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 оf 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,
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,
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.”
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,
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,
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,
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,
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,
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,
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,
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,
Similarly, in Hobbs v. United States,
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,
Similarly, in National Cored Forgings Co. v. United States,
3. The Tecon Rule
In Tecon Engineers, Inc. v. United States,
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,
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,
The Claims Court applied the Tecon rule in a similar fashion in 1989. See Nat’l Union Fire Ins. Co. v. United States,
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,
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,
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,
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.’ ”
[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,
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,
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,
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,
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,
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,
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,
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,
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.”
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,
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,
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,
Fourth, the Breneman court relied on dictum in Richmond, Fredericksburg, & Potomac Railroad v. United States,
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,
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,
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 сonfusing 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,
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.,
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 сomplaints 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 communicatеd 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, оr 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 beеn 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 mеmory 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 casе 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 еxclude 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,
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,
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,
Defendant argues that the operative facts in the two claims “need not be identical,” Def.’s Mot. at 7 (citing Johns-Manville,
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,
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,
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,
Second, the Loveladies court did not apply the concept of “same operative facts” tо 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,
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
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,
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 prоper 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,
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 sаmeness 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----
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.”
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,
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 tо 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.,
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.
Notes
. 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,
. 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,
. 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.
. 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,
. 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
. 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,
. 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,
. Another decision of this court addressed this issue after Breneman was decided. In Lan-Dale Co. v. United States,
. 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 thе court. See Speck v. United States,
. 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,
. 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,