Opinion analysis: The many faces of judicial minimalism
The most striking feature of Tuesdayâ€™s opinion in United States v. Tohono Oâ€™odham Nation (No. 09-846) is the apparent disregard for judicial minimalism in Justice Kennedyâ€™s opinion for the Court.Â The Court, in an opinion joined by Chief Justice Roberts and Justices Scalia, Thomas, and Alito, held that 28 U.S.C. Â§Â 1500, which prohibits a suit in the Court of Federal Claims (CFC) on a claim â€œfor or in respect to whichâ€ the plaintiff has a suit pending in another court, applies to suits that share operative facts, even if they request different relief.Â The Court need not have decided that question, however, unless it confronted two suits with no remedial overlap, for precedent had already established that Section 1500 bars the new suit if the two suits share operative facts and request overlapping relief.
The Courtâ€™s opinion could therefore be characterized as abandoning judicial minimalism by refusing to decide the case on the narrowest possible grounds.Â The opinion refuses to even mention the preliminary question on which the oral argument focused: whether the Tohono Oâ€™odham Nationâ€™s two suitsâ€”one in the CFC seeking money damages for the governmentâ€™s breach of trust while managing Nation assets, and the other in the U.S. District Court for the District of Columbia seeking an equitable accounting and an accompanying payment of any shortfall for the same breach of trustâ€”do in fact seek overlapping relief.Â If so, that question could have been dispositive â€“ as it would have been for Justice Sotomayor, who filed an opinion concurring in the judgment that was joined by Justice Breyer.
Why would the Court decline to decide whether the two suits seek similar relief?Â The opinion itself provides no particular reason, other than a desire to move past the preliminary question to clarify the scope of Section 1500:
To continue to reserve the question [of whether Â§Â 1500 bars suits with no remedial overlap] would force the CFC to engage in an unnecessary and complicated remedial inquiry, and it would increase the expense and duration of litigation. The question thus demands an answer, and the answer is yes.
But comparing different types of relief is not difficult:Â as the concurrence points out, the CFC has been doing just that for almost fifty years in applying Section 1500.Â Instead, it is likely that the Court wanted to avoid deciding whether an equitable order to pay money is the same as money damages.
One possible reason emerges when one remembers that a distinction between those two forms of relief is the foundation of the district courtâ€™s jurisdiction over any suits claiming money from the government.Â According to 5 U.S.C. Â§ 702, district courts can hear claims against the United States only if they â€œseek relief other than money damages.â€Â Claims for money damages, by contrast, must be brought in the CFC. After Bowen v. Massachusetts (1988), however, a plaintiff could sue the United States for money outside of the CFC so long as he asked for an equitable order to pay money.Â Such a suit, the court reasoned, is distinct from a suit for money damages.Â Subsequently, lower courts have applied that reasoning to extend Bowen and allow suits against the government for money in the district court for a variety of plaintiffs, from government contractors and employees to claimants under many government spending programs.
A decision that the Nationâ€™s legal and equitable suits did not have overlapping relief would reconfirm that part of Bowenâ€™s reasoning and perhaps encourage lower courts to extend it yet further.Â That result, however, likely would be unacceptable to Justices Kennedy and Scalia, both of whom dissented in Bowen.Â On the other hand, a decision that the Nationâ€™s legal and equitable suits seek the same relief would undermine Bowen â€“ a result that Justices Kennedy and Scalia likely would welcome.Â But it would cause plaintiffs who now benefit from Bowenâ€™s extension to lose a forum to which they have become accustomed, a result perhaps unacceptable to other members of the majority.
By avoiding the question of remedial overlap, therefore, the Court may be postponing for another day a larger fight about the validity and reach of Bowen.Â The Courtâ€™s opinion thus shows an impressive amount of judicial tact and displays a subtle understanding of the requirements of judicial minimalism, for by deciding one unnecessary issue,Â it avoids a yet more troublesome problem.