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- SUPREME COURT OF THE UNITED STATES
- --------
- No. 92-166
- --------
- KEENE CORPORATION, PETITIONER v.
- UNITED STATES
- on writ of certiorari to the united states court
- of appeals for the federal circuit
- [May 24, 1993]
-
- Justice Stevens, dissenting.
- In my opinion, 28 U. S. C. 1500 does not require the
- Court of Federal Claims to dismiss an action against the
- United States simply because another suit on the same
- claim was once, but is no longer, pending in district court.
- Rather, the plaintiff may continue to pursue his claim so
- long as there is no other suit pending when the Court of
- Federal Claims decides the motion to dismiss. 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.
- Section 1500 is not itself a grant of jurisdiction to the
- Court of Federal Claims. That function is performed by
- other sections of the Judicial Code immediately preceding
- 1500, which give the court -jurisdiction to render judg-
- ment 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), and -jurisdiction to render judgment
- upon any claim by a disbursing officer of the United
- States . . . ,- 28 U. S. C. 1496 (emphases added). See
- also 28 U. S. C. 1497; 28 U. S. C. 1499 (granting
- jurisdiction to -render judgment- over other claims).
- Section 1500, by contrast, -takes away jurisdiction even
- though the subject matter of the suit may appropriately
- be before the Claims Court.- UNR Industries, Inc. v.
- United States, 962 F. 2d 1013, 1028 (CA Fed. 1992)
- (Plager, J., dissenting) (emphasis deleted). It is only
- reasonable to assume that the -jurisdiction- 1500 takes
- away is the same as the -jurisdiction- surrounding Code
- provisions bestow: the jurisdiction to enter judgment.
- The text of 1500 simply provides that the Court of
- Federal Claims -`shall not have jurisdiction' over a claim
- `. . . which' the plaintiff . . . `has pending' in any other
- court . . . .- Ante, at 6 (emphasis added). Accordingly,
- so long as a plaintiff has pending another suit in another
- court, 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. The
- Government may invoke this exception by putting such a
- plaintiff to his choice: either -leave the other courts,- n. 1,
- supra, or forgo further proceedings in the Court of Federal
- Claims. If the plaintiff declines to leave the other courts,
- then the Court of Federal Claims is without jurisdiction
- to proceed with case before it, though it may retain the
- case on its docket pending disposition of the other action.
- Hossein v. United States, 218 Ct. Cl. 727 (1978). But if
- the plaintiff does dismiss his other action, then the Court
- of Federal Claims is free to decide his case. Section 1500
- was so construed over a quarter of a century ago, see
- Brown v. United States, 175 Ct. Cl. 343, 358 F. 2d 1002
- (1966), and I see no reason to interpret it now as a
- broader prohibition on pretrial proceedings.
- It is true that an earlier version of 1500 provided that
- a claimant may not -file or prosecute- an action in the
- Court of Federal Claims while another action is pending.
- Ante, at 8. That original text, however, did not prescribe
- the consequences of a prohibited filing. In view of the
- fact that the text did not then mention the word -jurisdic-
- tion,- there is nothing to suggest that pendency of another
- action would have to be treated as a defect warranting
- automatic dismissal. Instead, given the plain statement
- of the legislation's sponsor that he intended to force an
- election of remedies before trial, see n. 1, supra, this
- earlier language is fairly construed as giving the Govern-
- ment the right to avoid duplicative litigation, by having
- the Court of Claims action dismissed if the plaintiff chose
- not to abandon the claim pending elsewhere.
- In any event, when the text of 1500 was revised in
- 1948, Congress removed the prohibition on filing. The
- Court nevertheless assumes that the section should be
- construed as originally drafted, because Congress did not
- intend the 1948 revisions of the Judicial Code to make
- substantive changes in the law. See ante, at 8. In fact,
- the 1948 revision did work a significant substantive
- change, by enlarging the class of suits subject to dismissal
- to include suits against the United States, as well as suits
- against its agents. See ante, at 11, n. 6; Matson Naviga-
- tion Co. v. United States, 284 U. S. 352, 355-356 (1932);
- see also Schwartz, Section 1500 of the Judicial Code and
- Duplicate Suits Against the Government and Its Agents,
- 55 Geo. L. J. 573, 579-580 (1967). But even if it were
- the case that Congress intended no substantive change in
- 1948, that would mean only that the present text is the
- best evidence of what the law has always meant, and that
- the language of the prior version cannot be relied upon
- to support a different reading.
- In my judgment, the Court of Claims properly construed
- 1500 in 1966 when it held that the provision merely
- requires claimants to choose between alternative pending
- claims before proceeding to trial. See Brown, 175 Ct. Cl.,
- at 348, 358 F. 2d, at 1004. The statute limits the power
- of the Court of Federal Claims to render judgments, and
- thus the ability of a plaintiff to prosecute simultaneous
- actions against the Government, but it does not prevent
- the Court of Federal Claims from allowing a case to
- remain on its docket until the claimant has made the
- required election. Even if I did not agree with this
- interpretation of 1500, however, I would nevertheless
- endorse it here, as litigants have a right to rely on a long-
- standing and reasoned judicial construction of an impor-
- tant statute that Congress has not seen fit to alter. See
- McNally v. United States, 483 U. S. 350, 376-377 (1987)
- (Stevens, J., dissenting) (citing cases). Whether or not
- -novelty is always fatal in the construction of an old
- statute,- ante, at 13, the overruling of a consistent line of
- precedent raises equitable concerns that should not be
- disregarded.
- Admittedly, this is a badly drafted statute. Viewed
- against a legal landscape that has changed dramatically
- since the days of the cotton claimants, see ante, at 5-6,
- it does not lend itself easily to sensible construction.
- Moreover, the Court's interpretation of 1500 today may
- have the salutary effect of hastening its repeal or amend-
- ment. Nevertheless, a reading that is faithful not only to
- the statutory text but also to the statute's stated purpose
- is surely preferable to the harsh result the Court endorses
- here. Accordingly, I respectfully dissent.
-