FRANCIS M. ALLEGRA, Judge.
Section 1500 of Title 28 of the United States Code bars litigation in this court of the same dispute pending in another court. Passed shortly after the Civil War, and long outliving its original purpose, this gatekeeper provision has oft been described as an "anachronism"
The Klamath River Basin is home to the Klamath Project — one of the first irrigation projects constructed under the Reclamation Act of 1902 (the Reclamation Act).
Prior to 2001, Klamath Basin landowners received all the water they needed under a combination of contracts with the United States and the Klamath Compact. But, in the spring of 2001, several federal agencies produced studies indicating that water levels in the Basin were so low as to threaten the health and survival of three species in violation of the Endangered Species Act (ESA), 87 Stat. 884, 16 U.S.C. § 1531, et seq. On April 6, 2001, responding to these concerns, the Bureau issued a revised Operation Plan (the 2001 Plan) for the Klamath Project that terminated the delivery of irrigation water to many individuals and irrigation districts for the year 2001.
On April 9, 2001, Steven Lewis Kandra, David Cacka, the Klamath Irrigation District (KID), the Tulelake Irrigation District (TID), and the Klamath Water Users Association (KWUA), hereinafter collectively the "Kandra plaintiffs," filed suit against the United States, Gale Norton (Secretary of the Interior), and Don Evans (Secretary of Commerce) in the United States District Court for the District of Oregon.
On April 30, 2001, the district court denied the Kandra plaintiffs' motion for a preliminary injunction. Kandra v. United States, 145 F.Supp.2d 1192 (D. Or. 2001). On October 15, 2001, the Kandra plaintiffs filed a document entitled "Notice of Dismissal" that docketed by the district court as a "Motion to Dismiss." On November 27, 2001, the district court granted the motion to dismiss and entered judgment dismissing the action.
Meanwhile, on October 11, 2001, fourteen water, drainage, and irrigation districts, and thirteen agricultural landowners in Oregon and California (the "Klamath plaintiffs") filed this suit against the United States.
In two separate summary judgment opinions, this court dismissed plaintiffs' Fifth Amendment takings claims, their claims under the Klamath Compact and their breach of contract claims. See Klamath Irrigation Dist. v. United States, 67 Fed. Cl. 504 (2005) (takings decision); Klamath Irrigation Dist. v. United States, 75 Fed. Cl. 677 (2007) (contract decision). Relying, in part, on the decision of the Oregon Supreme Court, the Federal Circuit vacated the judgment of this court and remanded the case to the court for further proceedings. Klamath Irrigation Dist. v. United States, 635 F.3d 505, 507 (Fed. Cir. 2011).
On August 22, 2011, defendant filed a motion to dismiss the complaint under RCFC 12(b)(1), claiming that this court lacked jurisdiction over this case under 28 U.S.C. § 1500. The defendant-intervenor in this case, Pacific Coast Federation of Fishermen's Associations, joined in support of this motion. Original briefing on this motion was completed in October, 2011, but on December 5, 2011, proceedings were stayed pending the resolution of a similar motion in Petro-Hunt v. United States, No. 00-512. After that decision was published, the parties submitted supplemental briefing on the motion to dismiss and oral argument was conducted.
Deciding a motion to dismiss "starts with the complaint, which must be well-pleaded in that it must state the necessary elements of the plaintiff's claim, independent of any defense that may be interposed." Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir. 1997); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554-55 (2007). In particular, the plaintiff must establish that the court has subject matter jurisdiction over its claims. Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988).
Plaintiffs assert federal subject-matter jurisdiction in this court under the Tucker Act, 28 U.S.C. § 1491. That provision grants this court "jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States. . . ." 28 U.S.C. § 1491(a)(1). It is well-established that takings actions and breach of contract actions are both covered by this grant of jurisdiction. See Keene Corp., 508 U.S. at 205; Bywaters v. United States, 670 F.3d 1221, 1224 (Fed. Cir. 2012). Defendant, however, claims that jurisdiction is lacking here because of 28 U.S.C. § 1500.
Section 1500 of Title 28 provides:
28 U.S.C. § 1500. "[T]he words of the statute are plain," the Supreme Court stated nearly ninety years ago, "with nothing in the context to make [its] meaning doubtful." Corona Coal Co. v. United States, 263 U.S. 537, 540 (1924); see also Johns-Manville Corp. v. United States, 855 F.2d 1556, 1565 (Fed. Cir. 1988), cert. denied, 489 U.S. 1066 (1989). Those words speak in terms of subject matter jurisdiction and "bar jurisdiction over the claim of a plaintiff who, upon filing [with the Court of Federal Claims], has an action pending in any other court `for or in respect to' the same claim." Keene Corp., 508 U.S. at 209; see also Nez Perce Tribe v. United States, 83 Fed. Cl. 186, 189 (2008). To determine whether section 1500 applies here, the court must answer three questions: (i) whether, and to what extent, "the plaintiff[s] or [their] assignee[s]" in this case are the same as those in the district court; (ii) whether the district court action was "pending" at the time jurisdiction under section 1500 is measured; and (iii) if so, whether the claims presented to the district court were the same as those in the instant case. See Brandt v. United States, 710 F.3d 1369, 1373-74 (Fed. Cir. 2013); Kaw Nation of Oklahoma v. United States, 103 Fed. Cl. 613, 616-17 (2012); Griffin v. United States, 85 Fed. Cl. at 184.
Defendant argues that, under section 1500,
The threshold question here is whether "the plaintiff[s] or [their] assignee[s]" in this case are the same as those in the district court. Of course, three of the named plaintiffs in this case were also Kandra plaintiffs — KID, TID and Mr. Baley. For them, application of section 1500 moves to the next stage. But what of the other twenty-four plaintiffs in this case?
Defendant argues that the Kandra plaintiffs, particularly, the KWUA, were the "assignees" of all the plaintiffs here. To reach this remarkable conclusion, defendant adopts a surpassingly broad definition of the word "assignee," asseverating that "[i]f the interests of the plaintiffs named in [this] action are represented in the district court action or those plaintiffs had a stake in the outcome of the district court action, there is sufficient identity in the parties pursuing the two suits for Section 1500 to apply." Defendant cites little in support of this claim, however, relying principally upon fragments of obiter dicta in two opinions: Webb & Associates v. United States, 19 Cl. Ct. 650 (1990) and Lummi Tribe of the Lummi Reservation v. United States, 99 Fed. Cl. 584 (2011). But, these cases plainly are inapposite.
In Webb Associates, Judge Rader held that section 1500 applied when a plaintiff became the assignee of a defendant in a district court case in which, prior to the filing of the Claims Court suit, a counterclaim had been filed against the United States. But, this case indisputably involved a formal assignment. Reflecting that, Judge Rader understandably observed, in a footnote, that "[a]s assignee, plaintiff now has a stake in the outcome of the district court case." Id. at 651 n.1. In Lummi Tribe, Judge Wiese dismissed the claims of a plaintiff who had a case still pending before another court, but declined to dismiss the claims of other plaintiffs, noting that they "were not parties in the district court litigation (nor were their interests represented there)." 99 Fed. Cl. at n. 7. Splicing these snippets together, defendant contends that these cases hold that one who has a stake in litigation or has interests represented therein is an "assignee" for purposes of section 1500. But, neither case even intimates — let alone holds — this. Nor does defendant's conclusion derive logically from the observations made in these cases. Per contra — while assignees
Perhaps defendant, in attempting to stretch section 1500, has avoided more traditional interpretational tools for a good reason — as it is tolerably plain that none of the Kandra plaintiffs are "assignees," if that word is used in either its ordinary or legal sense. Of course, there is absolutely no reason, from a statutory construction standpoint, not to begin our analysis with the plain meaning of the word "assignee." See Corona Coal, 263 U.S. at 540; Johns-Manville Corp., 855 F.2d at 1567; see also Baldrige v. Shapiro, 455 U.S. 345, 356 (1982); Watt v. Energy Action Educ. Found., 454 U.S. 151, 162-63 (1982). Indeed, since "[t]he words of [section 1500] are plain," Corona Coal, 263 U.S. at 540,
Dictionary.com defines an assignee as "a person to whom some right or interest is transferred, either for his or her own enjoyment or in trust." See Dictionary.reference.com (as last viewed on November 21, 2013). Likewise, Black's Law Dictionary defines an assignee as "[o]ne to whom property rights or powers are transferred by another." Black's Law Dictionary, Thomas Reuters 136 (9
Defendant would have this court employ an isolated definition of "assignee" that appears in a few dictionaries, that is, "[a] person appointed to act for another." See Webster's Ninth New Collegiate Dictionary, Merriam-Webster, Inc. 109 (1985); see also The Oxford English Dictionary, Clarendon Press 713 (2d ed. 1989). Legally speaking, this definition conflates an "assignee" with an "agent," as the latter is defined by Black's Law Dictionary as "one who is authorized to act for . . . another." Black's Law Dictionary, at 72. Can it be that Congress intended this confusion? The court thinks not for several reasons.
First, the ordinary rule of construction is that a court should accept the mainstream definition of a word, rather than that which is uncommon. See MCI Telecomms. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 226-28 (1994) (holding that a court need not accept a dictionary definition that contradicts "virtually all other[ ]" definitions).
There is no evidence that the plaintiffs before this court transferred any of their property, interests or rights to the KWUA (or any of the other Kandra parties). It follows, a fortiori, that they are not "assignees" under the ordinary definitions of that term. In arguing otherwise, defendant claims that each of the parties here should be viewed as having assigned at least some of their rights to the KWUA. The KWUA is a nonprofit corporation comprising irrigation districts and agricultural businesses in the Klamath Basin. According to the record, KWUA "provides representation and information to its members regarding matters that affect the availability of water for use on lands within the Klamath Project." Defendant notes that earlier in this proceeding, this court held that the irrigation districts in this case were all members of KWUA, and thus were in sufficient privity with the association to be bound by the prior judicial rejection of the association's claims by the district court. Klamath Irr. Dist., 75 Fed. Cl. at 687. But, it is one thing to say that the plaintiffs here were in privity with one or more of the associations litigating in Kandra, and quite another, to say that makes the Kandra associations "assignees" for purposes of section 1500.
Taking a similar tack, various courts have rejected claims that an association is somehow automatically the assignee of its members' claims. See Texas Life, Acc. Health & Hosp. Serv. Ins. Guar. Ass'n v. Gaylord Entm't Co., 105 F.3d 210, 219 (5
Nor is there anything in section 1500 that suggests that the term "assignee" should have a broader meaning then than ordinary usage would suggest. In asserting otherwise, defendant points out that Tohono indicated that courts ought not interpret section 1500 in a way that would render that statute "nugatory through construction." Tohono, 131 S. Ct. at 1729-30. That language, however, is no invitation to contort the words of section 1500 to reach every situation in which there are successive lawsuits involving similar subject matters. As the Supreme Court itself said in Tohono, "considerations of policy divorced from the statute's text and purpose could not override its meaning," Tohono, 131 S. Ct. at 1731.
Accordingly, the court concludes that none of the Kandra plaintiffs were assignees of the plaintiffs here. Thus, only the three plaintiffs both cases hold in common — KID, TID, and Mr. Baley — are potentially subject to section 1500.
There is little dispute that the district court action was still "pending" within the meaning of section 1500 at the time that the original complaint in this case was filed. See Griffin, 85 Fed. Cl. at 186; Nez Perce Tribe, 83 Fed. Cl. at 189. The "pending" requirement is examined as of the date of the filing of the complaint, making it irrelevant that the district court suit was later dismissed. Keene, 508 U.S. at 207; Trusted Integration, 659 F.3d at 1166 n.2; Kaw Nation, 103 Fed. Cl. at 621; Griffin, 85 Fed. Cl. at 187. To be sure, the breach of contract claims asserted in this case — which, as will be seen, prove problematic — were not raised until the complaint was amended on March 24, 2003. While the latter date was after the dismissal of the district court action, under RCFC 15(c)(1)(B), the amendment of the complaint relates back to the date of the original pleading as it "asserts a claim . . . that arose out of the conduct, transaction, or occurrence set out — or attempted to be set out — in the original pleading." See Krupski v. Costa Crociere S.P.A., 130 S.Ct. 2485, 2493 (2010).
Finally, for section 1500 to apply to the claims raised by KID, TID, and Mr. Baley, the suit in question and that in the district court must be "for or in respect to" the same claims. In Tohono, the Supreme Court held this requirement is met when two claims are "based on substantially the same operative facts, regardless of the relief sought in each suit." 131 S. Ct. at 1727; see also Brandt, 710 F.3d at 1373; Trusted Integration, 659 F.3d at 1164. Subsequently, this court has emphasized that "determining whether two claims are `based on substantially the same operative facts' requires more than a side-by-side comparison of the two complaints to see how much verbiage is in common." Petro-Hunt, 105 Fed. Cl. at 43. Before performing such comparisons, rather, the court must "first isolate the facts in the complaint that are `operative.'" Id. This requires the court to distinguish between "operative" facts and what some courts have termed "background" facts. See Central Pines Land Co., 697 F.3d at 1364-65; U.S. Home Corp. v. United States, 108 Fed. Cl. 191, 195 (2012).
This all begs an obvious question — which facts are "operative"? In Keene and Tohono, the Supreme Court did not extensively address this issue
Other cases, unfortunately, are
Consider a case in which a party must establish a factual or legal predicate elsewhere as a precursor to prevailing in this court. In defendant's view, that occurs, for example, where a plaintiff alleges that the United States has taken a mineral servitude alleged to have existed on Federal land. In the past, defendant has argued that the question whether such a servitude existed — in other words, whether the plaintiff had the property interest allegedly taken — must be resolved before this court may consider whether the actions of the United States constituted a takings. See Kaw Nation, 103 Fed. Cl. at 631 (discussing this issue). But, that property question is, at least ab initio, a matter reserved to the Department of Interior, with judicial review available in the district court if the claimant disagrees with the agency's decision. See 28 U.S.C. §§ 1346(f), 2409a.
A variation on this theme occurs when the relief needed by a plaintiff is still sequential, but a prior issue need not be resolved as a predicate to bringing a successful suit in this court. This scenario — which we will call "optionally sequential" — arises where a plaintiff objects to an agency decision and seeks to overturn it. That same plaintiff may be prepared alternatively to pursue a takings claim in the event that the agency decision is deemed valid. See Del-Rio Drilling Programs, Inc. v. United States, 146 F.3d 1358, 1364 (Fed. Cir. 1998). This situation often arises in cases involving challenges to a decision by the Army Corps of Engineers not to issue a permit under the Clean Water Act. The property owner wishes to overturn that decision, but that issue cannot be addressed here, but must instead be directed to a U.S. district court.
Now, the Supreme Court obviously intended that its definition of "claim" would apply across-the-board, to all the cases to which section 1500 might apply, including the three categories described above — repackaged suits, necessarily sequential cases, and, lastly, optionally sequential cases. We can safely assume this even though both Keene and Tohono were cases that plainly fell into only the first of these categories. Given the Court's formulation, it thus falls to the definition of what facts are "operative" to distinguish between situations in which two suits may proceed vel non under section 1500. This is especially so in the two "sequential" categories — necessarily or optionally — in which issues regarding whether the two claims involve substantially the same operative facts tend to be much thornier.
Recent cases offer a mixed bag on what is "operative" for purposes of section 1500. To be sure, it is well-recognized that the fact that "two actions were based on different legal theories [does] not matter." Keene Corp., 508 U.S. at 212; see also Brandt, 710 F.3d at 1374. More recently, the Federal Circuit has reiterated that "[i]mportantly, the legal theories underlying the asserted claims are irrelevant to this inquiry." Brandt, 710 F.3d at 1374; see also Trusted Integration, 659 F.3d at 1164; U.S. Home Corp., 108 Fed. Cl. at 195; Rosebud Sioux Tribe v. United States, 102 Fed. Cl. 429, 437 (2011). It is equally established that the facts alleged in the two complaints need not be identical; "rather, the two complaints must stem from the same events." Cent. Pines Land, 99 Fed. Cl. at 401 (citing Griffin v. United States, 590 F.3d 1291, 1294 (Fed. Cir. 2009)). Yet, some Federal Circuit cases seem to determine what facts are "operative" based, in part, upon whether they are legally significant vel non in the context of a particular claim.
Consider Trusted Integration. There, a dispute arose over a software product that the plaintiff sold to the Department of Justice. 659 F.3d at 1161. Trusted Integration sued first in the district court and then in this court. Id. at 1162. The first and third claims in its complaint here asserted that the Justice Department had breached a contract to use the software in a government "excellence" competition. Id. at 1165. The Federal Circuit held that these claims were barred by section 1500 because they differed from the district court claims only in their "characterization of the relationship it claims gave rise to the legal duty it asserts DOJ breached." Id. The second claim in the complaint before this court, however, averred an alleged breach of Trusted Integration's software licensing agreement. Id. at 1167. Although all three claims stemmed from the Department's purchase and use of the software, the Federal Circuit held that this licensing claim was different than the claims at issue in the district court. It concluded that the licensing claim, therefore, was not barred by section 1500, reasoning —
Id. at 1168. Invoking the res judicata principles emphasized in Tohono, the court further commented "[w]hile evidence relating to how the DOJ developed its TrustedAgent alternative would support the claims asserted in the district court complaint, this evidence would not both support
Judges of this court have staked out differing views as to what Trusted Integration holds. Some, including the undersigned, have cited the Federal Circuit's opinion for the proposition that "operative" facts are "those that must be proven in order to recover on a given claim." Petro-Hunt, 105 Fed. Cl. at 43; see also Stockton East Water Dist. v. United States, 101 Fed. Cl. 352, 356 (2011) (noting that Trusted Integration distinguished two seemingly similar claims because "they were distinct claims based on distinct proofs").
These divergent views illustrate the implacability of the quandary that has arisen as courts strive to apply the Tohono Court's definition. If one combines these cases with a few dozen more decided in recent years, you have the makings of a modern equivalent to King Gordius' knot of old. In untangling this concept (only Congress can play the part of Alexander), it makes sense to start with a few definitions. Black's Law Dictionary 670 (9
One intent upon exploring beyond these definitions must confront the notion that the Supreme Court in Keene, and later in Tohono, left lower courts adrift in using — without defining — the phrase "operative facts." But this charge proves, at least, overstated. First of all, in Tohono, the Supreme Court mapped out some of the contours of this analysis by stating that res judicata principles were relevant in determining what is "operative." Tohono, 131 S. Ct. at 1730. Beyond this, research strongly suggests that the Supreme Court may not have expounded upon what are "operative facts" because it knew that phrase has a well-defined meaning in the law. Indeed, for decades, courts have focused on whether two cases have substantially the same "operative facts" in applying various of the joinder rules found in the Federal Rules of Civil Procedure. Among these are: (i) Rule 13, dealing with compulsory counterclaims; (ii) Rule 15, dealing with the amendment of claims; and (iii) Rule 20, dealing with the joinder of defendants. What do all these rules have in common? Like section 1500, they all use the word "claim."
Under Rule 13(a)(1) of the Federal Rules of Civil Procedure, "[a] pleading must state as a counterclaim any claim that — at the time of its service — the pleader has against an opposing party if the claim: (A) arises out of the transaction or occurrence that is the subject matter of the opposing party's claim; and (B) does not require adding another party over whom the court cannot acquire jurisdiction." See also RCFC 13(a)(1) (using identical language).
Courts construing this rule have held that "[a] counterclaim is compulsory when both the original claim and counterclaim arise from the same aggregate of operative facts." McDaniel v. Anheuser-Busch, 987 F.2d 298, 304 (5
Under Federal Rule of Civil Procedure 15(c)(1)(B), an amended pleading "relates back to the date of the original pleading when . . . the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out . . . in the original pleading." See Mayle v. Felix, 545 U.S. 644, 656 (2005); Williams v. Boeing Co., 517 F.3d 1120, 1133 (9
In interpreting this rule, courts generally hold that claims share a common core of operative facts if "the plaintiff will rely on the same evidence to prove each claim." Williams, 517 F.3d at 1133. This is essentially the same inquiry as is employed under other rules, including those dealing with compulsory counterclaims. See 6A Wright & Miller, supra, at § 1497 ("As is true in a number of other contexts, such as compulsory counterclaims, crossclaims, and certain third-party claims, the search under Rule 15(c) is for a common core of operative facts in the two pleadings."). As the Supreme Court stated in Mayle, the new claims cannot "assert[ ] a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth," 545 U.S. at 650; they cannot depend upon events "separate in both time and type from the originally raised episodes," id. at 657; see also Northern Assur. Co. v. Grand View Bldg. Ass'n, 203 U.S. 106, 108 (1906); Full Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1018 (10
Under this approach, courts can more readily distinguish between a new legal theory based on different facts, as opposed to one depending on the same facts. See U.S. ex rel. Miller v. Bill Harbert Intern. Const., Inc., 608 F.3d 871, 881 (D.C. Cir. 2010), cert. denied, 131 S.Ct. 244 (2011); Williams, 517 F.3d at 1133; United States v. Hicks, 283 F.3d 380, 388-89 (D.C. Cir. 2002). Accordingly, "[a] new pleading cannot relate back if the effect of the new pleading `is to fault [the defendant] for conduct different from that identified in the original complaint,' even if the new pleading `shares some elements and some facts in common with the original claim.'" Full Life Hospice, 709 F.3d at 1018 (quoting Bill Harbert Int'l Constr., 608 F.3d at 881); see also Jones v. Bernanke, 557 F.3d 670, 674 (D.C. Cir. 2009); 6A Wright & Miller, at § 1497.
Under Rule 20, which is entitled "Permissive Joinder of Parties," defendants may be joined in a single action only if: (i) the claims against them are "with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences;" and (ii) a question of law or fact common to all defendants will arise in the action. Fed. R. Civ. P. 20(a)(2); see United States v. Mississippi, 380 U.S. 128, 142-43 (1965). The Federal Circuit recently held that "independent defendants" can be joined under Rule 20 only if the claims against them "share an aggregate of operative facts." In re EMC Corp., 677 F.3d 1351, 1358-60 (Fed. Cir. 2012). A variety of courts, including the Supreme Court, have employed this same approach. See United States v. Mississippi, 380 U.S. at 142-43; N.Y. Life Ins. Co. v. Deshotel, 142 F.3d 873, 882 (5
In defining when claims are based upon substantially the same "operative facts," courts focusing on the transaction-or-occurrence prong of Rule 20 have relied upon cases construing the similar requirement in Rule 13(a) for compulsory counterclaims. In re EMC Corp., 677 F.3d at 1357-58; Alexander v. Fulton County, Ga., 207 F.3d 1303, 1323 (11
So what can be distilled from this tour d'horizon? A review of these cases reveals that courts have been remarkably consistent not only in defining what are the same "claims" by reference to the underlying "operative facts," but also in providing guidance for determining whether two claims present the same or substantially similar "operative facts." Cases construing these concepts in different legal settings have arrived at similar formulations — not coincidentally, as the cases have explicitly recognized that the standards applicable to some rules ought to apply to others.
So what are those enquiries? In deciding whether two claims are the same for purposes of section 1500, the cases discussed above suggest that the court should ask and ultimately answer four questions:
Reflecting the majority view of the circuits (including that of the Federal Circuit), the court believes that an affirmative answer to any one of the questions should lead to two claims being viewed as the same for purposes of section 1500. See, e.g., Vivid Techs., 200 F.3d at 801.
As can be seen, these queries strongly resemble those employed under Federal Rules of Civil Procedure 13, 15 and 20. And why not? It seems entirely appropriate to borrow from the cases construing these rules as there is no apparent reason why the words "claim" in section 1500 — and, subsidiarily, the phrase "operative facts" — should be ascribed meanings that differ from those given the same words and phrases in the context of the civil rules. While different legal provisions, including statutes passed by different Congresses, can use the same words to mean different things, see United States v. Memphis Cotton Oil Co., 288 U.S. 62, 67-68 (1933), the word "claim" does not comfortably bear different meanings here, as all of the provisions at issue are rooted in preventing duplicative litigation and assuring a degree of consistency in judgments. In like instances, where provisions have been linked by an animating principle, the Supreme Court has carried its constructions of key phrases from one statutory context to another. Such has been the case, for example, in fee-shifting provisions. See Buckhannon Bd. and Care Home, Inc. v. W. Va. Dept. of Health and Human Res., 532 U.S. 598, 603 n.4 (2001) (noting that the Court has interpreted the phrase "prevailing party" consistently across fee-shifting provisions); Hensley v. Eckerhart, 461 U.S. 424, 433 n.7 (1983) (same); compare Atl. Cleaners & Dryers, Inc. v. United States, 286 U.S. 427, 433 (1932). Neither the language, structure nor legislative history of section 1500, nor, for that matter, any of the cases discussed above, hints at the notion that what is a "claim" for purposes of section 1500 is somehow idiosyncratic — that Congress had something different in mind than the drafters of the rules.
That said, it makes eminent sense to pause and reflect on whether this battery of tests is consistent with the teachings in Tohono, Keene and the Federal Circuit's recent pronouncements in this area. The answer, it would appear, is "yes." For example, this multi-pronged approach's use of res judicata principles, outlined above, makes perfect sense in light of Tohono. That case holds that if a decision in the first case would be preclusive in the second, section 1500 ought to apply; if that preclusion is not the case, the court must look at other factors that serve to determine whether the cases present a single claim or different claims. See Tohono, 131 S. Ct. at 1730; see also Trusted Integration, 659 F.3d at 1164. And that is how the enquiries listed above work — particularly, if one employs the res judicata tests that were in effect at the time section 1500 was enacted. Indeed, the historical tests for res judicata adopted by the Supreme Court in Tohono have features that overlap with some of the other enquiries stated above — focusing, for example, on whether "the same evidence support[s] and establish[es] both the present and the former cause of action?" Tohono, 131 S. Ct. at 1730 (quoting Henry Black, A Treatise on the Law of Judgments, § 726 (1891) (hereinafter "Black's Judgments")).
Although initially it might not seem so, the multi-pronged approach above is also consistent with decisions holding that the legal theory employed in a given case is "irrelevant." Care must be taken lest this instruction be misconstrued and misapplied. A careful reading of the Federal Circuit's cases reveals that they hold that a single claim may not be split through the guise of pleading alternate legal theories as to why a recovery is appropriate. They do not hold that the converse is true — that is, that distinct claims become the same
With this framework in mind, let us turn back to the facts of the case sub judice. Before applying the tests listed above, it is important to recognize that this case involves not one, but two claims — the first (actually a set) alleging that the failure to deliver water effectuated a takings; the second asserting that the same failure effectuated a breach of numerous water contracts.
The takings claims fall into the category of being "optionally sequential." The Kandra plaintiffs did not have to challenge the actions taken by the Bureau, but could have proceeded immediately to this court with their takings claims, as did the other plaintiffs in this case. As to the breach of contract claim, however, this case is not sequential and bears a stronger resemblance to a "repackaged claim." While Kandra and this case differ somewhat in the nature of the breaches alleged (and the relief sought), they both involve the same contracts. Thus, the question is whether the "operative facts" underlying the district court breach claim are substantially the same as those underlying this action. As Trusted Integration illustrates, that question must be answered on a claim-by-claim basis. See Trusted Integration, 659 F.3d at 1165. Viewed in this fashion, and based upon the battery of tests described above, the court concludes that, insofar as the takings claims are concerned, section 1500 does not apply. As will be seen, however, the case is otherwise as to the breach claims here.
Under the identity-of-issues test, the focus is on whether the issues of fact and law raised by the two claims are "largely the same." Tank Insulation, 104 F.3d at 85-86. As the word "largely" implies, this test "does not require a complete overlap between" the claims. 7 Wright & Miller, supra, at § 1410; see also Papadopoulos v. Douglas, 268 F.3d 1063 (5
In terms of the takings claim, the issues of fact and law raised by the Kandra complaint and the plaintiffs' complaint here have little in common. In Kandra, the plaintiffs sought an injunction enjoining the Bureau from implementing a revised plan, issued April 6, 2001, that terminated the delivery of irrigation water to many individuals and irrigation districts for the year 2001. See Kandra, 145 F. Supp. 2d at 1195-96. In that lawsuit, the plaintiffs also argued that "the 2001 Plan breache[d] their contractual rights to irrigation water and [was] arbitrary and capricious under the Administrative Procedure Act . . . in that its implementation violates the National Environmental Policy Act . . . and the Endangered Species Act." Id. More specifically, the plaintiffs alleged that the Bureau "violated NEPA by issuing the 2001 Plan without preparing an Environmental Impact Statement," and that the Fish and Wildlife Service and the National Marine Fisheries Service "violated the ESA by failing to utilize the best scientific evidence available in their respective [biological opinions]." Id. at 1202. It is these issues of fact and law that the district court addressed in denying the plaintiff's motion for a preliminary injunction. Id. at 1204-10. There were no claims in Kandra relating to whether the plaintiffs had a property interest in the water itself, nor certainly any assertions that the Bureau's action effectuated a takings under the Fifth Amendment to the U.S. Constitution. Indeed, a review of the complaint in that action reveals no direct challenge to the manner in which the plan was being implemented — the purpose of the suit, rather, was to prevent the plan from being implemented. See Complaint in 01-6124 TC, at paras. 40-41.
By comparison, the takings claim here essentially alleges that the implementation of the plan effectuated a takings without just compensation. See Klamath Irrigation Dist., 67 Fed. Cl. at 513-14. The complaint filed herein challenges the propriety neither of the 2001 Plan nor the underlying biological opinions — indeed, the complaint could not do so if it wanted to plead successfully a takings. Nor does the complaint even mention, let alone rely upon, the provisions of NEPA and ESA that were the focal point of the district court injunctive action. Rather, plaintiffs seek just compensation under the Takings Clause of the Fifth Amendment because the agency's actions in implementing the 2001 plans had taken "the water rights . . . appurtenant to land," which "are recognized as property under the laws of the states of Oregon and California." Complaint in 01-591, at para. 32; see also Klamath Irrigation Dist., 67 Fed. Cl. at 514. In addition, the complaint asserts that defendant's actions had "impaired the irrigation water rights of plaintiffs or the landowners they represent." Complaint in 01-591, at para. 40. In both instances, the complaint alleges that defendant had "not paid such just compensation to plaintiffs." Id. at para. 34, 40. Accordingly, it would appear that the Bureau's issuance of the report and subsequent cutting off of the water represented "two separate wrongs that gave rise to two separate causes of action." Del Rio Drilling Programs, Inc. v. United States, 146 F.3d 1358, 1364 (Fed. Cir. 1998); see also Acadia Tech., Inc. v. United States, 458 F.3d 1327, 1330 (Fed. Cir. 2006); Rith Energy, Inc. v. United States, 247 F.3d 1355, 1365 (Fed. Cir. 2001), cert. denied, 536 U.S. 598 (2002).
In this fashion, this case is reminiscent of Fire-Trol Holdings, LLC v. United States, 65 Fed. Cl. 32 (2005). There, the plaintiff initially filed a complaint in the federal district court in Arizona challenging the Forest Service's new regulations for chemical retardants and alleging that the Forest Service violated various laws when it amended its 2005 procurement rules. The complaint alleged, in particular, that the regulations were invalid because the Forest Service failed to comply with the rule-making procedures laid out in the APA, 5 U.S.C. § 553. The propriety of the dismissal of that action was pending before the Ninth Circuit (see Fire-Trol Holdings, LLC v. United States Forest Service, 209 Fed. Appx. 625 (9
The story, though, is quite different as to the breach of contract claims. In the court's view, the issues of fact and law raised by these two claims — that in the district court and that in the amended complaint here — are largely the same. For one thing, both lawsuits involved breaches allegedly committed by the same party (the Bureau) and required the court to construe the same contracts: the KID and TID contracts with the Bureau, as well as the Klamath Compact. And in both cases, Mr. Baley claimed he was a third-party beneficiary of those contracts. Moreover, both cases obliged the respective courts to determine what those contracts guaranteed in terms of water deliveries. To be sure, the two claims alleged slightly different breaches — in Kandra, the plaintiffs claimed that the issuance of the plan effectuated the breach, while here they averred that the actual termination of the water deliveries had that effect. But, in the court's view, this is only a slight distinction as the adoption of the plan preordained the termination of the water. Ultimately, then, the only real difference between the two breach claims is the relief requested — injunctive relief in the district court; monetary relief in this court. But, that difference is salvific neither under the Supreme Court's general jurisprudence in this area, see Tohono, 131 S. Ct. at 1727, nor under the identity-of-issues test.
Because the issues of fact and law raised by the two takings claims are not largely the same as the claims raised in Kandra, the takings claims are not disqualified under the first test for what is "operative." By contrast, there is an identity of issues between the breach of contract claims in both cases, leading the court to conclude that under this first test, those two claims are "based on substantially the same operative facts." Id. at 1727.
The second question in this four-part formulation focuses on whether a hypothetical or actual adverse merits decision on the earlier claim would trigger the doctrine of res judicata, so as to bar a subsequent suit on the later-filed claim.
The doctrine of res judicata bars "repetitious suits involving the same cause of action" once "a court of competent jurisdiction has entered a final judgment on the merits." Comm'r of Internal Revenue v. Sunnen, 333 U.S. 591, 597 (1948); see also Bush v. United States, 717 F.3d 920, 926 (Fed. Cir. 2013). In Tohono, the Supreme Court indicated that the claim comparison "can be informed by how claims are defined for res judicata purposes." Trusted Integration, 659 F.3d at 1164 (citing Tohono, 131 S. Ct. at 1730); see also Petro-Hunt, 105 Fed. Cl. at 42; Muscogee (Creek) Nation of Oklahoma v. United States, 103 Fed. Cl. 210, 215 (2011). In Trusted Integration, the Federal Circuit emphasized that the res judicata principles relevant for this purpose are those "which were in force at the time the predecessor to § 1500 was enacted," and not the modern tests for claim preclusion. The court identified two versions of the test that could be applied — the "act or contract test" and "the evidence test." 659 F.3d at 1168-69 (citing Tohono, 131 S. Ct. at 1730); see also Goodeagle, 105 Fed. Cl. at 176 n.9. While the court made clear that the consideration of such res judicata principles is a secondary inquiry, 659 F.3d at 1164, 1170 n.5, see also U.S. Home Corp., 108 Fed. Cl. at 196, 198, ordinarily designed to "test" a conclusion that section 1500 applies, id., it should not be overlooked that the res judicata doctrine has direct relevance to what the Supreme Court in Keene and then Tohono meant by the phrase "operative facts."
As described in Tohono, the "act or contract" test makes a "distinction between demands or rights of action which are single and entire, and those which are several and distinct, . . . that the former immediately arise out of one and the same act or contract, and the latter out of different acts or contracts." 131 S. Ct. at 1730 (quoting J. Wells, Res Adjudicata and Stare Decisis § 241, p. 208 (1878)); see also Trusted Integration, 659 F.3d at 1169; U.S. Home Corp., 108 Fed. Cl. at 197. Under this test, "where the respective demands grow out of independent acts, contracts or transactions, they cannot be treated as parts of a single cause." Danciger v. Am. Express Co., 179 S.W. 806, 808 (Mo. App. 1915); see also United States v. Cal. & Ore. Land Co., 192 U.S. 355, 358-59 (1904); Kallberg v. Newberry, 170 N.W. 113, 114-15 (N.D. 1918); Brice v. Starr, 161 P. 347, 349 (Wash. 1916); see generally, Corpus Juris Secondum § 1000 (2013) ("It has been said that as a general proposition whether or not a judgment is a bar to a subsequent action under the rule against splitting causes of action depends on whether the claim arises out of one and the same act or contract, or whether the several parts arise from distinct and different acts or contracts.").
By comparison, under the evidence test for res judicata, the question asked was "would the same evidence support and establish both the present and the former cause of action?" Tohono, 131 S. Ct. at 1730 (quoting 2 Black's Judgments § 726); see also Trusted Integration, 659 F.3d at 1169; U.S. Home Corp., 108 Fed. Cl. at 197. "If so, the former recovery is a bar; if otherwise, it does not stand in the way of a second action." 2 Black's Judgments § 726; see also 1 Henry M. Herman, Commentaries on the Law of Estoppel and Res Judicata § 111, pp. 110-11 (1886) ("In order to make a judgment effectual as an estoppel, the cause of action must be substantially the same; it must be sustained by the same evidence, although the form of the action may be different."). The original Restatement of Judgments stated a similar rule:
Restatement of Judgments, § 61 (1942); see also Herendeen v. Champion Intern. Corp., 525 F.2d 130, 135 (2d Cir. 1975). According to commentary in the Restatement, the rule stated above "is not applicable where the actions are not based upon the same transaction." Id. at cmt. c; see also id. at § 63 ("Where a judgment on the merits is rendered in favor of the defendant, the plaintiff is precluded from subsequently maintaining an action on the same cause of action although he presents a ground for the relief asked other than those presented in the original action. . . .").
While Black's cites many decisions in support of this evidence test, see 2 Black's Judgments § 726 at n. 262, it prominently quotes from an 1871 decision of the Supreme Court of California, involving a dispute between two mining partners over the construction of a mill for crushing rock, for which the parties had a contract. In a first case, the plaintiff sued upon an "an account stated" and a promise, apart from the contract, to pay that sum, while the second suit involved a suit based upon the contract itself. The court held that a judgment in the prior case did not preclude the second suit, observing:
Taylor v. Castle, 42 Cal. 367 (Cal. 1871); see also Buddress v. Schafer, 41 P. 43, 44 (Wash. 1895); Baker v. State ex rel. Mills, 9 N.E. 711, 717 (Ind. 1887).
Accordingly, both historical tests cited by the Supreme Court, as informing the section 1500 inquiry, focus on whether the legally-determinative facts in the two suits were roughly the same. Trusted Integration, 659 F.3d at 1168-69; see also Western Mgmt., Inc. v. United States, 498 Fed. Appx. at 18 (Newman, J., dissenting); Petro-Hunt, 105 Fed. Cl. at 43. Such is not the case with the takings claims here. Rather, the facts needed to prove the takings action before this court overlapped only slightly with those needed to prove the validity and breach of contracts claims alleged in the Kandra complaint, and vice versa. This should come as no surprise as, outside of cases in the Bowen v. Massachusetts mold, it would seem unlikely that the legally determinative facts in a case that challenges, under the APA, the validity of government action would also suffice to establish that the same action, presumed to be valid, effectuated either a physical or regulatory takings under the Fifth Amendment.
There is little doubt, however, that under the historical preclusion doctrines identified by the Supreme Court, a final merits judgment in the district court on the breach of contract claims there would have been res judicata as to the breach claims here. Both claims "immediately arise out of one and the same . . . [set of] contract[s]," Tohono, 131 S. Ct. at 1730. Moreover, the evidence needed to sustain the first breach claim is largely the same as that required to support the second. Id. Hence, it appears that, under either the "act or contract" or "same evidence" formulations of res judicata, the breach of contract claims at issue involve substantially the same "operative facts." Indeed, it is worth noting that, even under modern formulations of the doctrine of res judicata, a "series of breaches of the same contract, all occurring before filing suit, should be brought in that suit." Trustmark Ins. Co. v. ESLU, Inc., 299 F.3d 1265, 1270 (11
In sum, then, plaintiffs' takings claims pass muster on the res judicata test, but their breach of contract claims do not.
The third test above focuses on whether the plaintiff(s) will rely on substantially the same evidence to support each of the two claims. Such has been held not to be the case if the facts relating to the subsequent claim "differ in both time and type from those" in the original claim. Mayle, 545 U.S. at 650; see also Full Life Hospice, 709 F.3d at 1018; Bill Harbert Intern. Const., 608 F.3d at 881. Under this formulation, two claims are not the same if the second claim "is to fault [the defendants] for conduct different from that identified in the original complaint," even if the new claim "shares some elements and some facts in common" with the original claim. Jones, 557 F.3d at 674; see also Full Life Hospice, 709 F.3d at 1018; 6AWright & Miller, supra, at § 1497.
A review of the filings in Kandra
As per the takings claim, the evidence in this case is very different. To support their takings claims, plaintiffs have introduced evidence that: (i) they had cognizable property interests in Klamath Project water; and (ii) defendant prevented the release of Project water during the 2001 growing season. As to the first point, plaintiffs relied on a variety of declarations from the landowners, together with patent deeds relating to the properties. They also introduced text from the Klamath Compact. As to the second point, plaintiffs relied upon declarations describing the water that was made available by the Bureau in 2001. To support their damage claims, they also introduced government documents detailing the value of agricultural products enabled by the Project's water. Their evidence did include copies of the 2001 biological opinions, as well as the Bureau's plan, but only as background documents. The evidence did not include the extensive administrative record leading up to the issuance of the 2001 Plan.
In this regard, this case resembles others in which this court has held that an earlier-filed district court case did not prime a later-filed case in this court. Thus, in d'Abrera v. United States, 78 Fed. Cl. 51 (2007), this court found that while plaintiff's Lanham Act claim involved allegations that the defendant misrepresented that the plaintiff's photographs were his own, the plaintiff's copyright infringement claim involved allegations that defendant reproduced and distributed plaintiff's photographs without permission. Id. at 58-59. Both cases involved the same photographs, yet this court held that jurisdictional bar of section 1500 was not triggered. Id. at 58-59; see also Eastern Shawnee Tribe of Okla. v. United States, 82 Fed. Cl. 322, 327 (2008), rev'd, 582 F.3d 1306 (Fed. Cir. 2009), cert. granted, judgment vacated, 131 S.Ct. 2872 (2011), aff'd on remand, 438 F. App'x 896 (Fed. Cir. 2011). Similarly, in Cooke v. United States, 77 Fed. Cl. 173, 177-78 (2007), the plaintiff's claim under the Fair Labor Standards Act filed in this court involved "later and different conduct" than her Equal Pay Act claim, which had previously been filed in a district court. Id. at 177-78. The court noted that while "gender discrimination" was "at the root of . . . the [EPA claim]," such discrimination had nothing to do with the FLSA claim in this court. Id. at 177. Likewise, in Heritage Minerals, Inc. v. United States, 71 Fed. Cl. 710 (2006), this court retained jurisdiction over a takings claim relating to the installation and maintenance of groundwater-monitoring wells on the plaintiffs' property, even though at the filing of this suit, an action was pending in the Third Circuit alleging that the Navy had contaminated the groundwater on their property. Id. at 716. The court noted that the installation and maintenance of the monitoring wells, which primarily dated to 2001, was much more recent than the contamination of the ground water, which allegedly began in 1958. Id. at 715. In all these cases — and more
For many of the reasons already stated, however, it would appear that the breach of contract claims involve much the same evidence that related to the comparable breach claims in Kandra. Accordingly, under this test, it again appears that those two sets of claims involve substantially the same operative facts.
The final test here asks if there is any other logical relationship between the two claims. Using this test in other contexts, some courts have examined issues that replicate the other tests above — for this reason, in a few cases this last factor is viewed as the only test, albeit one that subsumes the earlier ones. See Sanders v. First Nat'l Bank & Trust Co. in Great Bend, 936 F.2d 273, 277 (6
Reflecting its interstitial role, the hallmark of this final test is flexibility. See Bd. of Regents of Univ. of Wisc. Sys. v. Phoenix Int'l Software, Inc., 653 F.3d 448, 470 (7
Insofar as plaintiffs' takings claims are concerned, none of the circumstances that would trigger this final test appear present. While both actions at issue relate to the biological opinions and the plan issued by the Bureau, the district court action focused upon the validity of the plan and the rationality of the processes that produced it, see Kandra, 145 F. Supp. 2d at 1196, while the case here focuses upon the impact of the plan's execution. The former has little to do with the specifics of the property rights possessed by the plaintiffs in this case; the latter has everything to do with the parameters of those water rights, such as they exist. See Klamath Irr. Dist., 635 F.3d at 519-20; see also Estate of Hage v. United States, 687 F.3d 1281 (Fed. Cir. 2012), cert. denied, 133 S.Ct. 2824 (2013). Even if the district court case had proceeded, and not been dismissed six weeks after this action was filed, there is little to suggest that separate trials in both cases would have "involve[d] a substantial duplication of effort and time by the parties and courts." Xerox Corp., 576 F.2d at 1059.
On the other hand, perhaps not surprisingly, plaintiffs' breach of contract claims also violate this final test. Unlike plaintiffs' takings claims, "there is substantial evidentiary overlap in the facts giving rise to the cause[s] of action." In re EMC, 677 F.3d at 1358. Moreover, it is readily apparent that separate trials on each of these breach claims would have involved a substantial duplication of time and effort by the parties and the courts involved. See Barefoot Architect, 632 F.3d at 836 n.9 (quoting Xerox Corp., 576 F.2d at 1059). Thus, in the court's view, there is also a logical relationship between the breach of contract claim before the district court and the breach claims here, sufficient to provide yet another basis upon which to conclude that both claims involved substantially the same operative facts.
Based on the foregoing, the court concludes that the takings claims in this case are not "for or in respect to" the claims filed in the district court. As such, section 1500 does not apply to them. However, the court is compelled to conclude that the breach of contract claims asserted by the three Kandra plaintiffs in question are "for or in respect to" the breach claims those same plaintiffs filed in the district court. Consequently, as to those plaintiffs, their breach of contract claims must be dismissed for lack of jurisdiction.
This court need go no farther. Based on the foregoing, the court hereby
Black's Law Dictionary, at 136 (emphasis added). The highlighted language makes clear — as defendant's statement on brief does not — that even as a "protean" term, an "assignee" arises only when there is an "assignment."
103 Fed. Cl. at 629 (footnote omitted).
659 F.3d at 1170.
Id. at Introductory Note to Title D. (What Constitutes the Same Cause of Action (What Claims Are Extinguished by Judgment)).
The same four factors are also applied in determining whether a governmental entity has waived its immunity as to a given claim under the Bankruptcy Code. See 11 U.S.C. § 106(b); see also In re Kaiser Grp. Intern., Inc., 399 F.3d 558, 569 (3d Cir. 2005); Tank Insulation, 104 F.3d at 85-86. Notably, the Federal Circuit cited the Tank Insulation case in support of its construction of Federal Rule of Civil Procedure 20, providing further evidence of the interrelationship between these various provisions. In re EMC Corp., 677 F.3d at 1358.
Various courts have commented that, in so observing, Loveladies did not deviate from the standard set forth in Keene. See Ramah Navajo School Bd., Inc. v. United States, 83 Fed. Cl. 786, 793 (2008) (citing cases). Defendant does not appear to disagree fundamentally with this approach. Taking note of many of the same cases, defendant took the position, in a supplemental filing, that "operative facts" are "those constituting the factual predicate for the cause of action."
363 U.S. at 205. In cases involving sequential relief, adopting defendant's view of section 1500 could lead to the exact result that the Supreme Court rejected in Pennsylvania R.R., to wit, having the claimant "held bound by [an agency's] order although completely denied any judicial review of that order." More broadly, it should not be overlooked that if defendant is right about the scope of section 1500, then the Supreme Court was wrong in ordering the Court of Claims to suspend its proceedings awaiting the result of the district court challenge to the ICC ruling.
Morris v. Union Oil Co. of Cal., 421 N.E.2d 278, 285 (Ill. App. 1981); see also Gasbarra v. Park-Ohio Indus., 655 F.2d 119, 121 (7