Applegate’s testimony regarding the time she received those receipts, were not particularly significant facts in determining the order in which complaints were filed on December 29, 2006. Id. at *14. The Salt River I court found that “[p]laintiff has proved by a preponderance of the evidence that the CFC complaint was the first of the Salt River Complaints filed on December 29, 2006.” Id. at *15.
DISCUSSION
I. Standard of Review for a Motion to Dismiss for Lack of Jurisdiction
Plaintiff bears the burden of establishing subject matter jurisdiction, Alder Terrace, Inc. v. United States, 161 F.3d 1372, 1377 (Fed.Cir.1998) (citing McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)), and must do so by a preponderance of the evidence, Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988) (citations omitted). If jurisdiction is found to be laek-ing, this court must dismiss the action. Rule 12(h)(3) of the Rules of the United States Court of Federal Claims (RCFC). In rendering a decision on a motion to dismiss for lack of subject matter jurisdiction pursuant to RCFC 12(b)(1), this court must presume all undisputed factual allegations to be true and construe all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 814-15, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Reynolds, 846 F.2d at 747. If jurisdictional facts are challenged, however, the court must weigh the evidence presented and must make findings of fact pertinent to its jurisdiction. See Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1584 (Fed.Cir.1993) (noting that when “facts underlying the controverted jurisdictional allegations are in dispute [these] are subject to fact-finding by the [trial] court”) (citations omitted).
II. Analysis of the “Pending” Issue
A. Whether Same-Day Filings are Per Se Pending for the Purposes of § 1500
Defendant urges the court to approve its position, rejected in Breneman, Ak-Chin I and Salt River I, that a same-day filing of the same claim in a district court, regardless of the order of filing on that day, deprives this court of jurisdiction because of the bar raised by 28 U.S.C. § 1500. Although none of the cases ruling against defendant’s position are binding precedent, the court is always hesitant to disagree with a reading of the law by other judges on this court. Reasonable minds may disagree on this and other points of law, however, and a trial court must discharge its duty of discerning legal authority and applying that authority to the controversy before it.
The United States Court of Appeals for the Federal Circuit has ruled that this court must not engage in a de novo interpretation
We reject the court’s initial de novo interpretation of [the statute in question] because the Court of Federal Claims may not deviate from the precedent of the United States Court of Appeals for the Federal Circuit any more than the Federal Circuit can deviate from the precedent of the United States Supreme Court. Trial courts are not free to make the law anew simply because they disagree with the precedential and authoritative analysis of a reviewing appellate court.
Crowley v. United States, 398 F.3d 1329, 1335 (Fed.Cir.2005). Keeping this instruction firmly in mind, the court reviews authority it considers pertinent to the issue at hand. Section 1500 has a long history, and a complex one.
1. The Jurisdictional Bar Now Codified at 28 U.S.C. § 1500
In 1868, Congress first raised a jurisdictional bar to suits in this court in circumstances where a claimant has the same claim pending in a district court. Act of June 25, 1868, ch. 71, § 8,15 Stat. 75, 77. The legislative history of this statute is perfectly silent as to the issue of same-day filings and the meaning of the words “has pending.” See 81 Cong. Globe, 40th Cong., 2nd Sess. 2769 (1868). The sponsor’s explanation of the purpose of the jurisdictional bar is reproduced here in its entirety:
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.
Id. Despite certain modifications in language and re-codifications not relevant here, the jurisdictional bar has remained mostly unchanged since 1868 and the words “has pending” have remained in all versions of the statute. See Keene Corp. v. United States, 508 U.S. 200, 210, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993) (Keene) (noting that certain phrases in the statute have remain unchanged); UNR Indus. v. United States, 962 F.2d 1013, 1017-19 (Fed.Cir.1992) (era banc) (describing the statutory history of § 1500 as “fairly straightforward” and noting that few changes in language have occurred therein), aff'd sub nom. Keene Corp. v. United States, 508 U.S. 200, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993).
The jurisdictional bar in § 1500 has been much criticized for being an awkward tool that has outlived its original purpose. See generally, e.g., Paul F. Kirgis, Section 1500 and the Pitfalls of Federal Government Litigation, 47 Am. U.L.Rev. 301 (1997); Payson R. Peabody, Thomas K. Gump & Michael S. Weinstein, A Confederate Ghost That Haunts the Federal Courts: The Case for the Repeal of 28 U.S.C. § 1500, 4 Fed. Cir. B.J. 95 (1994); David Schwartz, Section 1500 of the Judicial Code and Duplicate Suits Against the Government and Its Agents, 55 Geo. L.J. 573 (1967). Courts have commented that the application of the statute may lead to nonsensical or anachronistic results. See Tohono O’odham I, 79 Fed.Cl. at 659 n. 16 (“While this illustrates the lack of need for section 1500 and its arbitrariness, we can do no more than make this observation and suggest that plaintiff attempt a legislative solution through a congressional reference or a new jurisdictional statute.”); AC. Seeman, Inc. v. United States, 5 Cl.Ct. 386, 389 (1984) (“Section 1500 is an anachronism. It was first enacted in 1868, and over the years has been encrusted with numerous shadings and tortured constructions. It is part of the Code, however, and its restrictions on jurisdiction cannot be ignored.”); see also d’Abrera v. United States, 78 Fed.Cl. 51, 56 n. 10 (2007) (describing § 1500 as offering “a significant trap for the unwary ... [which]
2. Court of Claims Precedent Regarding Same-Day and Later-Filed Suits in Other Courts
There appears to be no controversy that suits filed in a district court prior to the date of a filing in this court are included and have always been included within the concept of “has pending” and serve to trigger the jurisdictional bar now codified in § 1500. See Frantz Equip. Co. v. United States, 120 Ct.Cl. 312, 98 F.Supp. 579, 580 (1951) (“The plaintiff, on March 8, 1946, prior to the filing of its petition herein on September 11, 1950, made use of a counterclaim to assert its claim against the United States, in connection with the suit instituted against the plaintiff by the United States, and asked judgment thereon against the United States in the sum of $12,727.21. By so doing the plaintiff lost its right, so long as said claim remained pending in the District Court, to institute and maintain suit in this court upon the same claim.”). When it comes to later-filed suits, there has been a convoluted history of evolving precedent. In various decisions, the Court of Claims applied § 1500 to deny jurisdiction in this court where there had been later-filed actions in another federal court. For example, in Maguire Industries v. United States, 114 Ct.Cl. 687, 86 F.Supp. 905 (1949), the court dismissed a suit in this court because of a later-filed appeal to the United States Court of Appeals for the District of Columbia, which challenged the dismissal of a claim which had first been brought in the Tax Court. Id. at 906 (“[0]n March 28, 1949, plaintiff filed its petition in this court. Subsequent thereto, however, plaintiff perfected an appeal to the United States Court of Appeals for the District of Columbia from the determination of the Tax Court____”). In Maguire, even though litigation was begun in the Tax Court before a suit was filed in this court, it was the later-filed appeal in the Court of Appeals which triggered § 1500’s jurisdictional bar. See id. at 907 (noting that “the proceedings in the Court of Appeals for the District of Columbia was a suit” requiring application of the § 1500 bar).
Similarly, in Hobbs v. United States, 168 Ct.Cl. 646, 1964 WL 76084 (1964), a suit was dismissed in this court because of a later-filed appeal in the United States Court of Appeals for the Fifth Circuit. The plaintiff had first sought compensation from the Atomic Energy Commission (AEC) for alleged use of his patents. Id. at 647, 1964 WL 76084. A few months after that claim was denied, Mr. Hobbs filed a suit in this court encompassing the same claim, on August 29, 1963. Id. The next day, on August 30, 1963, Mr. Hobbs filed a petition for review of the AEC decision in the Fifth Circuit. Id. The Court of Claims dismissed the suit before it, applying the jurisdictional bar in § 1500 even though the suit in the Fifth Circuit was filed one day after suit was filed in this court. Id. at 647-48, 1964 WL 76084.
From these cases, it is clear that for some years, the statutory term “has pending” in § 1500 was read broadly enough to include later-filed suits in another court, not just those filed before the day suit was filed in this court. Not surprisingly, in that era, same-day filings in another court were also considered to be within the scope of the “has pending” language in § 1500. For example, in British American Tobacco Co. v. United States, 89 Ct.Cl. 438, 1939 WL 4266 (1939)
Similarly, in National Cored Forgings Co. v. United States, 132 Ct.Cl. 11, 132 F.Supp. 454 (1955) (National Cored Forgings), the plaintiff filed two suits on November 20, 1951, one in the Court of Claims and the other in the United States District Court for the District of Columbia. Id. at 457. The same contract claims were brought in each suit. Id. The district court suit was stayed to allow the Court of Claims suit to proceed, id., but the Court of Claims dismissed the suit before it pursuant to § 1500, id. at 459. Again, the “has pending” language of § 1500 encompassed a case where a same-day filing had occurred, although this aspect of the case received no commentary from the court. Thus, the Court of Claims held, during this period, that earlier-filed suits, later-filed suits, and same-day filed suits in another federal court deprived this court of jurisdiction pursuant to the “has pending” language of § 1500, when the same claim was pending in each suit. Precedent on this issue shifted in 1965, and the pertinent question here is to what extent.
3. The Tecon Rule
In Tecon Engineers, Inc. v. United States, 170 Ct.Cl. 389, 343 F.2d 943 (1965), the Court of Claims revisited the issue of whether later-filed suits in another federal court could deprive this court of jurisdiction pursuant to the “has pending” language of § 1500. In an unusual procedural posture, the plaintiffs brought consolidated cases before the Court of Claims, prosecuted them for over two years, were frustrated in their request to postpone trial, and, immediately upon rejection of their appeal of the denial of that requested continuance, filed identical claims in the United States District Court for the Eastern District of Kentucky on January 26, 1965. Id. at 944 & n. 1. On the same day, the plaintiffs moved to have their Court of Claims suit dismissed for lack of jurisdiction pursuant to § 1500. Id. at 944. The plaintiffs also indicated that if they did not prevail and win dismissal pursuant to § 1500, that they would “refus[e] to further prosecute these actions [in the Court of Claims].” Id. Although the analysis of the § 1500 issue presented in the Tecon decision is too lengthy to reproduce in all of its detail, the court here excerpts certain relevant highlights.
First, the question before the court was fairly narrow:
The question presented is whether plaintiffs by this motion may oust this court of its conceded jurisdiction under the Tucker Act over these pending suits by later filing new suits for the same claims in a Federal district court, and then moving to dismiss these same cases here, for lack of jurisdiction.
Id. at 944-45. Second, § 1500 was understood to have descended from the 1868 legislation and to not have deviated from the original purpose of that earlier jurisdictional bar:
*265 The statute of 1868 was enacted to eliminate duplication of litigation between claimants and the Government or its agents, and to prevent conflicts of jurisdiction between the Court of Claims and other courts. Section 1500 was enacted with the same basic legislative purpose.
Id. at 948. The Act of June 25, 1868, according to the Tecon court, had this purpose: “Congress clearly intended that if a claimant ‘shall have commenced and has pending’ a suit in another court against any officer of the United States, the Court of Claims was to be divested of jurisdiction over the same claim when brought against the United States if the claim was filed thereafter in this court.” Id. at 947-48.
From this analysis derived what could be called the Tecon rule, quoted here in its most succinct form:
[W]e conclude that the only reasonable interpretation of the statute is that it serves to deprive this court of jurisdiction of any claim for or in respect to which plaintiff has pending in any other court any suit against the United States, only when the suit shall have been commenced in the other court before the claim was filed in this court.
Id. at 949. Certain language from the opinion raises the question whether the Tecon rule might have been limited to the specific facts of that case. See id. at 950 (noting that “[t]he cases cited by plaintiffs (and other relevant cases) are not particularly germane to our resolution of the correct interpretation of Section 1500, with respect to the facts of this case”). The Federal Circuit, however, has ruled that Tecon is not limited to its facts. Hardwick Bros. II v. United States, 72 F.3d 883, 886 (Fed.Cir.1995) (Hardwick). Even though the Tecon rule is of general applicability, there are several reasons to believe that the Tecon rule was not meant to, and does not today, apply to two suits filed on the same day. See United States v. County of Cook, Ill., 170 F.3d 1084, 1090 (Fed.Cir.1999) (County of Cook) (noting that the statement in Tecon which embodies the Tecon rule, excluding later-filed district court claims from the scope of the jurisdictional bar in § 1500, was “dictum with respect to the simultaneous filing issue”). Indeed, prior easelaw in the Court of Claims involving same-day filings is specifically cited in Tecon as being distinguishable from the issue then before the Tecon court, i.e., the issue of whether a district court filing occurring after a filing in this court would trigger § 1500. See 343 F.2d at 950 n. 4.
First, the Tecon court noted the intent of Congress to prevent duplicative suits from being filed in a district court and this court. Id. at 948. It is hard to imagine a scenario more indicative of duplicative filings than that of filing two suits, embracing the same claims, in two courts on the same day, regardless of the order of filing. That scenario is very different from the one presented in Tecon, where two years elapsed before the plaintiffs attempted to defeat jurisdiction in this court by filing the same claims in a district court. Second, the Tecon court distinguished its case from instances where “simultaneous” filings occurred. Id. at 950 n. 4. The simultaneous filing category is described only by citing the decisions in British American and National Cored Forgings, which are, of course, eases involving same-day filings, with no mention of the order of filing as a relevant issue, and Hobbs, a case where the district court case was filed one day after the Court of Claims suit. Id. Because Hobbs, too, was described as a simultaneous filing case by the Tecon court and considered distinguishable from the Tecon fact scenario, it is difficult to believe that a same-day filing in a district court, even if the plaintiff could prove that the case was filed some minutes or hours later than the case filed in this court, would somehow be envisioned by the Tecon court to benefit from the Tecon rule. For these reasons, the court cannot read the Tecon rule as including same-day filings cases in the category of later-filed district court eases which, after Tecon, do not trigger the jurisdictional bar of § 1500.
In 1985, the Claims Court, bound by and citing the precedent of Tecon, again reviewed whether same-day filings triggered the jurisdictional bar of § 1500. Hill v. United States, 8 Cl.Ct. 382 (1985). In that case, the same claim was filed in both the United States District Court for the Eastern District of New York and this court, on February 7, 1985. Id. at 383-84. The filings were described as “simultaneous[ ]” by both the plaintiff and the court. Id. at 385 n. 3. The court relied on British American, National Cored Forgings, Hobbs and Tecon to decide that the plaintiffs filing in district court was pending pursuant to § 1500. See id. (citing Tecon, 343 F.2d at 950 n. 4, and “the eases cited therein”). Applying § 1500, the Claims Court dismissed the suit before it. Id. at 388.
The Claims Court applied the Tecon rule in a similar fashion in 1989. See Nat’l Union Fire Ins. Co. v. United States, 19 Cl.Ct. 188 (1989) (National Union). Plaintiffs in that case filed suits in the Claims Court and the United States District Court for the Central District of California on November 23, 1988. Id. at 188. Although the order of filing on that date is not apparent from the opinion, it is clear that the court considered same-day filings of the same claim to raise a bar against jurisdiction in this court. See id. at 189 (“There is no argument that simultaneous filing of both suits resulted in a claim ‘pending’ within the meaning of § 1500.”). The court referenced the discussion in Tecon which distinguished between simultaneously filed cases, such as same-day filed cases, and later-filed cases in a district court. See id. (citing Tecon, 343 F.2d at 949-51). The Claims Court applied the jurisdictional bar
Thus, the limits of the Tecon rule were well-established. The Tecon rule, which interpreted the “pending” language in § 1500 to exclude later-filed district court cases, was not read broadly enough to require an analysis of the order of filing when same-day filings were at issue. Instead, courts relied on the language of Tecon which distinguished simultaneously filed cases from the general rule that later-filed cases in a district court would not defeat jurisdiction over the same claim in this court. Although none of these cases addressed the order of filing of same-day filings explicitly, the dismissal of the eases in this court filed on the same day as a district court case has been entirely consistent with Tecon and the interpretation of Tecon advanced here.
4. Attempted Revision of § 1500 Precedent in UNR
For a brief period of time, the Tecon rule was itself overruled by an en banc decision of the Federal Circuit. See UNR, 962 F.2d at 1023 (“Tecon is overruled.”). The Federal Circuit reviewed the history of § 1500 and concluded that its purpose was “to force an election of forum and to prevent simultaneous dual litigation against the government.” Id. at 1021. The UNR court reasoned that “Congress wanted not to dictate the order in which a claimant files suits in the Claims Court and another court on the same claim, but to discourage him from doing so altogether.” Id. at 1022. Although the issue of later-filed suits in a district court was not before the Federal Circuit, the UNR court overruled the Tecon rule, and several other exceptions to the application of the jurisdictional bar in § 1500. Some of these revisions of precedent proved to be short-lived.
5. Keene
Although UNR was affirmed as to certain dispositive issues decided by the Federal Circuit, the Supreme Court declined to approve various other pronouncements in UNR concerning the scope of § 1500. See Keene, 508 U.S. at 216, 113 S.Ct. 2035 (“In applying § 1500 to the facts of this case, we find it unnecessary to consider, much less repudiate, [other] ‘judicially created exceptions’ to § 1500 ____” (citations omitted)). Specifically, the Supreme Court declined to consider whether the Tecon rule was correctly overruled in UNR, noting that the facts of UNR did not raise the issue of later-filed suits in a district court. Id. at 209 n. 4, 113 S.Ct. 2035. The Keene court did cite British American and Hill approvingly, id. at 214 n. 9, 113 S.Ct. 2035, but did not discuss the “has pending” language of § 1500 in any detail. The Supreme Court in Keene also did not discuss same-day or simultaneous filings in relation to the jurisdictional bar in § 1500.
6. The Loveladies Affirmation of the Tecon Rule
After Keene, the Federal Circuit, in another en banc decision, limited the holding in UNR to the issues and facts before the UNR court. Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1549 (Fed.Cir.1994) (en banc) (Loveladies) (“As the Supreme Court has reminded us, anything we said in UNR regarding the legal import of cases whose factual bases were not properly before us was mere dictum, and therefore we will not accord it stare decisis effect.”). The Tecon rule was thus recognized to be viable precedent and is still good law in this circuit. See Hardwick, 72 F.3d at 886 (stating that Tecon “remains good law and binding on this court”); accord Dico, Inc. v. United States, 48 F.3d 1199, 1201 n. 4 (Fed.Cir.1995). The scope of the Tecon rule was not discussed in Loveladies, nor was a same-day or simultaneous filings issue before the Loveladies court. In fact, Loveladies did not involve a later-filed district court suit or a later-filed appeal, either, so any commentary in Lovela-dies that could be construed as interpreting the Tecon rule in the first instance would be mere dicta. See supra note 10. The one comment in Loveladies about the “has pending” language of § 1500 is simply a historical note of the Keene decision, indicating that the jurisdictional test must be applied at the time of filing, not at the time the § 1500 motion is decided. See Loveladies, 27 F.3d at 1548 (“The question of whether another
7. The Purpose of § 1500
After Keene, the Federal Circuit has continued to describe the purpose of § 1500 as preventing the filing of duplicative suits in two federal courts. In Loveladies, the court observed that “‘the legislative history and the cases indicate section 1500 was enacted for the benefit of the government and was intended to force an election where both forums could grant the same relief, arising from the same operative facts.’ ” 27 F.3d at 1550 (quoting Johns-Manville Corp. v. United States, 855 F.2d 1556, 1564 (Fed.Cir.1988)). In County of Cook, 170 F.3d at 1090-91, the Federal Circuit discussed the policy underpinnings of the statute:
[W]e endeavor to further the established policies of § 1500, which are “to force plaintiffs to choose between pursuing their claims in the Court of [Federal] Claims or in another court,” ... and to “protect the United States from having to defend two lawsuits over the same matter simultaneously.”
Id. at 1090 (quoting UNR, 962 F.2d at 1018-19). The court, citing policy reasons, ruled that simultaneous filings are pending for the purposes of § 1500:
These policies are promoted by precluding jurisdiction in the Court of Federal Claims over claims which had been previously filed in the district courts, and nothing suggests that these policies would not similarly be promoted by precluding jurisdiction in the simultaneous filing context. Accordingly, we hold that the “filing” of the same claim simultaneously in the district court and the Court of Federal Claims by operation of [28 U.S.C.] § 1631 [ (2000) ] deprives the latter court of jurisdiction pursuant to § 1500.
Id. at 1091. In addition to UNR, the Federal Circuit in County of Cook relied on National Cored Forgings for this statement of the purpose of § 1500: “‘The obvious and declared purpose of [§ 1500] was to require an election between a suit in this court against the United States and one brought’ in the district courts.” County of Cook, 170 F.3d at 1090-91 (quoting National Cored Forgings, 132 F.Supp. at 458).
8. County of Cook and Simultaneous Filings
In the court’s view, County of Cook, with the precedential background of British American, National Cored Forgings, Hobbs, Tecon, and Frunzi, resolves the question at hand: same-day filings in a district court are per se pending for the purposes of § 1500, and the order of filing of the two complaints on the day in question is of no consequence. County of Cook, it is true, can be read two different ways. If County of Cook is seen as directly on point and stating a rule which applies to all same-day and simultaneous filings, this rule commands that same-day filings of the same claims in two federal courts defeat jurisdiction in this court pursuant to § 1500. Or, if the facts in County of Cook are seen as distinguishable from same-day filings in two federal courts, County of Cook nonetheless states a rule regarding the purpose of § 1500, and the precedent governing the interpretation of § 1500, which commands the dismissal of a suit in this court when the same claim has been filed in district court on the same day.
County of Cook presented the question of whether claims in this court, deemed filed by operation of 28 U.S.C. § 1631 on the same day as the same claims filed in a district court, were barred by § 1500. The relevant text of § 1631 is reproduced here:
Whenever a civil action is filed in a court as defined in section 610 of this title or an appeal, including a petition for review of administrative action, is noticed for or filed with such a court and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed, and 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*269 actually filed in or noticed for the court from which it is transferred.
28 U.S.C. § 1631 (emphasis added). Thus, if a transfer is made to this court from a district court pursuant to § 1631, the statute creates a § 1500 same-day filings scenario if the district court retains certain claims which are later shown to be the same as the claims transferred to this court. See County of Cook, 170 F.3d at 1090 (describing the retained claims in the district court as having been filed “simultaneously” with the claims in this court “through the operation of § 1631”). In County of Cook, the simultaneously filed district court claims were “pending” for the purposes of § 1500 and triggered the jurisdictional bar.
How one interprets the Federal Circuit’s use of the word “simultaneous” in County of Cook determines the breadth of its holding. The more plausible reading of County of Cook is that the word “simultaneous” refers both to same-day filings in two courts, and the deemed filing date in this court of transferred claims, which, pursuant to § 1631, matches the date of the filing of the other claims retained in a suit originating in a district court. Certainly, the Federal Circuit employs simultaneous in a broad sense in County of Cook, in the course of two successive paragraphs. The court refers to Tecon, and that opinion’s use of the word “simultaneously filed” to describe the claims in British American and National Cored Forgings. County of Cook, 170 F.3d at 1090. These cases are same-day filing cases. County of Cook then itself refers to British American and National Cored Forgings as involving simultaneously filed claims. Id. This is followed by general references to “the simultaneous filing issue,” and “claims filed simultaneously,” as the subject of the court’s search for precedent which is “squarely on point.” Id. If caselaw is to be “squarely on point,” in County of Cook, it must be applicable to claims transferred pursuant to § 1631. Thus, the County of Cook court uses the word “simultaneous” to refer to the § 1631 context, as well as other types of same-day filing scenarios, within the space of a few sentences.
Next, the Federal Circuit turns to the purpose of § 1500, and the policies underlying the statute. In this regard, as mentioned supra, the court reasons that “[tjhese policies are promoted by precluding jurisdiction in the Court of Federal Claims over claims which had been previously filed in the district courts, and nothing suggests that these policies would not similarly be promoted by precluding jurisdiction in the simultaneous filing context.” County of Cook, 170 F.3d at 1091. There is no indication that the word “simultaneous” in this sentence signifies only § 1631 transferred claims, and not other types of same-day filings cases. It is doubtful that the repeated, broad use of the word “simultaneous” in the preceding sentences of County of Cook was suddenly narrowed when the court discerned and discussed the implications of the policy objectives of § 1500.
It is true that when the Federal Circuit applied its interpretation of § 1500’s purpose to the facts of County of Cook, the court described the force and effect of § 1500 as offering a jurisdictional bar that arises in the context of § 1631 transfers: “Accordingly, we hold that the ‘filing1 of the same claim simultaneously in the district court and the Court of Federal Claims by operation of § 1631 deprives the latter court of jurisdiction pursuant to § 1500.” County of Cook, 170 F.3d at 1091. This particular, narrow statement of the functional import of § 1500 does not, however, negate the broader holding of County of Cook, that all types of simultaneous filings of the same claims in this court and another federal court offend § 1500. See id. (stating that the policies
Plaintiff argues that only transferred claims pursuant to § 1631 are truly simultaneous, and that sequential filings in this court and a district court on the same day are not implicated by the holding in County of Cook. Pl.'s Resp. at 9-11. Plaintiff relies heavily on Breneman v. United States, 57 Fed.Cl. 571 (2003), aff'd on other grounds, 97 Fed.Appx. 329 (Fed.Cir.2004).
9. Breneman
The Brenemans filed two suits on December 13, 2002, one in this court and the other in the United States District Court for the District of Massachusetts. Breneman, 57 Fed.Cl. at 574. In this court the plaintiffs faced a jurisdictional challenge based on § 1500, and a summary judgment challenge. Id. at 571, 578. In Breneman, the court noted that “[t]he caselaw regarding the time of filing claims here and in a district court and the subsequent jurisdictional effect of § 1500 on those claims is not clearly disposi-tive of the issue of same-day filing.” Id. at 576. Although the court rejected defendant’s arguments based on § 1500, the case was dismissed under the summary judgment standard. Id. at 586.
In its careful review of § 1500 caselaw, the Breneman court quoted this statement of the law:
“[t]he sum of these cases leads us to conclude that the same action filed in district court prior to being filed in the Court of Federal Claims divests the latter of jurisdiction, as do actions filed simultaneously, but actions filed in district court subsequent to the Court of Federal Claims filing are not considered ‘pending’ in the language of Section 1500, and thus do not divest this court of jurisdiction.”
57 Fed.Cl. at 576-77 (quoting Spodek v. United States, 44 Fed.Cl. 32, 41 (1999)). The court agrees with this statement of the law in Spodek. The court does not, however, follow the Breneman court in four aspects of its analysis.
First, the Breneman court did not cite to British American or National Cored Forgings, or the fourth footnote in Tecon, precedent which in this court’s view shows that the Tecon rule does not apply to same-day filings. See County of Cook, 170 F.3d at 1090 (noting that the statement in Tecon which embodies the Tecon rule excluding later-filed district court claims from the scope of the jurisdictional bar in § 1500 was “dictum with respect to the simultaneous filing issue”). The Breneman court also did not discuss Frunzi, Hill or National Union, all cases where, after Tecon, same-day filings led to the dismissal of claims in this court. In the court’s view, this precedent argues strongly for ignoring the order of filing of same-day filings when deciding a § 1500 challenge.
Second, the Breneman court distinguished County of Cook and considered its holding to be limited to § 1631 scenarios where the § 1500 bar would be triggered by strictly, “truly” simultaneous scenarios. Breneman, 57 Fed.Cl. at 577. The court disagrees with this interpretation of precedent. Although the time of filing is considered important in § 1500 precedent, there is no indication that this phraseology refers to “the time of day of same-day filings,” rather than the date the claims were filed or deemed filed. Compare County of Cook, 170 F.3d at 1091 n. 8 (“Section 1631 mandates that the transferred claims be treated as if they were filed in the transferee court at the time they were filed in the transferor court.”) with Harbuck v. United States, 378 F.3d 1324, 1328 (Fed.Cir. 2004) (“Thus, under § 1631, [the plaintiffs transferred] claim was deemed filed in the Court of Federal Claims on the same day on
Third, even if the court were to accept the premise that County of Cook, because of its focus on § 1631, is somehow distinguishable from cases involving other types of same-day filings, the court is nonetheless bound by the statutory interpretation of § 1500 presented in County of Cook. See Crowley v. United States, 398 F.3d 1329, 1335 (Fed.Cir.2005) (instructing this court to follow “the prece-dential and authoritative [statutory] analysis of a reviewing appellate court”). The statutory interpretation in County of Cook embraces two concepts: forcing plaintiffs to choose a forum for a particular claim, and protecting the United States from duplica-tive, simultaneous litigation. 170 F.3d at 1090-91. At the same time, County of Cook clearly stated that the Tecon rule did not apply to simultaneous filing situations. Id. at 1090. Given the purpose of the statute, the inapplicability of the Tecon rule exempting later-filed eases from the jurisdictional bar, and a long history of dismissals of suits involving same-day filings, this court is constrained to interpret County of Cook as stating a rule of law which applies § 1500 to same-day filings of the same claim in two courts, regardless of the order of filing on that day.
Fourth, the Breneman court relied on dictum in Richmond, Fredericksburg, & Potomac Railroad v. United States, 75 F.3d 648, 653 (Fed.Cir.1996) (Richmond Railroad), as support for its jurisdictional ruling. This dictum, in hypothetical terms, considered whether the Tecon rule could apply to same-day filings. The entire treatment of this hypothetical is reproduced here:
Since we find that the jurisdictional flaw was subsequently cured, we need not address the question of whether, though filed on the same day, the suit in the Court of Federal Claims might have been the first filed and therefore possibly entitled to the benefit of the rule in Tecon Engineers.
Richmond Railroad, 75 F.3d at 653 n. 2 (citing generally to Tecon and Hardwick). Obviously, this statement was not necessary to the result in Richmond Railroad and is dictum. See supra notes 10, 14. Furthermore, County of Cook, decided three years later, fails to cite this dictum and indeed, conducted a much more thorough analysis which answered the question posed by Richmond Railroad: the Tecon rule does not apply to simultaneous filings. County of Cook, 170 F.3d at 1090. Richmond Railroad thus supplies no meaningful support to the jurisdictional ruling in Breneman.
For these reasons, the court cannot agree with the holding in Breneman. Breneman suggests that the Tecon rule requires an inquiry into a sequential order of filings when the same claim has been filed in a district court and this court on the same day. For the reasons outlined above, the court disagrees with this approach, and must also respectfully disagree with the Ak-Chin I court, 80 Fed.Cl. at 308 n. 4, and the Salt River I court, 2008 WL 1883170, at *4-*5, which followed Breneman in making their jurisdictional rulings.
10. Practical Considerations
In addition to the binding precedent which compels the court’s resolution of the “pending” claim issue, the court notes that there are practical considerations at work here as well. This court does not time-stamp complaints. Other courts, including the United States District Court for the District of Columbia, do not time-stamp complaints, although some do. Each time a party files the same claims here and in a district court on the same day, this court will be obliged, according to plaintiffs view of the law, to determine the order of filing in order to assure itself of its jurisdiction. At times, this issue will be hotly disputed, as it has been in this ease. In such circumstances, an eviden-tiary hearing may be required, because the documents and affidavits submitted may not resolve the issue. This is indeed the ease here. Although the operation of § 1500 throughout its history has been at times confusing and contradictory, construing § 1500 to require the taking of live testimony from paralegals and filing clerks borders on the absurd.
Duplicative suits filed on the same day in two courts should not require such an extensive inquiry. Such an inquiry frustrates all notions of judicial economy, and the purposes of § 1500. If Congress, or binding precedent interpreting § 1500, has mandated that courts conduct hearings as to the sequence of same-day filings, such an instruction has escaped discovery by this court. Nonetheless, because precedent is disputed on this issue, the court proceeds to examine the evidence of the sequence of the court filings here and in the district court. Unfortunately for plaintiff, this evidence does not help establish this court’s jurisdiction over plaintiffs claims filed here.
B. Whether Plaintiff Established That Passamaquoddy COFC Was Filed Before Passamaquoddy DDC on December 29, 2006
As previously stated, plaintiff bears the burden of establishing subject matter jurisdiction, Alder Terrace, 161 F.3d at 1377, and must do so by a preponderance of the evidence, Reynolds, 846 F.2d at 748. If plaintiff is correct that the order of filing of same-day filings may permit a plaintiff to escape the bar imposed by § 1500, it is this plaintiffs burden to prove that Passamaquoddy COFC was filed before Passamaquoddy DDC on December 29, 2006. See Alder Terrace, 161 F.3d at 1377 (noting that “the burden of establishing jurisdiction, including jurisdictional timeliness, must be carried by the [plaintiff]”) (citation omitted). For this inquiry, the court finds it useful to review the most relevant evidence presented by the parties in roughly chronological order, beginning with those documents created at the time of, or soon after, the events in question, and ending with the testimony of Ms. Applegate, given in three evidentiary hearings. These hearings were held on October 24, 2007 for Ak-Chin COFC, Ak-Chin Tr., December 10, 2007 for Salt River COFC, (Salt River Tr.), and February 1, 2008 in the subject matter, (Tr.). Thus the evidentiary record in this case spans approximately thirteen months.
To the extent that there is conflict in this evidentiary record, the court must give more weight to contemporaneous documentary evidence. See Cucuras v. Sec’y of Dept. of Health and Human Servs., 993 F.2d 1525, 1528 (Fed.Cir.1993) (“[T]he Supreme Court counsels that oral testimony in conflict with contemporaneous documentary evidence deserves little weight. United States v. United States Gypsum Co., 333 U.S. 364, 396, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). This court’s predecessor adopted the same principle. Montgomery
1. Contemporaneous Documentation of the Events of December 29, 2006
During the evening of Thursday, December 28, 2006, Mr. Harper, lead counsel for plaintiff, emailed several members of the team at his firm who were involved in the filings of the tribal trust claim complaints in both courts. Ex. 1. He assigned a task to Ms. Applegate, a paralegal with the firm: “[C]an you make sure the two courts are no[ ]t closing early.” Id. The next morning, at 8:59 AM, Mr. Harper emailed Ms. Apple-gate and told her that there still was work to be done on the Passamaquoddy COFC complaint and the other complaints destined for this court, and that “we will have to run those copies again while you file the DDC.” Ex. 2. The parties agree that the Passama-quoddy COFC complaint could not have been filed before 9:26 AM, relying on an email sent to Ms. Applegate from another member of the team. Ex. 3. This email attached the final electronic versions of three COFC complaints, but noted that the Passamaquoddy COFC complaint was being routed through another employee, a Mr. Justin Guilder. Id. The only other conclusively relevant email regarding the Passamaquoddy COFC filing that day is an email from Ms. Applegate sent at 12:41 PM, stating that “we have filed them,” referring to all of the COFC and DDC complaints for the four tribal trust claim plaintiffs. Ex. 8.
Thus, the contemporaneous documentary evidence, to which the court must give the most weight, indicates that Ms. Applegate was expected to file the DDC complaints while the COFC complaints were being finalized, and that the two Passamaquoddy complaints were filed sometime between 8:59 AM and 12:41 PM. There is no indication in contemporaneous documents, or in later statements or testimony, for that matter, that plaintiff organized its filing sequence on December 29, 2006 to avoid vulnerability to a § 1500 defense. See Ex. 33 at 103-04; see also Ex. 15 at 11. Because there is no contradictory contemporaneous documentary evidence, the presumption from this evidence is that within the relevant period of time, Ms. Applegate followed the instructions of Mr. Harper and the Passamaquoddy DDC com
Other pieces of contemporaneous documentary evidence are consistent with this interpretation of the sequence of events. Of all the complaints filed in the DDC by any plaintiff on December 29, 2006, it is undisputed that the Passamaquoddy DDC complaint was the first filed. Def.’s Sur-Reply at 1 & n. 1. The DDC Clerk’s Office opens at 9:00 AM. Def.’s Mot. at 11. Mr. Harper’s 8:59 AM email suggests that Ms. Applegate would be filing complaints at the DDC while work on the COFC complaints continued, work which cannot have been finished until 9:26 AM or later. Ms. Applegate was at work early that day, see Ex. B to Pl.’s Resp.App. Ex. 1 (email from Ms. Applegate sent at 7:47 AM on December 29, 2006, asking whether certain complaints were ready for processing for filing), and it would make perfect sense for her to make a first run to the DDC as soon as it opened, or soon thereafter, rather than wait for the COFC filings which were not ready.
2. Refreshing Ms. Applegate’s Recollection
a. April 23, 2007
On March 27, 2007, defendant filed answers to all four tribal trust complaints filed in this court on December 29, 2006 by Mr. Harper and his team. These answers all raise a § 1500 defense. There is no evidence that before this date plaintiffs counsel made any effort to determine the order of filings of the DDC and COFC complaints on December 29, 2006.
Mr. Harper’s colleague, Ms. Catherine Munson, emailed Ms. Applegate on April 23, 2007 and asked whether she “kn[e]w of a way to find out what time the [Salt River] and Passamaquoddy cases were filed in the CFC and [DDC] on Dec. 29th?” Ex. 13. Ms. Munson added that this was “important.” Id. The subject fine of the email was “Complaints in Salt River and Passamaquoddy.” Id. Ms. Applegate’s response is reproduced here in its entirety:
No there is no precise way—there is no time stamp on documents filed during the clerk’s office business hours, just the date. I had to drop them off with the intake clerk so she could process them and then come back for them. So even if I could remember what time I went over there (I’ll check my emails just in case I sent one that shows when I got back) we would have no idea what time the clerk actually filed them in the DDC. As for the CFC, I know I went over and we were missing something so I had to come back to the office and get it, but I just don’t know what time all of this happened. I’ll forward you any emails in my sent box that I find in case that is helpful.
Id. So, approximately four months after the day in question, Ms. Applegate confesses she cannot remember when she went to the two courts, but did remember that she was “missing something” that was somehow relevant to the filing of these two complaints in the COFC, and that the “missing something” required a return trip to her office.
One minute later, Ms. Applegate supplemented her original response to Ms. Munson with an email chain of messages sent on December 29, 2006, and added this commentary:
This isn’t very precise, but from the below chain of emails to Bill it looks like I took them over to the D.DC. and picked them up between 12:41 and 2:23. I think I went to the CFC first, but I am not certain about that. Sorry that is about all that I have.
Ex. 14. Ms. Applegate here states that her memory of the sequence of filing is “not certain.” Id. At this point, she believes she filed the Salt River COFC and Passama-quoddy COFC complaints before Salt River DDC and Passamaquoddy DDC, but she is not confident of the sequence and appears to be unable to recall any other significant details.
Beginning with these initial statements, it is interesting to track three aspects of Ms. Applegate’s recollection of the events of December 29, 2006. When Ms. Applegate refers to “dropping them off’ and “coming back for them” in the April 23, 2007 emails concerning the Salt River and Passamaquoddy complaints, is she referring to the Salt River
b. August 13-14, 2007
Ms. Applegate gave sworn statements in an affidavit on August 13, 2007, Ex. 19, and participated in the preparation of plaintiffs answers to defendant’s interrogatories, served on August 14, 2007, Tr. at 62. At this point in time, she recalled getting an oral instruction from Mr. Harper on December 29, 2006 to file Passamaquoddy COFC “as early as possible, which I understood to mean before filing the Complaint initiating [.Passamaquoddy DDC].” Ex. 19 117; see also Ex. 15 at 11. Apparently Mr. Harper had concerns about filing procedures in this court and whether the court might close early for the holidays, and communicated these concerns to Ms. Applegate. Ex. 19 11116-7. Ms. Applegate concluded that “[t]o the best of my recollection, I followed Mr. Harper’s instructions and I filed the Complaint in the instant action prior to filing the Complaint in [Passamaquoddy DDC ].” Id. H 8. Thus, by mid-August of 2007, Ms. Applegate could recall more details of the events of December 29, 2006, but is still not expressing absolute confidence in her memory of the sequence of filings that day.
Also by August 14, 2007, Ms. Applegate has clarified what she meant, in April, by dropping off complaints (“them”) and picking “them” up later at the DDC on that day. Rather than referring to the Salt River DDC and Passamaquoddy DDC complaints, as the subject line of her first April email might indicate, the “them” of her April emails apparently only referred to one complaint. In plaintiffs answers to interrogatories, the Ak-Chin DDC complaint “was the last Complaint she filed that day and was the only filing that day which necessitated her returning to the District Court to complete the filing.” Ex. 15 at 13; see also id. at 5 (statements indicating that Ms. Applegate did not drop off Passamaquoddy DDC and later return for any materials related to that filing).
c. October 24, 2007
By the time the court held its evidentiary hearing in Ak-Chin COFC on October 24, 2007, further details had been refreshed in Ms. Applegate’s memory. According to her testimony, another concern of Mr. Harper’s on December 29, 2006 was whether the funeral of President Ford might interfere with filings at the DDC and the COFC. Ak-Chin Tr. at 26. She also explained that she could not recall ever having seen Mr. Harper’s email directing her to first file complaints in the DDC, while changes were being made to the COFC complaints, because she was probably away from her desk. Id. at 30. Ms. Applegate was, in addition, able to give an exact sequence of all of the filings of that day, and was able to associate certain filings with certain short blocks of time. See, e.g., id. at 43 (fixing the Ak-Chin COFC filing as occurring between 11:41 AM and 12:41 PM).
d. December 10, 2007
During the evidentiary hearing for Salt River COFC held on December 10, 2007, Ms. Applegate was again able to provide a precise chronology of her filings on December 29, 2006, activities bounded by the timestamps of various emails that were sent and
Either Ms. Applegate’s testimony of December 10, 2007 is inaccurate in some way, or the COFC was issuing receipts from the receipt book out of sequence. According to uncontroverted evidence provided by Ms. Lisa Reyes, Deputy Clerk for Operations of the COFC, receipts are not written and issued out of their sequential order.
The court also notes that Ms. Applegate testified on two occasions that Passamaquod-dy COFC was filed before Passamaquoddy DDC, and only subsequently did she file Ak-Chin COFC. The contemporaneous documentary evidence shows that Ak-Chin COFC was filed before Passamaquoddy COFC, if, as she testified, she obtained receipts upon each filing trip. Because Passamaquoddy DDC was the first suit filed in the DDC on December 29, 2006, and Ms. Applegate’s chronology, as of December 10, 2007, crumbles into incoherence for logical inconsistencies, it appears just as likely as not that Passama-quoddy DDC was filed before Passamaquod-dy COFC.
Although the receipt numbers issued by the COFC point out the most glaring inaccuracy in Ms. Applegate’s testimony on December 10, 2007, several other statements from Ms. Applegate are not particularly convincing, considering the contemporaneous, or more nearly contemporaneous, documentary evidence. First, she was reportedly away from her desk and never saw an email directing her to file the DDC complaints first, sent at 8:59 AM by Mr. Harper. Salt River Tr. at 24-25. Oddly, according to her testimony, she was working with Mr. Harper on his floor at about that time, id. at 25, and every other instruction he gave her that morning about filing the complaints was oral, id. at 22-24, but his reportedly superseded instruction was sent by email and never received. Email reception improved at 9:26 AM, when she was sent electronic versions of various complaints, which she filed promptly in this court “[sjhortly after 9:30 AM.” Id. at 17. Although Ms. Applegate’s version of how these communications transpired is certainly possible, the court does not find her testimony, as recorded in the Salt River COFC transcript, to outweigh the implications of contemporary documents.
Similarly, Ms. Applegate attempted to clear up inconsistencies between her April 23, 2007 emails and her later recollection of events. When asked about the timing of the filing of the Salt River and Passamaquoddy complaints by Ms. Munson on April 23, 2007, Ms. Applegate testified that her use of the word “them” did not refer to the Salt River DDC and Passamaquoddy DDC complaints, in the context of dropping something off and returning to complete a filing at the DDC, but to the Ak-Chin DDC complaint. Salt River Tr. at 36. This is either an unusual word choice, or a strained interpretation of the email message. As for her memory, in April 2007, that she had been “missing some
e. Februaiy 1, 2008
For the third time, Ms. Applegate testified as to the events of December 29, 2006, during an evidentiary hearing in the subject matter held February 1, 2008. Prior testimony was made part of the record in this case, but for the first time the court had the opportunity to observe Ms. Applegate’s demeanor, and assess her credibility. Perhaps through repetition, Ms. Applegate’s delivery was rapid-fire and, for the most part, unin-flected. The overall impression given was of memorized facts recited by rote. The court fully believes Ms. Applegate when she testified that her current recollection of events was refreshed by the study of various documents related to some of the events that transpired on December 29, 2006. See Tr. at 35-36 (“I reviewed my in-box, all the emails that I kept in my in-box, my sent items, cab receipts, District Court and CFC docket sheets. I reviewed the documents that we had gotten back from the Court that day....”).
What the court questions is whether her current recollection is an accurate memory, as she professes it to be, see id. at 36 (stating that “the memory of what I had that day is supported by everything that I have found”), or whether it is instead an explanation of how things might have happened. The court is left with the impression that Ms. Apple-gate’s testimony is reflective both of memory and of supposition. For this reason, Ms. Applegate’s testimony was not particularly persuasive. When compared against contemporaneous documentary evidence, and in light of inconsistencies and inaccuracies in her testimony, the court must conclude that Ms. Applegate’s testimony was not credible as to her assertion that she filed Passama-quoddy COFC before Passamaquoddy DDC.
Ms. Applegate testified, as she had before, that she remembered the sequence of filings on December 29, 2006. Tr. at 14r-15. She expressed certainty about that sequence, and asserted that, regarding the two Passama-quoddy complaints, “I filed in the CFC be
Ms. Applegate now testified that she “did not have access to email for a good chunk of [December 29, 2006].” Id. at 18. Accordingly, she gained access to the 9:26 AM email transmitting final versions of three COFC complaints when a colleague printed it out. Id. at 20. She also further clarified that the term “them” in her April 23, 2007 email, referring to items dropped off at the DDC, was meant, despite the subject line of the email, to encompass the “Ak-Chin [DDC] complaint and its copies.” Id. at 40-41. She added that “them” meant more: “Them meaning the complaint, its copies, the notice of related cases, the summons.” Id. at 41. Ms. Applegate also no longer would use the word “confusing,” to describe December 29, 2006, but preferred the adjective “busy,” or “somewhat stressful.” Id. at 50, 66.
Most importantly, Ms. Applegate no longer asserted, as she had during the Salt River COFC hearing, that she had received receipts when filing complaints at this court. Tr. at 14-15. She explained, in some detail, why her testimony was now changed on this topic. Id. at 22-25. Ms. Applegate had apparently consulted various documents after the Salt River COFC hearing which, in her mind, indicated that she could not have received any receipts at the COFC on December 29, 2006. Id. (referencing Exs. 4-6). In her view, an email sent on January 3, 2007, and the receipts themselves, indicate that no receipts had been received on December 29, 2006. Id. at 58.
Before turning to the factual issue of whether COFC receipts were received on December 29, 2006 or some later date, the court notes that Ms. Applegate’s admission that she once testified based on an assumption, rather than on a recollection, supports the court’s assessment that some of her testimony is supposition as to what could have happened, and not refreshed memory. The evolution of Ms. Applegate’s memory of December 29, 2006, from April 23, 2007 to February 1, 2008, tends to show that much of what she now remembers is quite likely her recreation of what could have happened, rather than a recitation of vividly remembered details of what happened months before. See Tr. at 68 (explaining that her affidavit concerning the Ak-Chin filings was more strongly worded because “Ak-Chin was more memorable,” and stating that for the Passamaquoddy complaints, her testimony is “the memory of what I had with the confirmations of the various documents that I ascertained”). In any case, the court now has before it two self-contradictory versions of testimony from Ms. Applegate. If the earlier version of her receipt collection is adopted as accurate, the inconsistency between her December 10, 2007 testimony and the COFC receipt numbers thoroughly discredits Ms. Applegate’s recollection of what she did on December 29, 2006, as discussed supra. If her later testimony is preferred, it is clear she has no current memory concerning receipts obtained from the COFC that day, and the court must decide whether the documents she now relies upon offer support to her latest iteration of the sequence of events on December 29, 2006.
According to Ms. Reyes of the COFC, there is no way to tell, by looking at it, whether a filing receipt was mailed or picked up in person. Salt River Add’l Tr. at 28. There is also no way to tell whether a receipt with an attached post-it containing judge assignment information was picked up or was mailed. See id. at 30-31 (explaining that the
Ms. Applegate, after December 10, 2007, reviewed the original copies of the COFC receipts, and concluded otherwise. Tr. at 22-23. She bases her conclusion on an email exchange sent on January 3, 2007, which discusses judge assignments but does not address receipts. See Ex. 5; see also Tr. at 59 (upon cross-examination, Ms. Applegate conceded that the January 3, 2007 email chain does not discuss receipts). The relevant question posed by Mr. Harper on January 3, 2007 is “Can you check with [Ms. Applegate] if we have Judges assigned to our court of claims cases?” Ex. 5. He also mentioned that the recipient of this email, Ms. Sandy Roy, should check with Ms. Applegate to review electronic case filing (ECF) notices in his email in-box, to see if any responses to these were required. Id. All that can be deduced from Mr. Harper’s question is that he is not aware of any judge assignments in the COFC cases, as of January 3, 2007. His email does not indicate that Ms. Applegate received, or did not receive, receipts with judge assignment post-its on them, on December 29, 2006.
Ms. Applegate’s response to Mr. Harper’s inquiry is informed by her consultation with Ms. Roy, who was able to access Mr. Harper’s email in-box and who gleaned information from the ECF notices of judge assignments sent to him. Ex. 5. Her email message is reproduced here in its entirety:
I don’t think all of the notices have been sent yet ... Can you forward me all of the e-notices that you got from the court and I will call in the morning. From the notices that Sandy could see on your email Ak-Chin got assigned to Hewitt, Passama-quoddy got assigned to Miller for ADR Pilot Proceeding (which I’m not sure what that means) and Bush for normal proceedings, [Tohono O’odham] was assigned to Allegra. My guess is that you have received more notices as the clerk went through all of the documents today ... Just send them to me and we can get it figured out.
Id. Nothing in this email, sent at 5:21 PM, indicates that Ms. Applegate had taken the time to retrieve COFC receipts, if any had been obtained on December 29, 2006, and check them for indications of judge assignments. Rather, she appears to have given this matter brief attention and had conferred with Ms. Roy about the ECF notices and the judge assignment information available from that source. The court does not agree that this email exchange excludes the possibility that receipts for Passamaquoddy COFC, Salt River COFC, Tohono O’odham COFC and Ak-Chin COFC had been obtained on December 29, 2006, as Ms. Applegate had once testified. The email exchange does not compel the conclusion reached by Ms. Applegate, that “none of us had known about the Judge assignments before [January 3, 2007].” Tr. at 60. The January 3, 2007 email also does not exclude the possibility that, even if Ms. Applegate was not aware of judge assignments until January 3-4, 2007, she might have received receipts with post-its containing that information on December 29, 2006, and simply might not have paid attention to that information as she was getting ready to leave for her vacation. See Ak-Chin Tr. at 22 (noting that Ms. Applegate “had a vacation planned, so [she] was determined to get [the December 29, 2006 filings] finished before the close of business”). The court concludes that Ms. Applegate is overly reliant on this email for a new, and quite possibly faulty, assumption about what might have happened on December 29,2006.
Because the January 3, 2007 email is not conclusive on this issue, the court cannot determine whether Ms. Applegate received
III. Analysis of the Overlapping Claims Issue
The Passamaquoddy DDC suit was pending when Passamaquoddy COFC was filed. The court now turns to the other inquiry necessitated by a § 1500 challenge: whether a claim filed in the district court overlaps, to a degree sufficient to trigger the jurisdictional bar of § 1500, with a claim brought in this court. Fortunately, the precedent on this issue is much less convoluted than precedent concerning same-day filings and the “pending” claim issue.
The relevant precedent concerning overlapping claims was discussed at length in both Tohono O’odham I and Ak-Chin I. See Tohono O’odham I, 79 Fed.Cl. at 654-56; see also Ak-Chin I, 80 Fed.Cl. at 313-16, 321 n. 9. The comparative analysis of claims before the district court and the claims before this court conducted in the Tohono O’odham I and Ak-Chin I opinions was almost the same. This is not surprising, because plaintiffs counsel employed the same template for the Tohono O’odham DDC and Ak-Chin DDC complaints, and the same template for the Tohono O’odham COFC and Ak-Chin COFC complaints. The same templates were again used, respectively, for the Passama-quoddy DDC and the Passamaquoddy COFC complaints.
For example, except for differences related to a tribe’s name or a tribe’s trust assets, the assertions in paragraphs 1-4, 6-15, and 17-44 of the complaints in Tohono O’odham DDC, Ak-Chin DDC, and Passamaquoddy DDC, and the text of each of the nine paragraphs praying for relief therein, are virtually identical. Similarly, except for differences related to a tribe’s name or a tribe’s trust assets, many of the paragraphs of the complaints in Tohono O’odham COFC, Ak-Chin COFC, and Passamaquoddy COFC contain only slight variations in language and make similar allegations as to the United States’ trust responsibilities. The prayers for relief in Tohono O’odham COFC, Ak-Chin COFC, and Passamaquoddy COFC are identical, except for the varying references to the name of the tribal plaintiff, and, in the case of Passamaquoddy COFC, the omission of a request for interest on damages. See Compl. at 13.
In both Tohono O’odham I and Ak-Chin I, the court found significant overlap in the claims presented to the district court and this court. See Tohono O’odham I, 79 Fed.Cl. at 659 (“There is plainly substantial overlap in the operative facts as well as in the relief requested. That being the case, unfortunately for plaintiff, section 1500 is a bar.”); see also Ak-Chin I, 80 Fed.Cl. at 322 (finding that “plaintiffs complaints are based on the same operative facts and seek overlapping relief that is not distinctly different”). In light of the substantial parallelism between the complaints filed in Tohono O’odham DDC, Ak-Chin DDC, and Passamaquoddy DDC, and in Tohono O’odham COFC, Ak-Chin COFC, and Passamaquoddy COFC, it is not surprising that here, too, substantial overlap exists between the claims presented in the Passamaquoddy DDC and Passama-quoddy COFC complaints. The court will endeavor to succinctly summarize the relevant precedent, and apply this precedent to
A. Controlling Precedent
The parties agree that the comparison of claims in the district court and this court focuses both on the operative facts supporting each claim, and the relief requested from each court. See Def.’s Mot. at 7 (citing Love-ladies, 27 F.3d at 1551-52); Pl.’s Resp. at 15 (citing Loveladies, 27 F.3d at 1551). The parties also agree that the comparisons of operative facts and of requested relief constitute two separate prongs of the analysis and that each must be satisfied, as well as the “pending” suit prong, for § 1500 to bar a suit in this court. Def.’s Mot. at 7; Pl.’s Resp. at 1, 3, 15. The parties disagree, however, as to the degree of overlap in claims which is required to trigger the jurisdictional bar in § 1500.
Defendant argues that the operative facts in the two claims “need not be identical,” Def.’s Mot. at 7 (citing Johns-Manville, 855 F.2d at 1562-63), and that “[i]t is sufficient that they are substantially the same,” id. (citing Keene, 508 U.S. at 212-14, 113 S.Ct. 2035). Plaintiff contends, interestingly, that the “substantially the same operative facts” language in Keene, as employed by defendant, is an attempted “dilut[ion]” of the Love-ladies standard.
The parties also disagree on the amount of overlap that must be present in the prayers for relief for two suits to run afoul of § 1500. Defendant states that identical requested relief is not required, because “[i]t is enough that there is some overlap in the relief requested.” Def.’s Mot. at 7 (citing Harbuck, 378 F.3d at 1329). Plaintiff, on the other hand, suggests that to suffer from the requisite amount of overlap, the two suits must both contain at least one request for relief that is identical. See Pl.’s Resp. at 28 (“[T]he rule against overlapping relief applies where exactly the same relief is requested in both courts, and that remains true even though other and different relief is also requested.”) (citing Harbuck, 378 F.3d at 1329).
Both parties rely on the Federal Circuit’s analysis of these issues in Loveladies. As for the operative facts prong, Loveladies followed British American and summarized the analytical construct used by the Court of Claims in that case:
The Court of Claims held that § 1500 barred the claim before it. It made no difference that the two suits were based on different legal theories; the plaintiff had only one claim for money based on the same set of facts.
Loveladies, 27 F.3d at 1551. The Federal Circuit in Loveladies cited Johns-Manville as a decision that is “consistent” with British American. Loveladies, 27 F.3d at 1551. In that case, the operative facts were the “same,” even though the various plaintiffs in that case were exposed to asbestos at different times and in different ways. See Johns-Manville, 855 F.2d at 1563-64. In Keene, the operative facts question was described as “whether the plaintiff’s other suit was based on substantially the same operative facts,” and the Court noted that “Congress did not intend [§ 1500] to be rendered useless by a narrow concept of identity providing a correspondingly liberal opportunity to maintain two suits arising from the same factual foundation.” 508 U.S. at 212-13, 113 S.Ct. 2035. From these precedents, Loveladies summarized the operative facts prong as “[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.” 27 F.3d at 1551.
Loveladies should not be read to limit the application of § 1500 to suits where the operative facts are absolutely identical in all respects. See Tohono O’odham I, 79 Fed.Cl. at 656 (noting that Loveladies has more to offer on this issue than just the “same relief’ language, and stating that “the inquiry is whether there is meaningful overlap ... in the underlying facts ... in the two actions”). The court does not read Loveladies to require more than the Supreme Court in Keene, for two reasons. First, Johns-Man-ville discussed the “same” operative facts issue and concluded that precedent compelled dismissal of a claim in this court even where only some of the operative facts were the same as those supporting a claim pending before another federal court. See 855 F.2d at 1562, 1564 (discussing Los Angeles Shipbuilding & Drydock Corp. v. United States, 138 Ct.Cl. 648, 152 F.Supp. 236 (1957)). Loveladies explicitly did not reach this issue, and thus the holding in Johns-Manville regarding overlapping, but not identical, operative facts is good law and binding precedent on this court. See Loveladies, 27 F.3d at 1552 n. 19 (noting that the parties had been asked to brief, but the court did not decide, this question: “‘If some but not all of the operative facts are the same, does Johns-Manville require that the § 1500 bar apply?’”).
Second, the Loveladies court did not apply the concept of “same operative facts” to the facts before it in that case, and thus Lovela-dies is of little precedential assistance, if any, in defining those terms beyond the meaning given them in Keene and Johns-Manville. See Loveladies, 27 F.3d at 1551 n. 17 (“Because it is unnecessary for our decision in this case, we need not further refine the meaning of ‘operative facts.’ ”); id. at 1552 (analyzing the § 1500 challenge before the court while “accept[ing], as we have done arguendo, that Loveladies’ two suits arise from the same operative facts”). The court concludes that the descriptive term, “the same operative facts,” used in Loveladies, encompasses the less narrow descriptive term, “substantially the same operative facts,” that was given in Keene. See supra note 23. Thus, if plaintiff in Passamaquoddy DDC and Passamaquoddy COFC relies on the same, or substantially the same, operative facts in support of the two suits, the “same operative facts” prong of the § 1500 analysis is satisfied.
2. Loveladies on “Same Relief’
The Federal Circuit in Loveladies fully addressed and demonstrated, in great detail, how to conduct the inquiry into possible overlap in the relief requested in two suits, and Loveladies governs this court’s decision as to whether the overlap in the requested relief in the Passamaquoddy DDC and Pas-
Although the exact bounds of troublesome overlap are not demarcated in Loveladies, it is clear that two complaints which seek “distinctly different” relief are immune from a § 1500 challenge. See 27 F.3d at 1554 (concluding, in that appeal, that § 1500 would not apply because “the claims in the two courts are for distinctly different and not the same or even overlapping relief’). It is also clear that the court must analyze not only the phrasing of the two sets of prayers for relief, but also their pragmatic purpose, to determine what relief is sought from each court. See id. at 1553-54 (examining the relief the two federal trial courts could provide, and “reading the two complaints in light of the legal and factual circumstance in which they were drawn”). Thus, when examining two complaints, Loveladies instructs that § 1500 may apply when the requests for relief are not distinctly different in their nature, and there is some overlap in the requests for relief. Accord Ak-Chin I, 80 Fed.Cl. at 316; Tohono O’odham I, 79 Fed.Cl. at 656.
3. Harbuck on “Same Relief’
In 2004, the Federal Circuit provided further guidance in its Harbuck decision. All of the analytical terms required for comparing the requested relief in two complaints are reproduced therein, including “ ‘distinctly different,’ ” Harbuck, 378 F.3d at 1329 (quoting Loveladies, 27 F.3d at 1549), “‘some overlap,’ ” id. (quoting, in a parenthetical, Keene, 508 U.S. at 212, 113 S.Ct. 2035), and “ ‘same relief,’ ” id. at 1328 (quoting Loveladies, 27 F.3d at 1551). Complaints containing overlapping requests for relief triggered § 1500 in the appeal before the Harbuck court: “The inclusion of other and different requested relief in the two complaints does not avoid the application of [§ 1500].” Id. at 1329 (citing Keene, 508 U.S. at 212, 113 S.Ct. 2035). Although no clear line is drawn in Harbuck as to how much overlap is required to meet the “same relief’ test, the holding in Harbuck shows, as an example, that seeking back wages for the same period of time from two courts is adequate overlap to preclude jurisdiction in this court. Id. By analogy, if the plaintiff in this case is seeking money from the United States in both Passama-quoddy DDC and Passamaquoddy COFC, for breaches of trust regarding the same trust corpus for the same period of time, even if other, additional relief is requested in either suit, the “same relief’ prong of the § 1500 analysis is satisfied.
B. Operative Facts in the Passama-quoddy DDC and Passamaquoddy COFC complaints
Plaintiffs suit in this court alleges “gross breaches of trust by the United States” and asserts that “continuing material breaches of statutory, regulatory and fiduciary duties” constitute the foundation for plaintiffs claims in the subject matter. Compl. ¶1. Similarly, in plaintiffs complaint filed in Passamaquoddy DDC, plaintiff seeks “redress of breaches of trust by the United States.” DDC Compl. ¶1. Although the complaint in the district court emphasizes defendant’s responsibility to provide plaintiff with an accounting, as well as defendant’s duty to restore plaintiffs accounts to their proper balances, all of the facts necessary to a determination of the breaches of trust alleged by plaintiff in the subject matter are also needed for the District Court’s inquiry. Indeed, a review of the key allegations of fact
For example, a comparison of paragraph 24 of plaintiffs complaint in this action and paragraph 20 of plaintiffs complaint in the district court shows that plaintiffs theories of entitlement to relief in both courts depend on largely identical factual allegations. Referenced in both suits are the government’s failure to render clear (or complete) accounts, to skillfully administer trust property for productive use, to preserve the tribe’s assets, to deposit trust funds properly, and to refrain from self-dealing. Compare Compl. H 24 with DDC Compl. If 20. In addition, the same trust corpus and the same time period are the subject of the claims in Passama-quoddy DDC and Passamaquoddy COFC. Compare DDC Compl. Iff 12-19 with Compl. Ilf 14-28. It is clear that plaintiffs suits ask two courts to consider the same operative facts necessary to the determination of whether the United States has fulfilled its trust responsibilities to the tribe. The “same operative facts” prong of the § 1500 analysis is thus satisfied.
Plaintiffs arguments to the contrary have been rejected in the Ak-Chin I and Tohono O’odham I decisions, and must be rejected again here. See Ak-Chin I, 80 Fed.Cl. at 316-20 (rejecting plaintiffs two arguments contending that the two complaints relied upon different operative facts); Tohono O’odham I, 79 Fed.Cl. at 656 (summarily rejecting plaintiffs arguments that the two suits depended on different operative facts and holding, after a thorough review of both complaints, that “there can be no meaningful dispute ... [because] [t]he underlying facts are the same”). The court has considered plaintiffs first argument, that any similarities between the facts cited in each complaint are mere background facts, not operative facts, and the cases plaintiff cites in support of this argument, and finds it to be without merit. Accord Ak-Chin I, 80 Fed.Cl. at 318-19. The operative facts necessary to an equitable accounting action in the district court are also necessary in a suit for the determination of damages owed because of a breach of trust, cognizable in this court. See Tohono O’odham I, 79 Fed.Cl. at 657 (“In substance, the action for breach of trust in this court is an equitable proceeding that produces a monetary remedy.”). The United States will be held accountable for the same breaches of trust in either suit, and the proof of those breaches of trust will be, in all important respects, the same. For this reason, the operative facts underlying each suit are the same.
Plaintiffs second argument is that each suit seeks to prove breaches of different trust duties, and for this reason, different operative facts are at issue in each suit. See Pl.’s Resp. at 20 (stating that “the trust duties in the two cases are different—the accounting obligation and other duties at issue in the District Court are not the same trust duties as the money-mandating duties that support Plaintiff-Beneficiary’s three-count complaint here in the Court of Federal Claims”). The court disagrees. Plaintiffs two complaints are a textbook example of pursuing the same monetary goal by utilizing two legal theories. As the Court of Claims held in British American, a court must focus not on the legal theories underlying the claim in each court, but on the “sameness” of the claim:
A recital of the operative facts relied upon by a claimant does not state two separate and distinct causes of action merely because such facts may set up a liability both in tort and contract. The terms “conversion” used in the suit in the District Court and “taking of property without just compensation” in the suit in this court were obviously used by plaintiff for the purpose of attempting to adapt the single claim to the jurisdiction of the different courts in which the claim was being urged, but the use of these terms does not obscure the unity or sameness of the claim. We think it is clear that the word “claim,” as used in [the predecessor of § 1500], has no reference to the legal theory upon which a claimant seeks to enforce his demand----
89 Ct.Cl. at 440. Here, it is of no consequence that plaintiff styles its suits to focus on different trust duties, when the proof of breach of each of those purportedly distinct duties will necessarily require review of the
C. Relief Requested in the Passama-quoddy DDC and Passamaquoddy COFC Complaints
Because the § 1500 “same relief’ prong only requires some overlap in the relief requested in two courts, the court limits its discussion to the money that plaintiff seeks to obtain through either suit. As the Tohono O’odham I court explained, “[hjowever characterized, the calculus involved in determining how much money the plaintiff is owed would be the same in both courts.” 79 Fed.Cl. at 658. In Passamaquoddy DDC and Passamaquoddy COFC, too, plaintiff seeks the same monetary relief for breaches of trust by the United States in each suit, and § 1500 provides a bar to the suit in this court.
All of plaintiffs arguments to the contrary were thoroughly refuted in Tohono O’odham I and Ak-Chin I, and the court declines to expand upon those excellent discussions of the law. See Ak-Chin I, 80 Fed.Cl. at 321 (concluding that “both complaints seek monetary relief,” demand overlapping relief which is not distinctly different, and thus trigger § 1500’s bar on jurisdiction in this court); Tohono O’odham I, 79 Fed.Cl. at 659 (“Both actions, in sum, seek a restatement of accounts, restitution, and disgorgement____”). The court has reviewed the requests for relief in Passamaquoddy DDC and Passama-quoddy COFC and finds that identical monetary relief is sought in each suit.
In the district court, plaintiff requests “a complete, accurate, and adequate accounting of all trust assets belonging to the tribe and held in trust by” the United States. DDC Compl. at 17. Plaintiff also seeks declaratory relief suggesting that breaches of fiduciary duties have occurred, and urges the district court to compel defendant to fulfill its fiduciary duties. Id. Further, plaintiff requests a restatement of the tribe’s trust fund account balances to reflect the accounting ordered by the district court, and additional equitable relief to obtain other monies owed to the tribe by the United States or third parties. Id. at 18. In the court’s view, these mechanisms are sufficient to redress any and all financial losses the tribe has incurred due to breaches of trust by the government, and these mechanisms describe the contours of plaintiffs overall request for monetary relief based on breaches of trust by the United States.
In this court, plaintiff seeks a ruling on liability and the quantum of damages owed to the Passamaquoddy Tribe “for the injuries and losses caused as a result of Defendant’s breaches of fiduciary duty.” Compl. at 13. This is the same money, for the same period of time, for the same breaches of fiduciary duty by the United States, as was requested in the suit in the district court. The court finds that the Passamaquoddy DDC and Passamaquoddy COFC complaints seek overlapping relief which is not distinctly different, and that the “same relief’ prong of the § 1500 analysis is also satisfied.
CONCLUSION
The court holds that because Passamaquoddy DDC was filed on the same day as Passamaquoddy COFC, Passamaquoddy DDC was pending when Passamaquoddy COFC was filed, as a matter of law under controlling precedent interpreting 28 U.S.C. § 1500. Claimants who wish to pursue parallel litigation in this court and a federal district court would be wise to forbear from filing their complaints on the same day, to avoid the pitfalls of § 1500. To fully benefit from this court’s unique ability to award substantial money damages in suits against the United States, a party should consider filing first in the United States Court of Federal Claims. See Suburban Mortgage Assocs., Inc. v. U.S. Dept. of Housing and Urban Dev., 480 F.3d 1116, 1118, 1121 (Fed.Cir.2007) (noting that suits seeking more than $10,000 from the United States belong in this court).
For the foregoing reasons, plaintiffs complaint must be dismissed for lack of jurisdiction, because of the limit on this court’s jurisdiction imposed by § 1500. Accordingly, it is ORDERED that:
(1) Plaintiffs Motion for Leave to File Notice of Supplemental Authority, filed April 29, 2008, is DENIED as moot;
(2) Defendant’s Motion to Dismiss Pursuant to 28 U.S.C. § 1500, filed September 28, 2007, is GRANTED;
(3) The Clerk shall ENTER final judgment for defendant, DISMISSING the complaint, without prejudice; and
(4) Each party shall bear its own costs.
. Neither this court, nor the United States District Court for the District of Columbia, timestamps complaints received for filing.
. Neither party objected to making the transcripts of evidentiary hearings in similar cases part of the record in the subject matter.
. The court addressed this issue for two reasons: (1) to respond fully to the questions before it; and (2) to ensure that any later review of its disposition of the § 1500 issue could proceed efficiently. See Ak-Chin I, 80 Fed.Cl. at 308 & n. 3, 313.
. Plaintiff in Ak-Chin COFC conceded that there were no "substantive distinctions” between the two complaints filed in Tohono O’odham COFC and Tohono O'odham DDC and the two complaints filed in Ak-Chin COFC and Ak-Chin DDC, except that the Tohono O’odham complaints were filed one day apart. See Ak-Chin Indian Cmty. v. United States, No. 06-932 L, Plaintiff’s Brief in Response to the Court’s Request for Briefing Regarding the Opinion Issued in Tohono O’odham v. United States, at 2 (Fed.Cl. Jan. 7, 2008).
. Transcript of Salt River COFC Hearing held December 10, 2007 (Salt River Tv.).
. Transcript of Salt River COFC Informal Hearing held December 12, 2007 (Salt River Add’l Tr.).
. Plaintiff in the subject matter filed a Motion for Leave to File Notice of Supplemental Authority on April 29, 2008, concerning the fact that Salt River I had issued. Plaintiff’s motion received no response from defendant. Because the Salt River I opinion, although unpublished, is readily available to the court, plaintiff's motion is denied as moot.
. The term “this court," as it is used here, refers to this trial court and its predecessors, including the Court of Claims, the United States Claims Court, and the United States Court of Federal Claims.
. There was a slight change in the wording of the jurisdictional bar in 1948, but this change does not appear to have modified how courts have interpreted the term "has pending" as it might apply to same-day filings. See Keene, 508 U.S. at 209-10, 113 S.Ct. 2035 (commenting, in regard to the 1948 modifications in language, that "we do not presume that the revision worked a change in the underlying substantive law”). Thus, the court considers the holding of British American to apply with full force to the issue of same-day filings under the current version of the statute. See Johns-Manville Corp. v. United States, 855 F.2d 1556, 1562 (Fed.Cir.1988) ("[S]ince all changes after the original version [of what is now § 1500] were intended as but changes in phraseology, we must presume Congress was aware of and adopted the judicial interpretations of section 1500 and its predecessors.”) (citations omitted).
. There is language in Tecon which states that the court did not feel bound by decisions which did not discuss the significance of the order of filings in dismissing a case pursuant to § 1500. 343 F.2d at 950 (stating that because "the issue of priority was [njever fully briefed, considered or decided ... we cannot draw upon the prior easelaw for direction in this decision”). None
. In 1988, the Federal Circuit issued a decision which, although silent as to the significance of its analysis of the same-day filing issue, is of interest because it refrained from applying the Tecon rule to a later-filed same-day filing in a district court. See Boston Five Cents Sav. Bank, FSB v. United States, 864 F.2d 137 (Fed.Cir.1988) (Boston Bank). One issue before the Federal Circuit was "[w]hether Boston Bank’s filing of the identical money damages suit in district court on the same day the Claims Court action was filed requires the Claims Court to dismiss the action under 28 U.S.C. § 1500.” Id. at 138. The Federal Circuit duly noted that the district court suit had been filed ”[l]ater [than the Claims Court suit on] the same day,” but did not apply the Tecon rule concerning later-filed district court suits which do not trigger the jurisdictional bar in § 1500. Id. Instead, the court permitted the suit to proceed in this court, for a different reason, because this court had "exclusive jurisdiction over Boston Bank’s monetary claim.” Id. at 140. Thus, even where the order of filing of same-day filings was known, and the district court suit was filed later than the suit in this court, there is no indication that the Federal Circuit considered the order of filing, or the Tecon rule, to be helpful to the plaintiff.
. County of Cook did not regard the precedent of British American, National Cored Forgings and Tecon as clearly dispositive of the issue before it. See 170 F.3d at 1090 ("Our independent review of the case law has not revealed any precedent squarely on point____”). The court noted that British American and National Cored Forgings "lack an express analysis of whether a claim simultaneously filed in the district courts is 'pending' for purposes of § 1500." Id. The court also noted that "Tecon’s fact situation renders the [Tecon rule] dictum with respect to the simultaneous filing issue.” Id. It is the interpretation of § 1500, and the review of precedent in County of Cook, which together create precedent that binds the court in deciding the § 1500 issue before it.
. The government did not cross-appeal this court's ruling on the § 1500 issue in Breneman. Brief for Appellee at *14 n. 6, Breneman v. United States, No. 03-5156, 2004 WL 3763416 (Fed.Cir. Feb. 6, 2004).
. Because this statement of the law is essential to the result reached in County of Cook, it cannot be disregarded as dictum. See In re McGrew, 120 F.3d 1236, 1238 (Fed.Cir.1997) (defining dicta as “statements in judicial opinions upon a point or points not necessary to the decision of the case”) (citations omitted).
. Another decision of this court addressed this issue after Breneman was decided. In Lan-Dale Co. v. United States, 60 Fed.Cl. 299 (2004), the
. Unless otherwise noted, the exhibits referenced in this opinion are joint exhibits compiled by the parties and entered into the record during the evidentiary hearing held in the subject matter on February 1, 2008.
. The parties and the court have conducted this evidentiary inquiry by focusing largely on contemporaneous documents and the recollections of Ms. Applegate. If the parties had wished to expand the number of live witnesses, or submit additional affidavits, the time for requesting leave to do so has passed. The court accords little weight to any statements in plaintiff’s responses to interrogatories, served on August 14, 2007, that report recollections of persons who did not testify before the court. See Speck v. United States, 28 Fed.Cl. 254, 280 (1993) (noting that answers to interrogatories are no substitute for "live testimony or documentary evidence"); see also Walton v. United Consumers Club, Inc., 786 F.2d 303, 313 (7th Cir.1986) (noting that answers to interrogatories cannot normally be substituted for live testimony under the Federal Rules of Evidence).
. For reasons far too complex to discuss here, receipt numbers, and docket numbers, are unreliable indicators of the order of filing of complaints at the COFC. See Salt River Add'l Tr. at 9.
. Although plaintiff does not argue now that a different interpretation of the "missing something" language in the April 23, 2007 email is possible, Pl.’s Sur-Reply at 19-23, in an earlier brief filed in this case, plaintiff's explanation of that "missing something" language could be construed differently. Because the Ak-Chin COFC complaint was, according to Ms. Applegate's recollection of events, not ready in time for the first trip to the COFC, Ms. Applegate might have been referring to the Ak-Chin COFC complaint when she remembered she was "missing something” on December 29, 2006. See Pl.’s Resp. at 14 n. 7 ("While Ms. Applegate initially recalled having to make a second trip to the Court of Federal Claims that day because she was 'missing something’ her first trip there, the reason Ms. Apple-gate was required to make a second trip to the Court of Federal Claims was because the Ak-Chin Complaint was not ready when the other three Complaints were filed and it had to be delivered for filing later that same morning.”). Of course, all sorts of speculation are possible as to what was “missing," if anything, on December 29, 2006, and the court notes only that no clear picture emerges as to the exact sequence of events on that day.
. Of minimal relevance, but perhaps worth noting, is Ms. Applegate’s testimony that December 29, 2006 "was a confusing day.” Salt River Tr. at 69. She noted that before that day "I had in my career not filed seven complaints in one day.” Id. at 21. In such circumstances, it is not surprising that testimony given almost one year later should contain inaccuracies.
. The email in question only belatedly surfaced. The court set a discovery deadline of August 14, 2007 for defendant's § 1500 motion. See Order of July 20, 2007. Plaintiff produced the email chain dated January 3, 2007 to defendant in January 2008, and it was admitted as Exhibit 5. Tr. at 10-11. Defendant withdrew its objection to the admissibility of this document. Id. at 11.
. Because the Tohono O'odham I and Ak-Chin I opinions provide an enlightening review of the historical development of the test for determining whether claims in two federal courts overlap, the court truncates its discussion of this topic. See Tohono O'odham I, 19 Fed.Cl. at 654-56; see also Ak-Chin I, 80 Fed.Cl. at 313-16, 321 n. 9. In addition, to the extent that certain of plaintiff's many arguments are not specifically addressed in this opinion, the court relies on the analyses of those same arguments in Tohono O’odham I and Ak-Chin I as grounds for again rejecting them. For example, the court again concludes that the distinctions drawn between specific monetary relief and money damages in Bowen v. Massachusetts, 487 U.S. 879, 901, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988), are inapposite to the § 1500 analysis, for the reasons stated in Tohono O’od-ham I, 79 Fed.Cl. at 658 & n. 14.
. None of the cases cited by plaintiff as support for this proposition asserts that Loveladies is anything but an elucidation of the principles outlined in Keene. See Fire-Trol Holdings, LLC v. United States, 65 Fed.Cl. 32, 34 (2005) (referring to Loveladies as "the Federal Circuit's explication of Keene which developed it into a two prong test”); Manke Lumber Co. v. United States, 44 Fed.Cl. 219, 222 (1999) (noting that the Lovela-dies opinion neither defined operative facts, nor "explored the definition of 'same operative facts’ ”). Plaintiff's contention, that Keene and Loveladies offer differing guidance as to the test for the “same” or "substantially the same” operative facts in two suits, is unsupported by authority and is illogical. See Pl.'s Resp. at 15 n. 8 (describing each opinion as producing a distinct standard). The truncated restatement in Loveladies concerning a required condition for the operation of § 1500, a condition which was discussed in detail in Keene, does not indicate that the Federal Circuit was attempting to overrule Supreme Court precedent. See Ak-Chin I, 80 Fed.Cl. at 315-16 (reconciling statements of the law in Keene and Loveladies by incorporating the phrasing and principles announced in each decision); Tohono O’odham I, 79 Fed.Cl. at 656 (reconciling Keene and Loveladies in a similar fashion, because "[t]hat reading of Loveladies is, in any event, compelled by the controlling language of Keene”); cf. Koerner v. Grigas, 328 F.3d 1039, 1050-52 (9th Cir.2003) (reconciling an en banc decision of the Ninth Circuit with prior Supreme Court precedent). In any case, even if plaintiff's implausible and strained reading of Loveladies could be viewed as controlling precedent, the operative facts in the two complaints at issue in this controversy are the same, and substantially the same, satisfying even plaintiff's proposed version of the applicable standard.