Unr Industries, Inc., Unarco Industries, Inc., and Eagle Picher Industries, Inc. v. The United States, Keene Corporation v. The United States

PLAGER, Circuit Judge,

dissenting.

I respectfully dissent. I find myself in disagreement with the court on three issues which cause me to come to a different conclusion. They are: (1) the significance of the various amendments to the act, and whether the act is ‘plain’ on its face or, as I believe, in need of interpretation; (2) the exact purpose of the original act, as Senator Edmunds described it, since I believe that bears importantly on how the act should be interpreted; and (3) whether this is a typical jurisdiction-granting act, with all the rigidity in application that that characterization implies.

In sum, it seems to me that the court reads the governing statute, § 1500, not as it is now written but as it was before the 1948 amendments, and as the court wishes it were today. The court imports into the act a rigid application that is not supported either by the legislative history or the original purpose. I believe that the interests of justice and our responsibility to apply the law as Congress has enacted it require otherwise.

I.

The first of the rules derived by the court from “the words, meaning, and intent of section 1500” is that “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.” Maj. at 1021. As the court explains, “[b]y 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, period ...” Maj. at 1021 (emphasis added).

In fact the statute says no such thing. The original 1868 statute began with the phrase “... no person shall file or prosecute any claim ...” (emphasis added). However, in 1948 the statute was amended in several respects. One respect was to delete the shall file or prosecute language. The statute before us today states something quite different: “The Claims Court shall not have jurisdiction of any claim ... which the plaintiff ... has pending in any other court ...” (emphasis added). Different words have different meanings; the *1027 question for the court is not what the statute once meant, but what it means now.

In the original panel opinion in this case, 911 F.2d 654 (Fed.Cir.1990), the panel majority discussed at length the question of the possible consequences of this change, and in particular the problem of determining the when implicitly referred to by the has pending phrase. We discussed the possible constructions that could be placed on that phrase given the history of the act, and the subsequent history of its interpretation by this court and its predecessor.

The court today by its ‘plain language’ interpretation ignores the obvious ambiguities the revised language created, and would have us believe that the amendments never happened, in fact or in law. It summarily overrules our prior precedents which struggled — not always successfully — to make sense of the statute. The explanation the court gives for the change made in 1948, and for the summary dismissal of its possible significance, is that it is a change “in phraseology” (quoting the 1948 revisions). That is an undeniable fact, but hardly dispositive of the interpretation question. It is after all the phraseology of the statute that gives us its meaning. I regret that I am unable to see the meaning of the words with the same clarity that the majority does.

The plain meaning rule, when applicable, has important structural effect beyond its rhetorical value. Honestly applied, it tells a court what not to look at — legislative debates, committee reports, newspaper commentary and other ‘aids’ to policy development; the meaning of the law is what the words of the statute say it is. In cases in which a plain meaning exists, it is hard to quarrel with that construct.

This, however, is not a plain-meaning case. Here we have neither plain meaning — the statute as now written simply does not address when an earlier-filed case must be pending to invoke a § 1500 bar 1 — nor clear evidence of what the Congress intended on this issue. Certainly nothing in the statute now speaks of the time of filing of the complaint.

The majority suggests we may not find in a change in the wording of a statute any change in the meaning “unless an intent to make such changes is clearly expressed,” citing the Supreme Court’s opinion in Four-co Glass. But it was the very decision in Fourco Glass that this court recently held was overturned by a subsequent amendment to the venue statute, even though there was a total absence of evidence of legislative intent to achieve that particular result. See VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574 (Fed.Cir.1990), ce rt. denied — U.S. —, 111 S.Ct. 1315 , 113 L.Ed.2d 248 (1991) (a change in the general definitions applicable to venue applies to the specific provisions for venue in patent infringement suits).

The answer to the conundrum posed by § 1500, thus, must be found by ferreting out its underlying policy and applying it to the situation before us. The Supreme Court has recently stated: “It is a well-settled canon of statutory construction that, where the language does not dictate an answer to the problem before the Court, ‘we must analyze the policies underlying the statutory provision to determine its proper scope.’ ” Bowsher v. Merck & Co., Inc., 460 U.S. 824 , 831 n. 7, 103 S.Ct. 1587 , 1592 n. 7, 75 L.Ed.2d 580 (1983) (quoting Rose v. Lundy, 455 U.S. 509, 517 , 102 S.Ct. 1198, 1203 , 71 L.Ed.2d 379 (1982)). The statement by Senator Edmunds, the sponsor of § 1500, explaining the purpose of the statute, is “an authoritative guide to the statute’s construction.” Bowsher, 460 U.S. at 832-33 , 103 S.Ct. at 1593 (citing North Haven Board of Education v. Bell, 456 U.S. 512, 527 , 102 S.Ct. 1912, 1921 , 72 L.Ed.2d 299 (1982)).

The majority and I agree, in accord with Senator Edmunds’ expressions, that the general purpose of § 1500 is to conserve the Government’s limited resources. But *1028 Senator Edmunds in his statement in support of the bill made very clear the precise nature of the problem: there was a large class of persons who sued agents of the Government in suits around the country and then “after they put the Government to the expense of beating them once in a court of law they can turn around and try the whole question in the Court of Claims.” 2 (Emphasis added.) And as we said in Johns-Manville, “[t]he remaining legislative history is devoid of any evidence indicating the legislature’s intended purpose of section 1500.” 855 F.2d at 1561.

We have then a statute which is less than clear on its face, and the purpose for which must be gleaned from a very limited legislative record. When there are alternative constructions of a statute, it is the court’s duty “to find that interpretation which can most fairly be said to be imbedded in the statute, in the sense of being most harmonious with its scheme and with the general purposes that Congress manifested.” FBI v. Abramson, 456 U.S. 615 , 625 n. 7, 102 S.Ct. 2054 , 2061 n. 7, 72 L.Ed.2d 376 (1982) (quoting NLRB v. Lion Oil Co., 352 U.S. 282, 297 , 77 S.Ct. 330, 338 , 1 L.Ed.2d 331 (1957).

An important purpose, then, of the act— and one that presumably remains important — is to conserve Government resources. In order to achieve this purpose, the Government contends that § 1500 is a jurisdictional statute — like the diversity jurisdiction statute — and that like other jurisdictional statutes, the jurisdictional determination must be made by looking to the existence or non-existence of jurisdiction at the time a complaint is filed. Appellants, on the other hand, argue that if there are no other suits pending at the time the Claims Court considers a § 1500 motion, then Claims Court jurisdiction is not barred; since the purpose of § 1500 is to relieve the United States from defending the same claims in two courts at the same time, that purpose would only be subverted if a claimant had another claim presently pending in another court, not formerly pending.

While the Government’s theory has a bright-line advantage, it fails in two respects. First, the conclusion that § 1500 is jurisdictional in the usual sense does not withstand analysis. The purpose behind jurisdictional statutes, for example the diversity jurisdiction statute, 28 U.S.C. 1332 (1988), or for example the statute that authorizes this court to hear this appeal from the Claims Court, 28 U.S.C. § 1295 (a)(3) (1988), is to create jurisdiction in a federal court where none would otherwise exist, i.e. no subject matter jurisdiction.

The purpose behind § 1500, on the other hand, is to save the Government from having to defend the same suit in two different courts at the same time. Section 1500 takes away jurisdiction even though the subject matter of the suit may appropriately be before the Claims Court. Operationally these two statutes focus on different issues. The former says, ‘ordinarily your subject matter cannot be here, but if you satisfy the requirements of this statute, then you may go ahead and proceed in federal court.’ The latter says, ‘though your subject matter may appropriately be here in the Claims Court, if you come within the proscriptions of this statute, then you may no longer proceed here.’

*1029 Second, the Government’s theory fails because it too early cuts off the recourse of litigants who, either because of subject matter or other circumstances, may be found entitled to pursue their claims only in the Claims Court, and who would not otherwise violate the policy behind § 1500. The facts of the present case offer a good example. UNR had third-party complaints against the Government pending in federal district court. Unsure of whether the district court had jurisdiction, and facing a running of the statute of limitations, UNR filed the same claim in the Claims Court. More than two years before the Claims Court entertained and acted on the Government’s § 1500 motion to dismiss, the district court dismissed UNR’s third-party complaints for lack of jurisdiction. 3 By the time the Claims Court entertained and acted on the Government’s § 1500 motion, UNR had no earlier-filed suits pending and had yet to have its day in court. I believe the statute was not intended to operate to preclude UNR from having its day.

The Government warns that any interpretation of § 1500 that varies its focus from the time of filing will unduly burden the United States by forcing it to defend an earlier-filed district court complaint and a Claims Court complaint on the same basic claim at the same time, and would in effect give a plaintiff ‘two bites at the apple.’ The Government further warns that such interpretation will require the Claims Court to undertake a burdensome analysis to determine whether the earlier-filed suit is pending.

The rule I would favor, however, does not fuel these worries. Claimants are entitled to a day in court. That does not mean, however, that a claimant is entitled to tie up Government resources by forcing it to simultaneously defend itself in two courts. If an earlier-filed action is finally dismissed other than on the merits before the Claims Court entertains and acts on the jurisdictional question, then the Claims Court action will be the only suit pending and the plaintiff will have but one day in court. 4

If at the time the Claims Court entertains and acts on the jurisdictional question the earlier-filed action is still pending, i.e. not finally dismissed, then § 1500 will bar jurisdiction. Plaintiff will then have to proceed with the earlier-filed action, or come back to the Claims Court, if a statute of repose does not prevent, should its district court action be dismissed. The determination that the Claims Court must make is straightforward. Under this rule it is not possible for a plaintiff to prosecute an action both in the Claims Court and in another court at the same time. This is what § 1500 precludes.

I would adhere then to the rule announced in the original panel opinion: when an earlier-filed district court case is finally dismissed before the Claims Court entertains and acts on a § 1500 motion to dismiss, § 1500 does not bar Claims Court jurisdiction even though the dismissal may have occurred after the filing of the Claims Court action. This is an alternative reading of an ambiguous statutory phrase, and produces a result that comports more nearly with the purpose of the original act and with the dictates of fairness.

II.

The second rule the court announces today is that “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 ...” Maj. at 1021. While the first rule the court derived, discussed above, is at least arguably an interpretation that the statute supports, this rule is without any support in the language of the statute, and inconsistent with the majority’s first rule.

*1030 The statute speaks only to whether the Claims Court has jurisdiction when the same claim is pending in another court; nothing whatever is said about a claim that is not pending at the time that ‘pendingness’ is tested. If the majority believes, as we are told, that ‘pendingness’ is tested at the time the complaint is filed in the Claims Court — that the ‘jurisdictional’ determination must be made at the time the complaint is filed — then it is at that point that jurisdiction attaches or not. Nowhere does the statute go on to say that jurisdiction, once attached, shall be divested.

Again, the original statute enacted in 1868 had such language — it proscribed both filing and prosecuting any claim, in the then-Court of Claims, when the same claim was pending in another court. But again, subsequent amendments to the statute removed that language; the statute no longer contains a proscription against prosecuting a claim. And again, the court reads the statute as it once was, and as it wishes it were today.

Furthermore, to reach this result the court implicitly concedes a point it earlier denies — ‘jurisdiction’ under § 1500 turns out not to be, as we are told, a one-time absolute determined at the moment of filing. The Claims Court can have jurisdiction under § 1500 — no claim having been filed in another court — and years later lose jurisdiction because of § 1500 — a claim having been filed at that later time in some other court. Under the second rule, then, ‘jurisdiction’ comes and goes, depending on subsequent events. While admittedly the concept of jurisdiction is a slippery one, this ephemeral quality is unusual if not unique among jurisdictional statutes generally. 5 In any event, the court’s first and second rules stand on basically inconsistent grounds.

III.

The third rule announced by the court is that “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 and available defenses apply.” Maj. at 1021. This rule is consistent with the broad interpretation placed on the term ‘claim’ by our precedents, and today reaffirmed by the court. By itself, that interpretation and the rule here announced is not exceptional. When coupled with the application of ‘has pending,’ as in the first rule, so as to deprive litigants of their day in court, I do not believe that is what Congress intended by this legislation.

Chief Judge Nies would seem to agree. In her separate opinion she suggests that the solution is ‘equitable tolling’ of any applicable limitations statute that the Government might otherwise invoke. That is a creative alternative, and would accomplish much the same result as the rule I suggest — in effect, it would permit a litigant to learn whether its cause of action properly can be brought in a district court and, if not, still pursue a remedy against the Government in the Claims Court without fear of being barred by the delays inherent in getting that first decision.

IV.

Congress presumably could have immunized the Federal Government from any liability for its asbestos-related activities; it did not. By general law, Congress has provided the citizens of this country an opportunity to fairly litigate their claims against the United States in the courts of the land. These plaintiffs, through no fault of their own, have not had that opportunity. I do not know whether the Government did anything that would make it liable under the law to these plaintiffs, but I do believe that § 1500 was not intended to deny them the opportunity to find out, and therefore I respectfully dissent.

. In Johns-Manville, we determined that "the plain meaning of 'pending' includes cases which have been filed but stayed.” 855 F.2d at 1567. Unlike the present case, in Johns-Manville the earlier-filed action was never not pending, and so the plain meaning interpretation therein does not reach the question of "when” an action must be pending to invoke § 1500.

. See 81 Cong.Globe, 40th Cong., 2d Sess. 2769 (1868). Accord, Connecticut Dept. of Children & Youth Serv. v. United States, 16 Cl.Ct. 102, 104 (1989): "Section 1500 clearly precludes the Claims Court's exercise of jurisdiction over proceedings with similar claims against the United States that were filed previously and remain pending in other courts. The section was enacted over a century ago to avoid the maintenance of suits against the United States in the Court of Claims after a claimant failed to receive satisfaction from suit against the United States elsewhere. At that time a judgment in another court had no res judicata effect in a subsequent suit against the United States in the Court of Claims. [Citation omitted]. The legislative history and cases indicate that section 1500 was created for the benefit of the sovereign and was intended to force an election when both forums could grant the same relief, arising from the same operable facts. Johns-Manville v. United States, 855 F.2d 1556, 1564 (Fed.Cir.1988). The current purpose served by this section is to relieve the United States from defending the same case in two courts at the same time. Id. at 1562; Dwyer [v. U.S.] 7 Cl.Ct. [565] at 567 [ (1985) ].” (Emphasis added.)

. The majority opinion observes that appellants’ complaints based on the Federal Tort Claims Act and Little Tucker Act were dismissed on the merits with prejudice; but the other counts in the complaints were dismissed for lack of subject matter jurisdiction.

. Obviously, if an earlier-filed suit is carried through to final adjudication on the merits and is thus no longer pending at the time the Claims Court considers § 1500 jurisdiction, the action would be subject to res judicata principles.

. This second rule is dictum, since none of the claims before the court in these cases arose out of this second fact pattern; they were all cases of filings first in the district courts, and only later in the Claims Court. When a factual issue is not presented to the court, there is no "case or controversy,” U.S. Const. Art. Ill § 2. There is a question whether constitutional authority exists to bind future courts to this second rule. See IB Moore’s Federal Practice ¶ 0.402[2], p. 40.