Marvin M. Brandt and the Marvin M. Brandt Revocable Trust (plaintiffs) appealed a decision from the United States Court of Federal Claims that dismissed their takings claim against the United States (defendant) for lack of jurisdiction under 28 U.S.C. § 1500. The Federal Circuit found that § 1500 does not preclude Brandt’s complaint, leading to a reversal and remand for further proceedings.
The case centers on a railroad right-of-way granted by the United States to a railroad company in 1908, which later affected property conveyed to the Brandts in 1976. The property was subject to the right-of-way and subsequently placed in a family trust, which Brandt acquired in 2002. After the right-of-way was abandoned by the Wyoming and Colorado Railroad Company in 2004, the United States sought a declaratory judgment in the District Court of Wyoming, claiming title to the abandoned right-of-way under the National Trails System Improvements Act of 1988. Brandt counterclaimed to quiet title in his favor and asserted that any government interest in the land constituted a taking requiring just compensation.
Due to jurisdictional limitations and the value of the land exceeding $10,000, Brandt requested that his takings counterclaim be transferred to the Court of Federal Claims. The district court bifurcated the case, and in 2008, it granted summary judgment to the government, affirming its reversionary interest in the railroad right-of-way.
In United States v. Brandt, the court established that if Brandt pursued a takings claim exceeding $10,000, it would fall under the exclusive jurisdiction of the Court of Federal Claims, necessitating dismissal of any takings issues in the current court due to lack of subject matter jurisdiction. Brandt sought to transfer his takings claim to the Court of Federal Claims, but the government opposed this motion, urging dismissal of the counterclaim and indicating that Brandt would need to file a new pleading there referencing the judgment from this court, which was the basis for his claim.
In March 2009, the district court ruled in favor of the United States, declaring that WYCO abandoned its railroad right-of-way, confirming the government's reversionary interest, and vesting title in the United States, which included the right to build and operate a recreational trail. Following this judgment, the court denied Brandt's motion to transfer and dismissed his takings counterclaim without prejudice. Brandt subsequently appealed to the Tenth Circuit, which affirmed the district court's ruling in September 2012, noting that the previous rulings from other circuits did not bind them and that Brandt's arguments were largely precluded by existing circuit precedent.
On April 28, 2009, just before appealing, Brandt filed a takings claim in the Court of Federal Claims, asserting that the district court's actions regarding the railroad easement constituted a Fifth Amendment taking.
Brandt claimed that the application of 16 U.S.C. § 1248(c) prevented the termination of an easement upon abandonment, which would have relieved his property of the burden. He asserted jurisdiction under the Tucker Act, 28 U.S.C. § 1491(a)(1), on two grounds: the lawsuit seeks just compensation from the government, and there are no related claims pending in other courts at the time of filing. The government responded by moving to dismiss the complaint or stay proceedings until Brandt's appeal to the Tenth Circuit was resolved. The Court of Federal Claims opted to stay proceedings.
After the Supreme Court's ruling in United States v. Tohono O’odham Nation, which clarified that two suits are considered related if they arise from substantially the same operative facts, the government sought to dismiss Brandt’s claim due to lack of subject matter jurisdiction under 28 U.S.C. § 1500. The Court of Federal Claims found that Brandt’s case was still "pending" because the appeal period had not expired when he filed in that court, and that his takings claim was related to claims in the Wyoming district court as they shared the same operative facts.
On November 30, 2011, the court granted the government's motion and dismissed Brandt's takings claim, affirming the lack of jurisdiction under § 1500. Brandt appealed this decision, and the appellate court has jurisdiction to review the dismissal for lack of subject matter jurisdiction de novo. The plaintiff bears the burden of proving jurisdiction by a preponderance of the evidence. The Tucker Act grants the Court of Federal Claims jurisdiction over certain claims against the United States, but § 1500 restricts this jurisdiction when a related action is pending in another court, aiming to prevent redundant litigation. The court must assess whether a related suit exists and if it involves the same claims as those in the Court of Federal Claims.
The Court of Federal Claims retains jurisdiction under § 1500 if either of two inquiries is answered negatively. First, a counterclaim, like Brandt's quiet title claim, qualifies as a “suit or process.” Second, two suits are deemed “for or in respect to” the same claim if they share substantially the same operative facts, irrespective of the legal theories involved. Brandt contended that the Court erred in dismissing his takings complaint on two grounds: (1) the district court counterclaims were no longer “pending” when he filed in the Court of Federal Claims, and (2) the counterclaims and the takings action did not share the same operative facts. The court agreed with Brandt on the first point, indicating that it was unnecessary to consider the second.
The determination of whether a suit is “pending” under § 1500 is made at the time the takings complaint is filed. The critical issue on appeal is whether a counterclaim remains “pending” after a judgment is issued but before the appeal window closes. There is conflicting authority on this in the Court of Federal Claims. The court concluded that once a claim is dismissed or denied, it is no longer pending until a motion for reconsideration or notice of appeal is filed. Brandt argued that at the time he filed his takings complaint, there was no pending suit against the United States because: (1) the district court ruled in favor of the United States on March 2, 2009; (2) Brandt’s takings counterclaim was dismissed on March 4, 2009; (3) he filed the current takings action on April 28, 2009; and (4) he did not appeal the district court’s decision until April 29, 2009.
Brandt asserts that at the time the Brandts filed their Complaint, all litigation in the District Court had ended, meaning there was no pending suit against the United States. He cites two key cases: Boston Five Cents Savings Bank, FSB v. United States and Young. In Boston Bank, the plaintiff's initial suit in district court for a declaratory judgment was dismissed, but on appeal, the First Circuit remanded for further proceedings. The plaintiff then sought to amend their complaint to include a money damages claim, which was denied due to inexcusable delay. When the plaintiff filed a subsequent suit in the Claims Court for monetary damages, that court initially dismissed it for lack of jurisdiction under § 1500. However, this decision was reversed because, at the time of filing in the Claims Court, no money claim was pending in the district court. The court clarified that pending status under § 1500 requires an actual notice of appeal to be filed, rather than merely the possibility of an appeal.
In Young, the Court of Federal Claims referenced Boston Bank to establish jurisdiction over claims dismissed by another court, concluding that a claim is not considered pending until a notice of appeal is filed. The government contends Brandt's reliance on Boston Bank is misplaced, arguing that unlike the dismissal in that case, Brandt's counterclaims were officially added to the district court litigation. However, the essence of the legal principle remains that a claim is not pending under § 1500 after dismissal until an appeal is filed. The Court of Federal Claims, in Brandt's case, supported its decision by referencing prior cases, asserting that a suit is pending for § 1500 purposes until it is finally adjudicated on appeal or until the appeal period expires.
Two referenced cases, Vero Technical and Jachetta, are not binding and are deemed unhelpful due to their reliance on the Supreme Court’s interpretation of "pending" in Carey v. Saffold, which fails to account for the unique statute at issue. In Jachetta, the plaintiff had a Rule 60(a) motion pending in the district court when filing in the Court of Federal Claims, whereas in this instance, it was the government that initiated the proceedings. This distinction is critical as the plaintiff's initiation of a district court suit entails a right to appeal, making the process "pending" as long as that appeal is exercisable. The Supreme Court in Carey defined "pending" as "in continuance" or "not yet decided," applying this to the Antiterrorism and Effective Death Penalty Act (AEDPA) context. It determined that a state post-conviction application remains "pending" until resolved through state procedures, emphasizing the need for federal habeas petitioners to exhaust state remedies. Jachetta and Vero Technical adopted Carey’s definition of "pending" but lacked justification for its applicability outside the AEDPA context. The conclusion is that the government’s reliance on Carey for § 1500 analysis is inappropriate, as § 1500 does not impose an exhaustion requirement like that of AEDPA, meaning litigants are not required to pursue appeals before filing in the Court of Federal Claims.
The statute in question does not impose a requirement regarding the definition of "pending," which is central to the interpretation of § 1500. The court finds that the Antiterrorism and Effective Death Penalty Act (AEDPA) does not apply to the current matter, as it addresses a narrow area of law. The government references Eikenberry v. Callahan and Winkler v. Andrus, but these cases are deemed distinguishable from the present issue. Eikenberry clarifies that "pending" includes cases on appeal, but it did not address whether a dismissed claim is considered "pending" under § 1500 before filing a notice of appeal. Winkler's focus on constructive notice related to administrative proceedings does not pertain to the core question here.
The text of § 1500 specifies that a claim must be "pending in any other court." The definition of "pending" from Black’s Law Dictionary indicates that it refers to cases that are undecided. While both parties agree a claim is pending upon filing a notice of appeal, they dispute whether a dismissed claim qualifies as pending under the statute. The government contends that a suit remains pending until it is no longer appealable; however, the court disagrees, arguing that interpreting "pending" to include the period post-judgment but pre-appeal would effectively disregard the phrase "in any other court." Once a judgment is entered and deemed final, the case closes on the district court's docket, and an appeal opens a new case on the appellate court's docket.
The court emphasizes that the actual filing of a notice of appeal is what makes a claim "pending," not the period before the appeal is filed. Furthermore, the government’s argument for a strict interpretation based on sovereign immunity principles is rejected, as the plain language of the statute does not require such consideration. The court concludes that the government’s interpretation of "pending" prior to the expiration of appeal rights is inconsistent with § 1500's intention to prevent redundant litigation against the United States.
Brandt was not required to waive his right to appeal the district court's decision to indicate that the case was officially terminated, as the government provided no authority for such a requirement. The government’s reliance on § 1500 aimed at preventing duplicative lawsuits does not apply since it was the government that initiated the district court action. Consequently, Brandt had to file counterclaims regarding the abandoned railroad easement to avoid waiving his rights, as per Federal Rule of Civil Procedure 13(a)(1)(A). The court clarified that a claim is no longer "pending" under § 1500 once it is dismissed or denied unless a motion for reconsideration or notice of appeal is filed. The Wyoming district court entered judgment in favor of the government on March 2, 2009, and dismissed Brandt's takings counterclaim shortly thereafter, stating the case was fully adjudicated. Brandt filed his takings complaint in the Court of Federal Claims on April 28, 2009, and his notice of appeal on April 29, 2009. Thus, he had no pending claims against the United States when he filed his takings complaint, making the Court of Federal Claims’ dismissal for lack of jurisdiction inappropriate. The court did not need to address Brandt’s alternative argument regarding the lack of shared operative facts between the district court counterclaims and his takings complaint. The final judgment of the Court of Federal Claims was reversed and remanded for further proceedings. The Supreme Court's interpretation of "pending" in Carey, relating to federal habeas corpus petitions, defined it as "in continuance" or "not yet decided," indicating that applications remain pending until fully resolved.
A federal habeas petitioner must exhaust state remedies before seeking federal habeas relief, which involves completing the state's appellate review process. The term "pending," under the Antiterrorism and Effective Death Penalty Act (AEDPA), includes the period between a lower state court's decision and the filing of an appeal. In Jachetta, the Court of Federal Claims applied the definition of "pending" from the Carey case, concluding that a suit remains pending until final adjudication or the time for appeal has elapsed. Vero Technical also agreed with this interpretation, stating that a case is pending if the right to appeal is available and not waived by the plaintiff.
However, it is argued that the reliance on Carey in the context of 28 U.S.C. § 1500 is incorrect, as there is no exhaustion requirement for filing in the Court of Federal Claims. Applying Carey’s requirements would suggest a litigant must appeal before filing, which is not mandated by the statute. The AEDPA is specific to a narrow legal area and does not apply here.
The definition of "pending" according to Black's Law Dictionary indicates it refers to cases awaiting decision. While there is consensus that a claim is pending upon the filing of a notice of appeal, there is disagreement regarding whether a dismissed claim can be considered pending under § 1500. The government contends it is pending until it is no longer appealable, a view that the court rejects. The court argues that interpreting "pending" to include the period post-judgment but pre-appeal would render the phrase "in any other court" meaningless. The government overlooks that once a judgment is entered, it is clear whether an appeal is active, as seen in the cited cases Eikenberry and Winkler, which discuss the implications of claims remaining pending during appeal processes.
The key points establish that the language cited is largely non-binding (dicta) and that the main issue in Winkler was whether constructive notice of administrative proceedings impacts bona fide purchaser status under the Mineral Leasing Act. The core question not addressed in either case is whether a dismissed claim is considered "pending" under Section 1500 prior to the filing of a notice of appeal. Once a case is closed on the court’s docket, a new case is initiated upon the appeal filing. The court in Young clarified that a claim becomes "pending" only upon the actual filing of an appeal, not merely because the appeal period has not expired.
The government argues for a strict interpretation of "pending," linking it to congressional waiver of sovereign immunity. However, the plain wording of the statute mandates that a case must be genuinely pending in another court for Section 1500 to be applicable, making discussions of sovereign immunity unnecessary. The government also contends that if Brandt’s counterclaims were not "pending" when he filed in the Court of Federal Claims, the validity of the order-of-filing rule from Tecon Eng’rs, Inc. v. United States would be questioned. Nevertheless, since Brandt filed his takings complaint before appealing to the Tenth Circuit, the Tecon rule is satisfied. The government’s assertion that "pending" should encompass the pre-appeal period is said to align with Section 1500's purpose of preventing redundant litigation; however, the government fails to cite any authority mandating that a litigant must waive appeal rights for a case to be considered terminated. While Section 1500 aims to prevent simultaneous claims based on the same conduct, it was the government that initiated the district court suit, not Brandt.
Brandt was required to file counterclaims regarding an abandoned railroad easement following the government's lawsuit to avoid waiving his rights, as mandated by Federal Rule of Civil Procedure 13(a)(1)(A). The government’s assertion that Brandt should have waived his right to appeal the quiet title ruling is questioned, especially since other courts have recognized complexities regarding the government's rights retention. The court determined that a claim is no longer “pending” for §1500 purposes once dismissed unless a motion for reconsideration or notice of appeal is filed. The Wyoming district court ruled in favor of the government on March 2, 2009, dismissing Brandt’s takings counterclaim two days later, indicating that the case was fully adjudicated. Brandt subsequently filed a takings complaint on April 28, 2009, and a Notice of Appeal on April 29, 2009, establishing that no claims against the United States were pending at that time. Consequently, the Court of Federal Claims' dismissal for lack of jurisdiction was deemed inappropriate. The court did not address Brandt's alternative argument regarding the lack of shared operative facts between the counterclaims and the takings complaint. The final judgment of the Court of Federal Claims was reversed and remanded for further proceedings.
Agreement with the court's judgment is expressed, based on the order-of-filing rule from *Tecon Engineers, Inc. v. United States*. The plaintiffs filed in the Court of Federal Claims before appealing a related district court judgment. Under 28 U.S.C. § 1500, the Court of Federal Claims loses jurisdiction if another suit is pending in a different court. However, the order-of-filing rule limits this jurisdictional restriction to the timing of the claim's filing in the Court of Federal Claims. Since the plaintiffs' appeal was filed after their initial claim, the Court of Federal Claims retained jurisdiction. This principle also applies if a second district court action were filed. The order-of-filing rule effectively allows plaintiffs to circumvent the intent of § 1500, which aims to prevent redundant litigation against the government. The Supreme Court has emphasized Congress's intent to avoid such duplicative lawsuits. The excerpt argues that the order-of-filing rule undermines this purpose and highlights a precedent that overruled *Tecon* on similar grounds, suggesting that the simple delay of filing a second suit can lead to jurisdictional complications that Congress did not intend. The argument concludes that § 1500 is meant to discourage simultaneous claims rather than dictate the order of filing.
The excerpt addresses the implications of the order-of-filing rule established in Tecon and its conflict with the intent of 28 U.S.C. § 1500, which restricts the jurisdiction of the Court of Federal Claims over any claim that is simultaneously pending in another court. The Supreme Court has criticized the circuit's precedent for unduly limiting the effectiveness of § 1500, asserting that it should not be interpreted to apply solely at the time of filing a complaint but should remain relevant throughout the litigation process. Continuing to apply the order-of-filing rule undermines Congress's clear intent and effectively nullifies the jurisdictional restrictions intended by the statute. The excerpt argues that the current case presents an opportunity to revisit and potentially overrule the Tecon decision, thereby eliminating the order-of-filing rule that has been deemed ill-conceived and contrary to the purpose of § 1500. The appeal in question arose while a Tenth Circuit case was pending, directly implicating the order-of-filing rule in the dismissal for lack of jurisdiction by the Court of Federal Claims.
