
    OMAHA TRIBE OF NEBRASKA, Plaintiff, v. The UNITED STATES, Defendant.
    No. 06-911L.
    United States Court of Federal Claims.
    Oct. 7, 2011.
    
      Brian J. Leinback, Los Angeles, CA, for plaintiff.
    Joshua A. Doan, U.S. Department of Justice, Washington, DC, with whom was Ignaeia S. Moreno, Assistant Attorney General, for defendant.
   ORDER DISMISSING CASE FOR LACK OF SUBJECT MATTER JURISDICTION

FIRESTONE, Judge.

The plaintiff, Omaha Tribe of Nebraska (“Omaha Tribe”), filed this suit in the Court of Federal Claims (“CFC”) against the defendant (“the government”) on December 28, 2006. See CFC Compl. More than eighteen months earlier, the plaintiff filed a companion case against the government for declaratory and injunctive relief in the United States District Court for the District of Columbia, Omaha Tribe of Nebraska v. Kempthorne, No. l:04-ev-00901-JR (D.D.C.), on June 2, 2004, which it amended on September 1, 2006, more than three months prior to filing this action. See District Compl.; Am. District Compl. The plaintiff’s allegations in both cases relate to the trust accounting and trust management duties and responsibilities allegedly owed by the government to the plaintiff. See CFC Compl; Am. District Compl; see also Joint Mot. To Stay (Feb. 20, 2007), ECF No. 6. Pending before the court in this case is briefing on the question whether the plaintiffs suit in the district court was “for or in respect to the same claim” over which the plaintiff seeks relief in this court. For the reasons that follow, because the plaintiffs district court claim was “for or in respect to the same claim” as this CFC suit and pending at the time this CFC suit was filed by the plaintiff, the court determines that under the limit placed on the jurisdiction of the CFC by 28 U.S.C. § 1500 (“section 1500”) it must dismiss the plaintiffs suit for lack of jurisdiction pursuant to Rule 12(h)(3) of the Rules of the Unites States Court of Federal Claims (“RCFC”) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”).

1. PROCEDURAL HISTORY

The plaintiff filed a ease against the government for declaratory and injunctive relief in federal district court on June 2, 2004, see District Compl., and filed an amended complaint in that action on September 1, 2006, see Am. District Compl. Three months after filing its amended complaint, the plaintiff filed this suit against the government seeking money damages on December 28, 2006. See CFC Compl. On February 22, 2007, following a joint motion of the parties, the court stayed this case so the parties could pursue settlement discussions, renewing the stay on eight occasions at the repeated joint request of the parties. See Orders Granting Joint Mots. To Stay, ECF Nos. 7, 9, 18, 21, 26, 28, 30, 33, 35. While this case was stayed, the Supreme Court entered its decision in United States v. Tohono O’Odham Nation, — U.S. -, 131 S.Ct. 1723, 179 L.Ed.2d 723 (2011), providing new guidance on the application of section 1500. The Supreme Court held:

The CFC has no jurisdiction over a claim if the plaintiff has another suit for or in respect to that claim pending against the United States or its agents.
... Two suits are for or in respect to the same claim, precluding jurisdiction in the CFC, if they are based on substantially the same operative facts, regardless of the relief sought in each suit.

Tohono, 131 S.Ct. at 1727, 1731. In light of this decision, on June 1, 2011, the court issued an Order to Show Cause, requesting briefing on the question of whether, based on the Supreme Court’s decision in Tohono, the court’s jurisdiction over this case was barred at the time of filing by the earlier-filed and still pending case in district court and the operation of section 1500. See Order to Show Cause, ECF No. 38. In its brief, the plaintiff argues that its two complaints do not contain the same factual allegations and are based on different operative facts, and therefore asserts that section 1500 does not bar its CFC claim. See Pl.’s Suppl. Br., ECF No. 39. In its response the government argues that the court should dismiss the plaintiffs complaint for lack of subject matter jurisdiction based on the application of section 1500, arguing that this court never possessed jurisdiction over the plaintiffs suit because the plaintiffs district court complaint and CFC complaint allege claims that are based on substantially the same operative facts. See Def.’s Resp., ECF No. 40. Oral argument was heard on October 4, 2011.

II. DISCUSSION

A. Standard of Review

All those seeking to invoke this court’s subject-matter jurisdiction ultimately retain the burden of establishing that the jurisdictional requirements are met. Keener v. United States, 551 F.3d 1358, 1361 (Fed.Cir.2009) (citing Rocovich v. United States, 933 F.2d 991, 993 (Fed.Cir.1991)); Alder Terrace, Inc. v. United States, 161 F.3d 1372, 1377 (Fed.Cir.1998) (citing McNutt v. Gen. Motors, 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)). Subject-matter jurisdiction may be challenged at any time by the parties or by the court sua sponte. Folden v. United States, 379 F.3d 1344, 1354 (Fed.Cir.2004); see also RCFC 12(h)(3). In deciding whether there is subject-matter jurisdiction, “the allegations stated in the complaint are taken as true and jurisdiction is decided on the face of the pleadings.” Folden, 379 F.3d at 1354 (citation omitted). If the court determines that it does not have jurisdiction, it must dismiss the claim. RCFC 12(h)(3); Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (“[Wjhen a federal court concludes that it lacks subject-matter jurisdiction, the court must dismiss the complaint in its entirety.”) (citation omitted); Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). See generally John R. Sand & Gravel, Co. v. United States, 552 U.S. 130, 128 S.Ct. 750, 169 L.Ed.2d 591 (2008), aff'g 457 F.3d 1345 (Fed.Cir.2006).

B. Based upon Recent Supreme Court Precedent, Jurisdiction Over the CFC Complaint Is Precluded Because of the Substantial Overlap in Operative Facts.

1. The jurisdiction of the CFC under the Tucker Act and the Indian Tucker Act is limited by 28 U.S.C. § 1500.

This eoui’t has jurisdiction under the Indian Tucker Act, 28 U.S.C. § 1505, which allows Native American tribes the right to bring suit in the Court of Federal Claims like any other plaintiff. United States v. White Mountain Apache Tribe, 537 U.S. 465, 472, 123 S.Ct. 1126, 155 L.Ed.2d 40 (2003) (“[T]he Indian Tucker Aet[ ] confers a like waiver for Indian tribal claims that ‘otherwise would be cognizable in the Court of Federal Claims if the claimant were not an Indian tribe’”) (quoting 28 U.S.C. § 1505). The Tucker Act establishes this court’s jurisdiction over “any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). Like the general Tucker Act, the Indian Tucker Act does not confer any substantive rights upon a plaintiff; a plaintiff must establish an independent substantive right to money damages from the United States in order for the case to proceed. See generally United States v. Mitchell, 463 U.S. 206, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). In Indian trust accounting eases, the substantive right must be found in statutes from which a trust relationship can be inferred, and one which can reasonably be construed to imply a money remedy for breach. Id. at 217-218, 103 S.Ct. 2961. However, any claim brought in this court is subject to the limitations of section 1500, Section 1500 provides:

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.

28 U.S.C. § 1500.

2. The Tohono decision clarified the test for identity of claims under 28 U.S.C. § 1500.

As noted above, the court’s issuance of the order to show cause and the government’s argument for dismissal of the plaintiffs complaint is based primarily on Tohono, the recent Supreme Court case interpreting section 1500. The plaintiff in Tohono filed a district court action against federal officials alleging a breach of fiduciary duty with respect to the management of tribal assets held in trust by the government. United States v. Tohono O’Odham Nation, — U.S. -, 131 S.Ct. 1723, 1727, 179 L.Ed.2d 723 (2011). In its district court ease, the plaintiff sought equitable relief, including an accounting of trust property. Id. The day after filing its complaint in district court, the plaintiff filed a complaint in the Court of Federal Claims, alleging nearly identical breaches of fiduciary duties based upon the same tribal assets and sources of fiduciary duty, but seeking money damages. Id. The Court of Federal Claims dismissed the case based on section 1500, holding that “Section 1500 divests this court of jurisdiction over plaintiff’s claim because it arises from the same operative facts and seeks the same relief as the claim in district court.” Tohono O’odham Nation v. United States, 79 Fed.Cl. 645, 659 (2007). The Federal Circuit reversed based on Circuit precedent, holding that section 1500 is only applicable if two claims both “arise from the same operative facts” and “seek the same relief.” Tohono O’Odham Nation v. United States, 559 F.3d 1284, 1288 (Fed.Cir.2009) (quoting Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1551 (Fed.Cir.1994) (en banc) (“For the Court of Federal Claims to be precluded from hearing a claim under § 1500, the claim pending in another court must arise from the same operative facts, and must seek the same relief” (emphases in original))). The Circuit found that the relief sought in the Court of Federal Claims action was different from that sought in the district court, and thus section 1500 did not divest the Court of Federal Claims of jurisdiction over the subject complaint.

The Supreme Court reversed the Federal Circuit, holding that the relief sought in two complaints is superfluous to the question of whether two suits are “for or in respect to” the same claim within the meaning of section 1500. The Supreme Court in Tohono explained that, regarding section 1500, “[t]he rule is more straightforward than its complex wording suggests. The CFC has no jurisdiction over a claim if the plaintiff has another suit for or in respect to that claim pending against the United States or its agents.” Tohono, 131 S.Ct. at 1727. The Court went on to state that “[t]wo suits are for or in respect to the same claim, precluding jurisdiction in the CFC, if they are based on substantially the same operative facts, regardless of the relief sought in each suit.” Id. at 1731 (emphasis added). The Court held that the statute’s use of the phrase “in respect to” “does not resolve all doubt as to the scope of the jurisdictional bar, but ‘it does make it clear that Congress did not intend the statute to be rendered useless by a narrow concept of identity.’” Id. at 1728 (quoting Keene, 508 U.S. at 213, 113 S.Ct. 2035). “It suggests a broad prohibition, regardless of whether ‘claim’ carries a special or limited meaning.” Id. The Court concluded, as the Court of Federal Claims had, that the plaintiffs two suits had “substantial overlap in operative facts” based upon the identity of the trust assets at issue and the alleged breaches of fiduciary duty, and noted, “Indeed, it appears that the Nation could have filed two identical complaints, save the caption and prayer for relief, without changing either suit in any significant respect.” Id. at 1731. Thus, the Court held, the Court of Federal Claims possessed no jurisdiction over the claim until the district court ease was either dismissed or “complet[e]” and that after that time, the plaintiff would be “free to file suit again in the CFC if the statute of limitations is no bar.” Id.

3. The district court complaint and the CFC complaint share the same operative facts.

In this case, the plaintiff contends that, unlike the plaintiff in Tohono, it has not filed virtually identical complaints and argues that the two complaints do not contain the same factual allegations and are based on different operative facts. The plaintiff argues that the operative facts of each case are confined to the trust duties at issue in each case and that the proof necessary to prevail in the two cases are entirely different. For the district court action the plaintiff contends the operative facts “concern the government’s conduct in providing an accounting, as well as the nature, scope, accuracy and completeness of the accounting,” whereas for the CFC action the operative facts “identify the source and nature of defendant’s fiduciary obligations to manage tribal monetary and non-monetary trust assets” and “do not involve the evaluation of any accounting.” Pl.’s Suppl. Br. 5-6. The plaintiff also contends that the court should construe any overlapping facts as merely background facts that are not material to the proof of the plaintiffs claims and therefore are not operative. See id. at 4-6. Moreover, the plaintiff contends the evidence that would be presented during the trial of the two cases will look very different, with the trial in district court “dominated by accounting issues” and the trial in the CFC “dominated by evidence relating to the handling of specific trust transactions and assets.” Id. at 6.

In response, the government contends both the amended district court complaint and the CFC complaint allege claims that are based on substantially the same operative facts, and thus this court should dismiss this ease for lack of subject-matter jurisdiction. Specifically, the government argues, “the two complaints use essentially identical factual allegations to assert that the United States, as trustee, breached fiduciary duties owed to Plaintiff by allegedly failing to account properly for and to manage properly Plaintiffs trust funds and assets.” Def.’s Resp. 5-6 (comparing District Compl. ¶¶ 16, 18-20, 26 with CFC Compl. ¶¶ 20, 22, 23, 35). Further, the government argues that the plaintiffs contentions regarding the distinction between background and operative facts in this case as well as the plaintiffs anticipated production of different evidence at the two potential trials are meritless, where, as here, the plaintiff “recognizes that the accounting that it seeks in the district court involves the same operative facts at issue in its CFC Complaint and that the trust property at issue is the same for both cases.” Def.’s Resp. 12 (citing CFC Compl. ¶ 23 (“To date, the Defendant has failed to provide that accounting or other sufficient information which would otherwise afford the Plaintiff the ability to determine whether, and to what extent, it has suffered a loss as a result of the Defendant’s continual wrongdoing or other breaches of trust.”)).

The court finds that the government has the prevailing argument. As explained below, an examination of the amended district court complaint and CFC complaint reveals that at the time the CFC action was filed, the claims in each case arose from substantially the same operative facts. Indeed, contrary to the plaintiffs contentions, the side-by-side table set forth below demonstrates that the two complaints are virtually the same as the complaints at issue in Tohono.

The Supreme Court in Tohono did not provide a definition of “operative facts” for purposes of section 1500. See Central Pines Land Co. v. United States, 99 Fed.Cl. 394, 401, 401 n. 4 (2011) (citing Black’s Law Dictionary 670 (9th ed.) (defining “operative fact” as “A fact that constitutes the transaction or event on which a claim or defense is based.”)). “However, courts have held that the facts alleged in two complaints need not be identical for section 1500 to apply; rather, the two complaints must stem from the same events.” Id. at 401 (citing Griffin v. United States, 590 F.3d 1291, 1294 (Fed.Cir.2009) (finding that the same operative facts were present in two suits because the plaintiffs “injury for both claims stem[med] from the same single event”); Trusted Integration, Inc. v. United States, 93 Fed.Cl. 94, 100-103 (2010)). The Supreme Court has also explained in Keene that a broad conception of the identity of facts is necessary to give meaning to section 1500:

The decision in British American Tobacco [Co. v. United States, 89 Ct.Cl. 438 (1939),] strikes us, moreover, as a sensible reading of the statute, for it honors Congress’s decision to limit Court of Federal Claims jurisdiction not only as to claims “for ... which” the plaintiff has sued in another court, but as to those “in respect to which” he has sued elsewhere as well. While the latter language does not set the limits of claim identity with any precision, it does make it clear that Congress did not intend the statute to be rendered useless by a narrow concept of identity providing a correspondingly liberal opportunity to maintain two suits arising from the same factual foundation.

Keene, 508 U.S. at 213, 113 S.Ct. 2035. Thus, the fact that certain facts may be needed to meet elements of proof of a legal theory articulated in one complaint but not the other does not prevent a finding that two complaints constitute the same claim for purposes of section 1500. Trusted Integration, 93 Fed.Cl. at 102. As the Federal Circuit has explained:

[Elements of proof are only relevant once a legal theory has been chosen. As previously discussed, the term “claim” in section 1500 “has no reference to the legal theory upon which a claimant seeks to enforce his demand____” Since the legal theory is not relevant, neither are the elements of proof necessary to present a prima facie case under that theory.

Johns-Manville Corp. v. United States, 855 F.2d 1556, 1564 (Fed.Cir.1988) (internal citation omitted).

This court has also previously held in AkChin Indian Community v. United States, 80 Fed.Cl. 305 (2008) that attempts to distinguish the government’s trust duties in each complaint are unavailing, where “the operative facts, those facts upon which plaintiffs allegations of breaches of the government’s trust responsibility are based, are the same in both the Court of Federal Claims complaint and the District Court complaint.” Id. at 319. The court explained the substantial overlap in operative facts in Ak-Chin as follows:

In each action, the courts must consider the government’s management and administration of plaintiffs trust. The court will be required to review the government’s alleged failure to maintain records and account for plaintiffs trust property by considering any existing records related to the government’s collection, handling, and investment of the Community’s trust funds and property. The nature of Indian trust cases and the government’s trust responsibility owed to Indian tribes does not lend itself to a simple delineation or separation of operative facts as they pertain to the government’s various duties owed to Indian tribes. It is not apparent to the court how it could address facts related to the government’s duty to invest and deposit plaintiff’s trust funds withoitt considering the facts related to the government’s overall trust obligations owed to plaintiff, including its duty to account. It is simply not the case that there are two different and separate sets of trust duties described in plaintiffs District Court complaint and its Court of Federal Claims complaint. Therefore, the court finds that plaintiffs Court of Federal Claims complaint and District Court complaint contain the same operative facts for purposes of the § 1500 jurisdictional bar.

Id. at 319-20 (emphasis added). Again, in Red Cliff Band of Lake Stiperior Chippewa Indians v. United States, No. 06-923L, slip op. (Fed.Cl. Sept. 19, 2011), the court rejected these same arguments and dismissed the plaintiffs later-filed claim in this court pursuant to section 1500 as follows:

The issue that plaintiff seeks to litigate here is the government’s alleged failure to have managed trust assets in the manner required of a competent trustee. This case, in other words, focuses on what the government, as trustee, should have done. But that contention cannot be successfully established without at the same time demonstrating what the government actually did (or failed to do). Of necessity then, plaintiffs proof in this court must revisit the same facts that make up the substance of its district court case. Indeed, this very point is explicitly recognized in plaintiffs district court complaint where it states as follows: “The Tribe may have claims to damages that cannot be ascertained until after the Defendants make a reconciliation and accounting of the Tribe’s trust property and accounts. Some of these claims, should they exist, will have to be filed in the United States Court of Federal Claims.”[] The necessity for an accounting as a prelude to a suit for damages in this court that is recognized in the quoted text means, in simple terms, that a case here is dependent upon what the accounting data shows [or does not show]. And given this acknowledged evidentiary overlap, it is simply not correct to assert that the two actions ... turn on different operative facts.

Id. at 2-3.

Tested by these standards, it is clear that the plaintiffs district court complaint and the complaint in this court constitute the same claim for purposes of section 1500. As in Tohono, the operative facts alleged in the two complaints substantially overlap and in certain instances are nearly identical. See Tohono, 131 S.Ct. at 1731 (“Two suits are for or in respect to the same claim, precluding jurisdiction in the CFC, if they are based on substantially the same operative facts, regardless of the relief sought in each suit.”); see also Yankton Sioux Tribe v. United States, 437 Fed.Appx. 938, 939 (Fed.Cir.2011) (“[T]he Court of Federal Claims lacks jurisdiction if a suit based on substantially the same operative facts is pending in a district court regardless of whether the complaints seek overlapping relief.”), aff'g Yankton Sioux Tribe v. United States, 84 Fed.Cl. 225 (2008).

Both complaints allege that the government failed to act as a prudent investor and otherwise mismanaged the plaintiffs trust funds and property. Both complaints allege the government breached its duties to account, keep adequate records, refrain from self-dealing, preserve trust assets, and invest prudently to maximize returns. Both complaints allege these breaches as to the same trust corpus, including tribal lands, natural resources, grazing rights, mineral rights, rights in property, and trust funds. In analyzing these allegations, this court and the district court will have to consider the government’s management and administration of the plaintiffs trust corpus, including reviewing the existing records related to the government’s alleged failures in properly collecting, handling, and investing the plaintiffs trust funds and property in both cases. Moreover, despite its contentions that the district court action will be dominated by accounting issues, the plaintiff also seeks in that action declaratory and mandatory injunctive relief compelling the government to manage the plaintiffs current and future trust funds and trust assets in “full compliance with all applicable law and with their duties as the plaintiffs guardian and trustee.” Am. District Compl. at II36. As with previous actions before the court, here it is “not apparent to the court how it could address facts related to the government’s duty to invest and deposit plaintiffs trust funds without considering the facts related to the government’s overall trust obligations owed to plaintiff, including its duty to account.” Red Cliff Band of Lake Superior Chippewa Indians, No. 06-923L, slip op. at 3 (quoting Ak-Chin Indian Community, 80 Fed.Cl. at 319).

For these reasons, the court finds that the district court suit and CFC suit are indeed “for or in respect to” the same claim because of the substantial overlap of operative facts. See 28 U.S.C. § 1500; Tohono, 131 S.Ct. at 1731. Thus, section 1500 precludes this court from exercising jurisdiction over the plaintiffs CFC complaint because, at the time the complaint was filed, the same claim was pending in the District Court for the District of Columbia.

III. CONCLUSION

For the above-stated reasons, the court must DISMISS the Omaha Tribe of Nebraska’s complaint for lack of subject-matter jurisdiction pursuant to 28 U.S.C. § 1500. The Clerk is directed to enter judgment accordingly. Each party to bear its own costs.

IT IS SO ORDERED. 
      
      . That statute provides:
      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.
      28U.S.C. § 1500.
     
      
      . When determining whether a claim is "pending” for purposes of section 1500, this court follows the longstanding principle that "the jurisdiction of the Court depends upon the state of things at the time of the action brought.” Keene Corp. v. United States, 508 U.S. 200, 207, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993) (citations omitted). Because the amended district court complaint was the plaintiff's pending district court complaint at the time that the plaintiff filed suit in this court, this court compares the amended district court complaint to the complaint in this action to determine whether the two cases are based on substantially the same operative facts for purposes of section 1500.
     
      
      . The Court noted that any hardship its ruling would cause the Tohono O’Odham Nation was "far from clear” because although the plaintiff's CFC case would have to be dismissed, an Indian tribe in the plaintiff’s position could always bring a suit in the Court of Federal Claims after resolution of the district court case because the statute of limitations on Indian trust mismanagement claims would only begin to run once the government provided an appropriate accounting. Tohono, 131 S.Ct. at 1731. Regardless, the Court held:
      Even were some hardship to be shown, considerations of policy divorced from the statute's text and purpose could not override its meaning. Although Congress has permitted claims against the United States for monetary relief in the CFC, that relief is available by grace and not by right.... If indeed the statute leads to incomplete relief, and if plaintiffs like the Nation are dissatisfied, they are free to direct their complaints to Congress.
      
        Id. (internal citations omitted).
     
      
      . The Supreme Court explained the substantial overlap in operative facts in Tohono as follows:
      The two actions both allege that the United States holds the same assets in trust for the Nation's benefit. They describe almost identical breaches of fiduciary duty—that the United States engaged in self-dealing and imprudent investment, and failed to provide an accurate accounting of the assets held in trust, for example. Indeed, it appears that the Nation could have filed two identical complaints, save the caption and prayer for relief, without changing either suit in any significant respect.
      
        Tohono, 131 S.Ct. at 1731 ("The CFC dismissed the action here in part because it concluded that the facts in the Nation’s two suits were, 'for all practical purposes, identical.’ [Tohono,] 79 Fed. Cl. [at] 656[], It was correct to do so.”); see also Tohono, 79 Fed.Cl. at 648-51 (comparing complaints in side-by-side tables).
     
      
      
        . Omaha Tribe has also made this statement in its district court complaint. See Am. District Compl. at ¶ 38.
     