The opinion
MAYER, Circuit Judge,
dissenting.
In my view, the rule announced by the court, that the jurisdictional bar of 28 U.S.C. § 1500 (1988) applies only if the earlier-filed district court case is still pending at the time the Claims Court considers the jurisdictional question, is contrary to the unambiguous language of the statute, its purpose and history. The jurisdiction of the Claims Court should not depend on when a motion to dismiss under section 1500 is filed or is considered by the court, but on whether the same claim is before another court when the Claims Court suit is filed. By today’s new rule jurisdiction turns on things like the state of the trial court’s docket and the diligence of the assigned judge, factors completely unrelated to the purpose of section 1500 or any other jurisdictional statute, and which are bound to lead to erratic and unpredictable rulings. I respectfully dissent.
*668 By the plain language of section 1500, if the same claim is pending in another court when the plaintiff files his complaint in the Claims Court, there is no jurisdiction, even if the conflicting claim is no longer pending when a motion to dismiss is brought or considered by the court. See British Am. Tobacco Co. v. United States, 89 Ct.Cl. 438, 441 (1939) (“there is no merit in the contention ... that this court has jurisdiction ... for the reason that the suit in the District Court has been dismissed and is not now pending”). 1 In the context of section 1500, “has pending” means pending at the time the complaint is filed in the Claims Court; it is fundamental that the facts establishing jurisdiction must exist when a suit is filed and defects in jurisdiction cannot be cured by post-filing occurrences.
This construction of section 1500 is consistent with its purpose and legislative history. The original intent was to force an election between a suit in the Court of Claims and one in district court on the same claim. To permit a plaintiff to file and maintain suits in both courts until the government moves to dismiss the Claims Court suit is repugnant to that intent. The government also would end up defending two suits at the same time, contrary to the currently recognized purpose of section 1500.
The language of the original statute, 2 “no person shall file or prosecute any claim ... for or in respect to which he ... shall have commenced and has pending any suit or process in any other court,” supports this interpretation of the current provision. From that original language, it is readily apparent that any suit filed in the Court of Claims when the same claim was pending in another court fell within the statutory bar and had to be dismissed, no matter when the jurisdictional objection was raised and regardless of intervening actions in the conflicting case. When Congress changed the statute to read “the Court of Claims shall not have jurisdiction ...,” the meaning was not changed because jurisdiction must be determined as of the time the complaint is filed.
This is not the first time section 1500 has been given an elastic construction because of its perceived harshness or a sense that it is anachronistic. See, e.g., Brown v. United States, 358 F.2d 1002 (Ct.Cl.1966); Tecon Engineers, Inc. v. United States, 343 F.2d 943 , 170 Ct.Cl. 389 (1965). But it is still on the books, and it engenders no end of litigation. If it were up to me, these simple rules would govern the use of section 1500: 1) if the same claim is pending in another court at the time the complaint is filed in the Claims Court, the Claims Court has no jurisdiction, regardless of when an objection is raised or acted on; 2) if the same claim is filed in another court after the complaint is filed in the Claims Court, the Claims Court is by that action divested of jurisdiction, regardless of when the court memorializes the fact by order of dismissal; and 3) if the same claim has been finally disposed of by another court before the complaint is filed in the Claims Court, ordinary rules of res judicata apply. Except for the apparent judicial antipathy for section 1500, these rules would seem to follow logically from its straightforward language. The Supreme Court thought so when it said in Corona Coal Co. v. United *669 States, 263 U.S. 537, 540 , 44 S.Ct. 156, 156 , 68 L.Ed. 431 (1924), “the words of the statute[ 3 ] are plain, with nothing in the context to make their meaning doubtful; no room is left for construction, and we are not at liberty to add an exception in order to remove apparent hardship in particular cases.”
The first rule would govern this case. Arguably, as the court suggests, ante at 665, it is inconsistent with Brown, 358 F.2d 1002 , 4 where the Court of Claims vacated its section 1500 dismissal because the claim that was pending in district court at the time the complaint was filed had been dismissed on jurisdictional grounds by the time the plaintiffs asked for reconsideration of the Court of Claims dismissal. The court did not require the plaintiffs to refile their complaint, apparently because the statute of limitations had run. The reasoning in Brown that “Section 1500 was not intended to compel claimants to elect, at their peril, between prosecuting their claim in [the Court of Claims] (with conceded jurisdiction, aside from Section 1500) and in another tribunal which is without jurisdiction,” id. at 1005 , has nothing to do with the plain meaning and purpose of the statute. As in this case, it may have seemed unfair “to deprive plaintiffs of the only forum they [had] in which to test their demand,” id. at 1004 , but there is no room for these considerations in the face of the clear mandate of section 1500. If Brown is an impediment, it should be overruled.
The second rule, that the Claims Court be divested of jurisdiction if, after the complaint is filed, the plaintiff files suit on the same claim in another court, is also required by the plain language of section 1500. Jurisdiction must exist at all times during a lawsuit and may be defeated by post-filing occurrences. That is how early cases in both the Supreme Court and the Court of Claims construed the statute. Corona Coal, 263 U.S. 537 , 44 S.Ct. at 156 , dismissed an appeal from the Court of Claims under the predecessor section 154 of the Judicial Code of 1911 because the plaintiff had filed suit in district court on the same claim after the appealed judgment had issued. Matson Navigation Co. v. United States, 72 Ct.Cl. 210, 213 (1931), aff'd on other grounds, 284 U.S. 352 , 52 S.Ct. 162 , 76 L.Ed. 336 (1932), relied on this aspect of Corona Coal :
The act not only prohibits the filing but also the prosecution of any claim in the Court of Claims when another suit on the same cause of action is pending in another court. The seven suits in the District Court of California were filed one day after the suit was filed in this court, but the plaintiff is now attempting to prosecute the suit in this court while the suits in the district court are pending. This is prohibited under the statute.
Hobbs v. United States, 168 Ct.Cl. 646 (1964), is to the same effect.
Congress intended not to dictate the order in which a claimant files suits in the Claims Court and another court on the same claim, but to discourage him from doing so altogether. Otherwise the purpose of saving the government from defending the same claim in two courts at the same time would be defeated. Therefore, Tecon Engineers, 343 F.2d 943 , which held that section 1500 applies only when suit is filed in another court on the same claim before the complaint is filed in the Court of Claims, should be overruled. That case relied on the deletion of the words “or shall commence and have pending” from the original bill proposed as section 8 of the Act of June 25,1868. 5 Id. at 947 . But this *670 deletion did not change the plain meaning of the statute. As recognized in Matson Navigation Co., the words “no person shall file or prosecute ” mean that a claimant cannot continue to prosecute his Court of Claims suit if he later files the same claim in another court. 72 Ct.Cl. at 213 . Thus, the deleted language was superfluous. The meaning of the original statute, as well as of the present section 1500, is that the Claims Court loses jurisdiction when the same claim is filed in another court.
Finally, if the same claim has been before another court but is no longer, ordinary rules of res judicata apply if suit is then filed in the Claims Court. There is no call to invoke section 1500 at all in that event, although other jurisdictional impediments like the statute of limitations might yet remain.
. British Am. Tobacco was decided under section 154 of the Judicial Code of 1911 (Mar. 3, 1911, ch. 231, § 154, 36 Stat. 1138 ), later codified at 28 U.S.C. § 260 (1940), the immediate predecessor to section 1500:
No person shall file or prosecute in the Court of Claims, or in the Supreme Court on appeal therefrom, any claim for or in respect to which he or any assignee of his has pending in any other court any suit or process against any person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, mediately or immediately, under the authority of the United States.
. Section 8 of the Act of June 25, 1868, 15 Stat. IT.
And be it further enacted, That no person shall file or prosecute any claim or suit in the court of claims, or an appeal therefrom, for or in respect to which he or any assignee of his shall have commenced and has pending any suit or process in any other court against any officer or person who, at the time of the cause of action alleged in such suit or process arose, was in respect thereto acting or professing to act, mediately or immediately, under the authority of the United States....
. The Court was referring to section 154 of the Judicial Code of 1911, see n. 1 supra.
. And arguably Brown is inconsistent with British Am. Tobacco, 89 Ct.Cl. 438 .
. The original bill, 81 Cong.Globe, 40th Cong., 2d Sess., 2769, provided:
Sec. 8. And be it further enacted, That no person shall file or prosecute any claim or suit in the Court of Claims, or an appeal therefrom, for or in respect to which he or any assignee of his shall have commenced and has pending, or shall commence and have pending, any suit or process in any other court against any officer or person who, at the time of the cause as above alleged in such suit or process arose, was in respect thereto acting or professing to act, mediately or immediately, under the authority of the United States....