Unr Industries, Inc., Unarco Industries, Inc. And Eagle-Picher Industries, Inc. v. The United States, Keene Corporation v. United States

November effective date of the

supervised provisions release and the aboli- special parole,

tion the district court

should have sentenced Hessen to a term of

special parole supervised rather than re- Accordingly,

lease. we VACATE the sen- supervised

tence as to release and RE- imposition

MAND for the of a term of

special parole. INDUSTRIES, INC.,

UNR Unarco Indus

tries, Eagle-Picher Inc. and

Industries, Inc., Plaintiffs-Appellants,

v. STATES,

The UNITED

Defendant-Appellee. CORPORATION,

KEENE

Plaintiff-Appellant, STATES, Defendant-Appellee.

UNITED 89-1638,

Nos. 89-1639 and 89-1648. Appeals,

United States Court of

Federal Circuit.

July the United from order of appeal an J.) en- (Nettesheim,

States reported as and Keene June tered States, Cl.Ct. Corp. v. United States moved (1989). The United brought eight suits1 to dismiss trial court Indus- Eagle-Picher Corporation, by Keene Industries, Corpora- tries, Fibreboard UNR Inc., Raymark Company, tion, Porter H.K. Corporation.2 Industries, Inc. and GAF all the motion to granted trial court Holl- Spriggs & Hollingsworth, Joe G. Corporation.3 Keene except GAF plaintiffs D.C., for argued, Washington, ingsworth, (Keene), Eagle-Picher Indus- Corporation 89-1638, 89- in nos. plaintiffs-appellants (UNR) all (E-P), Industries and UNR tries J. was William the brief him on 1639. With 1295(a)(3) to U.S.C. appealed pursuant Also on Washington, D.C. Spriggs, and appealed jointly, (1988). E-P and UNR R. Catherine Gaston and Paul G. were brief with Keene’s consolidated appeal was C. Paul Baumer, Washington, D.C. argument.4 purposes of oral appeal for Warnke, Washington, Warnke, & Clifford was based decision judge’s The trial brief, plaintiff-appel- for D.C., was on the statute, 28 reading of a U.S.C. § her him on the brief With in no. 89-1648. lant jurisdic- the Claims Court’s to pertains Philip H. Murray, Jr. and D. were Harold statute denied judge believed tion. The on the brief Hecht, Washington, D.C. Also obligated to her jurisdiction, the court & Kidd, Kill Anderson Olick E. were John dismiss. motion to grant the Government’s P.C., City, and Lauren York Oshinsky, New dictate, not so the statute believe We Oshinsky, Kill & Homer, Olick Anderson B. remand reason we reverse and for that P.C., Washington, D.C. with consistent proceedings further for Counsel, Fishback, Trial Sr. S. David opinion. D.C., argued, Justice, Washington, Dept, of him on defendant-appellee. With for Gerson, Atty. Asst. M. Stuart brief I. Director, J. Harold Glynn, Gen., J. Patrick present background of Much C. Douglas Engel, Deputy Director opinion, court’s trial case is detailed Washington, D.C. Atty., Page, Trial not be recit need supra, and Corp., Keene appeals short, PLAGER, here. RICH, ed MAYER Before application proper question raise Judges. Circuit of these (1988)to each of 28 U.S.C. § Judge. PLAGER, Circuit enacted cases. Section us in Johns- recently before and was most chapter in the another appeal is This F.2d Corp. v. United Manville rеsponsibil- determine long-fought battle curiam), de cert. (per (Fed.Cir.1988) years by over injuries ity for sustained — 1342, 103 -, S.Ct. nied, U.S. asbestos. working with individuals Corp. v. Keene (1989), aff'g L.Ed.2d 811 companies cases, plaintiff particular these (1987). The 12 Cl.Ct. 197 States the United United from indemnification seek deals companies’ lia- statute for the States Government and bars injuries Claims for shipyard workers bilities when, the terms under hearing claims Before us exposure asbestos. caused at 160. 17 Cl.Ct. 170-83C, 16-84C, Corp. United 585-81C, Keene 579-79C, 514- 1. Nos. 515-85C, 84C, and 287-83C. 12-88C single re- brief in filed a The Government actions Corporation had two 2. Keene briefs. and UNR/E-P sponse to the Keene plaintiffs each The other Court. pending. case had one hand, claims are in with the case in those Johns-Manville summary judgment other courts: Government moved parties against the seven involved at the The United States Claims Court shall asserted that trial level. any claim for or filing in at the time of the Claims plaintiff respect to which the or his as- pend each had one or more suits signee pending any in other court Proceedings ing in another сourt. on the process against suit or the United stayed who, Government’s motion were while any person at the time States or arose, was, appellants in the Johns-Manville case when the cause of action in thereto, acting professing sought Supreme certiorari Court. respect or act, indirectly directly Supreme or under the au- The Court declined further re — States, thority Corp. of the United States. view. Keene v. United U.S. -, 103 L.Ed.2d In case issues the Johns-Manville two involving interpretation 1500 were § First, Thereafter, addressed. the Claims Court had on June applied plaintiffs’ the statute to summary bar granted the Government’s grounds pend- suit on the that there were judgment jurisdiction. on lack of based ing raising district court cases Corp. Keene v. United 17 Cl.Ct. argued appeal plaintiffs claims. On that exception Corpora- 146. With the of GAF third-party since their district court suits tion, the determined that each Claims Court against the Government were based on dif- plaintiff in- had earlier-filed suit relief than their direct ferent theories of claim, operative volved the same i.e. same suits, they action Claims Court were differ- facts, action, as that the Claims Court subject ent “claims” and thus not to the and that those earlier-filed suits were 1500 bar. This Court held otherwise § “pending” at the time the Claims Court Court), (thereby affirming the con- suit was filed. cluding by that the term “claim” is defined Keene, UNR, appealed and E-P to this operative alleged, legal facts not the court, arguing phrase pend- that the “has theories raised. ing” not mean at the time the example, For the fact that one set of They Court action is contend filed. liability operative facts create both if 1500 should not bar § tort and contract does not mean that a suit, though the earlier-filed still at separate recital states of such facts two filed, the time the action is Claims Court and distinct “claims” as that term is used dismissed before the Claims Court enter- explained 1500. We this con- § motion to dismiss. Keene tains the “claim” struction of the term serves the case, argues further the earlier- underlying purpose which is “to opera- filed suit dоes not involve the same prohibit filing prosecution that, tive facts as its Claims Court suit and against same claim the United States however, pending” issue of “has two courts at the same time.” Johns- resolved, 1500 thus does not bar Claims Manville disposi- view of our by issue,

The second issue addressed this Court tion of the we need third-party complaint is whether cases that address this additional issue. stayed “pend-

are in the district court are held,

ing” within the terms of 1500. We II. plain meaning interpretation on a based A. Earlier-Filed Suits In The District “ ‘pending’ includes cases Courts stayed.” filed been Johns- 1. UNR Industries at 1567. Manville Litigation, In re All The case now before us raises third Maine Asbestos (D.Me., July regarding issue Master Asbestos Docket filed action, 16, 1988, 21, 1982), is an consolidation November omnibus than later July former or by present brought suits 17 Cl.Ct. at Corp., 12, 1987. Keene March representatives or their shipyard workers exposure 149-50. due injury for seeking recourse supplied manufactured asbestos Eagle-Picher Lopez, et al Albert b. is one UNR many defendants. named Industries, Inc. v. United manu- defendant of those defendants. Wash., (W.D. filed No. C-84-155M turn, third- filed suppliers, facturers 1983) Feb. indemnifi- for contribution actions party February E-P On These States. cation District the Western District dif- two initiated suits were third-party complaints third-party ten Washington Third-Party Com- complaints, Model ferent seeking indemni States the United against Amer- States United Against the plaint resulting from as its liabilities for fication Complaint Third-Party (“Model “A” ica employees injuries that related Complaint bestos Third-Party A”) Model and employed while allegedly sustained “B” of America States the United Against case The B”). shipyard. Naval Sound Complaint Puget Third-Party (“Model Indus Eagle-Picher v. Lopez, et al 149-50. Albert 17 Cl.Ct. at Corp., Keene States, No. C-84 tries, v. Inc. United Model of the Eventually, all of claims 1983) 3, Wash., (W.D. filed Feb. 155M B were dis- A and Complaints Third-Party case; E-P’s as a test was treated (“Lopez”), Mod- within each claims While missed. ‍​​‌‌​‌​​‌​​​​​‌‌​‌​‌​​​‌​‌‌​‌​‌​‌​​‌‌‌‌​​​‌​‌​‌‌‍on dismissed complaint was third-party all dis- were not Complaint Third-Party el a claim.8 state 19, for failure to May time, purposes of for missed Manville, F.Supp. 149 v. Lopez Johns by to note it is sufficient opinion this remaining nine (W.D.Wash.1986). claims 1987, 12, all March on dismissed complaints were third-party dis- A were Complaint Third-Party Model 17 Cl.Ct. at Corp., 30, Keene 1986. June Litiga- Asbestos Maine missed, All re In 152. 1169, 1171 F.Supp. Cases), 655 (BIW tion 1986, 16, July all by and (D.Me.1987),5 Third-Party Model the claims Corporation Keene 3. re All In dismissed.6 B were Complaint Bldg. Johns-Manville v. Miller a. Cases), (PNS Litigation Asbestos

Main (W.D.Pa., al, Prod., No. 78-1283E et July (D.Me. Docket Asbestos Master 1979) filed June 1986).7 personal (“Miller”), action this Industries Eagle-Picher 2. laborer of a estate representative Litigation, Asbestos re All Maine ex- a. asbestos 1943 from injured allegedly (D.Me.,filed Docket Asbestos Master asbestos nine damages from sought posure 1982) July Building Prod- including Keene suppliers, turn, company, insurance Keene’s ucts. Maine re All in In involvement E-P’s against action third-party initiated is similar Litigation Asbestos Corporation Celotex States United third-party com- E-P’s all of Thus UNR. for indemnification seeking contribution Government, filed on against plaints actions, third-party ings in the the Model the claims dismissals of apply it. thus, technically, did July on dismissals However, Complaint were affirmed Third-Party A volun- import UNR since of no this is Litigation Asbestos (Fed.Cir.1988). All Maine in In re Comрlaint ac- of its Model tarily all Cases), (BIW 854 F.2d is after UNR tions on October before action Court its Claims filed earlier- that their contest E-P do not 6. UNR and mo- Government’s entertained operative facts same involve suits filed to dismiss. tion suits. sub nom. was affirmed Lopez decision 8.The for bank- it filed brief that in its UNR noted (Fed.Cir.), Inc., S., F.2d 712 & Lopez v. A.C. filings Complaint shortly after the Model ruptcy 1988). (Nov. reh’g denied proceed- stay of successfully all secured resulting Corp., Corporation liabilities. Keene 3.Keene purposes opinion, For of this Cl.Ct. at 153. a. I Keene accepted third-party it is com- 21, 1979, filed suit On December Keene May 13, plaint was dismissed on 1980.9 Claims, Corp. Keene (amended States, peti- No. 579-79C United Corp. b. No. Keene v. United 1, 1981) I”), May charg- tion {“Keene (GLG) (S.D.N.Y., filed 80-CIV-0401 ing the Government with breach of warran- 22, 1980) Jan. inty an asbestos related contract. Keene (SDNY)”) a direct This suit {“Keene Corp., 17 Cl.Ct. at 153-54. action Keene the Government indemnification, b. Keene II seeking ap contribution or portionment spent that Keene amounts September On Keene filed a may spend defending settling Claims, second suit the Court of Keene personal related in thousands of asbestos Corp. v. No. 585-81C jury Corp., (“Keene II”), actions. 17 Cl.Ct. at alleging Keene that the Government rights by re violated its fifth amendment 154. The district court dismissed this suit couping injured pay workers the holding plead September ments that the Government made to those ings inadequate to invoke Federal Tort injured Employ workers under the Federal Corp. Claims Act Keene v. (“FECA”). Compensation ees’ Act Keene (S.D.N.Y.), No. 80-CIV-0401 argued paid compensation that since it had (2d Cir.), f'd, 700 F.2d 836 cert. de af injured through to the set workers either nied, U.S. S.Ct. agreements judg tlement or because of L.Ed.2d 171 them, recoupment in ments favor of

by the of amounts that it has B. Claims Court Suits paid injured to workers under FECA is an taking property unconstitutional of Keene’s

1. UNR Industries just compensation, the in without because juries to the workers were caused January On UNR filed a direct alleged actions. Keene that Government’s Court, action UNR Indus taking further had the effect of in tries, Inc., 16-84C, seeking damages No. creasing judgments of and amounts express from the Government for breach of required settlements that Keene was to implied and asbestos related contracts. pay impaired rights. and its contract Corp., Keene 17 Cl.Ct. at 150-51. Corp., 17 Keene Cl.Ct. 154-55. III. Eagle-Picher Industries 2. question appeal The central in this is the 25, 1983, E-P On March filed a direct 1500; specifically, since the Court, Eagle-Picher action in the Claims statute bars Claims Court when Industries, Inc., 170-83C, charging No. “pending” there is a claim another contractually that the Government is liable is, pending the issue In the art of when? E-P to E-P for the costs that incurred in construction, statutory many there are as litigating settling claims for asbestos- formulations of how to do it as there are injuries. Corp., 17 caused Keene Cl.Ct. doing Supreme those it. The Court devotes this10; print 150. considerable to the law review See, Am., apparently e.g., Keene contended before the trial Dole v. United 9. Steelworkers of — -, voluntarily third-party court that it complaint. dismissed its U.S. 110 S.Ct. 108 L.Ed.2d 23 however, J., C.J., (1990) (White, Rehnquist, The Claims stated dissent — Everhart, -, ing); that "it is unclear whether the court [district] Sullivan U.S. (1990) (Stevens, voluntarily acted on Keene’s motion to dismiss S.Ct. nan, L.Ed.2d 72 Bren J.J., third-party complaint, accepts Kennedy, dissenting); a Marshall and [but Keene] May Corp., Bergeron, dismissal date of Keene 1980.” Blanchard v. 489 U.S. J., (1989) (Scalia, 17 Cl.Ct. at 153. 103 L.Ed.2d 67 concur- amust “pendingness” decide do we one of made this have commentators —when jurisdiction- pending to invoke learning.11 claim be legal in current topics hot legisla- Regrettably, the al bar literature reading of some A to shed much history of 1500 fails tive there was suggest to seem would this issue. light on courts, in the exercise time when a stat- treated judgment, independent relatively ancient stat- is a Section Ashkenazy plays Tchaikov- ute as Vladimir concerning history legislative ute, own expressing one’s for sky vehicle originally enacted limited. As it is —a be, today creativity. However read: 28 U.S.C. is now what agreement widespread there enacted 8. And be it Sec. further con- perhaps a responsibility, courts have person shall (italics original), That the will of implement duty, to stitutional any or suit prosecute or file enacted expressed Congress as therefrom, claims, appeal or an court of end, courts Toward legislation. any he or to respect for or recitation the traditional away from moved have commenced assignee of his shall lend rules—rules constructional process or any suit post-hoc rationalization—and themselves or any officer judicial constraints structural toward who, the cause at the time person readings. process or alleged in such action then, is the beginning, point acting or arose, respect thereto statute first look We statute. act, mediately or immedi- professing key term definitions any express authority of the United ately, under found, to see then terms, none are and if if process, such suit unless to fairly said can be the terms whether court, shall be such now meaning. non-ambiguous, plain, a thirty within or dismissed withdrawn pend “has case is in our key phrase The this act. of passage days after that the reading 1500 reveals A of ing.” 1868, (emphasis 77 15 Stat. Act of June express definition offers no statute original ver- in this added). language The of plain As to the phrase. concerning our plain is of the statute sion Dictionary Law “pending,” term Black’s determining for time relevant issue: “[bjegun, Ed.1979) it as (5th defines 1021 is at the 1500 bar time of a existence during; before completed; yet not prosecuted. filed or suit is New Third of....” Webster’s conclusion a district of adjudication an (1986) defines Dictionary International of officer against agent court claim in continu decided: yet as “not “pending” judicata effect had no res the United States definitions These suspense....” ance: of subsequent Court in a judgment a finally on if a case conclusion support a itself States against of Claims voluntarily lack dismissed, or for either facts. See operative same on the time based relevant prior to jurisdiction, the Judicial Schwartz, 1500 longer Section it is no determining “pendingness,” of Against Duplicate Suits ac Code is, finally That “pending.” L.J. 55 Geo. Agents, Its “concluded” “complete” tion Nav. Co. (citing Matson (1967) This 576-78 dismissing court. of persрective 284 U.S. does v. United “pending” term meaning of the plain (1932)). 336 76 L.Ed. question, when however, not, answer Posner, Interpretation: A Legislation and Its concurring judgment); part ring Popkin, Printer, (1989); The 432 S.Ct. 108 68 Neb.L.Rev. Thompson, 484 U.S. Thompson J., Interpretation, (1988) (Scalia, Statutory concur ‍​​‌‌​‌​​‌​​​​​‌‌​‌​‌​​​‌​‌‌​‌​‌​‌​​‌‌‌‌​​​‌​‌​‌‌‍ Model L.Ed.2d 512 Collaborative Frickey, Eskridge (1988); & ring). S.Cal.L.Rev. Pedagogy Scholarship Legislation Statutory See, Frickey, Inter Eskridge e.g., & Era, 48 U.Pitt.L.Rev. Post-Legal Process Reasoning, 42 Stan.L.Rev. pretation as Practical Farber, Interpretation and (1990); Statutory (1989); Geo. Supremacy, 78 L.J. Legislative Edmunds, pending. Alternatively, Senator the author of the bill suits were merely that became Section 8 of the Act of June statement could have made been 25, 1868, explained: part original reference to the statute litigants thirty days from that afforded the object put of this amendment is to during plaintiffs passage of the act which large persons their election that class of pre- could dismiss their other actions and having particularly, cotton claims who serve their Court of Claims Secretary Treasury have sued thе explanation This make Senator Ed- would agents and the other of the Government mund’s statements consistent with the

in more than a hundred suits that are plain meaning of statute. pending, country scattered over the now there, here and and who are here at the extent, large Edmund’s con- To a Senator endeavoring prosecute same time Today, cerns have become moot. 1500 is claims, and have them in the rarely originally used as envisioned. Sec- Claims, they put so that specif- tion enacted to deal 1500 was with after expense the Government to the beat- rapid ic concern over a increase in the ing they them once in a court law cases, complicated volume of cotton claims try can turn around and the whole resulting during from land seizures question in the Claims. War, involving Civil suits both the Court object put persons is to that class of against of Claims the Government and their election either to leave the Court of against Secretary the district courts or to leave the other I am courts. agents. Schwartz, Treasury or his everybody agree sure will to that. Geo. L.J. at 574-577. Without the force of adjudication a full of the merits of Globe, Cong. Cong., 40th 2d Sess. claim, results, differing (1868) added). Thus, (emphasis concerning could different be realized two sequential operative suits on the same Today, may courts. while there exist some in different facts courts different situations in a claimant sue an plaintiffs, 1500was the means for achiev- (in agent officer or of the Government ing provided by the same result as that capacity) separate his/her official from the judicata. doctrine of res Government, appear there to exist Senator Edmunds statement that “[t]he problem that the the wholesale Govern- object put is to that class of § [of 1500] experienced ment in 1868. persons to their election either the to leave Certainly, Court of Claims or to leave the other to the extent cases do arise courts” would seem to be aimed at claim- where the same claim is otherwise allow- being prosecuted brought аgainst agent ants with actions ably an or officer of itself, same time in the Court of the the both Claims and Government and Government Despite plain may necessary district courts. lan- still be serve § text, statute,12 guage original statutory judicata origi- function of this a res as However, nally statement past indicates Senator Edmunds envisioned. in the that, statute, jurisdic- years13, believed under the Government invoked purposes prosecuting single tion for of a claim in at most three instanc- § jurisdiction could be settled sometime a Court of es to bar where Claims Court after filed, is, previously Claims suit was while both the same claim had been filed application against government remedy 12. Schwartz calls for of the rule of officer when a judicata against agents res as between suits against provided." the United States is Id. at officers of the Government and the Government 578 n. 26. itself, noting authority already pro- exists viding such a rule in some instances and that § 1500 has been in its form since 13. Schwartz, policy otherwise it. favors See Sec- discussed, 1948. As will be in 1948 1500 was § Duplicate tion 1500 the Judicial Code and prohibit jurisdiction broadened to Claims Court Against Agents, Suits the Government and Its when the Government itself is a defendant Further, (1967). L.J. Geo. 599-601 following the earlier-filed action. See text infra leg- Schwartz notes that modern times the "[i]n note 18. remedy islature terminate the common-law minor, mostly little agent or officer of the Govern- indication of against an legislative regards phrase intent to the In most of ment district court.14 pending.” changes, “has few the Govern- arising cases under § issue, affecting this none were made juris- ment uses 1500to bar Claims Court phraseology of section 8 of the Act of June is the the Government itself diction where incorporated 1868 as section was co-pending sole defendant both Statutes of section 1067. Revised actions, Claims Court and district changes phraseology were not agent of the Government as or officer change meant to the stat- it is such is a named defendant. And Butler, Representative ute. Remarks of types out of these of cases that issue Rec., Cong. Cong., 43d 1st Sess. 129 typе case un- today before us arises—a Section 1067 of the Revised Statutes of 1500.15 known to the framers adopted change 1874 was later without Yet, against in actions section 154 of the Judicial Code of 1911. in which the district courts 3, 1911, 231, 154, Act of Mar. ch. 36 Stat. juri and the Court have concurrent sdiction,16 judicata the doctrine of res will However, Congress changed in 1948 having to de protect government language ways. of the statute in two against the merits a second fend itself on First, language changed to include party sequen brought by the same pending against suits the United States as legal in both tially on the same theories pending against agents of the well as suits protect Similarly, judicata res will courts. Act of June ch. United States. suits in the Government second presumed 62 Stat. 942. It can be the district courts those actions of which change reflected that district courts juris have exclusive and the Claims Court claims then had over some legal of different theories diction because against the United States. 28 U.S.C. See actions, action,17 where the or causes of Second, importantly, and more theories, though legal on different based Congress changed language also operative the same set of facts. involve person beginning of the statute from “No Today, judicata res effect of the intended prosecute shall file necessary only in a original statute is Claims, appeal Supreme or in the Court on circumstances, and thus quite limited set therefrom ...” to “The Court rightly purposes these has been 1500 for of_” (Em- not have shall criticized as an anachronism.18 added). change The effect of this phasis key phrase “shall its enactment in 1868 and was to eliminate Between —the However, legislative language. file” changes made in the several 1346(a) (1988). States, (1985); U.S.C. § Cl.Ct. 16. See 28 14. See Hill v. United 8 382 States, United 144 Ct.Cl. Brinker-Johnson Co. v. (1961); Forgings Co. v. Unit 489 National Cored 1346(b)-(f) (1988) (exclusive U.S.C. §§ 17. See 28 (1955). States, F.Supp. 454 See also ed 132 against jurisdiction of actions district court States, Indus., F.Supp. Maguire 86 Inc. v. United government), and see 28 U.S.C. 1491-1509 §§ 905, denied, (1949), cert. 340 U.S. 114 Ct.Cl. 687 (1988) (Claims jurisdiction of actions 809, 36, (1950) (the L.Ed. 595 earlier- 71 S.Ct. 95 against government). court). filed action was in a tax Schwartz, Judicial Code Section 1500 v. United National Union Fire Ins. Co. 18. See Duplicate Against and Suits the Government States, 188, (1989); Corp. v. Keene 19 Cl.Ct. 190 573, ("Succes- (1967) Agents, L.J. Its 55 Geo. 197, States, (1987); Dwyer 12 Cl.Ct. against States in different the United sive suits 565, States, (1985); A.C. 7 Cl.Ct. v. United Seeman, known to the framers of the courts were not 386, 5 Cl.Ct. Inc. v. United only Court of Claims since in 1868 Schwartz, (1984); the Judi Section the United had of suits Against Duplicate Code and Suits cial sovereign immunity The doctrine of States. Agents, Geo. L.J. 573 and Its provided by Congress to suit as and the consent (1967). a of Claims acts constituted in the Court' prohibition over such suits in courts.”) all other history the reason for the the District Court for the District of Co- is silent on change, other than the statement the exclusive forum lumbia to be ... [and] phraseology.” “[c]hanges were made in legislative history nothing in the indicates ch. 62 Stat. 942. Act of June Congress interpretation intended an Finally, in with the establishment of meaning contrary plain to the of these Court, amended to 1500 was Inc., Mining, words.” Amerikohl § court. 28 U.S.C. apply its terms to that speculate We declined to F.2d at 1213. (1988). removed, why “only” the word was about applied the law as written. rule, although plain meaning often statutory lumped other rules for con- with noted, language that As we have struction, important structural ef- also has remains in 1500 after the 1948 revision Honestly beyond value. fect its rhetorical plain provide not us with a answer to a court what not to look applied, it tells Johns- question. And as we said in debates, reports, legislative committee at — Manville, remaining legislative his- “[t]he commentary and other “aids” to newspaper indicating tory is devoid of evidence policy development. meaning purpose legislature’s intended of sec- say is. In cases in law is what the words it tion 1500.” 855 F.2d at 1561. As Amer- exists, meaning plain which a it is hard ikohl, attempt extrapolate we will This, quarrel that construct.19 how- Congress’ changing the lan- intent ever, is not such a case. statute; however, guage of the unlike meaning plain case, meaning. Here we have neither plain do not have a we —the does not address when simply statute earlier-filed case must be tо invoke IV. a clear evidence of what bar20 —nor posed by the conundrum The answer to Congress intended on this issue. Com 1500, thus, by ferreting must be found pare, example, our recent decision underlying policy applying it to out its Mining, Amerikohl Inc. v. United Supreme the situation us. The before (Fed. Cir.1990), a case involv 899 F.2d 1210 recently “It a stated: is well-set- ing unexplained language similar that, statutory construction tled canon of change the time the draft ver —between language does not dictate an where sion committee and the went to conference problem to the before the answer finally Congres time it was enacted —in analyze policies underlying ‘we must jurisdic governing sional act federal court statutory provision to determine its original language tion. The both the ” Co., Bowsher v. Merck & scope.’ proper judi House and Senate versions stated that Inc., 824, 831 n. 103 S.Ct. 460 U.S. particular cial under the statute at review (1983) (quoting 1592 n. 75 L.Ed.2d 580 “only” in the District Court issue was to be Lundy, 455 U.S. Rose v. Columbia, the word for the District of (1982)). The state- 71 L.Ed.2d 379 “only” in the final enacted was deleted Edmund, sponsor ment Senator 1276(a) version. 30 We U.S.C. § 1500, explaining purpose of the stat- “only” held that even the word without ute, guide is “an authoritative to the stat- plain meaning appears clear: “... it ute’s construction.” Bowsher v. Merck & language plain from the Co., Inc., 824, 832-33, (a)(1) 103 Congress intended 460 U.S. S.Ct. section 1276 Abramson, 615, Johns-Manville, n. we determined that "the 19. But see FBI v. 456 U.S. ‍​​‌‌​‌​​‌​​​​​‌‌​‌​‌​​​‌​‌‌​‌​‌​‌​​‌‌‌‌​​​‌​‌​‌‌‍625 7, 2054, 7, 72 L.Ed.2d plain ‘pending’ 102 S.Ct. 2061 n. 376 includes cases which Brennan, JJ., (1982) (Blackmun and and O’Con stayed.” have been filed but 855 F.2d at 1567. Marshall, J.J., dissenting separate and in nor case, Unlike the Johns-Manville Monia, opinions) (citing United States v. 317 pending, was never not and earlier-filed action 424, 431, 409, 412, U.S. 63 S.Ct. 87 L.Ed. 376 plain meaning interpretation therein does so the J., (" (1943) (Frankfurter, dissenting)) ‘The no question of "when” an action must not reach the tion that because the words of a statute are plain, meaning pending be to invoke plain, merely perni ”). also oversimplification.’ cious

663 from defend- (1983) (citing is to relieve the United States 1592-93, 1587, L.Ed.2d 580 75 Bell, claims in two courts at ing v. the same Education Haven Board North time, only be same 1912, 1921, purpose would 527, 72 512, 102 S.Ct. 456 U.S. another claim if a claimant had (1982)). subvеrted 299 L.Ed.2d presently another in a well-rea- Recently the Claims Court formerly pending. purpose of opinion reviewed soned agree generally, accord parties Both 1500: expressions, Edmund’s with Senator clearly precludes the Claims 1500 Section 1500 is to conserve purpose of § pro- jurisdiction over exercise Court’s par- Both limited resources. Government’s against similar claims ceedings with achieve propose answers would ties previously States that reason- there are two When result. The in other courts. remain statute, of a constructions able alternative century ago over section was enacted “ interpre- duty ‘to find that it is the court’s against of suits the maintenance to avoid fairly said to be can most be tation which of Claims in the Court United States in the sense of imbedded satisfac- failed to receive a claimant after its scheme and being harmonious with most States against the United tion from suit Congress purposes that general judgment time a At that elsewhere. ” Abramson, 456 U.S. FBI v. manifested.’ effеct judicata no res court had another 7, 2061 n. 72 102 n. S.Ct. 625 the United subsequent suit in a Brennan, (Blackmun (1982) 376 L.Ed.2d of Claims. the Court [Citation States Marshall, J.J., dis- J.J., O’Connor history and legislative The omitted]. (quoting separate senting opinions) cre- indicate that section was cases Co., 352 U.S. Lion Oil NLRB v. sovereign and for the ated benefit (1957)). 330, 338, 1 L.Ed.2d 331 77 S.Ct. an election when intended force relief, grant the same forums both could theory While Government’s operable facts. same arising from the fails in two it bright-line advantage, has a States, v. United Johns-Manville First, analogy of the diversi respects. (Fed.Cir.1988). The cur- F.2d does not ty jurisdiction statute is to by this section purpose rent served purpose behind analysis. The withstand the United States relieve defend- statute, 28 U.S.C. diversity jurisdiction in two courts ing the same case impartial tribu (1988), is to insure an 1562; Dwyer, 7 Cl.Ct. time. Id. at same Pease states. citizens of different nal for at 567. How.) 595, 15 Peck, 59 U.S. (18 L.Ed. 518 Youth Dept. Children & Connecticut Corp., Dev. v. Isthmus Burt (1855); 16 Cl.Ct. v. United denied, Serv. (5th Cir.), 349 U.S. cert. F.2d 353 added). (1989) (emphasis L.Ed. in a feder then, creates of Section purpose, important An exist, otherwise none would al where important— remains one that 1500—and pur subject matter i.e. no resources. conserve is to hand, is to other pose behind purpose, the Govern- to achieve this order having to de Government from jurisdiction- save the 1500 is a ment contends that § courts different suit two fend same diversity jurisdiction statute —like the al away 1500 takes time. Section jurisdictional like other statute —and that matter subject though jurisdiction even statutes, determination jurisdictional appropriately be before looking to the existence made must be these two Operationally Claims Court. at the time or non-existence in time. points on different focus statutes Appellants, on complaint is filed. your subject “ordinarily says, other former hand, if there are no argue that here, satisfy you if cannot be matter the Claims Court at time pending suits statute, you then of this motion, requirements then 1500 considers § proceed in federal may go ahead barred; purpose 1500 since is not 664 constituted a final ad- “though your district court action says,

court.” The latter sub- in full may judication hеre in on the merits. This is ject appropriately matter be Court, you ruling today. plaintiff if our A is the Claims come within accord with you proscriptions apple. of this then As not entitled to two bites longer proceed here.” the British American Tobacco case illus- trates, case is no when a district court Second, theory fails the Government’s final longer pending because it received early it cuts off the recourse of because too merits, plaintiff adjudication on who, subject litigants either because of proceed then entitled to the Claims circumstances, may be matter or other judicata of res accom- Court —the doctrine pursue found entitled to their claims originally exactly 1500 was plished what § in the and who would not Claims protect against. devised to policy violate the behind otherwise good offer a The facts of the case Wessel, Co., Inc. v. Duval & United complaints example. third-party had UNR States, F.Supp. Ct.Cl. pending the Government federal (1954), time the of Claims Court the dis- court. Unsure of whether district and acted on the Government’s entertained facing a jurisdiction, trict court had dismiss, the same claim was motion to limitations, running of the statute of UNR pending in a district and so Court claim in the Court. filed the same Claims it. dismissed the action before of Claims years More than two before Boston Five Cents Sav. holdings The on the entertained and acted Govern- Court States, Bank, v. F.2d 137 FSB United dismiss, the dis- 1500 motion to ment’s § v. City Clara (Fed.Cir.1988), Santa third-party trict court dismissed UNR’s States, (1977), United 215 Ct.Cl. By complaints jurisdiction.21 for lack of States, v. Casman United 135 Ct.Cl. entertained and the time the Claims Court (1956), inapposite are because the motion, acted on Government’s § cases involved district court claims those pending and had no earlier-filed suits UNR relief, declaratory judgment, type of i.e. yet day in court. We be- had to have its that was not available Claims Court. operate pre- the statute does not lieve day. having clude UNR from its F.2d Brown (1966), the Court of 175 Ct.Cl. 343 dealing Our earlier cases with § whether 1500 barred Claims considered particularly those decided since 1948 when a сlaim in an earlier- when to remove the the statute was amended court suit was dismissed for filed district language, explicitly “filing” do not address subject matter lack of question. filed” In those cases “when originally dismissed of Claims had involved, question implicitly in which the it first enter- the claim because at the time generally the results are consistent with mo- tained and acted on the Government’s in British approach. example, For dismiss, the claim was still tion to American Tobacco Co. v. United Id. F.2d at 1004. in the district court. (1939),22 plaintiff had filed 89 Ct.Cl. 438 However, the court later dismissed district later the same claim a district court and subject juris- claim for lack of matter day in the At Claims. for a re- diction and the moved entertained the time hearing in dismiss, the Court of Claims. Under motion to the Government’s circumstances, these the Court of Claims longer pend- district court action was no 1500 motion to denied Government’s ing had been decided. Court of —it dismiss, stating: the action Claims dismissed because time, Congress accompanying supra text. dents. At the same created 21. See note 7 and Claims Court to succeed the Trial Division Congress created the Federal Circuit In 1982 Claims, was amended the Court of Appellate Division of the which succeeded coverage newly to continue formed Court of Claims. The Federal Circuit thus views Court. binding prece- the decisions of that predic- predi- 1500 motion to dismiss. Given its Our earlier order of dismissal was ament, the that the other “claim the to stay cated on fact the asked court in pending the said District subject jurisdic- remains until the its action matter true, the longer That is no Court.” of the district court was resolved. The tion “pending any in longer claim is no correctly Court noted that under situation, In do not be- court.” this we Johns-Manville, holding supra, our requires to lieve us that U.S.C. § stay escape the grant of a would not bar of plaintiffs deprive the forum note, however, on 1500. It went that they have to test their demand “[sjhould the federal district court lose its * * * * compensation. just for Section matter, finding it pending hold on the has designed require 1500 was election claim, jurisdiction over no the refund seс- which could between two forums both of longer apply tion would this grant type re- presumably same of juris- then be freed court would from But lief. Section Omitted]. [Citations preclude that at this dictional bonds action compel not intended to claim- was time.” 16 Cl.Ct. at elect, peril, pros- ants between at argues The Government Con- (with ecuting their court claim this holding limit- Dept, is necticut Children of jurisdiction, conceded aside Section ed to circumstances in which the statute of 1500) which is another tribunal This, not it limitations has otherwise run. without Once claim deems, import is the Claims Court’s court lack rejected by been the other language immediately following the above jurisdiction, there no basis “Then, and quote: should the limitations wording statute for dis- policy or passed, this period not court should here. missal of adjudicate take and the relevant properly at Id. 358 F.2d 1004-05. Brown, 175 Ct.Cl. issues. case, present Under the facts of This, however, 1004, 1005.” F.2d at was with even reasoning applies in Brown holding. In not a condition the Brown Brown, greater force. In the Court “The stated: Brown the Court juris- 1500 did not bar Claims held that § undoubtedly peti- file a new plaintiffs could though the earlier-filed suit diction even 1500; tion, through any Section without bar of Claims was dismissed after or make sense to does not seem fair it filed, though the suit was and even done—with the this must be insist already of Claims had once dismissed may well en- it limitations difficulties district court action was suit because the ” added). (emphasis F.2d at 1005 tail. case, pending. all of still In the fact, suggested In the court Brown before the earlier-filed suits dismissed limitations the statute of it is when and acted the Claims Court entertained not 1500 should bar run for the first time the Government’s § is dismissed and the earlier-filed suit when motion to dismiss. filed before the Claims Court action Dept. & Children Connecticut statute. Sec- running of the limitations 16 Cl.Ct. Youth Serv. impose a statute of 1500 does not tion (1989), was confronted the Claims Court first Claim’s limitation. So a situation similar to Brown. statement, “plaintiffs could undoubted- i.e. case, plaintiff originally filed petition, without bar ly file a new then filed the the district 1500,” merely through acknowl- Section complaint in the Claims Court ‍​​‌‌​‌​​‌​​​​​‌‌​‌​‌​​​‌​‌‌​‌​‌​‌​​‌‌‌‌​​​‌​‌​‌‌‍be same same claim would not be edges that the court it realized that the district cause at the same in two different courts might and feared that not have time. might run statute of limitations before considered the matter. the district court V. however, Brown, the district Unlike earlier- then that when an We hold dismissed time suit had been finally filed district court case and acted on Claims Court entertained 666 in court at the same

before the Claims Court entertains and acts Court and another dismiss, precludes. time. This is what on a 1500 motion § § § not bar Claims Court even VI.

though may occurred the dismissal filing after the of the Claims Court action. suggests simple The dissent three rules today’s decision the 1500 bar can Under § in to be derived from 1500 lieu of the § only if can be invoked the Government key here announced. Rule 1 would rule pend- show that the earlier-filed suit is still application 1500 to the date of § ing at the time the Claims Court entertains Court, in filing of the suit the Claims so jurisdictional question. and acts on the previously that the same case filed and still pending in another court on the date the any inter- The Government wаrns that Claims Court suit is filed would automati- pretation focus 1500 that varies its case, regardless cally bar the Claims Court filing unduly burden time will previously-filed of whether the case is ulti- by forcing it to defend an United States mately dismissed a manner that denies complaint earlier-filed district court and a court, plaintiff day or whether the complaint Claims Court on the same basic upon Government is called to invest time, at the in effect same and would significant defending resources give plaintiff apple.” “two bites at the action. That is not an unrea- Claims Court The Government further warns that such statute, reading sonable but for interpretation require will the Claims Court that, given in- reasons stated we find analysis to undertake a burdensome to de- ambiguity herent both sound whether the earlier-filed suit termine policy legislative history support a dif- decision, however, pending. The does not reading. ferent fuel these worries. apply Rule 2 would the same result to day A claimant is to its in court. entitled is, sequence filing. That if reverse however, mean, That does not that а claim the suit is first filed up ant is entitled to tie re and then later in another the second by forcing simultaneously sources it to de filing pro divests tanto the Claims Court fend itself in two And this is courts. what requires overruling Rule 2 protects against. If an earlier-filed Engineers, Inc. v. Tecon finally action is before (1965), 343 F.2d 170 Ct.Cl. 389 Court entertains and acts on the only applies 1500 on its terms holds jurisdictional question, then the Claims cases, to Rule and not to the reverse Court action will be the sequence cases. plaintiff day one will have but If court.23 at the time the Claims Court It well be Tecon does result situation, light jurisdictional entertains and acts on the an anomalous one not to be question pend ly legislature. the earlier-filed still to a rational action is attributed Cf. dismissed, Contractors, Inc., ing, finally i.e. not then Oceanic Griffin 3245, 3252, jurisdiction. Plaintiff will bar will then U.S. (1982) proceed (“interpretations either have to with the earlier-filed L.Ed.2d 973 of a Court, if produce action or come back to the Claims statute which would absurd re repose prevent, a statute of does not arе to if alternative inter sults be avoided pretations legislative should its district court action be dismissed. consistent with the available”). However, if, purpose determination the Claims Court are straightforward. argues, filing must make is Under this the dissent the time of is the determinant, possible jurisdictional rule it is not for a critical Rule prosecute logically an action both the Claims cannot follow. For a reverse jurisdic- opinion 23. This is limited to earlier-filed suits time the Claims Court considers tion, Obviously, subject that are dismissed. if an earlier-filed judicata the action would be to res through adjudication suit is carried to final principles. longer pending merits is thus no court on June in another claims case, at the time sequence not bar 1989, 1500 does hold that we § cases no other are there jurisdiction takes jurisdiction. Court Claims pending. one of its earlier-filed that argues Keene trap logic avoid tries The dissent the Miller, not involve actions, i.e. continuing is a jurisdiction that by arguing action its Claims Court as same “claim” time later if at some that conceрt, and therefore does I) and § filing {Keene of occur, as the such events requisite We here jurisdiction. Court not bar Claims court, Court the Claims another a suit in as to pending so was not that Miller decide This divested be of will jurisdiction because Court Claims bar theory: it is not part our least adopts at the Claims before was dismissed case time of of whether simply question on the Govern- and acted entertained Court case, but whether pending filing is there Thus, we to dismiss. motion ment’s 1500 being litigated cases are two there of whether question reach the need not short, we 1500. of the bar invokes I. as Keene same claim the Miller involved under as the dissent same result reach the applying a by 2, there Rule but we arrive CONCLUSION rule. consistent 28 U.S.C. hold that we Accordingly, of principle simply restates Rule of jurisdiction does not bar cases; applies to these as it judicata res earlier-filed Court when Claims here. disagreement no there is after the Claims finally dismissed has been the Claims before filed but action is Court VII. on the and Govern- acts entertains Court on action Court filed its Claims UNR The Order motion. ment’s district 16, filed earlier January 1984. Its dismissing these cases Court Claims Third-Party Com- cases, i.e. Model court therefore reversed is jurisdiction lack of B, either all dismissed were plaints A & action for further remanded is and case October of March consistent herewith. all of its voluntarily dismissed when UNR and REMANDED. REVERSED stayed that had been actions third-party proceedings. bankruptcy through dissenting. MAYER, Judge, Circuit on action Court its E-P filed Claims by the view, rule announced my of its earlier-filed 1983. One March bar court, jurisdictional cases, dismissed Lopez, was court district only if the (1988) applies U.S.C. § earlier-filed Its other May on pend- case is still court district earlier-filed Third-Party cases, Model i.e. district court considers Court ing the Claims time other B, as some as well A & Complaints contrary to question, jurisdictional March later than cases, dismissed statute, language of unambiguous 12, 1987. history. The purpose and action Claims Court its first Keene on depend should Court second and its December on under section to dismiss when a motion 25, 1981. September on action Claims by the or is considered 1500 is filed pre- court case district The earlier-filed claim is before the same but on whether II, i.e. Mil- Keene I and Keene ceded both Claims when the another court 1980. Keene’s ler, dismissed was rule By today’s new is filed. case, Keene district earlier-filed trial state things like the turns on II, Keene only preceded (SDNY), as- diligence and the docket court’s 30, 1981. September completely unrelated signed factors judge, any other 1500 or purpose of section to the acted entertained The Claims bound which are jurisdictional to dis- motion on the Government’s rulings. unpredictable lead to erratic on June UNR, Keene E-P and miss respectfully dissent. I parties had of those none Since if the same claim was By plain language of section Claims when statutory the same claim is another court in another court fell within complaint dismissed, files his no matter when bar and had to be jurisdiction, jurisdictional objection there is no even was raised when the conflicting longer pending if claim is no regardless intervening actions brought Congress changed when a motion to dismiss conflicting case. When considered the court. British Am. See the statute to read “the Court States, ...,” v. 89 Ct.Cl. Tobacco Co. jurisdiction the mean- shall not (“there 438, (1939) 441 is no merit changed ing was not because jurisdic- has contention ... that this court of the time the must be determined as tion ... for the reason that the suit complaint filed. and is District Court has been dismissed has not the first time section 1500 This is pending”).1 In not now the context of sec- given elastic construction because been an 1500, pending at pending” tion “has means it perceived harshness or a sense that of its complaint in the time the is filed the Claims See, e.g., Brown v. is anachronistic. Unit Court; it is fundamental the facts (Ct.Cl.1966); States, Te 358 F.2d 1002 ed establishing jurisdiction must exist when a 343 Engineers, con Inc. United in can- suit is filed and defects 943, 389 But it is F.2d 170 Ct.Cl. by post-filing not be cured occurrences. books, engenders and it no end still on the 1500 is con- This construction of section me, up litigation. If it were to these purpose legislative his- sistent with of sec simple govern rules would the use

tory. original Thе intent was to force an 1) pending if the in tion 1500: same claim in the Court of election between suit complaint is another court at the time the and one in district court on the Claims Court, the filed in the Claims Claims Court permit plaintiff to file same claim. To an jurisdiction, regardless of when and maintain suits in both courts until the on; 2) if the objection is raised or acted government moves to dismiss filed in another court after same claim is repugnant that intent. The Court suit is to complaint is filed in the Claims defending government up also would end by that action the Claims Court is divested time, contrary the same to the two suits at jurisdiction, regardless of when recognized purpose currently of section the fact order of court memorializes 3) dismissal; if the same claim has statute,2 disposed by another court language original finally been in person prosecute any complaint is filed “no shall file or claim before Court, ordinary judicata apply. respect in he shall rules of res ... for or to which ... apparent judicial antipathy pending any Except and has suit for the have commenced 1500, court,” seem to process any supports or other for section these rules would straightforward interpretation provision. logically current follow from its this readily language. Supreme thought so original language, From that it is apparent any in the Court of when it said Corona Co. v. United Coal 15 Stat. 1. British Am. Tobacco was decided under sec- 2. Section 8 of Act of June (Mar. 3, Judicial Code of tion 154 of the IT. 1911, 231, 154, 1138), later codi- ch. 36 Stat. enacted, person And be it That no shall further (1940), the immediate fied at 28 U.S.C. 260 any prosecute file or claim or suit in court predecessor to section 1500: claims, therefrom, appeal or an for or person prosecute file or in the Court No shall any assignee respect of his to which he or Claims, Supreme appeal or in the Court on any pending and has shall have commenced therefrom, any respect claim for or in any against any process suit or other court any assignee which he or of his has who, person offiсer or at the time of the cause any process court suit or in any person other arose, alleged process of action in such suit or who, at the time when the cause acting professing respect was in thereto or arose, alleged process of action in such suit or act, mediately immediately, or under the au- thereto, was, respect acting professing thority act, of the United States.... mediately immediately, under the au- thority of the United States. Supreme Court and 156, cases both States, 263 U.S. the statute. Co construed of Claims (1924), “the words L.Ed. Coal, at the con S.Ct. nothing statute[3] 263 U.S. with rona plain, are doubtful; no the Court of appeal from to make text construction, we are predecessor section is left for under room in order exception add an of 1911 because liberty to Code not at of the Judicial particular hardship in court on apparent in district to remove had filed suit judg appealed cases.” after the Navigation Co. ment had Matson issued. case. this govern rule would The first (1931), 72 Ct.Cl. v. United at suggests, ante as the court Arguably, 352, 52 284 U.S. grounds, Brown, F.2d inconsistent it is aff'd S.Ct. (1932),relied on L.Ed. 336 vacated 1002,4 of Claims the Court where Coal: aspect of Corona the claim dismissal because its section in district that was filing but prohibits the The act not dis- been filed had complaint was the time any of claim prosecution also the by the grounds jurisdictional missed on the suit on when another of Claims Court reconsidera- plaintiffs asked the time anoth- pending in of action is cause same The dismissal. of of the Court Claims tion in the District suits The seven er court. refile plaintiffs to the require not did court day filed one of California Court the because complaint, apparently their court, in this but filed the suit was after reason- run. The had limitations of statute prose- attempting now to plaintiff is the was that “Section ing in Brown the suits while in this court cute the suit elect, at compel claimants to to intended is pending. This court are in the district claim prosecuting their peril, between their the statute. under prohibited (with conceded of Claims] Court [the 168 Ct.Cl. v. United Hobbs 1500) from Seсtion aside jurisdiction, same effect. (1964), is to the jurisdic- is without which tribunal another with nothing do or- to dictate the tion,” Congress at has intended not id. the stat- purpose of meaning and files suits plain a claimant der which case, seemed it have court on As in this ute. and another of from deprive plaintiffs discourage him claim, unfair “to but same to test pur- which they altogether. forum Otherwise doing [had] so room no there is demand,” de- id. from saving government pose in the face considerations courts for these in two same claim fending the is Therefore, If Brown 1500. of section mandate clear be defeated. time would same be overruled. it should impediment, held an 343 F.2d Engineers, Tecon is suit only when applies section rule, The second claim on court in another if, com- after the be divested filed in the complaint is filed, files suit is plaint before Claims, case That be overruled. should re- also in another claim same “or shall of the words deletion relied on the of section language plain by the quired pending” and have commenсe times all exist at must 1500. Jurisdiction section 8 proposed as original bill may be defeated during lawsuit 947. But 25,1868.5 Id. at early Act of June how That is occurrences. post-filing therefrom, respect he or to which for or in referring 154 of to section was The Court 3. have assignee commenced any of his shall supra. n. 1 see Code of Judicial commence or shall pending, Brit- arguably is inconsistent Brown 4. And any other process in any or suit pending, Tobacco, Ct.Cl. ish Am. who, at person any or officer alleged such above cause Cong., the time bill, Cong.Globe, 40th original arose, respect thereto was in process or Sess., 2769, provided: 2d act, mediately im- or acting professing to or enacted, That no it further And be Sec. 8. authority mediately, under prosecute person shall file or Claims, appeal States.... Court of suit in change plain meaning did not deletion recognized in

of the statute. As Matson Co., person the words “no shall

Navigation ” prosecute mean that ‍​​‌‌​‌​​‌​​​​​‌‌​‌​‌​​​‌​‌‌​‌​‌​‌​​‌‌‌‌​​​‌​‌​‌‌‍a claimant file or prosecute

cannot continue his Court if he later

Claims suit files same claim Thus,

in another court. 72 Ct.Cl. at 213. language superfluous.

the deleted original as well

as of the section is that the

Claims Court loses when the filed in

same claim is another court.

Finally, if the same claim has been be- longer,

fore another court but is no ordi-

nary judicata apply rules of res if suit is

then filed in the There Claims Court.

call to invoke section 1500 at all in that

event, although jurisdictional impedi- might

ments like the statute of limitations

yet remain. BARD, INC., Plaintiff-Appellee,

C.R.

ADVANCED SYS CARDIOVASCULAR TEMS, INC., Defendant-Appellant.

No. 89-1719. Appeals,

United States Court of

Federal Circuit.

Aug.

Case Details

Case Name: Unr Industries, Inc., Unarco Industries, Inc. And Eagle-Picher Industries, Inc. v. The United States, Keene Corporation v. United States

Court Name: Court of Appeals for the Federal Circuit

Date Published: Jul 30, 1990

Citation: 911 F.2d 654

Docket Number: 89-1638, 89-1639 and 89-1648

Court Abbreviation: Fed. Cir.