Argument recap: Court neglects statutory text in jurisdictional dispute.
on Nov 2, 2010 at 4:06 pm
For all the complexity of the statute at issue in United States v. Tohono Oâ€™odham Nation, the Supreme Court spent remarkably little time at oral argument discussing its text. The grammatical intricacies of the awkwardly worded statute â€“ 28 U.S.C. Â§ 1500, which prohibits a plaintiff from suing in the Court of Federal Claims (CFC) on a claim “for or in respect to which” the plaintiff has a claim pending in another court â€“ were so neglected that it was only near the end of her argument that Danielle Spinelli, arguing for the Nation, yanked the Court back to first principles: “I mean, just to turn to the text for a minuteâ€“”
Instead of parsing the text, the Courtâ€™s chief concern was the possibility that Section 1500 would deny the Nation complete relief on its claims for the governmentâ€™s breach of its fiduciary duties as trustee of the Nationâ€™s assets. One of those claims sought money damages in the CFC for breach of trust, while the other sought an accounting and all related equitable relief in the U.S. District Court for the District of Columbia. Anthony Yang, arguing for the government, contended that Section 1500 requires dismissal of the Nationâ€™s CFC claim even if the claims seek different relief. As Justice Breyer pointed out, however, the CFC generally can only grant monetary relief, with equitable remedies against the government left to the district court. Thus, he expressed concern that the governmentâ€™s reading would force the Nation to choose either a legal monetary remedy in the CFC or an equitable remedy outside of it â€“ but not both.
In response, Yang conceded that “there is no question that Section 1500 may put a plaintiff at a difficult choice,” but he insisted that such a result was precisely what Congress had intended. Indeed, Congress passed Section 1500 to keep southern landowners whose cotton was confiscated during the Civil War from suing the government twice. A special statute provided that they could sue in the CFC to recover the value of any cotton that the government had been able to sell and hold in trust. Because any damage to the cotton in the governmentâ€™s possession would diminish that recovery, however, that remedy differed from common-law tort claims offering recovery for the full value of the confiscated cotton. Thus, Yang argued, “Congress was actually forcing you to make a choice in cases where the types of relief are quite different.” Justices Ginsburg and Sotomayor disputed that Congress therefore intended to bar all suits seeking different relief, however, rather than only those in which the plaintiff was nonetheless drawing from “the same pot of money.”
In any case, Yangâ€™s concession that Section 1500 might force the Nation to give up part of its relief may have been unnecessary, because several Justices later pushed Spinelli on whether forcing the Nation to sue in only one court would really deny it relief to which it is otherwise entitled. Justice Scalia, for example, questioned the jurisdictional basis of the district courtâ€™s equitable powers, which in his view rest on a strained reading of the Administrative Procedure Act. If the district court lacked those powers, the Nation would not give anything up by suing only in the CFC. Next, Justice Kennedy pointed out that any equity court with the power to give an accounting also has the power to award damages if the accounting comes up short, thus suggesting that the district court actually has power to grant full relief. Chief Justice Roberts then contended that the CFC can provide an equitable accounting incidental to awarding money damages, as one must determine what the Nation owns before one can determine what it is owed.
In response to this flurry of somewhat inconsistent arguments, Spinelli offered a simple example to illustrate the different relief available in each court: Imagine that the government sold one of the Nationâ€™s assets worth $40 for only $20, and then entered a $10 credit in the Nationâ€™s books. The district court suit, she explained, seeks an accounting declaring that the Nationâ€™s books should have a $20 credit, along with an equitable award of $10 to make up the deficiency. The CFC suit, by contrast, seeks damages for the $20 extra the Nation should have received if the government had sold the asset at full price.
Justices Breyer and Sotomayor immediately expressed skepticism that the CFC lacked the power to grant the entire $30 of relief, asking “why couldnâ€™t you simply have said [in the CFC], they owe us that original extra $10, and we want it?” Such a claim, they contended, certainly sounds like money damages.
Underlying that line of questioning is the assumption that despite the designations “legal” and “equitable,” the relief sought by the Nationâ€™s two suits is practically indistinguishable. Were the Court to adopt that conclusion, which many of the Justices appeared to favor, precedent would require dismissal of the Nationâ€™s CFC suit because the Court has already held that Section 1500 applies when two suits seeks identical relief. That outcome would explain the Justicesâ€™ lack of interest in the text, for it would avoid the need to parse Section 1500 to decide if it applies when two suits seek different relief. The Court could then claim fidelity to the principle of judicial minimalism, but in doing so it would sidestep one of the more interesting statutory interpretation questions of the Term.