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59 UCLA L. Rev. Discourse 2 (2011)

handle is hein.journals/ucladis59 and id is 1 raw text is: Footloose: How to Tame the Tucker Act Shuffle After United States v. Tohono Oodham Nation Craig A. Schwartz ABSTRACT The purpose of 28 U.S.C. § 1500, Pendency of claims in other courts, is to force upon plaintiffs suing the federal government a mutually exclusive election between either the U.S. Court of Federal Claims (CFC) or other courts, so as to minimize jurisdictional conflict and to preclude duplicative claims. Under current precedent, the statute strips the CFC of jurisdiction if the claim before the CFC arose from substantially the same operative facts as any earlier-filed claim pending in another court. Recently, in United States v. Tohono O'odham Nation, the U.S. Supreme Court clarified that § 1500 applies even when the two claims seek different relief. Going forward, this Article argues that the CFC should distinguish between the two primary classes of plaintiffs engaged in duplicative litigation before it: (1) Bowen v. Massachusetts claimants who elect to pursue both money damages in the CFC and specific relief that happens to be monetary in district court; and (2) regulatory takings plaintiffs who must file initial Administrative Procedure Act claims in district court to challenge adverse agency action. Section 1500 should not bar the latter class of plaintiffs, whose claims are necessarily sequential to preserve a substantial legal right and therefore are better suited for stay and abeyance. More broadly, Congress should amend the statute to extend stay and abeyance to duplicative Bowen claims before the CFC pending their disposition in the other courts. Modern preclusion doctrine would apply to the stayed claims. Finally, Congress, or the Supreme Court upon hearing a suitable case, should eliminate a judicially created order-of-filing loophole, which allows a plaintiff to bypass § 1500 merely by filing in the CFC first. AUTHOR J.D., Northwestern University School of Law, 2011; B.A., Haverford College, 2004. This Article is the outgrowth of my paper, Enough Already: Why the Time Is Right to Reform 28 U.S.C. § 1500 and Its Jurisprudence, which won the 2010 Court of Federal Claims Bar Association Law Student Writing Competition. Thank you to Judge Thomas C. Wheeler, Laura Durity, and Jennifer Everett for exposing me to § 1500 and its jurisdictional impact. Additional thanks to my friends and family for tolerating numerous conversations about cotton claimants and the Tucker Act Shuffle. 59 UCLA L. REV. Disc. 2 (2011)

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