MEMORANDUM OPINION AND ORDER
This сase is before the Court on defendant’s Motion to Dismiss, in Part, for Lack of Jurisdiction, pursuant to Rules 12(b)(1) and 12(h)(3) of the Rules of the United States Court of Federal Claims (“RCFC”) and 28 U.S.C. § 1500 (“Section 1500”). Defendant’s motion seeks dismissal of the claims of three of the plaintiffs and dismissal of a cause of action requesting equitable relief. Def.’s Mot. to Dismiss (“Def.’s Mot.”) at 11. Defendant’s motion has been fully briefed and oral argument on the motion was held. For the reasons that follow, defendant’s motion is GRANTED.
I. BACKGROUND
Plaintiffs filed suit in the United States Court of Federal Claims on April 11, 2011. They allege that they are owed just compensation under the Takings Clause of the Fifth Amendment of the Constitution of the United States and that the Court has jurisdiction over their claims under the Tucker Act, 28 U.S.C. § 1491(a)(1). Compl. ¶¶4-5. The named plaintiffs in this case are three owners — Donald and Brenda Pellegrini and Anne Ebel — and two lessors — Mladen and Beverly Ziza — of riverfront property situated on Ra-moth Drive along the St. Johns River in Jacksonville, Florida. Compl. ¶¶ 1-3. The action is putatively brought on behalf of the class of similarly situated riverfront property owners and lessors along Ramoth Drive, which is estimated to be 150 pеople living in forty-five homes along the drive. Id. ¶¶ 4, 6. Each riverfront lot along Ramoth Drive allegedly has an easement appurtenant burdening the government’s navigational servitude such that plaintiffs are permitted to build, maintain, and use docks, seawalls, and boathouses that extend into the river. Id. ¶¶ 1-4.
The takings claims asserted in this case result from dredging of the St. Johns River conducted by the Army Corps of Engineers (“the Corps”). Compl. ¶ 7. The dredging activity was allegedly part of the “St. Johns River Maintenance Dredge Project” and occurred in “[cjuts 40-41, in the vicinity of buoy 34, immediately аdjacent to the property owned by plaintiffs.” Id. Plaintiffs allege that as sediment in the center of the river was removed by the Corps, “lateral and sub-jacent” support of the riverbank was lost, causing a sudden subsidence of the riverbank, which in turn caused the “collapse of
The property interests allegedly taken consist of: 1) the formerly “privately-owned uplands lying outside [defendant's navigational servitude” that, after collapsing into the river, were converted to public lands lying “particularly or completely below mean high water;” 2) the pre-existing seawalls and adjacent structures (docks and boathouse); and 3) the right to use the public lands extending out into the river for docks and boathouses. Compl. ¶¶ 4, 7, 8. Plaintiffs seek a declaratory judgment that defendant’s dredging resulted in a taking of their private property “without due process of law” and seek monetary damages as just compensation owed to them under the Fifth Amendment. Id. at 4-5.
On July 22, 2010 — prior to filing their takings claims in the Court of Federal Claims— Ms. Ebel and the Pellegrinis filed an action under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680, in the United States District Court for the Middle District of Florida styled Ebel v. United States, No. 3:10-cv-635-RBD-JRK (M.D.Fla.2010). Def.’s Mot. at 2-3. In the Ebel complaint, plaintiffs allege that the Corps’s dredging of the St. Johns River at “[cjuts 40-41, in the vicinity of buoy 34, immediately adjacent to the property owned by plaintiffs” negligently caused damage to plaintiffs’ docks, seawalls, and backyards. Def.’s Mot. Ex. 1 at 2 (Ebel Compl. ¶4). Similar to the complaint filed in the present case, the four corners of the Ebel complaint do not include specific dates when the seawalls and adjacent structures collapsed, nor specific or even approximate dates of the dredging. See id. at 1-3 (Ebel Compl.). The Ebel complaint, however, references attached administrative claim forms filed with the Corps by Ms. Ebel and the Pellegrinis that cover damage tо their docks and boatlifts that occurred on March 8, 2008. Id. at 8-11 (Ebel Compl. Ex. C). The Ebel complaint also references an attached declaration of George Smith — Ms. Ebel’s marine contractor — who states that Ms. Ebel’s seawall collapsed due to substantial, unnatural subsidence caused by dredging in May 2010. Id. at 6-7 (Ebel Compl. Ex. B). Thus, the Ebel complaint encompasses dredging before March 8, 2008 that allegedly caused damage to Ms. Ebel’s and the Pellegrinis’ property on March 8, 2008 and also encompasses dredging in May 2010 that allegedly caused damage to Ms. Ebel’s property sometime between May 2010 and July 20, 2010.
On July 23, 2010, the district court issued an order in Ebel questioning whether it could exercise jurisdiction over all of the claims raised by the complaint. Pis.’ Supp’l Mem.
II. DISCUSSION
Whether a federal court has jurisdiction to decide the merits of a case is a threshold matter. Steel Co. v. Citizens for a Better Env’t,
Wfiien considering whether to dismiss a complaint for lack of jurisdiction, the Court assumes that the uncontroverted allegations in the complaint are true and construes those allegations in plaintiffs’ favor. Henke v. United States,
A. Section 1500 Precludes the Court from Exercising Jurisdiction over Ms. Ebel’s and the Pellegrinis’ Claims
Section 1500 “shuts the door to this Court’s jurisdiction when a sufficiently similar suit against the United States government is pending in another court at the time litigants bring their case to our doorstep.” Young v. United States,
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.
28 U.S.C. § 1500 (2006). “[Tjhe term ‘claim’ in [Section] 1500 [is] defined by the operative facts alleged, not the legal theories raised.” Johns-Manville Corp. v. United States,
“Pending” for purposes of Section 1500 is given its plain, unambiguous meaning. Johns-Manville,
On June 10, 2011, defendant moved to dismiss several of plaintiffs’ claims pending in our court, arguing that Section 1500 bars the Court from taking jurisdiction over the takings claims of Ms. Ebel and the Pellegrin-is because the negligence claims in Ebel were pending when the takings claims were filed here and the claims in both eases are based on the same operative facts. Def.’s Mot. at 7-8. Plaintiffs deny that a single set of operative facts gave rise to all the claims. Instead, plaintiffs argue that their takings claims before this court are based on at least two sepаrate incidents of dredging and that the negligence claims in Ebel were based on just one of these. See Pis.’ Resp. to Def.’s Mot. to Dismiss (“Pis.’ Resp.”) at 2-3, 6. Plaintiffs assert that one incident of dredging occurred prior to March 8, 2008, which caused the collapse of the Pellegrinis’ dock and boathouse; that another incident of dredging occurred between March 8, 2008 and June 15, 2010, which caused additional damage to the Pellegrinis’ seawall and the collapse of Ms. Ebel’s seawall on June 15, 2010; and that the second dredging resulted in damage to the Zizas’ property that was incurred at another, unspecified timе. Id. at 2. Plaintiffs argue that the district court exercised jurisdiction only over claims pertaining to the 2008 dredging, so claims resulting from later dredging were never pending before the district court for purposes of Section 1500. Id. at 2-3, 6.
The Coui’t is persuaded by defendant’s argument that the complaint in Ebel and the complaint in this case share the same claims with respect to the Pellegrinis and Ms. Ebel. Defendant correctly points out that plaintiffs use nearly identical language in both complaints to describe the operative facts giving rise to both the negligence and takings theories. Def.’s Reply in Supp. of Mot. to Dismiss (“Def.’s Reply”) at 5. The property of Ms. Ebel and the Pellegrinis is identified as the same in both complaints, compare Compl. ¶¶ 1-2, with Def.’s Mot. Ex. 1 at 1 (Ebel Compl. ¶¶ 2-3), both complaints refer to the dredging as the “St. Johns River Mainte
Although plaintiffs argue that there were two separate incidents of dredging, and thus at least two separate sets of operative facts, see Pis.’ Resp. at 2-3, 6, the complaint before the Court does not allege on its face any dates that would allow the Court to differentiate between separate incidents.
Plaintiffs’ argument that the two suits are based on different operative facts is premised not only on the identification of two separate incidents of dredging, but also on the assertion that the district court only exercised jurisdiction over one of these incidents. Plaintiffs contend that if the district court did not take jurisdiction over claims arising from one of the two dredging incidents, then the claims were never pending before the district court and Section 1500 presents no barrier to the Court’s jurisdiction over them. Pis.’ Resp. at 2-3, 6. The Court finds this argument unavailing. Plaintiffs are incorrect to characterize the district court’s sua sponte questioning of whether it could take jurisdiction over claims arising out of alleged 2010 dredging as proof that those claims were not pending before the district court. Once filed, claims are pending until dismissed or a final adjudication is reached. Even if a claim is ultimately dismissed for lack of subject-matter jurisdiction, it was pending from the time it was filed until dismissal. See Young,
Plaintiffs also assert, without any explanation or analysis, that the dismissal of the district court ease makes the motion to dismiss filed in this case “moot.” Pis.’ Supp’l Mem. at 1. But since our court’s jurisdiction must be evaluated based on the state of things at the time the complaint was filed in
Because Ms. Ebel’s and the Pellegrinis’ takings claims before the Court are based on the same operative facts as the negligence claims they raised in Ebel, and the Ebel claims were pending in the district court from July 22, 2010 until October 12, 2011, Section 1500 bars the Court from taking jurisdiction over these claims. Acсordingly, the claims of the Pellegrinis and Ms. Ebel are dismissed without prejudice, leaving the Zizas as the only named parties in this lawsuit.
B. The Court Lacks the Power to Grant Equitable Relief Requested
Our court exists primarily as a forum for determining whether monetary relief shall be awarded for non-tort claims brought against the United States.
Defendant has moved to dismiss the third cause of action, which is a claim for injunctive relief. Plaintiffs request permanent injunctions to prevent the Corps from further dredging near Ramoth Drive and to require the Corps to build a bulkhead or some alternative erosion-controlling structure along the riverbank. Compl. at 6-7. They allege that this relief “is incidental and subordinate to” their “primary claim for monetary damages,”
Plaintiffs argue to the contrary that the equitable relief they seek is “tied and subordinate” to a monetary award. Pis.’ Resp. at 4-5. They maintain that this relief comes under the first circumstance described above under 28 U.S.C. § 1491(a)(2), as “necessary” for them to receive “an entire remedy” and to complete their money judgment relief. Pis.’ Resp. at 4. As plaintiffs explain it, a properly constructed seawall could prevent a further taking of their property due to dredging-induced erosion, but would require dredging to stop while it is being built. Id. Were the government given the choice between paying for plaintiffs’ seawall or building its own, plaintiffs maintain, the government could then choose the most cost-effective option. Id. at 5. Thus, according to plaintiffs, an injunction against dredging while a seawall is constructed will limit damages connected with the dredging to the costs of the seawall, and an injunction making the government build its own seawall could also minimize these damages.
It seems to the Court that the parties’ focus on whether the requested injunc-tive relief would be “tied and subordinate” to a money judgment misses the point of the statute being interpreted. In cases that are neither bid protests nor under the CDA, our court is not authorized to order whatever sort of injunctive relief it finds appropriate. Putting aside remands for the time being, under the general jurisdiction of the Tucker Act the only injunctive orders that are authorized are “orders directing restoration to office or position, placement in appropriate duty or retirement status, and correction of applicable records.” 28 U.S.C. § 1491(a)(2) (2006).
Thus, plaintiffs’ only hope of obtaining the requested injunctive relief would be through our court’s remand power. Plaintiffs do not attempt to justify the third cause of action on that particular ground, focusing instead on the power to “provide an entire remedy and complete the relief’ of a money judgment, Pis.’ Resp. at 4 (quoting 28 U.S.C. § 1491(a)(2)), which was rejected in the preceding paragraph. This is not surprising, though, as the verb “remand” has long been understood as meaning to return or send back a case to another government body. See Ballentine’s Law Dictionary 1088 (3d ed. 1969) (“The return of a case to an administrative agency after a review by the court of a determination or decision of such agency.”); Black’s Law Dictionary 1457 (4th ed. 1968) (“To send back.”); Webster’s Third New International Dictionary 1919 (1971) (defined as “to return (a case) ... from a court to an administrative agency”); The American Her
Moreover, therе is the problem of the substance of the injunctions requested by plaintiffs. An injunction against dredging is sought because “[s]ueh dredging, if permitted to continue, will cause loss of lateral and subjacent support and will further deprive [pjlaintiffs of their property.” Compl. at 6. An injunction requiring the government to install a seawall is rationalized as “[t]he most cost-effective method to prevent a taking of the [p]laintiff[s’j property,” with the construction costs a “substitute for monetary damages” that would have been recoverable were there to be “further takings.” Pis.’ Resp. at 5. In essence, plaintiffs ask the Court to order the government to not create future claims within our jurisdiction. It is hard to see how our court would have jurisdiction to order the government to stay out of our jurisdiction. While the natural result of a determination, under 28 U.S.C. § 1491(a)(2), of rights under a contract that is still being performed would control future behavior under that contract, or an application of tax law to one tax year of a taxpayer could through collateral estoppel dictate that law’s application tо other tax years, see Ammex, Inc. v. United States,
Plaintiffs’ third cause of action does not come within our court’s subject-matter jurisdiction. It is accordingly dismissed without prejudice.
III. CONCLUSION
For the reasons stated above, the government’s motion to dismiss parts of this case is GRANTED. The claims asserted by Ms. Ebel and the Pellegrinis are dismissed without prejudice, and they are no longer parties to this lawsuit. The third cause of action is dismissed without prejudice. The case shall be re-captioned as Mladen Ziza et al. v. United States, and defendant shall file its response to the complaint on or by February 6, 2012.
IT IS SO ORDERED.
Notes
. The "adjacent structures” presumably include the docks owned by Ms. Ebel and the Pellegrinis, Def.’s Mot. Ex. 1 at 8-11, and the dock leased by the Zizas, Attach, to Compl. at 1, and might also include the Pellegrinis’ boathouse — which was mentioned in a later filing. Pis.’ Resp. to Mot. to Dismiss at 2, but not listed in the Pellegrinis’ administrative claim form filed with the Corps, see Def.’s Mot. Ex. 1 at 8.
. Plaintiffs have included a second cause of action, seeking the identical declaration and damages as under what aрpears to be their first cause of action (which went unlabelled), based on the Fifth Amendment’s Due Process Clause, rather than its Takings Clause. See Compl. at 4-6. The Supreme Court has long held that a taking of private property for public use by a state without payment of just compensation violates the Due Process Clause of the Fourteenth Amendment, see Chicago, B. & Q.R. Co. v. Chicago,
. If a party submits evidence challenging the jurisdictional facts alleged in a complaint, however, those allegatiоns are no longer assumed to be true. See James v. United States,
. The government gratuitously offers its “view” that the order-of-filing rule of Tecon Engineers, Inc. v. United States,
. Obviously, the third set of facts, relating to the damage incurred by the Zizas, was not before the district court, as the Zizas were not parties to that lawsuit.
. To avoid any unnecessary and vexing procedural complications, the Court would be open to holding a status conference, if requested, to discuss the most efficient way for the Pellegrinis and Ms. Ebel to re-file their claims.
. This has been the case since Congress’s initial attempt, via the Tucker Act, to extend our predecessor сourt’s jurisdiction to cover equitable claims was rebuffed in a curious decision of the Supreme Court. See United States v. Jones,
.As the government acknowledges, see Def.’s Reply at 11, our court may also use equitable principles, doctrines and theories when determining whether (and how much) money damages should be awarded in cases within our jurisdiction. See Pauley Petroleum Inc. v. United States,
. It did not go unnoticed that plaintiffs substituted an ellipsis for this list of authorized orders when they quoted the relevant provision. See Pis.’ Resp. at 4 n. 1.
. Though not well-explained, this seems to be the basis for the government’s argument, presumably in the alternative, that the third cause of action fails to state a claim upon which relief can be granted. See Def.’s Mot. at 1, 9 (citing RCFC 12(b)(1)).