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.

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Note: We anticipate commentary from additional experts as well a little later.

Despite an opening flurry of difficult questioning for the government’s counsel, today’s oral argument exemplifies the tough road Indian nations face when litigating in the Supreme Court. Today’s case concerns the rather arcane civil procedure question of whether a party suing the government for money damages in the Court of Federal Claims can bring a second/simultaneous suit in federal district for injunctive remedies that may or may not be available in the CFC.

Early questioning from Justices Sotomayor, Ginsburg, and Breyer (and even Chief Justice Roberts to some extent) forced the government lawyer to concede that there may be a “tough choice” for plaintiffs to make when suing the government in certain instances — sue for money damages or sue for injunctive relief, but not both — with the only remedy left being a trip to Congress to change the outcome.

At page 20 of the transcript, Justice Breyer asked the following question:

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