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Hypothetical question

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I have a hypothetical question that hopefully someone can share a productive response.  Here is the question can  a defendant or defendants be dismissed in a suit for various reasons that formed part of claim without dismissing the claim itself against the other defendants for example in a conspiracy claim that deferent or defendants conspired to deprive the plaintiff of rights or privileges, where some defendants claims are dismissed due to for example immunity claims that they are immune from suit for whatever reason.  Does immunity claims as to the immune defendant or defendants 'clean the entire slate' on the other defendant from the conspiracy claims when there was actual conspiracy and evidence of rights and privileges that were violated that otherwise would not have occurred had the defendant not conspired against the plaintiff?    

 

In other words would the conspiracy claims against the defendants survive despite dismissal of the immune conspirators 

 

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Conspiracy is not an independent cause of action in a civil matter as you describe it.  The claim is the deprivation of rights or privileges.  If the deprivation occurs despite the immunity of one party to the actions, the claim may proceed against the remaining party.  However, the alleged conspiracy would necessarily fail.

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2 minutes ago, RetiredinVA said:

Conspiracy is not an independent cause of action in a civil matter as you describe it.  The claim is the deprivation of rights or privileges.  If the deprivation occurs despite the immunity of one party to the actions, the claim may proceed against the remaining party.  However, the alleged conspiracy would necessarily fail.

 

I can understand the immunity aspect of the defendants but that I still can't grasp or understand the part that the conspiracy claims failing aspect simply because certain defendants would be immune from suit (how is that if you loose the conspirator through immunity then the conspiracy is forgot despite the foot prints the conspirators left behind). what if there is not only a deprivation of privileges and rights but a continuum of deprivation of rights or privileges?   

 

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10 minutes ago, foolish said:

 

I can understand the immunity aspect of the defendants but that I still can't grasp or understand the part that the conspiracy claims failing aspect simply because certain defendants would be immune from suit (how is that if you loose the conspirator through immunity then the conspiracy is forgot despite the foot prints the conspirators left behind). what if there is not only a deprivation of privileges and rights but a continuum of deprivation of rights or privileges?   

 

 

Answering questions like this in the abstract is really not possible since the specific facts involved, who the defendants are, and the actual claims being made are important. And it makes a huge difference whether it is a criminal or civil proceeding. In a civil setting, conspiracy is generally not a stand alone claim; rather a conspiracy claim is generally used as a way to hook additional defendants into the lawsuit. The actual claim against the defendants is something else. In those cases if all but one defendant is dismissed then there is no conspiracy angle to pursue: that last defendant either committed the underlying civil wrong (e.g. deprivation of rights) or he didn't.

 

On the other hand there are stand alone conspiracy crimes and the fact that charges against one defendant are dropped might not be fatal to the conspiracy charge against another. One party to the conspiracy getting immunity to testify against the other co-conspirator is a classic situation where the case against the remaining defendant might still proceed. 

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I think you're misunderstanding. If there is a claim of conspiracy to defraud Amy lodged against Ben and Cindy, and later the charges against Cindy are dismissed, but  not Ben, it's still possible to prosecute Ben for fraud against Amy but there cannot be a conspiracy charge because it takes more than one person to conspire.

 

Sorry, Tax's post was not there yet when I responded.

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Believe me I understand that specifics matter and I like always appreciate the patience and only turn here for some guidance to get a better grasp on the issue.  Let me give a another example in civil suit claiming that both state and federal defendants conspired to deprive the plaintiff of his federally protected rights but a sued in both their 'individual' and  'official' capacities in the federal court and the state actors claims that they are immune from suit but in my research only half might be true the half that might be true is that the state actors might be immune in their ''official'' capacities but not their ''individual'' capacities for violations of federally protected rights.  The claim against the state would bar he conspiracy in  the official capacity but the same defendants in their individual capacity, am I correct.  Wouldn't the claims against state actors in their individuals remain intact?

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What you are not understanding is that in the circumstance you  described, there is no action for conspiracy.  The wrong for which you may sue is the deprivation of rights.  Whether state and federal agents "conspired" to deprive you of your rights is irrelevant. 

 

And yes there are claims available against federal and state actors in their individual capacities.  See Bevins and its offspring.

 

 

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29 minutes ago, RetiredinVA said:

What you are not understanding is that in the circumstance you  described, there is no action for conspiracy.  The wrong for which you may sue is the deprivation of rights.  Whether state and federal agents "conspired" to deprive you of your rights is irrelevant. 

 

And yes there are claims available against federal and state actors in their individual capacities.  See Bevins and its offspring.

 

 

 

 

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31 minutes ago, RetiredinVA said:

What you are not understanding is that in the circumstance you  described, there is no action for conspiracy.  The wrong for which you may sue is the deprivation of rights.  Whether state and federal agents "conspired" to deprive you of your rights is irrelevant. 

 

And yes there are claims available against federal and state actors in their individual capacities.  See Bevins and its offspring.

 

 

 

Thanks for the insight,  I understand that the relevant issue is the deprivation of rights, what I was mauling over was the capacities which individuals are sued and the bars. 

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21 hours ago, foolish said:

can  a defendant or defendants be dismissed in a suit for various reasons that formed part of claim without dismissing the claim itself against the other defendants

 

Yes.  Happens all the time.

 

 

21 hours ago, foolish said:

Does immunity claims as to the immune defendant or defendants 'clean the entire slate' on the other defendant from the conspiracy claims when there was actual conspiracy and evidence of rights and privileges that were violated that otherwise would not have occurred had the defendant not conspired against the plaintiff?

 

This is a very convoluted sentence, but I think what you're asking is whether a person is absolved from a "conspiracy" claim simply by conspiring with someone who has immunity.  The answer to that is no.  Also note that "conspiracy," without more, is typically not an actual cause of action.  Or are you asking about a criminal prosecution?

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7 hours ago, pg1067 said:

 

Yes.  Happens all the time.

 

 

 

This is a very convoluted sentence, but I think what you're asking is whether a person is absolved from a "conspiracy" claim simply by conspiring with someone who has immunity.  The answer to that is no.  Also note that "conspiracy," without more, is typically not an actual cause of action.  Or are you asking about a criminal prosecution?

 

I appreciate the patience iI understand its not only convoluted but t is vague but that's me holding my cards to my chest as best I can but believe its not close enough so bare with me.  The issue is federal law under 42 U.S. Code Sect. 1985(3), attached to 1983 claims and others .  

 

 

 

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11 hours ago, foolish said:

The issue is federal law under 42 U.S. Code Sect. 1985(3), attached to 1983 claims and others .

Are you talking about 42 USC 1985(3) which begins:

 

"(3)Depriving persons of rights or privileges

If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any personor class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; "

 

Seriously,  you can"t just pick out a paragraph ccontaining the words "conspire" and "damages" and create a new cause of action.

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Is it normal for a court to issue an adverse order against plaintiff  before the briefing is closed for example before plaintiff's reply to defendants response to plaintiff's complaint/petition is timely filed?       Wouldn't plaintiff be denied his due process right to carry his burden of litigating defending against defendants (compulsory process)"?

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6 minutes ago, foolish said:

Is it normal for a court to issue an adverse order against plaintiff  before the briefing is closed for example before plaintiff's reply to defendants response to plaintiff's complaint/petition is timely filed?       Wouldn't plaintiff be denied his due process right to carry his burden of litigating defending against defendants (compulsory process)"?

 

Is it normal? I'd say it's not the most common way pleadings and motions are handled. But it is not unheard of either. If it is clear by what has already been filed that the plaintiff would lose the issue and that further briefing wouldn't make a difference then the court can go ahead and issue the decision or order on the motion. That does not deny the plaintiff due process. But of course the details matter, as you know, and there are no details here. 

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1 hour ago, Tax_Counsel said:

 

Is it normal? I'd say it's not the most common way pleadings and motions are handled. But it is not unheard of either. If it is clear by what has already been filed that the plaintiff would lose the issue and that further briefing wouldn't make a difference then the court can go ahead and issue the decision or order on the motion. That does not deny the plaintiff due process. But of course the details matter, as you know, and there are no details here. 

 

Actually,  the order impliedly conceded that plaintiff did state a claim upon which relief could be granted but it had to be dismissed under 28 U.S.C. 1500.   My question is wouldn't that conflict with 28 U.S.C 1346(a) which permits parallel proceedings to held limited on that cause of action?     

 

 

 

 

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44 minutes ago, foolish said:

 

 

Actually,  the order impliedly conceded that plaintiff did state a claim upon which relief could be granted but it had to be dismissed under 28 U.S.C. 1500.   My question is wouldn't that conflict with 28 U.S.C 1346(a) which permits parallel proceedings to held limited on that cause of action? 

 

I think you misunderstand what concurrent jurisdiction means. 28 U.S.C. § 1346 does not allow the same claim or cause of action to proceed in both the district court and the court of federal claims at the same time. Rather, it simply tells you that a claim meeting the criteria (either a claim regarding federal tax refunds or certain other claims against the federal government not exceeding $10,000) may be brought either in the district court or the court of federal claims. In other words, this section allows you a choice of which of the two courts you may bring those claims, rather than dictating one court as having exclusive jurisdiction over those claims. As a result, if you have claim pending in district court and you attempt to bring that claim in the Court of Federal Claims, too, under 28 U.S.C. § 1500 the Court of Federal Claims must dismiss it. 

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2 minutes ago, Tax_Counsel said:

 

I think you misunderstand what concurrent jurisdiction means. 28 U.S.C. § 1346 does not allow the same claim or cause of action to proceed in both the district court and the court of federal claims at the same time. Rather, it simply tells you that a claim meeting the criteria (either a claim regarding federal tax refunds or certain other claims against the federal government not exceeding $10,000) may be brought either in the district court or the court of federal claims. In other words, this section allows you a choice of which of the two courts you may bring those claims, rather than dictating one court as having exclusive jurisdiction over those claims. As a result, if you have claim pending in district court and you attempt to bring that claim in the Court of Federal Claims, too, under 28 U.S.C. § 1500 the Court of Federal Claims must dismiss it. 

 

It sounds reasonable that it makes sense, I misread 28 U.S.C section 1346 to mean that exactly the opposite what has been explained here. In that case wouldn't been fair that the plaintiff be allowed to chose between what forum to forgo?    What  effect is the dismissal under 1500 to my being able to refile it in that court, say for example if I voluntarily withdrawal those claims in the other court but continue the other claims? 

 

 

 

 

 

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7 hours ago, foolish said:

 

It sounds reasonable that it makes sense, I misread 28 U.S.C section 1346 to mean that exactly the opposite what has been explained here. In that case wouldn't been fair that the plaintiff be allowed to chose between what forum to forgo? 

 

When the law provides for concurrent jurisdiction the plaintiff does get his choice of forum — he may file his claim in one of the two courts. Thus had you only filed in the claims court and you stated a claim that the claims court has subject matter jurisdiction to hear the case would have been heard in that court. But the way 28 U.S.C. § 1500 works (under the current interpretation of the Federal Circuit) is that if at the time the complaint is filed in the Court of Federal Claims (CFC) the plaintiff "has pending in any other court any suit or process against the United States" that has the same claim as the claim brought in CFC.

 

Tthe analysis of when the statute applies that the Federal Circuit uses for this is as follows: 

 

Quote

This court has interpreted § 1500 to impose two requirements in evaluating whether the section applies: “(1) whether there is an earlier-filed ‘suit or process’ pending in another court, and, if so, (2) whether the claims asserted in the earlier-filed case are ‘for or in respect to’ the same claim(s) asserted in the later-filed Court of Federal Claims action.”


Beberman v. United States, No. 2018-1519, 2018 WL 4944417, at *2 (Fed. Cir. Oct. 12, 2018).

 

So presumably you filed the claim first with the district court then filed with the CFC a "claim for or in respect to" the one filed in District Court. Thus under 28 U.S.C. § 1500 the claims court had to dismiss that case. Under the current case law, had you filed the case first in the CFC and then filed in the district court, the case would not have been dismissed by the CFC. However, the Supreme Court has cast some doubt on that first filing rule and at least one judge on the Federal Circuit has urged that the Circuit change that rule as result. See the concurrence of Judge Prost in Brandt v. United States, 710 F.3d 1369 (Fed. Cir. 2013). So whether the Circuit will continue that rule in the future is unknown, but at the moment that is the state of things.

 

7 hours ago, foolish said:

What  effect is the dismissal under 1500 to my being able to refile it in that court, say for example if I voluntarily withdrawal those claims in the other court but continue the other claims? 

 

There are landmines that abound in this area given this ancient statute (§ 1500 was originally enacted in 1868) and the case law since. It is clear in the case law that had you tried to dismiss the district court claims after you filed the CFC case but before the CFC dismissed the case you filed there in an effort to avoid the § 1500 dismissal, that effort would have failed. "The subsequent dismissal of all or any part of the district court suit prior to the filing or resolution of a motion to dismiss in this court does not affect the analysis." Capelouto v. United States, 99 Fed. Cl. 682, 694 (2011). But given that the case law states that the analysis looks at whether there is case on the same claim pending in another court at the time the complaint is filed at the CFC, it suggests that if you now get the claim dismissed at the district while there is no case in the CFC and then file a new complaint in the CFC, you would be ok because at the time you filed the second CFC complaint there is no case on the same claim pending in any other court.

 

However, I cannot say whether the CFC would find the prior dismissal of your first CFC case a bar to filing the claim again in that court. I've not seen anything specific on that point. So you may take a risk that the CFC would dismiss the case saying that once the case was dismissed under § 1500 it cannot then be brought again in that court.

 

If you dismiss just some parts of your district court case but continue the case with respect to other parts then you must pay close attention to the second prong of the § 1500 analysis mentioned in Beberman. The Supreme Court has held that the claim mentioned in § 1500 is the same if the underlying operative facts are the same. The fact that legal theories argued are different does not matter.

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The Beberman court summarized the Supreme Court's decisions rather nicely as follows:

 

Quote

 

“Two suits are for or in respect to the same claim, precluding jurisdiction in [this court], if they are based on substantially the same operative facts, regardless of the relief sought in each suit.” United States v. Tohono Odham Nation, 563 U.S. 307, 317, 131 S.Ct. 1723, 179 L.Ed.2d 723 (2011). “Determining whether claims arise from substantially the same operative facts requires a comparison of the relevant claims.” Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1165 (Fed. Cir. 2011). The focus of the inquiry is the facts that give rise to the claims, not the legal theories behind the claims.” Keene Corp. v. United States, 508 U.S. 200, 201, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993).


The Supreme Court in Tohono analogized the operative facts question of § 1500 to the principles of res judicata, setting forth two governing tests for determining whether claims are precluded by their assertion in earlier litigation: the act or contract test and the evidence test. Tohono, 563 U.S. at 315, 316, 131 S.Ct. 1723. Under the evidence test, two suits involve the same claim if “the same evidence support[s ] and establish[es] both the present and the former cause of action.” Id. (quoting 2 H. Black, Law of Judgments § 726, p. 866 (1891) ). Under the act or contract test, the “distinction between demands or rights of action which are single and entire, and those which are several and distinct, is, that the former immediately arise out of one and the same act ... and the latter out of different acts.” Id. (quoting J. Wells, Res Adjudicata and Stare Decisis § 241, p. 208 (1878) ).

 


Beberman v. United States, No. 2018-1519, 2018 WL 4944417, at *3 (Fed. Cir. Oct. 12, 2018). The Beberman court then goes on to hold that in that case even though  some facts were the same in the two claims, the facts that were different in the two were important and thus the two claims were not based (looking at all the facts of each) based on the same operative facts. The challenge in such a case then is defining what what makes the two sets of facts essentially the same for purposes of the claims made, a challenge often confronted in res judicata analysis. But the closer the set of facts underlying each are the same, the higher chance that the case will fail to survive a § 1500 challenge.

So, if you brought a claim in district court and on the exact same set of facts alleged both negligence and breach of contract and you get the district court to dismiss the contract part of your claim and then bring the contract claim in the CFC, you'll end up with the CFC dismissing your contract case because, while the legal theories are distinctly different, the underlying operative facts are exactly the same. You might then have difficulty adding that contract claim back to the district court case since you had already had it dismissed there once. So you might risk stranding your contract claim.


I practice primarily tax law and thus these issues of jurisdiction I face all the time since federal tax cases are, as far as I know, the only ones that may be heard in as many as four different federal courts — the Tax Court, district court, the CFC, and bankruptcy court — regardless of the amount of the claim. The jurisdictional requirements in each are different, the rules for each are different, and the courts to which decisions may be appealed are also different, making the choice of forum for a tax case rather important. As you can see even with just the § 1500 issues, there are all kinds of challenges with jurisdiction between various federal courts. Ideally you want to bring your claim in the right court the first time; and if you have a choice of courts, pick the best one to file in at the start and stay there.


Around 15 years ago or tax lawyers were fascinated by the drama unfolding in the CFC in which the taxpayer filed his case in that court only to find after litigation started that the Federal Circuit had issued a decision that was adverse to him. With that new opinion out, he wanted get out of the CFC and go to district court. The government figured out what the taxpayer was up to and opposed the dismissal. The CFC did not let the taxpayer out, it would have been unfair to the government to let the taxpayer game the system that way when a lot of effort in the CFC litigation had already been done and then to start over in district court and do it all over again just to give the taxpayer the advantage of avoiding the unfavorable case law in the federal circuit. The case illustrates the importance of forum selection. Once you pick one forum, you might be stuck there.
 

(Figured out what was causing the problem, the court used a common way of adjusting the text of a quote to fit in grammatically with the surrounding text, and the forum took it as code for strike through text. It was hard for me to see that at first. 😝)

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Just now, Tax_Counsel said:

The Beberman court summarized the Supreme Court's decisions rather nicely as follows:

 

 

Beberman v. United States, No. 2018-1519, 2018 WL 4944417, at *3 (Fed. Cir. Oct. 12, 2018). The Beberman court then goes on to hold that in that case even though  some facts were the same in the two claims, the facts that were different in the two were important and thus the two claims were not based (looking at all the facts of each) based on the same operative facts. The challenge in such a case then is defining what what makes the two sets of facts essentially the same for purposes of the claims made, a challenge often confronted in res judicata analysis. But the closer the set of facts underlying each are the same, the higher chance that the case will fail to survive a § 1500 challenge.

 

So, if you brought a claim in district court and on the exact same set of facts alleged both negligence and breach of contract and you get the district court to dismiss the contract part of your claim and then bring the contract claim in the CFC, you'll end up with the CFC dismissing your contract case because, while the legal theories are distinctly different, the underlying operative facts are exactly the same. You might then have difficulty adding that contract claim back to the district court case since you had already had it dismissed there once. So you might risk stranding your contract claim.

 

 

 

 

Overlooking the strikethrough,  I get the gist of where you going because reviewed Tohono Odham Nation and Brandit as well as others the reason why asked was because of what Keene Corp v. U.S, 500 U.S. 200 , (1993) ''the Court of Federal Claims may not adjudicate the plaintiff's claim, even though its subject matter would otherwise bring it within the court's jurisdiction''  . . .Keene basically issued a proposition that the plaintiff he may choice withdraw contract claim in one to save the other (in the dissent I believe). Is that what I am reading? 

 

The issue about the operative facts, wouldn't the operative facts sprout different outcomes from consequences of the breach that actually become independent from the original operative facts that take a life of its own. (do you follow what I am trying say) For example in commercial contract laws it doesn't imply constitutions violations when their violated while this one does and the CFC doesn't entertain claims sounding in Tort  while the district court does.   I would be suing not for the breach but the Tort violations.

 

 

 

 

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2 hours ago, foolish said:

 

Overlooking the strikethrough,  I get the gist of where you going because reviewed Tohono Odham Nation and Brandit as well as others the reason why asked was because of what Keene Corp v. U.S, 500 U.S. 200 , (1993) ''the Court of Federal Claims may not adjudicate the plaintiff's claim, even though its subject matter would otherwise bring it within the court's jurisdiction''  . . .Keene basically issued a proposition that the plaintiff he may choice withdraw contract claim in one to save the other (in the dissent I believe). Is that what I am reading? 

 

 

Stevens in his dissent did disagree with the majority and thought that what was important was whether there was a case pending in another court at the time the CFC decided the § 1500 motion, not when the plaintiff filed his case with the CFC. Thus, he took the view that "Neither the text nor the history of the statute demands more of the plaintiff than that he make an 'election either to leave the Court of Claims or to leave the other courts' at that time." Keene Corp. v. United States, 508 U.S. 200, 218, 113 S. Ct. 2035, 2045–46, 124 L. Ed. 2d 118 (1993). So Justice Stevens would say that when the § 1500 motion was filed the plaintiff then could make the choice to kick it out of district court and thus save the case he filed in the CFC.

 

The problem is that the other eight justices thought otherwise and thus his view is not the law on this. What the majority decided is what applies, and the majority held (and confirmed by subsequent cases in the Federal Circuit and CFC) that if the case was pending in district court at the time the complaint was filed in the CFC then the CFC must dismiss that case even if the district court case had been dismissed prior to the CFC ruling on the motion. While there are good logical reasons to prefer a different policy, we are stuck with the rule Congress wrote and thus the proper forum for the policy argument is in Congress, as Justice Souter aptly noted at the end of the majority opinion in Keene. What that means is that it is really not possible to dismiss the district court case after filing the CFC complaint in order to avoid the dismissal in the CFC under § 1500. "The subsequent dismissal of all or any part of the district court suit prior to the filing or resolution of a motion to dismiss in this court does not affect the analysis." Capelouto v. United States, 99 Fed. Cl. 682, 694 (2011). 

 

2 hours ago, foolish said:

The issue about the operative facts, wouldn't the operative facts sprout different outcomes from consequences of the breach that actually become independent from the original operative facts that take a life of its own. (do you follow what I am trying say) For example in commercial contract laws it doesn't imply constitutions violations when their violated while this one does and the CFC doesn't entertain claims sounding in Tort  while the district court does.   I would be suing not for the breach but the Tort violations.

 

I'm not sure what distinction you are trying to draw in your first sentence there. To the extent you are arguing that a different outcome on the same facts might occur under a tort analysis versus a contract analysis and thus that would make them two separate claims, that is not a winner. The case law makes it clear that differing legal theories (tort vs. contract,  for example) do not make different claims for purposes of the § 1500 analysis. What matters is whether the underlying relevant facts on each claim are sufficiently close that they share the same operative set of facts. Keene itself is a good example. Keene Corporation had alleged virtually the identical facts in both its tort claim in district court and its contract claim in the CFC. The Supreme Court held that because the operative facts were the same in both complaints that under 28 U.S.C. § 1500 the CFC case had to be dismissed. 

 

I assume that your CFC complaint was your claim for breach of contract of the plea agreement that we have previously discussed. I still maintain my serious doubts about that claim based on the CFCs holdings on what it takes for a plea agreement to qualify as a contract that may be litigated in that court. Putting that aside for moment, you say in your last sentence you'd not be suing for the breach. If you are not suing for the breach, why are you in the CFC in the first place? If what you mean is that you would not be suing for the breach in district court but pursue that only in the CFC, that does not help you if the operative facts underlying both claims are the same. Again, the legal theory on which you base the case is not relevant. The Supreme Court in Keene made that clear:

 

Quote

These precedents demonstrate that under the immediate predecessor of § 1500, the comparison of the two cases for purposes of possible dismissal would turn on whether the plaintiff's other suit was based on substantially the same operative facts as the Court of Claims action, at least if there was some overlap in the relief requested.6 See Skinner & Eddy, supra; Corona Coal, supra. That the two actions were based on different legal theories did not matter. See British American Tobacco, supra. Since Keene has given us no reason to doubt that these cases represented settled law when Congress reenacted the “claim for or in respect to which” language in 1948, see 62 Stat. 942, we apply the presumption that Congress was aware of these earlier judicial interpretations and, in effect, adopted them. Lorillard v. Pons, 434 U.S. 575, 580, 98 S.Ct. 866, 870, 55 L.Ed.2d 40 (1978); cf. United States v. Powell, 379 U.S. 48, 55, n. 13, 85 S.Ct. 248, 253–54 n. 13, 13 L.Ed.2d 112 (1964) (presumption does  not apply when there is no “settled judicial construction” at the time of reenactment). The decision in British American Tobacco strikes us, moreover, as a sensible reading of the statute, for it honors Congress's decision to limit Court of Federal Claims jurisdiction not only as to claims “for ... which” the plaintiff has sued in another court, but as to those “in respect to which” he has sued elsewhere as well. While the latter language does not set the limits of claim identity with any precision, it does make it clear that Congress did not intend the statute to be rendered useless by a narrow concept of identity providing a correspondingly liberal opportunity to maintain two suits arising from the same factual foundation.


Keene Corp. v. United States, 508 U.S. 200, 212–13, 113 S. Ct. 2035, 2042–43, 124 L. Ed. 2d 118 (1993)(bolding added). Remember, Keene was a case in which the facts were the same in the complaints filed in both courts, but the plaintiff sued in district court on a tort claim while suing in the CFC on a contract claim. The Supreme Court in that case expressly says, in the part I bolded, that suing on different legal theories (tort vs. contract) in the two courts does not matter. What matters is whether the underlying facts are the same.

 

Thus if the underlying facts are the same in your tort and contract claims getting the contract claim dismissed in district court and then suing on the contract claim on those same facts in the CFC will result in dismissal under § 1500 based on the Supreme Court's holding in Keene. In that circumstance, you might as well just keep the case in district court. That assumes, of course, that both courts have concurrent jurisdiction over the contract claim. If the contract claim were in the exlcusive jurisdiction of the CFC the issue is more convoluted. I won't get into the details of that now, however. 

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I Appreciate the education on this subject. I honestly believed concurrent jurisdiction meant that a claim could be brought in both courts, let me ask the district court has the authority to entertain both the little Tucker and claims sounding in Tort, that would be the advantage right with the District Court, while CFC there is no limit on monetary damages on the breach it cant be in Tort?  Then wouldn't SOL be a factor?  

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