# Johns-Manville Corporation and Johns-Manville Sales Corporation v. The United States

> Court of Appeals for the Federal Circuit · August 25, 1988 · 855 F.2d 1556

URL: https://www.frixlaw.com/law-library/cases/9478113

## Case

- **Full name:** JOHNS-MANVILLE CORPORATION and Johns-Manville Sales Corporation, Plaintiffs-Appellants, v. the UNITED STATES, Defendant-Appellee
- **Court:** Court of Appeals for the Federal Circuit
- **Decided:** August 25, 1988
- **Citations:** 855 F.2d 1556; 35 Cont. Cas. Fed. 75,541; 1988 U.S. App. LEXIS 11618; 1988 WL 87089
- **Precedential status:** Published
- **Opinion:** Dissent by Nichols
- **Judges:** Markey, Rich, Archer, Nichols, Bennett
- **Cited by:** 177 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9478113

## How later opinions describe it (automated extraction)

- holding that before the court will construe the statute contrary to its plain meaning, petitioner “must show clear legislative history supporting its asserted construction.”
- explaining that the term “claim” for section 1500 purposes, “has no reference to the legal theory upon which claimant seeks to enforce his demand”
- stating that the term “claim” has no reference to the legal theory used or the elements of proof required

## Opinion text

NICHOLS, Senior Circuit Judge,
dissenting.
With all respect I cannot join in this per curiam opinion, and I dissent instead for the reasons given below.
O.W. Holmes, J. wrote for the Court in United States v. Emery, 237 U.S. 28, 32 , 35 S.Ct. 499, 500 , 59 L.Ed. 825 (1915):
[It is an] inadmissible premise that the great act of justice embodied in the jurisdiction of the Court of Claims is to be construed strictly and read with an adverse eye. [Citations omitted.]
The “great act of justice” means, of course, the Tucker Act, 24 Stat. 505 , Act of March 3, 1887, now 28 U.S.C. § 1491 , and other sections, as selected by codifiers. Holmes’ language was not mere words; it explained a decision construing the Tucker Act to embrace suits for tax refunds previously held not consented to. See II Court of Claims History 43 (1976). A view contrary to that of Holmes as often or more often prevails, of which the type is the pronouncement in United States v. Testan, 424 U.S. 392, 399 , 96 S.Ct. 948, 953-54 , 47 L.Ed.2d 114 (1976), repeating prior statements there quoted:
[I]n a Court of Claims context, * * * a waiver of the traditional sovereign immunity “cannot be implied but must be unequivocally expressed.” [Citations omitted.]
The instant per curiam decision reflects the same tension between the two opposing ideas and it is reflected also in the cases it cites, some of which appear guided by the former, and some by the latter, principles. Title 28 U.S.C. § 1500 is not derived from the general revision and strengthening of the jurisdictional, consent to be sued, and limitation on the consent to be sued, provisions, all embodied in the 1887 Tucker Act. As the per curiam indicates, it was at that date in the revised statutes and apparently was overlooked by the Tucker Act’s authors, though other limitations were not: for example, the prohibition on suits on pensions, right next to section 1500 in the present code, 28 U.S.C. § 1501 , and on suits based on treaties, now 28 U.S.C. § 1502 . The codifiers have not overlooked section 1500, but how much consideration by Congress it really has received since 1868 is unclear. The purpose was then stated, but that purpose has evaporated since at present the United States is considered a necessary party to suits for money that will have to be paid out of the United States Treasury. It is to be supposed Congress has maintained section 1500 in the statute books all these years it must be for other reasons, but we are in the dark as to what these other reasons might be.
This is particularly important because the word “claim” is one of the most protean words in the language, and any statute built, as section 1500 is, around the word “claim,” is necessarily ambiguous. Interpretation of section 1500 can and does vary according to whether two differing assertions of right in two courts are deemed one claim or two.
As we have no light cast by the Congress, we look to construing court decisions, and they are numerous. Manifestly, section 1500, if not part of the Tucker Act, has been virtually made so by the codifiers, and the ambivalence of the courts is fully applicable. It is obvious that section 1500 is a serious roadblock for claimants against the United States if, as here, they have some claims enforceable only in the Court of Claims/Claims Court, and what may be other claims, or may be the same claims, enforceable only in courts other than the Court of Claims/Claims Court. The claimants then will have to show, if they can, *1569 that what may be the same claims for some purposes may well be different claims for other purposes. One’s idea of what is a different claim, and what is the same claim, may be influenced consciously or unconsciously by one’s perception as to whether one’s duty as a judge is to facilitate treating the claimant against the government in all respects the same as a claimant against General Motors, so far as the statutes will allow, or to meet any assertion the government has waived its sovereign immunity with crabbed hostility. The former is the Holmsian approach, the latter that of the per curiam opinion herein. We have the statute, and we must give it effect, but what effect we give it depends on how we construe it where it is ambiguous.
In Casman v. United States, 135 Ct.Cl 647 (1956), the Court of Claims confronted a problem since eliminated: the Tucker Act, as it then was, consented to suits for back pay in the Court of Claims by employees alleging they were wrongfully fired, but they had to go to United States District Courts to get the order of reinstatement which most such claimants wanted. They could sue in the district court for money damages also under the “Little Tucker Act,” 28 U.S.C. § 1346 (a)(2), but if they did, they would have to waive any money claimed over $10,000. The Court of Claims held section 1500 did not bar the maintenance of both suits in this situation, explaining section 1500 was only intended to “require an election,” quoting Matson Nav. Co. v. United States, 284 U.S. 352, 355-56 , 52 S.Ct. 162, 164 , 76 L.Ed. 336 (1932), and deeming that the fired employee had no election and therefore section 1500 did not apply to him. That was a holding the claims were not the same because election was not possible.
Here by Casman reasoning, the claimant, Johns-Manville, has no election either, because it cannot sue the United States on its tort claim in the Claims Court, or on its contract claim in any other court, in view of its magnitude. The court does not so reason because apparently it sees the Casman decision and its progeny as a sort of arbitrary happening inexplicable under the kind of analysis it deems the only kind possible. Casman is, however, cited and followed in Truckee-Carson Irrigation District, 223 Ct.Cl. 684 (1980). I see Casman as merely and simply Holmsian. The court herein professes to see a difference between claims based on the same “operative facts” if one seeks money relief and the other injunctive relief, that does not exist if one seeks contract relief and the other tort relief. The real explanation I fear is that the court construes the word “claims” in a manner unfavorable to the claimant because it elects to view the statute “strictly and with an adverse eye.”
The court insists on repeating that the tort and contract claims of Johns-Manville against the government are “based on the same operative facts.” If the “operative facts” in this situation are the facts the claimant must prove to establish the claims, obviously they are not the same. For a contract claim the “operative facts” must include a showing that a contract was made, express or implied in fact. No such requirement exists in a tort case, but in the normal situation, which this is, the action proceeds on a negligence theory and the “operative facts” will include a showing that a duty of care arose, not from contract, but from circumstances where injury to others was foreseeable.
British American Tobacco Co. v. United States, 89 Ct.Cl. 438 (1939), cert. denied, 310 U.S. 627 , 60 S.Ct. 974 , 84 L.Ed. 1398 (1940), is one where no such difference existed in the “operative facts.” The case was one of the many “gold clause” cases that followed the United States going off a gold-backed currency in the 1930’s. Plaintiff had delivered gold to the Federal Reserve Bank and received currency, but not as much as it asserted the gold was worth. It sued in the district court on a tort theory, alleging not negligence, but an unlawful conversion. It sued in the Court of Claims on a taking theory. It is clear the difference was not in the operative facts, or any of them, but only in the legal theory pursued. The court said at 440 “[t]he facts existing and operating in both cases are the same.” The court holds a difference in legal theory does not save claimant from *1570 section 1500, as it now is, if the “operative facts” are the same. It is evident the difference between the claims would be whether the currency paid for the gold was the lawful amount. If it was, by claimant’s legal theory it was a taking case; if it was not, it was a conversion.
I do not think British American can fairly be taken as authority that tort and contract claims are the same claim for section 1500 purposes where only some of the “operative facts” are the same and others are different. It is clear that section 1500 cannot be frustrated by an artful pleader who puts different legal labels on what really is the same claim. There is no reference to the question of election or to the possibility British American would have had to drop one or the other of its legal theories, but the Court of Claims, by the date of Casman, had by then tumbled to the notion that section 1500 only requires an election when parties have an election. It learned that from Matson Nav. Co., supra, a later ease. So far as in British American, the court proceeded to a decision in disregard of whether that claimant had an election, the precedent may be treated as modified by later cases.
Los Angeles Shipbuilding & Drydock Corp. v. United States, 152 F.Supp. 236 , 138 Ct.Cl. 648 (1957), is not a case where the court disregarded the nonexistence of an election. It involved, as this court states, claims for tax refunds in the Court of Claims and in the district court for some of the same years on two different legal theories. Plaintiff could have pursued its case on both theories in either court as the Court of Claims said at 652:
The plaintiff could have pursued its claim on the theory of account stated alternatively to its other theories of recovery in the District Court or in the Court of Claims. Either course of action was available to plaintiff. It made its choice of the tribunal desired, the District Court, and therefore cannot now be heard in this court.
My conclusion is that because of the ambiguity inherent in the word “claims,” claims provable by different facts, and characterized respectively as tort and contract claims, would have been treated by the old Court of Claims as different claims if a claimant could not sue on both theories in any one court. This court’s decision, to the contrary, is a departure from precedent and an unseemly swing to the policy of erecting roadblocks against claimants seeking to assert a government liability, though such blocks would not exist in the case of a suit against a private company. This is particularly painful in the present case as the results of many months of trial are voided and made useless. If Congress intended this, we have no choice, but we make Congress look extremely bad. If it did not intend this, we take on ourselves a heavy responsibility.
The court is also unacceptably hostile to jurisdiction in that it disregards this question: suppose Johns-Manville has incurred expense and pursues indemnification for settling with asbestosis sufferers A, B, and C. Is this one claim or three? As a further complication: suppose the payments to A, B, and C are sued for in the district court, but left out of the Claims Court suit and instead Johns-Manville pursues indemnification in the Claims Court for settling with D and E? I am inclined to think this court would say it is all one claim under this hypothetical, because it would say the “operative facts” were the same. To this I emphatically disagree. I think the asserted right to indemnification is a separate claim for each person settled with. Even if I am wrong in making anything turn on the plaintiff not having an election, I would still think the Claims Court should be directed to allow amendment so that indemnification for settling with individuals can be pursued in one court, or the other, even if not allowed in both.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9478113. Public record. Not legal advice.