Appealed from: U.S. Claims Court. Judge Nettesheim 911 F.2d 654,.
Before Nies, Chief Judge, Rich, Newman, Archer, Mayer, Michel, Plager, Lourie, Clevenger, and Rader, Circuit Judges.
This is a rehearing in banc of an appeal from the United States Claims Court, 17 Cl. Ct. 146 (1989), which dismissed the cases of UNR Industries, Inc., Eagle-Picher Industries, Inc., and Keene Corporation because it lacked jurisdiction under 28 U.S.C. § 1500 (1988). An earlier judgment and the opinion of this court, 911 F.2d 654 (Fed. Cir. 1990), were vacated, 926 F.2d 1109 (Fed. Cir. 1990). We now affirm the judgment of the Claims Court.
Appellants, manufacturers of asbestos products or suppliers of asbestos, sued in the Claims Court for indemnification by the government against liabilities incurred in personal injury suits brought against them by shipyard workers exposed to asbestos. As of the filing of the Claims Court actions, each of the appellants had cases based on the same facts pending in federal district courts. Therefore, the Claims Court dismissed their suits on the authority of 28 U.S.C. § 1500, which reads:
The United States Claims Court 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.
We set out here only a brief description of the appellants and their activities. A more comprehensive scenario is contained in the Claims Court opinion. UNR Industries, Inc. (UNR) and Eagle-Picher Industries, Inc. (Eagle-Picher) are among the many defendants in In re All Maine Asbestos Litigation, Master Asbestos Docket (D. Me.), a consolidation of 225 suits brought by present or former shipyard workers or their representatives claiming injury from exposure to asbestos at the Bath Iron Works, a private shipyard, and the Portsmouth Naval Shipyard, both in Maine. On July 21, 1982, the defendants in that litigation, including UNR and Eagle-Picher, filed third-party complaints for contribution or indemnification against the United States in the United States District Court for the District of Maine. The third-party complaints were drafted pursuant to model complaints and were based on theories of negligence, strict liability, and breach of warranty. Model Complaint A dealt with injuries allegedly incurred at the Bath Iron Works, while Model Complaint B dealt with injuries alleged at the Portsmouth Naval Shipyard. On January 16, 1984, UNR sued the United States in the Claims Court, No. 16-84C, for breach of contract based on warranties allegedly arising from the government's role in the use of asbestos in the shipyards. The Claims Court's jurisdiction over this suit is at issue today.
On July 16, 1986, the district court issued a final order dismissing Model Third-Party Complaint B. In re All Maine Asbestos Litigation (Portsmouth Naval Shipyard Cases), Master Asbestos Docket (D. Me.); see also 772 F.2d 1023 (1st Cir. 1985); 581 F. Supp. 963 (D. Me. 1984). And on March 12, 1987, the court dismissed the last claims of Model Third-party Complaint A. In re All Maine Asbestos Litigation (Bath Iron Works Cases), 655 F. Supp. 1169 (D. Me. 1987), aff'd, 854 F.2d 1328 (Fed. Cir. 1988).
Eagle-Picher is also a defendant in cases in the Western District of Washington for asbestos-related injuries suffered by workers at the Puget Sound Naval Shipyard. As part of this litigation, on February 3, 1983, Eagle-Picher filed ten third-party complaints founded on theories of negligence, breach of warranty, and admiralty against the government. These complaints were dismissed for failure to state a claim on May 19 and June 30, 1986. Lopez v. Johns-Manville, 649 F. Supp. 149 (W.D. Wash. 1986), aff'd sub nom. Lopez v. A.C. & S., Inc., 858 F.2d 712 (Fed. Cir. 1988).
On March 25, 1983, Eagle-Picher sued the government in the Claims Court to recover money paid for litigating and settling claims arising from asbestos-caused injuries. No. 170-83C. It relies on contractual theories that the government created warranties by specifying the use of asbestos and by controlling the workplace. The Claims Court's jurisdiction over this lawsuit is at issue.
Along with eight other asbestos suppliers, in 1978 Keene Corporation (Keene) was sued by the representative of a laborer allegedly injured by asbestos exposure in 1943. Miller v. Johns-Manville Bldg. Products, No. 78-1283E (W.D. Pa. filed Nov. 8, 1978). On June 1, 1979, Keene initiated a third-party complaint against the government, demanding indemnification or contribution because the asbestos was either supplied by, or according to the specifications of, the government. Although Keene moved to dismiss this third-party action on April 23, 1980, it is unclear whether the court acted on the motion; regardless, Keene has accepted a dismissal date of May 13, 1980.
On December 21, 1979, Keene sued in the Court of Claims on the theory that the government as an asbestos supplier and as the regulator of the workplace had made and breached various warranties appertaining to asbestos. No. 579-79-C (Keene I). It is seeking damages growing out of more than 5,000 suits filed against it by persons alleging injuries from asbestos exposure as early as the mid-1930's. Jurisdiction over this suit is at issue.
On January 22, 1980, Keene sued the government in the District Court for the Southern District of New York under the Federal Tort Claims Act for what it spent defending and settling thousands of lawsuits alleging asbestos-related injuries incurred as far back as the 1930's. It based this suit on theories of breach of warranty, negligence, strict liability, and the Federal Employees' Compensation Act, 5 U.S.C. §§ 8101-8193 (1976). On September 30, 1981, the court dismissed the suit as barred by the doctrine of sovereign immunity. Keene Corp. v. United States, No. 80-Civ-0401 (S.D.N.Y. Sep. 30, 1981), aff 'd, 700 F.2d 836 (2d Cir. 1983).
On September 25, 1981, Keene filed its second suit against the government in the Court of Claims. No. 585-81C (Keene II). Again, it demands damages for the defense, settlement, and judgment costs of asbestos related personal injury claims dating back to the 1930's. Further, it alleges a violation of the fifth amendment because the government recouped from Keene payments under the Federal Employees' Compensation Act that it paid to workers suffering from asbestos-related injuries. We must also decide whether the Claims Court has jurisdiction over this case.
The Claims Court interpreted section 1500 as forbidding jurisdiction "if, as of the date an action is filed, plaintiff has pending in another federal court the same claim." 17 Cl. Ct. at 155.
The jurisdictional inquiry targets the date of filing in the Claims Court, not some subsequent date, such as the date on which the Government is made aware of the antecedent action, or the date on which the Government invokes section 1500 seeking to dismiss the Claims Court action, or the date on which the Claims Court acts. Therefore, a plaintiff cannot cure a want of jurisdiction in the Claims Court by voluntarily or involuntarily dismissing its parallel action, or even by suffering a court-ordered termination on the merits.
Id. (citation omitted). The court concluded that under the standard announced in Johns-Manville Corp. v. United States, 855 F.2d 1556 (Fed. Cir. 1988), the complaints of each appellant in both the district courts and the Claims Court were based on a "homogeneity of operative facts." 17 Cl. Ct. at 156. It dismissed them, as well as those of Fireboard Corporation, H.K. Porter Company, Inc., and Raymark Industries, Inc., who have not appealed, because a case based on the same facts was pending in another court as of the date each plaintiff filed its Claims Court action. The complaint of GAF Corporation, an amicus curiae here, was not dismissed because of an exception to section 1500 set out in Tecon Engineers, Inc. v. United States, 170 Ct. Cl. 389, 343 F.2d 943 (Ct. Cl. 1965).
In the order accepting the suggestion for this rehearing in banc, 926 F.2d 1109, 1110 (Fed. Cir. 1991), we directed the parties to address the following questions:
a) Whether the term "has pending" as used in 28 U.S.C. § 1500 (1988) can be properly construed to mean pending at the time the Claims Court first entertains and acts on a Government motion to dismiss (or its equivalent), regardless of when the Claims Court suit was actually filed; or whether the term "has pending" is properly construed to mean pending at the time when the Claims Court suit was filed;
b) Whether the case of Tecon Engineers, Inc. v. United States, 343 F.2d 943, 170 Ct. Cl. 389 (1965), cert. denied, 382 U.S. 976, 86 S. Ct. 545, 15 L. Ed. 2d 468 (1966) should be overruled;
c) Whether a petition for writ of certiorari is a "suit or process against the United States" as that phrase is used in § 1500;
d) Whether the rule announced in Johns-Manville Corp. v. United States, 855 F.2d 1556 (Fed. Cir. 1988), cert. denied, 489 U.S. 1066, 109 S. Ct. 1342, 103 L. Ed. 2d 811 (1989), for determining what is a claim under § 1500 should be reconsidered, and if so, what should be the proper rule.
The statutory history is fairly straightforward. During the Civil War, Congress passed the Captured and Abandoned Property Act of 1863, ch. 120, 12 Stat. 820, which allowed property in the Confederate states to be seized and used by the government for war purposes. If the property was not so used, it was sold and the proceeds deposited in the Treasury. Id. ch. 120, § 2, 12 Stat. 820. Claimants to the property could recover any proceeds from its sale if they filed in the Court of Claims, proved ownership, and proved by a preponderance of the evidence that they had not aided or provided comfort to the rebellion. Id. § 3, 12 Stat. 820.
Most of the claims were for cotton seized during the war. See, e.g., Whiteside v. United States, 93 U.S. 247 (1876). These so-called "cotton claimants" had a hard time proving that they had not aided the confederacy and therefore their chances for recovering the proceeds from the sale of their cotton were slim. To better their chances, they filed suit against federal officers in the state or federal district courts, as well as against the United States in the Court of Claims. In 1868, Congress sought to put an end to this practice by enacting the predecessor to section 1500:
Sec. 8. And be it further enacted, That no person shall file or prosecute any claim or suit in the court of claims, or an appeal therefrom, for or in respect to which he or any assignee of his shall have commenced and has pending any suit or process in any other court against any officer or person who, at the time of the cause of action alleged in such suit or process arose, was in respect thereto acting or professing to act, mediately or immediately, under the authority of the United States, unless such suit or process, if now pending in such other court, shall be withdrawn or dismissed within thirty days after the passage of this act.
Act of June 25, 1868, § 8, 15 Stat. 75, 77. On the floor of the Senate, the sponsor, Sen. Edmunds of Vermont, read the proposed bill*fn1 and then added:
The object of this amendment is to put to their election that large class of persons having cotton claims particularly, who have sued the Secretary of the Treasury and the other agents of the Government in more than a hundred suits that are now pending, scattered over the country here and there, and who are here at the same time endeavoring to prosecute their claims, and have filed them in the Court of Claims, so that after they put the Government to the expense of beating them once in a court of law they can turn around and try the whole question in the Court of Claims. The object is to put that class of persons to their election either to leave the Court of Claims or to leave the other courts. I am sure everybody will agree to that.
81 Cong. Globe, 40th Cong., 2d Sess. 2769 (1868). From this, the only legislative history, we see that the statute was intended to force plaintiffs to choose between pursuing their claims in the Court of Claims or in another court, "the object is to put that class of persons to their election either to leave the Court of Claims or 'to leave the other courts." Thus, the claimants would not be able to "put the Government to the expense of beating them once in a court of law" and then try the question again in the Court of Claims. The statute also ameliorated the consequences of the unavailability of the defense of res judicata from cases against a federal officer in cases against the government itself, and vice versa.
Section 8 was thereafter incorporated into the Revised Statutes of 1874. The few changes made to it then were not intended to alter its meaning in any way. 2 Cong. Rec. 129 (daily ed. Dec. 10, 1873) (statement of Rep. Butler). Section 8 was renumbered as section 1067 and provided:
Sec. 1067. No person shall file or prosecute in the Court of Claims, or in the Supreme Court on appeal therefrom, any claim for or in respect to which he or any assignee of his has pending in any other court any suit or process against 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, mediately or immediately, under the authority of the United States.
Revised Statutes of the United States, Title 13, § 1067, ch. 21, 18 Stat. 197 (1874). After the turn of the century, section 1067 was adopted without change as section 154 of the Judicial Code of 1911. Act of Mar. 3, 1911, ch. 231, § 154, 36 Stat. 1135, 1138 (codified at 28 U.S.C. § 260 (1940)).
As part of the revision of the Judicial Code in 1948, Congress essentially reenacted section ...