Opinion
No. 06-911L
10-07-2011
OMAHA TRIBE OF NEBRASKA, Plaintiff, v. The United States, Defendant.
Brian J. Leinback, Los Angeles, CA, for plaintiff. Joshua A. Doan, U.S. Department of Justice, Washington, DC, with whom was Ignacia S. Moreno, Assistant Attorney General, for defendant.
28 U.S.C. § 1500; United States v. Tohono
O'Odham Nation, 131 S.Ct. 1723 (2011);
Substantial Overlap in Operative Facts;
RCFC 12(h)(3).
Brian J. Leinback, Los Angeles, CA, for plaintiff. Joshua A. Doan, U.S. Department of Justice, Washington, DC, with whom was Ignacia 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. 1:04-cv-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 plaintiff's 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 plaintiff's 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 plaintiff's 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.").
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.28 U.S.C. § 1500.
I. PROCEDURAL HISTORY
The plaintiff filed a case 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, 131 S.Ct. 1723 (2011), providing new guidance on the application of section 1500. The Supreme Court held:
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 (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 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, 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 plaintiff's complaint for lack of subject matter jurisdiction based on the application of section 1500, arguing that this court never possessed jurisdiction over the plaintiff's suit because the plaintiff's 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.
. . . .
. . . 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.
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 (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 (2006) ("[W]hen 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 (1998). See generally John R. Sand & Gravel, Co. v. United States, 552 U.S. 130 (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 court 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 (2003) ("[T]he Indian Tucker Act[] 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 (1983). In Indian trust accounting cases, 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. 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 plaintiff's 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, 131 S.Ct. 1723, 1727 (2011). In its district court case, 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). "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 plaintiff's 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 case 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.
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 plaintiff's like the Nation are dissatisfied, they are free to direct their complaints to Congress.
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 plaintiff's 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 case 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 Plaintiff's 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 plaintiff's contentions regarding the distinction between background and operative facts in this case as well as the plaintiff's 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 plaintiff's 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 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.
+--------------------------------------------------------------------------------------+ ¦Excerpts from CFC Complaint ¦ ¦ ¦ ¦ ¦ ¦Parties ¦ ¦ ¦ ¦ ¦ ¦"Plaintiff, OMAHA TRIBE OF ¦ ¦ ¦NEBRASKA . . . is a federally¦ ¦ ¦recognized Indian tribe, ¦Excerpts from Amended District Court Complaint Parties¦ ¦whose government was ¦ ¦ ¦reorganized under the Indian ¦"Plaintiff is a federally recognized Indian tribe, ¦ ¦Reorganization Act of 1934 ¦recognized by the United States a sovereign Indian tribe¦ ¦(IRA), 25 U.S.C. § 461 et ¦with legal rights and responsibilities . . . . which is ¦ ¦seq. It is recognized by the ¦eligible for the special programs and services provided ¦ ¦United States as a sovereign ¦by the United States to Indians because of their status ¦ ¦Indian tribe, under the ¦as Indians, and because of the Plaintiff's treaties and ¦ ¦protection of the United ¦other agreements with the United States." Am. District ¦ ¦States, with legal rights and¦Compl. ¶ 2. ¦ ¦responsibilities. . . . which¦ ¦ ¦is eligible for the special ¦Defendants are office holders charged by law with ¦ ¦programs and services ¦carrying out the duties and responsibilities of the ¦ ¦provided by the United States¦United ¦ ¦to Indians because of their ¦ ¦ ¦status as Indians, pursuant ¦ ¦ ¦to Plaintiff's treaties and ¦ ¦ ¦agreements with the United ¦ ¦ ¦States, various Acts of ¦ ¦ ¦Congress, and federal common ¦ ¦ +--------------------------------------------------------------------------------------+
+-----------------------------------------------------------------------------+ ¦law." CFC Compl. ¶ 2. ¦States as trustee for the Plaintiff, ¦ ¦ ¦administering the Plaintiff's trust ¦ ¦Defendant is the United States of ¦funds, and preparing and maintaining ¦ ¦America. See id. ¶ 3. ¦records in connection with those funds. ¦ ¦ ¦See Id. ¶¶ 3-5. ¦ +------------------------------------+----------------------------------------¦ ¦Funds/Assets ¦Funds/Assets ¦ ¦ ¦ ¦ ¦"Plaintiff resides on the Omaha ¦"Plaintiff resides within an Indian ¦ ¦Indian Reservation. The Plaintiff ¦Reservation established by the United ¦ ¦remains the successor in interest to¦States. The Plaintiff is a party to, and¦ ¦the signatories of certain Indian ¦/or the successor in interest to, the ¦ ¦treaties with the United States. ¦signatories of certain Indian treaties ¦ ¦Plaintiff is the beneficial owner of¦with the United States and it is the ¦ ¦certain monies . . . . certain land ¦beneficial owner of certain monies . . .¦ ¦and other trust assets, title to ¦held in trust for the Plaintiff by the ¦ ¦which is held in trust by the United¦United States, as well as of certain ¦ ¦States for the benefit of the ¦land and other trust assets, title to ¦ ¦Plaintiff. Many of these lands are ¦which is held in trust by the United ¦ ¦valuable for grazing, agricultural ¦States for the benefit of the Tribe. The¦ ¦and recreational uses. The ¦Plaintiff is also the owner of the ¦ ¦Plaintiff's trust assets also ¦natural resources located on their land ¦ ¦include the natural resources ¦held in trust . . . including . . . ¦ ¦located on that land, including . . ¦water, timber, and a variety of mineral ¦ ¦. water, timber, gravel, and a ¦reserves. The Plaintiff's trust holdings¦ ¦variety of mineral reserves. It also¦also include land which is valuable for ¦ ¦includes off-reservation trust ¦grazing, agricultural, and recreational ¦ ¦lands, trust assets and usufructuary¦use, and for other purposes." Id. ¶ 8.¦ ¦rights." Id. ¶ 11. ¦ ¦ ¦ ¦Defendant has "approved, among others: ¦ ¦"Defendant has approved leases, ¦(A) agreements for the use and ¦ ¦easements, rights-of-way and other ¦extraction of natural resources which ¦ ¦uses and conveyances of the property¦are or were located on the Plaintiff's ¦ ¦and the resources located therein . ¦trust property, (B) leases of the ¦ ¦. . [as well as] various third party¦Plaintiff's trust lands, (C) easements ¦ ¦uses and taking of said land and ¦across Plaintiff's trust land, (D) ¦ ¦resources. In so doing the Defendant¦grazing permits on the Plaintiff's trust¦ ¦assumed responsibility for the ¦land, and (E) other grants, to third ¦ ¦collection, deposit and investment ¦parties, of the authority to use certain¦ ¦of the income generated or which ¦of the Plaintiff's trust lands and ¦ ¦should have been generated by such ¦natural resources for specific purposes.¦ ¦conveyances and use rights." Id. ¶¦. . . [and] in certain limited ¦ ¦15. ¦instances, conveyed title . . . to third¦ ¦ ¦parties and . . . approved the use of ¦ ¦"The Treaties of 1815 and 1825 and ¦certain of the Plaintiff's trust lands ¦ ¦many . . . subsequent Omaha Treaties¦for Federal purposes. By granting these ¦ ¦provided for the payment of monies .¦rights, the Defendant . . . assumed the ¦ ¦. . . [and] the creation of Trust ¦legal responsibility for the collection ¦ ¦fund accounts in the United States ¦of fair and equitable compensation for ¦ ¦Treasury and in some instances ¦those conveyances or uses including, but¦ ¦established parameters for the ¦not limited to: royalty payments, ¦ ¦management and use of those monies."¦grazing fees, rents, purchase prices, ¦ ¦Id. ¶ 8. ¦and such other fees and payments as are ¦ ¦ ¦or were appropriate." Id. ¶ 12. ¦ +------------------------------------+----------------------------------------¦ ¦Trust Obligations ¦Trust Obligations ¦ ¦ ¦ ¦ ¦"Under the terms of its treaties, ¦"Under the terms of its treaties, and ¦ ¦and under other applicable law, ¦under other applicable law, tribal land ¦ ¦tribal land held in trust and the ¦held in trust and the tribal resources ¦ ¦trust resources located on the ¦located on those trust lands are ¦ ¦Plaintiff's lands are inalienable ¦inalienable except as authorized by ¦ ¦except as authorized by Congress, or¦Congress, or by the terms and conditions¦ ¦by the terms and conditions of the ¦of the Plaintiff's treaties with the ¦ ¦Plaintiffs treaties with the United ¦United States. 25 U.S.C. [§] 177. ¦ ¦States and the Plaintiff's federally¦Congress has granted the Secretary of ¦ ¦approved organic documents. See, the¦the Interior the authority to approve ¦ ¦Constitution and By-Laws of the ¦conveyances of certain interests in the ¦ ¦Omaha Tribe. Congress has granted ¦Plaintiff's trust lands and trust ¦ ¦the Secretary of the Interior the ¦resources, including but not limited to:¦ ¦authority to approve certain limited¦leases, easements, rights of way, ¦ ¦conveyances of certain interests in ¦resource harvesting and resource use ¦ ¦the Plaintiff's trust lands and ¦agreements. . . . Federal law also ¦ ¦trust resources, including but not ¦generally ¦ ¦limited to: ¦ ¦ +-----------------------------------------------------------------------------+
+-----------------------------------------------------------------------------+ ¦leases, easements, rights of way, ¦ ¦ ¦resource harvesting and resource use ¦ ¦ ¦agreements. . . . Federal law also ¦ ¦ ¦generally requires that compensation be¦ ¦ ¦paid to the Plaintiff for the ¦ ¦ ¦conveyance and/or use of its trust ¦ ¦ ¦lands and trust resources." Id. ¶ 12.¦requires that compensation be paid to¦ ¦ ¦the Plaintiff for the conveyance and ¦ ¦"Because the United States holds the ¦the use of tribal lands and tribal ¦ ¦Plaintiff's lands, resources and the ¦trust resources." Id. ¶ 9. ¦ ¦proceeds generated by and from the use,¦ ¦ ¦sale, or taking of said resources in ¦"Because the United States holds the ¦ ¦trust, it has assumed the obligations ¦Plaintiff's trust lands, trust ¦ ¦of a trustee. . . . As trustee, the ¦resources and the proceeds generated ¦ ¦United States has a fiduciary duty to ¦by or from the use, sale, or taking ¦ ¦the Plaintiff to administer the trust ¦of said resources in trust, it has ¦ ¦with the greatest skill and care ¦assumed the obligations of a trustee.¦ ¦possessed by a trustee. . . . This ¦. . . As trustee, the United States ¦ ¦includes a duty to insure that the ¦has a fiduciary relationship with the¦ ¦tribal trust property, funds and assets¦Plaintiff and an obligation to ¦ ¦are protected, preserved and managed in¦administer the trust with the ¦ ¦full compliance with the Defendant's ¦greatest skill and care possessed by ¦ ¦trust duties and applicable law." Id. ¶¦the trustee." Id. ¶14. ¦ ¦16. ¦ ¦ ¦ ¦"The trust obligation of the United ¦ ¦"Defendant in fact has undertaken and ¦States includes, among other duties, ¦ ¦continues to undertake the ¦the duty to ensure that tribal trust ¦ ¦responsibilities to account for, ¦property and trust funds are ¦ ¦manage, and otherwise act as a ¦protected, preserved and managed so ¦ ¦fiduciary trustee on behalf of the ¦as to produce the highest and best ¦ ¦Plaintiff." Id. ¶ 21. ¦use and return to the tribal owner ¦ ¦ ¦consistent with the trust character ¦ ¦"In Article 1 of the Treaty of March ¦of the property. Said duty requires ¦ ¦16, 1854 . . . the Congress established¦the United States to further insure ¦ ¦the Omaha Indian Reservation . . . . ¦that the Plaintiff is afforded its ¦ ¦While subsequent treaties and ¦full rights to compensation." Id. ¶¦ ¦agreements diminished or altered the ¦15. ¦ ¦boundaries of Plaintiff's original ¦ ¦ ¦Reservation and land holdings, the ¦"Defendants have assumed the ¦ ¦United States maintained a fiduciary ¦responsibility for the investment of ¦ ¦obligation to protect those lands and ¦the corpus of the trust, including ¦ ¦the Plaintiff's interest therein . . . ¦trust assets, the income that was and¦ ¦." Id. UU 9-10. ¦is being generated by the Plaintiff's¦ ¦ ¦trust lands, and trust resources and ¦ ¦"Congress authorized the Secretary of ¦by the other trust monies paid to the¦ ¦the Interior to collect income from ¦Plaintiff." Id. ¶ 13. ¦ ¦tribal trust property and to deposit ¦ ¦ ¦such trust income . . . for the benefit¦"Congress has charged the Defendants ¦ ¦of the Plaintiff. . . . [and] directed ¦with fulfilling the obligations of ¦ ¦that interest be paid on tribal trust ¦the United States as trustee and with¦ ¦funds, and required that such trust ¦the responsibility for the ¦ ¦funds be invested. . . . [T]he United ¦administration and management of all ¦ ¦States assumed a statutory duty . . . ¦trust property of the Plaintiff in ¦ ¦to properly administer and manage the ¦compliance with the Constitution . . ¦ ¦Plaintiff's trust assets, monies and ¦." Id. ¶ 17. ¦ ¦property for the highest and best use ¦ ¦ ¦of the Plaintiff." Id. ¶ 13. ¦"[T]he United States took possession ¦ ¦ ¦of certain of the Plaintiff's lands ¦ ¦"Congress . . . has consistently ¦and other valuable resources. When ¦ ¦required the United States to increase ¦the United States took possession of ¦ ¦the productivity of funds that it holds¦those items it obligated itself to ¦ ¦in trust for Indian Tribes." Id. ¶ ¦provide specific consideration to the¦ ¦14. ¦Plaintiff. . . . [C]onsideration ¦ ¦ ¦often took the form of money and/or ¦ ¦"Court of Federal Claims has . . . ¦goods and services which were to be ¦ ¦consistently held the United States ¦provided by the United States to the ¦ ¦responsible for investing Indian trust ¦Plaintiff . . . [and] managed by the ¦ ¦funds in the highest yielding ¦United States until that ¦ ¦investment vehicles available to the ¦consideration was delivered." Id. ¶¦ ¦funds in question." Id. ¶ 17. ¦11. ¦ ¦ ¦ ¦ ¦"The trust obligation of the United ¦ ¦ ¦States includes . . . the duty to ¦ ¦ ¦insure that tribal trust property and ¦ ¦ ¦trust funds are protected, preserved ¦ ¦ ¦and managed so as to insure the highest¦ ¦ ¦and best use of those assets and funds,¦ ¦ +-----------------------------------------------------------------------------+
+-----------------------------------------------------------------------------+ ¦. . . the highest revenue to the ¦ ¦ ¦tribal owner consistent with the trust¦ ¦ ¦character of the property . . . . ¦ ¦ ¦[and] to further insure that the ¦ ¦ ¦Plaintiff is afforded its full rights ¦ ¦ ¦to compensation for any taking of ¦ ¦ ¦trust assets." Id. ¶ 18. ¦ ¦ ¦ ¦ ¦ ¦"The Defendant . . . also has ¦ ¦ ¦responsibility to: ¦ ¦ ¦ ¦ ¦ ¦A. Provide adequate systems for ¦ ¦ ¦accounting for and reporting trust ¦ ¦ ¦fund balances; ¦ ¦ ¦ ¦ ¦ ¦B. Provide adequate controls over ¦ ¦ ¦receipts and disbursements; ¦ ¦ ¦ ¦ ¦ ¦C. Provide periodic and timely ¦ ¦ ¦reconciliations to insure the accuracy¦ ¦ ¦of accounts; ¦"The trust obligations of the United ¦ ¦ ¦States also include . . . the duty to:¦ ¦D. Determine accurate cash balances; ¦ ¦ ¦ ¦(A) collect trust funds rightfully ¦ ¦E. Prepare and supply account holders ¦owed to the ¦ ¦with periodic statements of their ¦ ¦ ¦account performance and with balances ¦Plaintiff; ¦ ¦of their account to be available on a ¦ ¦ ¦daily basis; ¦(B) create trust accounts to hold ¦ ¦ ¦those funds[;] ¦ ¦F. Establish consistent written ¦ ¦ ¦policies and procedures for trust fund¦(C) insure that the monies owed or ¦ ¦management and accounting; ¦paid for the loss or use of tribal ¦ ¦ ¦lands and trust resources are placed ¦ ¦G. Provide adequate staffing, ¦into those accounts, ¦ ¦supervision and training for trust ¦ ¦ ¦funds management and accounting; and ¦(D) maintain adequate records with ¦ ¦ ¦respect to the Plaintiff's trust ¦ ¦H. Appropriately manage the natural ¦property, ¦ ¦resources located within the ¦ ¦ ¦boundaries of Indian reservations and ¦(E) maintain adequate systems and ¦ ¦trust lands." Id. ¶ 19. ¦controls to guard against errors or ¦ ¦ ¦dishonesty; ¦ ¦"Trust obligations of the United ¦ ¦ ¦States include . . . the duty to: ¦(F) provide regular and accurate ¦ ¦ ¦accountings to the Plaintiff as the ¦ ¦(a) exercise opportunities to obtain ¦trust beneficiary; ¦ ¦monetary benefits from Plaintiff's ¦ ¦ ¦trust land and resources, ¦(G) refrain from self-dealing or ¦ ¦ ¦benefiting from the management of the ¦ ¦(b) enter into reasonable contracts to¦trust property; ¦ ¦advance those opportunities ¦ ¦ ¦ ¦(H) insure the Federal Government's ¦ ¦(c) timely collect the trust funds ¦compliance with the protections ¦ ¦rightly owed to the Plaintiff, ¦afforded the Plaintiff under the ¦ ¦ ¦Constitution of the United States and ¦ ¦(d) timely create trust accounts to ¦other applicable law and ¦ ¦hold those funds, ¦ ¦ ¦ ¦(I) to consult with the Plaintiff ¦ ¦(e) insure that the monies owed or ¦regarding the management of its trust ¦ ¦paid for the loss or use of trust ¦property." Id. ¶ 16. ¦ ¦lands and resources are placed in ¦ ¦ ¦those accounts in a timely manner, ¦"By the Act of December 22, 1987 . . .¦ ¦ ¦Congress imposed two requirements on ¦ ¦(f) maintain adequate records with ¦the Defendants: (1) that they audit ¦ ¦respect to the Plaintiff's trust ¦and reconcile tribal trust funds, and ¦ ¦property, ¦(2) that they provide the tribes with ¦ ¦ ¦an accounting of such funds." Id. ¶ ¦ ¦(g) maintain adequate systems and ¦22. ¦ ¦controls to guard against errors or ¦ ¦ ¦dishonesty, ¦ ¦ ¦ ¦ ¦ ¦(h) provide regular and accurate ¦ ¦ ¦accountings to the Plaintiff as the ¦ ¦ ¦trust beneficiary, ¦ ¦ ¦ ¦ ¦ ¦(i) refrain from self-dealing or ¦ ¦ ¦benefiting from the management of the ¦ ¦ ¦trust property, ¦ ¦ ¦ ¦ ¦ ¦(j) insure the Federal Government's ¦ ¦ ¦compliance with the protections ¦ ¦ ¦afforded the Plaintiff under the ¦ ¦ ¦Constitution . . . and other ¦ ¦ ¦applicable law, and ¦ ¦ ¦ ¦ ¦ ¦(k) consult with the Plaintiff ¦ ¦ ¦regarding the management of its trust ¦ ¦ ¦property and the ¦ ¦ +-----------------------------------------------------------------------------+
+-----------------------------------------------------------------------------+ ¦ ¦Breaches of Trust ¦ ¦ ¦ ¦ ¦ ¦"Defendants have never rendered a ¦ ¦implementation of the Government's ¦full, accurate or timely audit or ¦ ¦treaty obligations." Id. ¶ 20. ¦accounting to the Plaintiff of its ¦ ¦ ¦trust assets, or provided the ¦ ¦Breaches of Trust ¦Plaintiff with a clear statement as ¦ ¦ ¦to the origin or use of all of the ¦ ¦"The Defendant fraudulently concealed ¦funds in each of those accounts. . .¦ ¦operative facts concerning the existence¦. Defendants have kept and continue ¦ ¦of the causes of action, claims and ¦to keep the Plaintiff, who is the ¦ ¦other instances of its mismanagement of ¦trust beneficiary, uninformed as to:¦ ¦trust property, assets and monies, so as¦(A) the trust property, trust funds ¦ ¦to prevent the Plaintiff from fully ¦and trust resources it owns or ¦ ¦prosecuting or pursuing its rights to a ¦owned, (B) the income and interest ¦ ¦full and complete accounting, damages ¦that the Plaintiff's currently owned¦ ¦and other claims arising out of the ¦and previously owned trust property,¦ ¦Defendant's failures as alleged herein. ¦resources and funds have produced, ¦ ¦In furtherance of their fraudulent ¦and (C) what disposition - if any - ¦ ¦concealment and deception, the Defendant¦has been made of that income; and ¦ ¦. . . create[d] the false appearance of ¦(D) whether the United States has ¦ ¦a complete and meaningful accounting or ¦properly managed the Plaintiff's ¦ ¦reconciliation of funds or monies ¦trust assets." Id. ¶ 18. ¦ ¦otherwise due Plaintiff, and ¦ ¦ ¦continuously . . . have continued to ¦"[M]ismanagement . . . has resulted ¦ ¦conceal the facts which would support ¦in losses to the Plaintiff, a trust ¦ ¦Plaintiff's claims, so as to delay the ¦beneficiary. However, the extent of ¦ ¦accrual of any cause of action otherwise¦the losses is unknown to the ¦ ¦arising out of the mismanagement of ¦Plaintiff at this time because the ¦ ¦Plaintiff's properties, land and other ¦Defendants have: ¦ ¦trust assets. Defendant has continued, ¦ ¦ ¦up to the present time, to fail to ¦(A) failed to provide the Plaintiff ¦ ¦render any bonafide reconciliation and ¦with a full and complete accounting ¦ ¦accounting despite being legally ¦of the source of its trust funds, ¦ ¦obligated to provide such under ¦ ¦ ¦applicable federal law . . . ." Id. ¶¶¦(B) failed to provide Plaintiff with¦ ¦33-35. ¦accurate accounting of the amount ¦ ¦ ¦contained in each of its accounts . ¦ ¦"The Defendant's continuing widespread ¦. . , ¦ ¦and well-documented Indian trust fund ¦ ¦ ¦mismanagement, and other breaches of ¦(C) failed to provide the Plaintiff ¦ ¦trust have affected . . . the ¦with a comprehensive statement of ¦ ¦Plaintiff's trust assets and have caused¦the use and investment of its trust ¦ ¦. . . monetary losses to the Plaintiff."¦funds . . . , ¦ ¦Id. ¶ 22. ¦ ¦ ¦ ¦(D) failed to maintain accurate ¦ ¦"Defendant has failed to keep records of¦books and records of the Plaintiff's¦ ¦and/ or has failed to keep proper ¦account, ¦ ¦records regarding the Plaintiff's trust ¦ ¦ ¦accounts and assets . . . . Defendant ¦(E) lost and destroyed relevant ¦ ¦has never provided the Plaintiff with a ¦trust account records, ¦ ¦full and meaningful accounting of its ¦ ¦ ¦trust assets and trust funds. Indeed ¦(F) failed or refused to disclose ¦ ¦before filing this action, the Plaintiff¦known losses, or unmade or ¦ ¦filed a complaint in the United States ¦incomplete payments to the ¦ ¦District Court for the District of ¦ ¦ ¦Columbia demanding a full accounting of ¦Plaintiff . . . , ¦ ¦its trust accounts, trust assets and ¦ ¦ ¦trust property." Id. ¶ 23. ¦(G) failed or refused to reimburse ¦ ¦ ¦trust beneficiaries for losses to ¦ ¦"The Defendant has failed to obtain and ¦their trust funds, and ¦ ¦continues to fail to obtain the maximum ¦ ¦ ¦investment return possible . . . on the ¦(H) failed to properly create ¦ ¦Plaintiff's trust funds. This breach of ¦certain trust accounts and deposit ¦ ¦fiduciary duty has caused and continues ¦the appropriate monies in those ¦ ¦to cause monetary loss to the ¦accounts." Id. ¶ 21. ¦ ¦Plaintiff." Id. ¶ 24. ¦ ¦ ¦ ¦"Defendants have continued to fail ¦ ¦"Congress . . . [undertook] an ¦to implement the reforms required by¦ ¦investigation into Defendant's ¦law and have hampered the Special ¦ ¦management and oversight over tribal ¦Trustee for American Indians in his ¦ ¦trust accounts . . . . [and] has ¦efforts to perform his legal ¦ ¦recognized the gross breaches of trust ¦obligations." Id. U¶ 25. ¦ ¦described herein." Id. ¶ 25. ¦ ¦ ¦ ¦"To date, the Defendants have failed¦ ¦ ¦to provide the Plaintiff with a ¦ ¦ ¦full, accurate and timely accounting¦ ¦ ¦of ¦ +-----------------------------------------------------------------------------+
+-----------------------------------------------------------------------------+ ¦"Defendant has breached its ¦ ¦ ¦fiduciary duty . . . through its ¦ ¦ ¦conduct and omissions stated as ¦ ¦ ¦follows: ¦ ¦ ¦ ¦ ¦ ¦A. . . . by failing to obtain the ¦ ¦ ¦highest available rates of interest¦ ¦ ¦and earnings on the Plaintiff's ¦ ¦ ¦trust funds . . . . ¦ ¦ ¦ ¦ ¦ ¦B. . . . by failing to deposit the ¦ ¦ ¦Plaintiff's trust monies in ¦ ¦ ¦interest bearing accounts in a ¦ ¦ ¦timely manner. ¦ ¦ ¦ ¦ ¦ ¦C. . . . by failing to properly ¦ ¦ ¦invest the Plaintiff[']s trust ¦ ¦ ¦monies in a timely manner. ¦ ¦ ¦ ¦ ¦ ¦D. . . . by prematurely withdrawing¦ ¦ ¦the Plaintiff's trust funds from ¦ ¦ ¦interest generating accounts. ¦ ¦ ¦ ¦ ¦ ¦E. . . . by entering into or ¦ ¦ ¦authorizing below market value ¦ ¦ ¦contracts, leases, permits, ¦ ¦ ¦rights-of-way and other similar ¦ ¦ ¦arrangements dealing with ¦ ¦ ¦Plaintiff's real property and ¦ ¦ ¦natural resources. ¦its trust funds and have failed to meet ¦ ¦ ¦their other statutory and legal ¦ ¦F. . . . by generally failing to ¦obligation to the Plaintiff leaving them ¦ ¦obtain the highest and best price ¦in clear breach of their trust ¦ ¦for the use and taking of ¦responsibility." Id. ¶ 26. ¦ ¦Plaintiff's trust assets. ¦ ¦ ¦ ¦"The Plaintiff is entitled to declaratory¦ ¦G. . . . by failing to charge, or ¦and mandatory injunctive relief ¦ ¦collect rents, royalties or other ¦compelling the Defendants to manage the ¦ ¦proceeds on leases, permits, ¦Plaintiff's current and future trust ¦ ¦rights-of-way . . . and/or by ¦funds and trust assets in full compliance¦ ¦failing to collect and deposit ¦with all applicable law and with their ¦ ¦those monies in interest bearing ¦duties as the Plaintiff's guardian and ¦ ¦accounts in a timely manner. ¦trustee." Id. ¶ 36 ¦ ¦ ¦ ¦ ¦H. . . . by allowing third parties ¦"The Tribe may have claims to damages ¦ ¦to use, remove, encumber, waste, ¦that cannot be ascertained until after ¦ ¦damage, spoil and otherwise take ¦the Defendants make a reconciliation and ¦ ¦possession of the Plaintiffs trust ¦accounting of the Tribe's trust property ¦ ¦assets without consultation with ¦and accounts. Some of these claims, ¦ ¦the Plaintiff and/or without ¦should they exist, will have to be filed ¦ ¦adequate compensation. ¦in the United States Court of Federal ¦ ¦ ¦Claims." Id. ¶ 38. ¦ ¦I. . . . by allowing churches, ¦ ¦ ¦schools, government agencies and ¦"WHEREFORE, the Plaintiff prays: ¦ ¦other third parties to have the use¦ ¦ ¦and benefit of Plaintiff[']s trust ¦4. For a judicial order preserving any ¦ ¦properties without adequate ¦claims that the Plaintiff might uncover ¦ ¦compensation. ¦once it receives that accounting. ¦ ¦ ¦ ¦ ¦J. . . . by allowing third parties ¦5. For an order directing the Defendants ¦ ¦to cause damage to the Plaintiff's ¦to manage all of the Plaintiffs current ¦ ¦trust properties and natural ¦and future trust funds, properties and ¦ ¦resources without paying ¦resources in full compliance with all ¦ ¦compensation . . . . ¦applicable law and with their duties as ¦ ¦ ¦the Plaintiff's guardian and trustee." ¦ ¦K. . . . by failing to enforce the ¦Id. at 13 ¶¶ 4-5 (Prayer for Relief). ¦ ¦reverter clause contained in ¦ ¦ ¦various federal statutes and in ¦ ¦ ¦various deeds and use agreements ¦ ¦ ¦dealing with the Plaintiff's real ¦ ¦ ¦property . . . . ¦ ¦ ¦ ¦ ¦ ¦L.....by failing to properly invest¦ ¦ ¦and manage ¦ ¦ ¦ ¦ ¦ ¦the Plaintiff's judgment funds, ¦ ¦ ¦Congressionally appropriated funds ¦ ¦ ¦and other trust monies in a timely ¦ ¦ ¦manner and in a manner which ¦ ¦ ¦obtains the maximum investment ¦ ¦ ¦return possible. ¦ ¦ ¦ ¦ ¦ ¦M. . . . by failing to administer ¦ ¦ ¦and manage the Plaintiff's trust ¦ ¦ ¦lands, funds and property with the ¦ ¦ ¦greatest skill and care required of¦ ¦ ¦a trustee. ¦ ¦ ¦ ¦ ¦ ¦N. . . . by failing to exercise ¦ ¦ ¦opportunities which would have ¦ ¦ ¦maximized the productive use of the¦ ¦ ¦Plaintiff's land and resources and ¦ ¦ ¦the income derived there from. ¦ ¦ ¦ ¦ ¦ ¦O. . . . by failing to provide the ¦ ¦ ¦consideration it ¦ ¦ +-----------------------------------------------------------------------------+
+-----------------------------------------------------------------------------+ ¦agreed to provide . . . in and pursuant to treaties, statutes, ¦¦ ¦appropriations, contracts and other agreements involving the Plaintiff. ¦¦ ¦ ¦¦ ¦P. . . . by conveying or allowing the conveyance of the Plaintiff's trust ¦¦ ¦assets to third parties without adequate compensation and protections. ¦¦ ¦ ¦¦ ¦Q. . . . by engaging in self-dealing and/or by converting the Plaintiff's ¦¦ ¦trust assets to its own use without adequate compensation. ¦¦ ¦ ¦¦ ¦R. . . . by failing to adhere to the requirements of 25 U.S.C. §162d. ¦¦ ¦ ¦¦ ¦S. . . . by failing to pay the Plaintiff the interest or compound interest ¦¦ ¦on certain liquidated amounts and judgments. . . . ¦¦ ¦ ¦¦ ¦T. . . . by failing to charge, enforce and collect late penalties, breach of¦¦ ¦contract penalties, trespass damages and penalties, insurance payments, ¦¦ ¦certain cost share and other payment obligations, condemnation awards, ¦¦ ¦delinquent rent payments, damage claims and other similar damages and ¦¦ ¦interest thereon. ¦¦ ¦ ¦¦ ¦U. . . . by failing to require lessee, permittees and other[] users of trust¦¦ ¦assets owned by the Plaintiff to procure bonds, insurance or surety ¦¦ ¦arrangements to protect the rights of the Plaintiff and to collect from ¦¦ ¦those sureties damages owed to the Plaintiff." Id. ¶ 37. ¦¦ +-----------------------------------------------------------------------------+
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, No. 98-314L, 2011 WL 3913099, at *7, *7 n.4 (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 *7 (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 plaintiff's "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. 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:
[E]lements 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 Ak-Chin 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 plaintiff's 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 plaintiff's trust. The court will be required to review the government's alleged failure to maintain records and account for plaintiff's 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 without 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 plaintiff's District Court complaint and its Court of Federal Claims complaint. Therefore, the court finds that plaintiff's 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 Superior Chippewa Indians v. United States, No. 06-923L, slip op. (Fed. Cl. Sept. 19, 2011), the court rejected these same arguments and dismissed the plaintiff's 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, plaintiff's 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 plaintiff'sId. at 2-3.
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.
Omaha Tribe has also made this statement in its district court complaint. See Am. District Compl. at ¶ 38.
--------
Tested by these standards, it is clear that the plaintiff's 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, No. 2009-5027, 2011 WL 3873846, at *1 (Fed. Cir. Sept. 2, 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 plaintiff's 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 plaintiff's trust corpus, including reviewing the existing records related to the government's alleged failures in properly collecting, handling, and investing the plaintiff's 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 plaintiff's current and future trust funds and trust assets in "full compliance with all applicable law and with their duties as the plaintiff's guardian and trustee." Am. District Compl. at ¶ 36. 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 plaintiff's 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 plaintiff's 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.
NANCY B. FIRESTONE
Judge
Id. (internal citations omitted).
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).