U.S. v. Tohono O’odham Oral Argument Recap (Patricia Millett and James Meggesto)

United States v. Tohono O’odham Nation
No. 09-846
Argument Recap

On Monday, the Supreme Court heard oral argument in United States v. Tohono O’odham Nation, No. 09-846, an important case concerning the ability of Indian tribes and a broad range of other potential plaintiffs (such as government contractors and plaintiffs challenging regulatory takings) to obtain full redress for claims they have against the United States government.  The case concerns the proper interpretation of 28 U.S.C. § 1500, a statute that strips the Court of Federal Claims (“CFC”) of jurisdiction over any claim “for or in respect to which” the plaintiff has another claim pending in federal district court.  Since the CFC is, for most intents and purposes, the only court that can provide monetary relief to plaintiffs in claims against the United States, the question under the statute that this case presented is whether plaintiffs that have claims for equitable relief (here, an accounting) already pending in federal district court can then seek money damages in the CFC for the United States’ breach of its duties managing that same trust in the CFC.  Anthony Yang argued the case for the Government while Danielle Spinelli argued the case for the Tohono O’odham Nation.

Unlike some recent Supreme Court cases involving issues implicating tribal interests (such as Plains Commerce Bank or City of Sherrill), the Justices’ questions suggested that they found difficulties with both sides’ positions and were struggling to understand the practical implications of a ruling for either side.  In particular, given some skeptical questions asked by Chief Justice Roberts, it was far from clear that a majority of the Court would be willing to adopt the very broad rule sought by the Government , which would preclude CFC jurisdiction in any case in which a “related” case is pending in another court, even if it seeks different relief.  Justice Ginsburg tested the limits of that position early in the argument by asking Mr. Yang whether sequential suits could be brought such that a case brought to final judgment in the district court could then be brought in the CFC.  While he conceded that the statute did allow for such sequencing, he nonetheless recognized that some suits may not be completed before the statute of limitations would run on the CFC claim.  He argued that Congress, aware of the possibility that complete relief may not be available to a plaintiff depending on the timing, nevertheless enacted Section 1500, knowing that plaintiffs would be forced to choose to pursue their claims in the CFC or the district court but not both.  Thus, if there are hardships created by that “strict” reading of the statute, Yang argued, Congress can remedy the situation.  But the Court should not permit parties to take “two bites at the apple.”

Chief Justice Roberts appeared to take issue with such a simplified view of the statute and the potential harm that could be caused by the adoption of the rule the Government would have and, to that end, pressed Yang on the precise contours of accounting claims and the type of relief they afford.  Indeed, the Chief Justice appeared to agree, as the Nation had argued in its briefing, with the distinction between an accounting claim in the district court – which essentially asks “what have I got in my account” – and a claim that seeks money damages for breach of obligations regarding that same trust account.

Justice Scalia, on the other hand, put the question of the utility of an accounting directly to Ms. Spinelli in a manner that suggested it had no independent value other than to aid in the eventual recovery of money damages.  Ms. Spinelli responded with several examples of the value of an accounting independent of money damages including, for instance, basic information about the boundaries of tribal lands, what leases and rights of way have been granted on tribal lands, and the status of mineral resources.

Consistent throughout the questioning was the varying ways in which the Justices sought to clarify what, if anything, would be lost practically if Indian tribes were forced to pursue claims only in the CFC.  Ms. Spinelli pointed out that not only Indian tribes would be affected, noting that the government’s rule would have required the federal worker in Casman v. United States 135 Ct. Cl. 647 (1956) to choose between a suit for reinstatement in the district court and a suit for back pay in the CFC.  Spinelli also noted that the government’s position would force plaintiffs in regulatory takings cases to choose between stopping the harm going forward (with equitable relief in district court) and recovering damages for harm already inflicted in the CFC.

A number of Justices, including especially Justice Sotomayor, seemed interested in Ms. Spinelli’s view that the statute only banned duplicative relief.

As with any case, it is difficult to predict the outcome based on the Justices’ questions.  Nonetheless, the Court did seem troubled by the broader implications of the rule put forth by the Government.  For instance, the non-Indian amicus briefs filed by the U.S. Chamber of Commerce and the National Association of Home-Builders raised the question of whether regulatory takings could be expanded by this case.  And yesterday’s oral argument gave some measure of hope that the Court may rule narrowly and not resolve the question left open in Keane in favor of a rule that would bar any claim in the CFC if there is pending in the district court a case arising out of the same operative facts, even if the relief being sought is completely different.

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Patricia A. Millett, partner and co-chair of Akin Gump Strauss Hauer & Feld’s Supreme Court Practice and James T. Meggesto, senior policy counsel in Akin Gump’s American Indian Law and Policy group.

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