Bipartisan Senate Bill Would Implement Recommendation 2012-6

Submitted by Emily S. Bremer on Mon, 08/18/2014 - 11:28

On July 31, Senator Roger Wicker (R-MS), joined by Senators John Cornyn (R-TX) and Jon Tester (D-MT), introduced S. 2769, “A bill to ensure appropriate judicial review of Federal Government actions by amending the prohibition on the exercise of jurisdiction by the United States Court of Federal Claims of certain claims pending in other courts.” 

The bill concerns 28 U.S.C. § 1500, a provision of the U.S. Judicial Code that deprives the Court of Federal Claims of jurisdiction over a claim when the plaintiff has pending in another court a claim based on substantially the same operative facts.  As currently written, the statute provides that:

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.

In Recommendation 2012-6, Reform of 28 U.S.C. § 1500, the Administrative Conference urged Congress to repeal Section 1500 and replace it with a provision that would create a presumption that, when parallel suits are filed, the later-filed action would be stayed.  The Delegates of the American Bar Association (ABA) adopted a resolution in 2013 in support of the Conference’s recommendation.

If enacted, S.2769 would fully implement Recommendation 2012-6 by amending Section 1500, replacing its current jurisdictional bar with a presumption of judicial stay.   The bill’s language is substantially the same as the statutory text offered in the recommendation.

The difficulties caused by Section 1500 as currently written are detailed in the research report underlying Recommendation 2012-6, which was co-authored by Emily S. Bremer and Professor Jonathan R. Siegel, and recently published in the Alabama Law Review.