United States v. Tohono O’odham Nation – Oral Argument – November 01, 2010

Media for United States v. Tohono O’odham Nation

Audio Transcription for Opinion Announcement – April 26, 2011 in United States v. Tohono O’odham Nation

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John G. Roberts, Jr.:

We will hear argument next in Case 09-846, United States v. Tohono O’Odham Nation.

Mr. Yang.

Anthony A. Yang:

Mr. Chief Justice, and may it please the Court:

This Court in Keene held that section 1500 of Title 28 deprives the Court Of Federal Claims has jurisdiction when the plaintiff has a pending suit in another court based on substantially the same operative facts and left open the question whether some overlap in the relief requested is also necessary to trigger that bar.

The Federal Circuit erred in holding that section 1500 applies when both suits — only when both suits seek the same relief, and that the critical distinction in this regard is whether the particular relief in the plaintiff’s plea for relief is deemed legal or equitable.

Section 1500’s text broadly bars CFC jurisdiction whenever any suit that the plaintiff has pending in any other court is a suit for the CFC claim or is merely a suit in respect to that claim.

In other words, another suit for a different but a related claim will trigger section 1500.

That provision was intended to protect the government from simultaneous duplicative suits against the United States and its agents by forcing plaintiffs to elect between those related suits.

Ruth Bader Ginsburg:

But you recognize that sequential suits could be brought.

So that if the case in the district court went to final judgment, then it would be okay to go to the Court Of Federal Claims.

Anthony A. Yang:

That is correct.

In some, in perhaps a good number of cases, it’s possible to, if you are seasonably prompt in your Court Of Federal Claims case or your district court case first–

Ruth Bader Ginsburg:

But you don’t have control over how long the district court case is going to take, and there is no mechanism to stop the running of the statute of limitations.

Anthony A. Yang:

–Well, I think there is some control that you can exercise over the — how promptly the suit proceeds.

Particularly if we are talking about suits against the government, many suits proceed on an administrative record and go directly to summary judgment; that can be done in a relatively prompt manner.

But even if not, the Congress that enacted section 1500 in 1868 knew that essentially what it was doing in many, many cases would prevent a second suit from going forward.

That’s because the Congress was concerned with the cotton claimants.

The cotton claimants had authorization to bring suit in the Court of Claims, but there was a two-year statute of limitations.

That statute ran from the end of the Civil War.

And this Court in a case called U.S. v. Anderson at 76 U.S., and the relevant pages are 70 to 71, made clear that the end of the Civil War for the purposes of that statute was August in 1866.

Congress enacted section 1500 in June of 1868.

There was a two-month window, if that, to bring suit and Congress recognized, it would have recognized, that if you filed suit or were forced to elect at that point, that would be the end of the game.

There was also another statutory provision that Congress enacted during the Civil War that put a two-year statute of limitations on suits against officers.

That was discussed in this Court’s decision, Mitchell v. Clark, 110 U.S. 633 at pages 641 and 642.

So given the time at which Congress was enacting section 1500, it knew it was putting plaintiffs to a very hard choice.

You had to elect between the Court Of Federal Claims remedy and between a remedy in another court against an officer.

That remedy would likely be the end of the game.

And Congress did that in a very particular way.

It did it in a targeted statute that limited the authority of the court that had its hands on the purse strings of the Federal Government, and that performed the very function that Congress just a few years earlier had itself exercised through the enactment of private bills through its appropriations power.

So section 1500 ultimately states in essence that if you are going to bring suit in this specialized court where Congress has vested the Court of Claims with the very special power of distributing money from the Federal fisc, that you could only bring one suit arising from the same operative facts in order to be in that court.

John G. Roberts, Jr.:

Well, but that’s — you just–

Sonia Sotomayor:

In the cotton cases, why isn’t my reading of it quite very simple, which is Congress was concerned with ensuring that a claimant didn’t get double-recovered in two different suits.

Anthony A. Yang:

Well–

Sonia Sotomayor:

Isn’t that a simple — you know, you’ve got people suing in different jurisdictions over getting the same pot of money or something close to it.

Why isn’t our view of 1500 just simply you can’t have two suits that are seeking the same pot?

Anthony A. Yang:

–Well, it wasn’t the same pot of money.

The Abandoned and — Abandoned Property Collection Act — we will call it APCA — provided for a special statutory trust remedy.

That remedy was for the net proceeds of anything — any — any auction sales that might have resulted from cotton.

If the cotton was lost, it was damaged, it was destroyed, if the proceeds were paid but ultimately didn’t make their way into the fisc, you got nothing or you got a substantially reduced fund.

If you sued in court, you might be able to sue, as we explained in our reply brief, under certain doctrines that would give you the property in specie, or you could seek monetary relief.

These are quite different things.

And even in — it’s not–

Ruth Bader Ginsburg:

But you couldn’t get both.

I mean, that’s I think Justice Sotomayor’s point, about duplication.

It’s not — even if you can say, yes, it’s a different mode of relief, but you could — couldn’t get — I mean, suppose we didn’t have 1500 and you prevailed in your suit on the APCA or whatever you call the statute.

You could not then turn around and sue the government official, because you have the — the single claim, you’ve been compensated.

Anthony A. Yang:

–I don’t know–

Ruth Bader Ginsburg:

It’s not here — it’s quite different.

I mean, one suit is not precluded by the other.

You — you recognize that by saying you could bring the Claims Court suit after the district court suit.

That’s not so in — in the cotton cases.

Anthony A. Yang:

–You may in certain instances.

But particularly in the cotton cases, Congress knew that it — what it was doing was forcing one path and only one path.

It wasn’t about duplicative recovery.

You had to choose and you not — you weren’t going to have time to bring another suit, and Congress would have known that when it enacted the section 1500’s predecessor two months before the statute ran in APCA and perhaps after the statute ran for bringing a tort suit against officials under the cases — the statute that this Court construed in Mitchell.

So it wasn’t simply that duplicative relief was at issue, Congress was actually forcing you to make a choice in cases where the types of relief are quite different.

And the type of relief, for instance, that you would get in a suit against an agent of the United States, what you get out of that suit is not a pot of money; the court does not say at the end of the case, here you go, you asked for $1,000, here it is.

The court enters an order; it enters a judgment.

It says,

“Defendant, perhaps Tony Yang, officer of the government, you pay $100 million, $50 million. “

Anthony A. Yang:

It doesn’t mean much to the plaintiff if they get at Tony Yang as an individual.

This is very different relief than a money judgment against the United States.

It’s not the same relief.

And in fact, we don’t normally think of a claim as embodying a particular type of relief, which is the submission of the trial here.

Ruth Bader Ginsburg:

I — I’m not sure I understand your answer to my question.

Assuming you had a recovery under the — for the — confiscated cotton, under the one route you had a recovery.

You could not sue again under the other route without — leaving aside 1500, because the claim would be precluded.

Anthony A. Yang:

That might have been true in one direction but maybe not in the other.

And let me explain.

The — I’m not sure that there was an instance of this happening because of section 1500’s existence, but if you had, for instance, obtained damages against an individual agent in a suit and you still could have brought suit within the Abandoned — Abandoned Property Collection Act, the Abandoned Collection Property Act provided a statutory trust for the owner of the cotton.

It’s not at all clear that that would have been precluded.

There may well have been, but for the statute of limitations problem, the ability to get a double recovery.

But nevertheless, I mean, our submission ultimately turns on our understanding of the text of this statute, which is quite broad.

The text not only precludes–

John G. Roberts, Jr.:

–Well, but it’s not — it’s not as broad as your test,

“arising out of the same operative facts. “

It doesn’t say that; it says

“any claim for and respect to which. “

And it seems to me that the facts of this case draw that precise distinction.

When you are asking for an accounting, you are not raising any claims about people doing anything bad at all.

You are just saying, let me know what I’ve got.

And then when you bring a claim for — for money because of mismanagement of the trust, that’s — that’s quite different.

Anthony A. Yang:

–I — that’s — that’s true in some cases of an accounting.

It’s not true on these complaints.

The complaints here are — they have the sense of a kitchen sink type of a pursuit of these claims against the United States.

The district court case is not simply seeking an accounting of old money, as the Tribe submits.

It actually alleges a whole slew of breaches, including the breach to — to — of failure to invest money properly, failing to put it to its highest use, says the true balances would be far greater but for these breaches.

It specifically seeks a–

John G. Roberts, Jr.:

Is that — is that to assert the basis about why an accounting should be required?

Anthony A. Yang:

–No, because back — the counts — these are back on pages 90 and 91a of the petition appendix.

Anthony A. Yang:

The Tribe not only seeks an accounting, but it also seeks an order to comply with all other fiduciary duties determined by the court.

This is paragraph 42.

It goes on to say that the tribe is not only entitled to object and essentially challenge the accounting, but it’s entitled to any other equitable relief that might be appropriate in light of the — the court’s decision in the case.

So the tribe is in no way trying in the district court simply to seek an accounting.

Just like in the Court of Federal Claims, it’s not simply looking to what they claim to be new money.

The specific allegations in the CFC complaint say that there has been no money for the — no accounting for the revenue collected.

John G. Roberts, Jr.:

Well, what is the — maybe I don’t know enough about what an accounting is.

But why would it be other equitable relief to which they are entitled if they simply say, we want to know what we’ve got?

Anthony A. Yang:

The tribe–

John G. Roberts, Jr.:

And they can get — and then it may be a basis for a further claim that, if that’s all we’ve got, where did the rest of it go, and that might be the Court of Claims action.

But it does strike me that they are different — claims for different relief.

Anthony A. Yang:

–It — it should be that way if there were a narrowly tailored APA-type-like suit in district court, but that’s not this.

The tribe’s complaints both invoke, for instance, the Cobell litigation which has been going on in — in D.C. for quite some time, and are modeled on the same types of broad claims that are at issue at Cobell.

This is not a simple case where there is agency action withheld and a court says: Agency, you had X duty; do it.

This is a — a situation where the tribe is seeking to impose itself on age-old decisions that have been made a long time ago and to seek to revisit them and at the end of the day restate their accounts to reflect what they think should be in the trust fund.

This parallels in both the Federal Circuit — the Court of Federal Claims and the district court suit.

There is substantial overlap in the operative facts.

As the two judges — the only two judges to have addressed this–

John G. Roberts, Jr.:

Is it accounting what should have been in the trust fund or what actually is?

You say give me an accounting of the trust fund.

Does the officer go back and just add up the bank accounts and value the land and all that?

Or–

Anthony A. Yang:

–Well, there’s a difference–

John G. Roberts, Jr.:

–does he go back and say, well, this should be there but it’s not?

Anthony A. Yang:

–The — there is a difference between the parties, and I don’t think it’s been fully fleshed out here, about what an accounting is.

The statute at issue that the tribe invokes for the accounting in our view provides a prospective obligation for the government to provide quarterly statements of what’s coming in and out of the account going forward.

John G. Roberts, Jr.:

Going forward.

Anthony A. Yang:

Going forward, not going back, and only with respect to moneys that were deposited or invested under a specific statutory authority that involves deposits that were made in banks.

So in our view — you know, our view and the tribe’s view I think are quite different in terms of what’s at issue in the district court case.

And unfortunately, that’s not the case that’s before you here.

Anthony A. Yang:

But what we’re trying to do is say whether or not there is substantial overlap between the two.

And–

John G. Roberts, Jr.:

Well, are you at cross-purposes on those two issues?

When it comes to what an accounting is, you want to say, oh, that’s just going forward; when it comes to this 1500 question you want to say they’re the same as the money damages, which goes backward?

Anthony A. Yang:

–No, I don’t think we are at cross-purposes.

What we are saying is what the complaint alleges.

We don’t control how the tribe seeks to assert rights.

We think that the complaint may be overbroad, but that’s not the correct question.

I mean, this Court in Keene, for instance, addressed suits which had been dismissed because they were improperly brought in district court, and those suits in district court were sufficient to trigger section 1500’s jurisdictional bar simply because they were asserting claims that overlapped with the claims that were at issue in the CFC.

Anthony M. Kennedy:

Do you read the claim in section 1500 the same way that it should be — or do you think we should read it the same way in 1500 and 12(b)(6), failure–

Anthony A. Yang:

I think so.

I mean–

Anthony M. Kennedy:

–Whether or not you’ve stated a claim upon which relief can be granted?

Anthony A. Yang:

–Right, which draws a distinction between the claim and the relief, right?

If relief were the particular type of relief, as the tribe asserts, the rule would simply say “failure to state a claim”, because you would have failed to state a certain element, a necessary element, of the claim.

Instead, it says

“failure to state a claim upon which relief can be granted. “

And I think that — that keys into the other important provision of rule — the Civil Rules for this purpose, which is Rule 54(c), which makes clear that the relief that might be initially stated in a complaint is not the relief that is at issue in the case.

The relief that comes at issue in the case is the relief that the — that is proven, whether it be at summary judgment or at trial.

And even if, for instance, you ask for a dollar in damages in your complaint, it may well be that at trial you establish your entitlement to injunctive relief or damages far in excess.

Ruth Bader Ginsburg:

But not so, not so here, because of the way Congress has set up the authority of each court.

You could never — what is it, 54(c) or–

Anthony A. Yang:

(C).

Ruth Bader Ginsburg:

–54(c) is the relief to which you were entitled.

The only relief to which you were entitled in the one court, the Court of Claims, is compensatory damages.

So there isn’t a question of some other form of relief.

You have to go to another forum to get different relief.

Anthony A. Yang:

Well, yes and no.

The district court complaint, for instance — and again, we contest this, but they seek a restatement of their accounts.

They seek remedies such as equitable disgorgement and the like.

Anthony A. Yang:

These are monetary remedies that go, again, to the same types of issues.

Antonin Scalia:

But I also thought that the Court of Claims could give–

Anthony A. Yang:

All of these claims could be brought–

Antonin Scalia:

–Could be brought–

Anthony A. Yang:

–in the Court of Claims.

Antonin Scalia:

–They can give injunctive relief where that’s necessary.

Anthony A. Yang:

That’s correct, but if you have a claim, for instance — taking the old money/new money framework, which we don’t think is borne out by the complaints, but even if we were correct, if they were seeking so-called old money in district court — that is, money that should have been there, but was improperly allocated and therefore didn’t show up in their account — they could also bring a claim under the Indian Tucker Act claiming that there was some breach of duty under a statute or regulation, clear and — this is a Navajo Nation-type question — and you could get an accounting through — in order to determine the proper amount that should be there.

So this is a way — the problem that we have here, particularly in these cases where there’s an allegation of 100 years of trust duties going back, and simultaneously litigating these cases in courts that might have different views on discovery obligations, different views of the law on various point cases.

One of the cases that we cite in the appendix to the petition, the Ak-Chin case, the CFC ordered discovery, for instance, that we have to conduct a review of 33,000 boxes of materials from the archives.

Although we claim there is an APA case going on in district court, the plaintiffs are seeking discovery there.

We are fighting it.

But this type of duplicative legislation and burden on the government is precisely what Congress in 1868 said: If you are going to bring suit–

Stephen G. Breyer:

Is there any instance you’ve been able to think of where an Indian tribe could have a claim for money of some kind and some other kind of relief that they seek where they couldn’t get it all in the Court of Claims?

Anthony A. Yang:

–A declaratory judgment, for instance.

Some — many — some of these cases arise–

Stephen G. Breyer:

Declaratory judgment.

Is there anything else?

Anthony A. Yang:

–Um — well, I mean, you wouldn’t be able to get injunctive relief.

Stephen G. Breyer:

No injunctive relief.

Anthony A. Yang:

Not normally in the Court of Claims.

There are exceptions.

Stephen G. Breyer:

No matter what.

Okay.

Well, then they have a problem, because they might want — they might want some money and they want an injunction.

So what are they supposed to do?

Anthony A. Yang:

There is no question that section 1500 may put a plaintiff at a difficult choice.

Stephen G. Breyer:

That’s a big choice.

Anthony A. Yang:

It’s a choice that has existed since 1868, when Congress–

Ruth Bader Ginsburg:

To test that choice — it’s pretty stark in the Casman case, where Congress said back pay is for the Claims Court, reinstatement for the district court.

But your position is that under your reading of Casman — let’s forget about Congress’s amendment.

Ruth Bader Ginsburg:

Under your reading of the statute, the Casman decision was wrong and the plaintiff had to choose either back pay or reinstatement; there was no way to get both.

Anthony A. Yang:

–That’s correct.

And I think that was this Court’s suggestion at the end of Keene, when the Court recognized that because there are complicated jurisdictional regimes that apply when you sue the government, the Court explained there may well be situations where this precludes a plaintiff from seeking all the relief that you would otherwise be able to get if you could bring suit separately.

And the Court in Keene said: Look, if there is apparent hardship — this is following its decision in Corona Coal, which is 1924.

If there is a hardship in the statute, it is a question that must be directed to Congress, because Congress is the one that set this up, this jurisdictional limit.

And the jurisdictional limit that existed in 1868, remember, was a very difficult choice.

Stephen G. Breyer:

Your basic point is this: You’re just saying it’s too bad, go to Congress.

But you don’t deny the basic point, which is that an Indian tribe may think the Bureau of Indian Affairs has really mismanaged everything and what they would like is some money, and also they want an injunction so they won’t do it again.

And now your view is, it’s true, there is no way they can get that, because they have to go to two different courts, and really in your view they can’t go to two different courts, period.

Anthony A. Yang:

Well, let me qualify–

Stephen G. Breyer:

And hardship is definite.

It’s just you are saying, that’s what Congress wanted.

Anthony A. Yang:

–The hardship may be there.

The hardship is less now than it was in 1868 because of the language of the statute–

Stephen G. Breyer:

Why isn’t it just as bad as what I just said?

Anthony A. Yang:

–Because you might be able to bring, for instance, an APA suit that completes before the six-year statute of limitations ends.

And frankly, we don’t think that that’s an unusual thing, for an APA action to be brought promptly, even with an appeal.

APA actions, again, if it’s limited to the administrative record as they should, you can go straight to a summary judgment-like procedure–

Antonin Scalia:

You have to extend a case that I didn’t agree with when it came out.

You have to extend Bowen in order to achieve that.

Does the government want to extend Bowen?

Anthony A. Yang:

–No, no.

I’m not suggesting that that was a proper suit.

But what you could do is you could pursue it and it could complete and still be — there would still be time to bring a suit in the Court of Federal–

Antonin Scalia:

You could complete it to a denial of recovery?

Anthony A. Yang:

–Perhaps, that’s right.

We think these suits–

Antonin Scalia:

I don’t think that’s any comfort to the Indian tribe, do you?

Anthony A. Yang:

–Well, but that’s precisely what they are seeking to do here, and we just disagree whether that relief is available in district court.

And the question here is whether you can simultaneously pursue it.

Anthony A. Yang:

Let me be clear.

These cases in our view should almost all be brought normally in the Court of Federal Claims.

These cases are seeking money for past actions and that’s precisely what the Court of Federal Claims should address.

However, a number of plaintiffs like to try their hand at more than one court and they bring simultaneous suits, just as Tucker — the cotton claimants did in the 1860’s, where Congress provided for a general statute, very broadly worded.

It applies to any claim for and in respect to which any suit or process is pending in any other court against the U.S. or any person acting or professing to act as its agents.

It’s a very broad statute.

John G. Roberts, Jr.:

It’s not — I mean, you are putting a pejorative spin on what they are doing, saying, you know, many plaintiffs like to take a chance in more than one court.

But your response to Justice Breyer suggests that that’s a tough choice if you have to choose between injunctive relief or damages.

That’s not them trying to, you know, get the same — take two bites at the apple.

Anthony A. Yang:

In some cases, it’s is a tough choice.

Casman would have been a very difficult choice.

But as this Court suggested in Keene, the question goes to Congress, and when Congress addressed the question it decided relief of that sort should be brought all in the Court of Claims.

But in this case, this is not a case where we think particular hardship would be had, because the tribe could pursue its claims in the Court of Federal Claims and probably should be doing that if it simply–

Sonia Sotomayor:

So why isn’t our rule simply — what is so wrong with a rule that says if you can bring it in the Court of Claims you have to, but if there’s relief that you can’t secure there you can have two lawsuits?

What is so irrational about that?

Anthony A. Yang:

–Well, that doesn’t square–

Sonia Sotomayor:

If there is no double recovery possible.

Anthony A. Yang:

–But that doesn’t square even with the history of what Congress is trying to target.

The relief that was available in the Court of Claims in the 1860’s in the Abandoned Property Collection Act was a very limited–

Sonia Sotomayor:

We have already gone through that because most of those claims would have had some element of double recovery, that might have precluded a second action.

The point that I raised was if there is a chance of potential double recovery, you can’t breach, what’s wrong with that?

Anthony A. Yang:

–I don’t think it squares with the text of the statute, which is broader than, doesn’t provide for a claim, it doesn’t provide for relief, it doesn’t speak to double recovery.

If Congress was intending to target that specific problem it could have done so in a much more direct manner.

Mr. Chief Justice, I would like to reserve the remainder of my time.

John G. Roberts, Jr.:

Thank you, Mr. Yang.

Ms. Spinelli.

Danielle Spinelli:

Mr. Chief Justice, and may it please the Court:

Two suits are for or in respect to the same claim under Section 1500, only if they stem from the same operative facts and seek duplicative relief.

And in response to the Government’s argument, I would like to explain why that’s the best reading of Section 1500’s text, as well as the only reading that harmonizes Section 1500 with the overall jurisdictional and remedial scheme.

Congress has made a broad range of remedies available to Plaintiffs wronged by the Government.

Danielle Spinelli:

And it’s directed Plaintiffs to seek certain remedies only in the Court of Federal Claims, and certain remedies only in the district court.

The Government’s reading of Section 1500 assumes that Congress intended to penalize Plaintiffs for following that direction by barring them from the only forum where they can obtain money damages.

But nothing in the statute’s text or history suggests that Congress intended to create such a nonsensical scheme.

Antonin Scalia:

Your argument assumes that there is available in the district courts injunctive relief under the Administrative Procedure Act, and that is far from clear, even after Bowen, it’s far from clear if you had any business being in the district court anyway.

And so in a way we are resolving a very strange question, that is if as is not clear, you have a right to sue in the district courts for an injunction, can that suit proceed because of 1500 when there is a suit pending in the Court of Claims and that is sort of an abstract question.

Danielle Spinelli:

Justice Scalia, it is disputed whether or not the district court has jurisdiction to entertain the Nation’s claims there.

The Government has a move to dismiss on that ground, that motion is pending.

We don’t believe that the district court’s jurisdiction over the claims raised in the district court is a question that this Court needs to face.

Rather, the question here is whether the Court of Federal Claims has jurisdiction over the claims brought in the CFC.

And that turns not on whether the district court has jurisdiction, but on whether duplicative relief is sought in both suits.

Stephen G. Breyer:

The main thrust that I was raising was does this really get the Tribe into trouble?

They have to forego one kind of relief for another.

So what about injunctive relief, that’s what he thought of, and Justice Scalia raises the point, well, they are not going to be entitled to injunctive relief anyway because the APA doesn’t provide it, if I understand that correctly.

So you are giving up the null set.

You were giving up the null set.

Danielle Spinelli:

No, not at all, Justice Breyer.

First of all, we would contest that we are not entitled to the relief that the Nation sought in the district court.

We believe that the Nation is entitled to that relief.

Stephen G. Breyer:

But it couldn’t get it in the court — in the claims?

Danielle Spinelli:

Correct.

Stephen G. Breyer:

It couldn’t get that kind of relief in the Court of Claims?

Danielle Spinelli:

Correct.

Stephen G. Breyer:

Yes, it could.

Danielle Spinelli:

No, no, no.

You are right that it could not.

The relief that is being sought in the district court is primarily an accounting.

An accounting is inherently an equitable remedy, a remedy that under trust law the trustee owes to the beneficiary to provide the beneficiary with all the information necessary for him to protect his rights.

Anthony M. Kennedy:

Isn’t it well established that part of the jurisdiction of the equity court when it requires an accounting is to give damages for breach of the trustee’s duty?

That’s Hornbook.

Danielle Spinelli:

That may well be the case, Justice Kennedy, in common law trust suits.

Danielle Spinelli:

That wasn’t requested–

Anthony M. Kennedy:

No, I’m talking about historically in equity.

No.

Historically in equity the trustee who breaches the trustee’s duty in the equity court is required to give damages.

Danielle Spinelli:

–You are correct that normally, that in the past–

Anthony M. Kennedy:

It’s not common law, it’s not common law, it’s equity.

It’s old law, it’s equity.

Danielle Spinelli:

–Correct.

You are correct that in the days of the divided bench suit for breach of trust were brought in equity.

I don’t think we need to parse that finely here, because the question here is whether or not the Tribe has sought duplicative relief in both courts.

Antonin Scalia:

Isn’t that unrealistic?

You don’t want an accounting for the sake of having an accounting so that you can put the accounting in your desk.

Oh, look it, they stole $1,000,000,000 from us.

You want to get the $1,000,000,000.

If the suits are directed at the same object, and it is fanciful to think there is this separate suit for an accounting.

The object of that suit is the same thing as the object of the suit in the Court of Claims.

Danielle Spinelli:

With respect, Justice Scalia, that is not the case.

The accounting has enormous benefit entirely apart from any monetary relief that it might ultimately lead to.

The Nation, as well as other tribes who have brought these kinds of suits, lack basic information about what they own, what the metes and bounds of their lands are, what leases have been granted, how long they last, what easements and rights of way have been granted over their land, what the status is of their mineral rights and timber rights.

All of this is information that the Tribe needs and that Congress recognized in the Indian Trust Fund Management Reform Act that the Tribe needs in order to exercise its Federally granted right to decide how it’s assets are best managed, and the longer that that accounting is delayed, the more the Nation is harmed by the inability to do that, the inability to decide whether certain funds should be withdrawn from trusts held by the United States, the inability to decide whether it should bring claims against third-parties.

So there’s real value to the accounting that’s entirely separate from any monetary relief.

And the accounting is not sought in the Court of Federal Claims.

The Court of Federal Claims has long held that it lacks jurisdiction to grant that kind of pre-liability historical accounting.

Although–

John G. Roberts, Jr.:

Can you get the accounting in conjunction with the claim of damages?

Maybe the Court of Federal Claims, you can’t go there and say, look, I want an accounting, but you can say I have been wronged over the century and I would like to find out to what extent, and before you can figure that out you actually have to have an accounting.

Can’t the Court of Federal Claims get an accounting in that context?

Danielle Spinelli:

–The Court of Federal Claims can order something called an accounting in aid of judgment.

Despite the similar terminology, they are not at all the same.

An accounting of the type that’s being sought in the district court is a remedy by itself.

Danielle Spinelli:

It’s a remedy that the beneficiary is entitled to once its received or denied, that’s a final order that can be appealed.

John G. Roberts, Jr.:

Okay.

It’s a remedy, but is it terribly different from what the accounting the Court of Federal Claims would order to figure out how much–

Danielle Spinelli:

It is because it requires the trustee to provide all information about the trust that might be relevant to the beneficiary, and it does so without requiring the beneficiary to prove any mismanagement.

By contrast–

Antonin Scalia:

Were those accountings available before the Administrative Procedure Act was passed?

Is the jurisdictional basis for that the waiver of sovereign immunity that allows you to demand an accounting from the United States?

Is that just the APA?

Danielle Spinelli:

–The waiver of sovereign immunity that is being asserted in the district court is the APA, that’s correct.

Anthony M. Kennedy:

What about this–

Antonin Scalia:

So you didn’t have a right to that before the APA was passed?

Danielle Spinelli:

In the district court, no.

Antonin Scalia:

Either in the district court nor in the Court of Claims.

So this is not an unthinkable situation, is it?

Danielle Spinelli:

It’s a little bit more complicated–

Antonin Scalia:

It was thought about for a century, anyway.

Danielle Spinelli:

–It’s a little bit more complicated than that because prior to — prior to the Court of Federal Claims in its current incarnation, certain claims for an accounting could have been brought before the Indian Claims Commission, but — I mean that’s going a little far afield.

The — at any rate Congress has now recognized specifically by statute that this is something that Tribes need, and that’s the right that the Nation is seeking to enforce in the district court action.

Antonin Scalia:

Well, why have — you say Congress has specifically recognized it by statute.

You’re referring to the APA?

Danielle Spinelli:

No, I’m referring to the 1994 Indian Trust Fund Management Reform Act, which specifically required the Department of the Interior to provide Tribal beneficiaries with certain statements, certain accountings regarding their–

Antonin Scalia:

But did not provide for a lawsuit against — against the government.

Danielle Spinelli:

–They did not — they did not expressly do so, no.

Anthony M. Kennedy:

–When you are in the CFC, don’t you get — you aren’t you asking for compensation for losses and injuries from the commingling or the misappropriation of assets?

Danielle Spinelli:

No, Justice Kennedy, in the Court of Federal Claims, as a close reading of the complaint will show, the Nation is requesting four specific kinds of relief.

First it’s asking for damages from the United States’ failure to lease its mineral rights for fair market value.

That’s count 1.

Count 2 is seeking damages from the United States’ failure to obtain fair market value for leases of its land.

Count 3 is seeking damages from the United States’ failure to invest judgment funds in a timely way and to obtain the maximum interest rate; and count 4 asserts a similar claim for damages with respect to the trust fund.

Anthony M. Kennedy:

But your brief makes the — seems to make the point that that’s all just interest on capital.

Anthony M. Kennedy:

It’s not for lost capital.

But even as you described it, it sounds to me that you get damages for loss of capital plus interest.

Danielle Spinelli:

It’s — it’s not just interest, you are correct.

I mean, maybe if I give an example this will make things a little bit clearer.

Say that the government sold a stand of timber belonging to the Nation for $20, even though the stand of timber was worth $40.

It then deposited it into the trust account, $10.

The suit in the district court seeks an accounting and a restatement of the accounts and to the extent appropriate and available, equitable restitution of the $10 that was missing from the account.

The suit in the CFC seeks to recover the $20 that the United States should have earned, had it acted as a prudent fiduciary when it was selling the stand of timber.

And the Nation is entitled to both sums of money, but they are different, and because the money sought in the two courts is different, the relief is not duplicative.

Anthony M. Kennedy:

My problem is that I read the CFC complaint as including both.

I will take a look at it.

And I intruded on Justice Breyer’s question.

Stephen G. Breyer:

What I’m trying to work out still in my mind, is if you say, look, Indian Tribe: You have to go to the court of claims, period.

Period.

You can’t go to these other courts, I mean unless you give up the court of claims.

Is the Indian Tribe going to really lose something it needs?

Danielle Spinelli:

Yes.

Stephen G. Breyer:

I know you think yes.

I realize that.

[Laughter]

And, what I want to ask you about–

Danielle Spinelli:

Yes.

Stephen G. Breyer:

–is in section 2–

Danielle Spinelli:

I apologize.

Stephen G. Breyer:

–of 1491 there is a sentence which says, about the court of claims, in any case including the 1505 Tucker Act, the court shall have the power to remand appropriate matters to any administrative or executive body or official with such direction as it is may deem proper and just.

Now that seems awfully broad, so I’m thinking now, if they want money, they can get the money from the court of claims.

If they want something like an injunction, they could ask the court of claims, tell the executive branch to behave the way we think they have to under the law and there’s your authority.

Danielle Spinelli:

Justice Breyer–

Stephen G. Breyer:

I’m just quoting.

Now what’s — I want to know the response.

Danielle Spinelli:

–Justice Breyer, you’re — you are exactly right about what 1491(a)(2) provides, but it also provides that any such relief can be ordered only as an incident of and collateral to a judgment of a claim of which the Court of Federal Claims otherwise has jurisdiction.

Stephen G. Breyer:

Well, you want money; that causes the problem.

If you don’t want any money, you don’t have a problem.

You Just forget about it.

Danielle Spinelli:

And notwithstanding this language–

Stephen G. Breyer:

Yes.

Danielle Spinelli:

–the court of claims has continued to hold that it lacks jurisdiction to grant an equitable pre-liability accounting.

All that it can do is after liability for certain acts of mismanagement has been proven, calculate damages for those specific acts of mismanagement.

Now–

Sonia Sotomayor:

I’m not sure I understand.

You could not bring in the court of claims the old money claims, and why?

That the government mismanaged–

Danielle Spinelli:

–Well, two — two things, Justice Sotomayor.

We believe that the Nation could not bring the old money claims in the Court of Federal Claims because it has held repeatedly that it lacks jurisdiction to grant an equitable accounting.

However, I don’t believe the answer to that question matters, because the issue here is not–

Sonia Sotomayor:

–It does, because why couldn’t you simply have said, they owe us that original extra 10 bucks — $10, and we want it?

What — what–

Danielle Spinelli:

–Dividing — well, it is clear that the accounting sought in the district court couldn’t have been obtained in the court of claims.

And it made sense to seek the old money as the court of appeals called it, in conjunction with the accounting, because the accounting is what should reveal what is missing from the account.

And that’s the reason, and not for any manipulative or forum-shopping purpose, that the Nation split its complaint the way it did.

Now to be sure, there is some fuzziness about the jurisdictional line between the Court of Federal Claims and the district court.

There is no doubt about that.

The Nation did its best to negotiate that and filed its complaints in good faith.

We believe that that question doesn’t need to be addressed by this Court, because the only question section 1500 asks is whether the two suits are for or in respect to the same claim, by which we think it means are they for or in respect to the same demand for relief.

Here–

Ruth Bader Ginsburg:

The government says the statute is simple.

It says you can’t have two suits simultaneously, or you can’t when the CFC suit is the — the second one.

And Mr. Yang told me that yes, the government thinks that in the Casman case there was a choice, you can sue for reinstatement in the district court, you can sue for back pay in the claims court, but you cannot get both.

And when Congress realized that that’s what was happening, Congress did not adopt a two — didn’t bless the two-state — two court solution.

Congress said, there will be one lawsuit.

Ruth Bader Ginsburg:

It will all be in the claims court, and they can grant both the back pay and the reinstatement.

So the two-suit approach was rejected, I guess, in — in Congress’s response to Casman.

Danielle Spinelli:

–With respect, Justice Ginsburg, I would disagree.

I think that action by Congress in the 1972 Remand Act strongly supports the conclusion that Congress has implicitly acquiesced in this construction of section 1500.

Congress — you are right, Congress decided not to say go ahead with your two suits in two different courts.

It thought that was too burdensome for the plaintiff; rather it amended the Tucker Act to permit the plaintiff to pursue both remedies in the Court of Federal Claims.

But that shows that Congress was well aware of the Casman holding, and it did not make any change to the statute to cast the holding into doubt, that where two remedies are available in two different courts, one can pursue them by bringing simultaneous suits in the two different courts.

All that it did is make it easier for plaintiffs in that specific situation to get full relief.

Beyond that, in 1982–

Antonin Scalia:

Well, excuse me, it didn’t make it easier.

You — you had to bring them both in the court of claims, no?

You didn’t still have the option of — of still bringing two different suits, did you?

Danielle Spinelli:

–No, I think after — after the amendment–

Antonin Scalia:

You had to go to the court of claims.

Danielle Spinelli:

–Yes.

I mean, other — otherwise that would raise a claim-splitting problem.

Antonin Scalia:

No, but if they were just making it easier, they — they would have said, you know, you can do either one.

Danielle Spinelli:

Well, I mean, clearly the easier path is to have one suit.

I don’t think any plaintiff wants to be forced to bring two suits to obtain two different remedies, both of which it needs, at double the expense and, you know, double the anxiety.

But I think what’s significant about the 1972 action is that Congress did absolutely nothing to suggest that it disagreed with the Casman holding.

And the same is true in 1982, when Congress completely revamped the entire jurisdictional scheme, changed the jurisdiction of the claims court very much, and yet left section 1500 entirely untouched.

And that makes sense.

I mean, just to turn to the text for a minute, the key word, as I think this Court said in Keene, is the word “claim”.

“Claim” can mean a lot of different things.

It can sometimes mean the set of operative facts from which a right to relief arises, which I believe is at least implicitly what the government is saying.

It can also mean a demand for relief; for instance, in this Court’s cases regarding Article 3 standing, it’s routinely said that plaintiff has to establish standing separately for each claim, which means for each form of relief sought.

The reason that is the correct reading of section 1500 is because of the nature of the jurisdictional scheme.

The Court of Federal Claims has always been a court of limited jurisdiction.

It can only grant certain remedies, primarily money damages.

And the word 1500, has been read by this Court to mean a demand for relief.

Ruth Bader Ginsburg:

That would be inconsistent with the definition of “claim” in the federal rules, I think.

Danielle Spinelli:

Yes, I think the definition of “claim” in the federal rules — I think that’s a different definition of “claim”.

I think what we have here is a narrower definition that was first established in the 19th century through this Court’s decisions construing the Tucker Act and its predecessors.

Given that the word 1500 as having the same meaning.

Antonin Scalia:

If you give it that narrow meaning, however, the government says you are contradicting what was the case with regard to the cotton suits.

That, in fact, some of them were asking for funds from this — money from this common fund, and others were seeking relief against the individuals who had taken the cotton or replanted the cotton.

Those are different claims, as you define “claim”, anyway.

Danielle Spinelli:

I don’t think that is our definition of “claim”, but let me explain.

We don’t dispute that certain cotton claimants, you know, brought writs of conversion of trespass.

Some may have brought writs of replevin or detinue seeking the cotton itself back.

The relevant fact is that the suit saying

“I want my 100 bales of cotton back. “

and the suit saying

“I would like money to compensate me for my loss of 100 bales of cotton. “

seek duplicative relief.

And–

Antonin Scalia:

That is different from the word “claim”.

I mean, if you are hanging the whole thing on the word “claim”, you gave me a very plausible alternate definition of “claim”.

But your case does not follow that.

Your case hinges on duplicative relief, which is something quite different.

I don’t know any definition of “claim” that is synonymous with duplicative relief.

Danielle Spinelli:

–The word 1500 refers to claims over which the Court of Federal Claims has jurisdiction, just as it does in the Tucker Act.

There is no express limitation in the Tucker Act on the relief that can be granted.

The word “claim” has been read implicitly to incorporate a limitation on the kind of relief that can be granted.

Therefore, in section 1500, a suit for or in respect to a claim in the Court of Federal Claims must mean a suit for or in respect to a demand for relief that the Court of Claims can grant, and where duplicative relief is being sought, that falls within the language of the statute.

It falls within the overall jurisdictional scheme which directs plaintiffs to bring suits for different relief in different courts, and it also appears with cotton claimants.

The cotton claimants were seeking duplicative relief, and that’s the concern that Congress aimed at.

Congress was not faced in 1868 with a situation in which plaintiffs had been directed to seek different non-duplicative remedies, remedies that weren’t substitutes for one another but complimented one another in two different courts.

Stephen G. Breyer:

I had under the impression that sometimes they sued for some money out of a fund, which would have been partial, and other times they sued for the value of the cotton, and other times they sued for the cotton itself, which in certain circumstances could have been worth a lot more.

By the time of suit, it went up.

Stephen G. Breyer:

I mean, do we know it was always duplicative in those cotton suits?

Danielle Spinelli:

I believe we do know it was always duplicative, notwithstanding the fact that the amount that one might recover might differ.

Stephen G. Breyer:

Well, if the amount differs, then, why do you suppose the cotton belonged to the Indian Tribe?

On the one hand, they want an accounting out of the money ever earned out of this cotton in the past and on the other hand, they want what the cotton is worth in the future on the–

Danielle Spinelli:

That is not–

Stephen G. Breyer:

–That’s Justice Scalia’s question.

Danielle Spinelli:

–That is not duplicative.

What is duplicative is a remedy that is either the same, or a remedy that serves as a substitute for another remedy.

And what this Court has said, though, is that even if it’s not a completely full substitute — even if, say, the damages sought in one court are less than the damages sought in another — if they are duplicative relief for the same injury, they are barred by section 1500.

And I think that is completely consistent with the holding in Keene.

In Keene, the plaintiff was bringing multiple suits against the United States in different courts for duplicative relief, money, and compensation for funds it had paid out to asbestos claimants.

And notwithstanding the fact that it brought some of those suits on a contract theory and some of those suits on an equitable tort theory of indemnification, the statute barred those.

But Keene was not faced with a situation in which the plaintiffs were forced, as in Casman, to proceed in two different courts to obtain different relief.

And another particularly good example is an example of a regulatory taking suit, in which if a plaintiff wants to challenge the legality of government regulation affecting his property, he needs to do that in the district court under the APA.

And according to the government, he cannot bring a suit for just compensation in the Court of Federal Claims until that district court suit is completed and any appeal is completed and any cert petition is completed, by which time the six-year statute of limitations on the just compensation claim may very well have expired.

Anthony M. Kennedy:

But in your case — now, let’s assume the government prevails.

You go to the CFC, and you prevail on everything.

You get all the findings in your favor and so forth.

There is some relief that you don’t get.

I take it, unless I am missing something, that you could then, after the CFC suit is finished, go to district court and say: Now we want this added protection, this added relief.

Danielle Spinelli:

The reason–

Anthony M. Kennedy:

And the statute wouldn’t have run generally, because if you are seeking the injunction, it’s only latches bars you, and you are not barred by latches because you couldn’t have gone sooner.

Danielle Spinelli:

–There are a couple of reasons why that doesn’t work, Justice Kennedy.

First of all, the Nation needs the accounting now.

I mean, it’s as if in Casman, Casman had been told, well, you know, first get reinstated — I’m sorry — first get your backpay; then go get reinstated.

He needs his job back now not later — the Nation needs the accounting now, not later.

In addition, if it were the case that the accounting uncovered additional mismanagement, this statute of limitations, the six-year statute of limitations might well expire while the district court suit for an accounting is pending, those suits tend to last a very long time.

Indeed in the Indian Claims Commission they have been known to last for up to 50 years.

And it would force the Nation to run the risk of losing its right to damages.

We don’t believe that’s what Congress had in mind.

Danielle Spinelli:

It doesn’t harmonize Section 1500 with the remainder of the statutory scheme.

It’s not mandated by the history of the statute, and it simply doesn’t make sense.

Unless there are further questions, we ask for the judgment be affirmed.

John G. Roberts, Jr.:

–Thank you, counsel.

Mr. Yang, you have four minutes remaining.

Anthony A. Yang:

Thank you, Mr. Chief Justice.

The Tribe is unable to identify a textual basis for its same relief defense to the court of federal claims.

If it’s definition of claim is as narrow and circumscribed as it defines, it wouldn’t capture the cotton claim.

Moreover, putting aside the definition of claim, the statute applies when there is a pending suit or process in another court.

That is not only for the claim, but in respect to the claim.

That substantially broadens the statute.

Two, there are two problems with the same relief test that’s as a practical matter.

In order to determine whether the same relief is being sought in the other court, which is the relevant question under their test, you have to ask, what relief would be sought in district court.

But Rule 54(c) makes clear that the relief which is available in district court is not specified by the complaint, it’s whatever develops through the case.

So you might not know until the very end whether duplicative relief is being sought.

Secondly, if you are going to limit the relief that is available in the district court based on what the court of claims’ view is of the district court’s jurisdiction to issue relief, you are inviting the court of federal claims and the federal circuit to be opining on the jurisdiction of the district court under the APA, in very complicated cases which involve questions of Bowen, Utah Wilderness, this is not the way that you would construe normally a jurisdictional statute.

The specter of 50-year old suits proceeding simultaneously in the court of federal claims in district court certainly would have motivated, or spoken to the Congress that enacted Section 1500’s predecessor in 1868.

John G. Roberts, Jr.:

Do you agree with your friend that there are differences between the accounting you can get in the district court and the accounting you can get in the court of federal claims as a prelude to monetary damages?

Anthony A. Yang:

I’m not exactly sure the differences that they are pointing to.

There are differences in terms of the procedure and what is a relief.

The other you would have to show that there was some kind of a breach and you get a full kind of accounting to quantify damages that relate — in aid of judgment.

But at the end of the day, the example, losing $10 and you collect 20 but only debit — put 10 on the books, that is a claim which is cognizable in the court of federal claims if they have a money mandating statute of regulations.

Antonin Scalia:

They don’t even know who has hunting leases and–

Anthony A. Yang:

That’s what discovery — that’s what discovery is for.

The Ak-Chin case, for instance.

33,000 boxes of discovery we have to go through in terms of a discovery request in the court of federal claims.

This is done — this is the way cases normally proceed.

They do not proceed on dual tracks where the very premise of liability in the court of federal claims is being litigated in district court, or they are seeking to challenge, you know, an accounting.

Accounting normally would be, you know, here’s an account of your — your assets, but they’re seeking to challenge it.

If you went back to equity, for instance.

Anthony A. Yang:

A trustee does, as an equitable matter, have a duty to account when requested.

But the cost of the accounting is taken out of the trust corpus.

That’s not what is going on here.

They are trying to seek to use the APA to force something which we don’t think is authorized under statute as a secondary means of discovery for the same claims that are at issue in the court of federal claims.

That type of duplicative litigation and the burden on the federal courts is precisely what Section 1500 was intended to prevent against, and in the absence of a textual basis for the same relief test that the court of federal claims or federal circuit adopted here I think is fatal to the case.

Anthony M. Kennedy:

But the accounting doesn’t come out of the trust corpus if there is misfeasance, the trustee has to pay the damages for that?

Anthony A. Yang:

I can’t speak to that, Justice Kennedy, that is possible.

I’m just not that versed in equity jurisprudence to be able to give you a definitive answer.

Ruth Bader Ginsburg:

What about the Loveladies situation?

Anthony A. Yang:

In Loveladies, if I may answer.

John G. Roberts, Jr.:

Sure.

Anthony A. Yang:

Loveladies involved a district court claim for a declaration that the action wasn’t taken.

The district court taking declaration which was ultimately disposed of, but at the same time that Loveladies was seeking does assert a claim for just compensation in the court of federal claims.

John G. Roberts, Jr.:

Thank you, Mr. Yang, Ms. Spinelli.

The case is submitted.