"An Awkward Tool That Outlived Its Purpose": The Kafkaesque Jurisdictional Dance Of 28 U.S.C. ' 1500

• Published date: 20 September 2022
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Government Contracts, Procurement & PPP, Trials & Appeals & Compensation
• Law Firm: Eckland & Blando
• Author: Mr Robert Dube

Congress designed the United States Court of Federal Claims ('COFC') to be the prime venue for plaintiffs to sue the United States federal government for contractual and property disputes. But subsequent interpretations of its jurisdictional statute have betrayed this design.¹ Through 28 U.S.C. ' 1500 ('Section 1500'), Congress aimed to limit the jurisdiction of the COFC to avoid jurisdictional conflicts and to preclude duplicative claims in United States District Courts. Now, Section 1500 serves little purpose beyond being a statutory trap for plaintiffs suing the federal government. Section 1500 has faced severe criticism by litigants and courts alike, being described as 'outdated and ill-conceived,' Low v. United States, 90 Fed. Cl. 256, 262 (2008); 'unfair and unworkable,' Yankton Sioux Tribe v. United States, 84 Fed. Cl. 225, 226 (2008); and 'badly drafted,' Keene Corp. v. United States, 508 U.S. 200, 222 (1993) (Stevens, J., dissenting). Despite these valid criticisms, the Supreme Court only doubled down on this jurisdictional trap in Tohono O'Odham Nation v. United States, 563 U.S. 307, 315 (2011). Because Section 1500 has outlived its usefulness, and the Supreme Court is unwilling to resolve the issue, Congress should repeal Section 1500 or amend it to facilitate the pursuit of justice by plaintiff's wronged by the federal government.

1. The Origins of Section 1500

Section 1500 is a Civil War-era statute, enacted in 1868, in response to the torrent of former Confederate citizen-plaintiffs who sought to recover compensation for cotton that the federal government confiscated. Several of these 'cotton claimants' proceeded to cleverly sue in both (1) the Court of Claims (the predecessor to the COFC) against the United States; and (2) the relevant state or federal court against Treasury officials in personam.² Responding to this problem of duplicative pending suits, Vermont Senator George F. Edmunds proposed a bill 'to put that class of persons to their election either to leave the Court of Claims or to leave the other courts.'³ The legislation ultimately passed and divested the Court of Claims of jurisdiction when a plaintiff had a related action against the United States in another pending court.⁴ Congress recodified Section 1500 in 1948 and has been unchanged since, reading:

The United States Court of Federal Claims shall not have jurisdiction of any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United States or any person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, directly or indirectly under the authority of the United States.⁵

While seemingly simple and reasonable, Section 1500...