At its mid-year meeting in Dallas last week, the American Bar Association (ABA) House of Delegates adopted a resolution urging Congress to implement Administrative Conference Recommendation 2012-6, Reform of 28 U.S.C. Section 1500. ABA Resolution 300 succinctly provides:
RESOLVED, That the American Bar Association urges Congress to repeal and replace 28 U.S.C. § 1500 in accordance with the recommendation of the Administrative Conference of the United States to eliminate unnecessary procedural obstacles to the fair and efficient review of claims against the United States in the U.S. Court of Federal Claims.
Further information, including copies of the final resolution and underlying proposed resolution and report, are available on the ABA's website. Resolution 300 was offered by the ABA's Section of Public Contract Law and co-sponsored by the Section of Administrative Law and Regulatory Practice.
Recommendation 2012-6 urges Congress to repeal 28 U.S.C. § 1500, a statute that creates often unpredictable difficulties for both courts and litigants in cases against the United States government. By design, Congress has required that certain types of claims against government be litigated in different courts. Section 1500 divests the U.S. Court of Federal Claims of jurisdiction over a claim if the plaintiff has other claims based on substantially the same operative facts pending in another court. The provision thus interacts with Congress’s jurisdictional scheme to unfairly require some litigants to elect among potentially meritorious claims against government. No other defendant enjoys such an advantage under modern principles of civil procedure. Recommendation 2012-6 seeks to remedy this unfairness by urging that Section 1500 be repealed and replaced with a presumption that courts will use stays and other judicial management tools to reduce any additional burden of parallel litigation on courts and litigants.
The recommendation was crafted through a nearly two-year period of research and consideration by the Conference's Committee on Judicial Review. As the primariy beneficiary of Section 1500, the Department of Justice (DOJ) was consulted throughout the Conference's process. It did not, however, support the recommendation's adoption. Indeed, DOJ's member, Elana J. Tyrangiel, filed a separate statement registering DOJ's objections. This separate statement was published with the final recommendation.
The ABA's action in support of Recommendation 2012-6 is particularly remarkable because it followed so swiftly on the heels of the Conference's December 2012 adoption of the recommendation. The action is a clear indication of an emerging, broad-based consensus that Section 1500 is in need of legislative reconsideration and reform.