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113th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     113-650

======================================================================



 
             ENSURING ACCESS TO JUSTICE FOR CLAIMS AGAINST 
                         THE UNITED STATES ACT

                                _______
                                

December 8, 2014.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

   Mr. Goodlatte, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 5683]

                  [Including Committee Cost Estimate]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 5683) 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, having 
considered the same, report favorably thereon without amendment 
and recommend that the bill do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     2
Hearings.........................................................    10
Committee Consideration..........................................    10
Committee Votes..................................................    10
Committee Oversight Findings.....................................    10
New Budget Authority and Tax Expenditures........................    10
Committee Cost Estimate..........................................    10
Duplication of Federal Programs..................................    11
Disclosure of Directed Rule Makings..............................    11
Performance Goals and Objectives.................................    11
Advisory on Earmarks.............................................    11
Section-by-Section Analysis......................................    11
Changes in Existing Law Made by the Bill, as Reported............    12

                          Purpose and Summary

    The Ensuring Access to Justice for Claims Against the 
United States Act amends section 1500, title 28, United States 
Code, in order to eliminate jurisdictional obstacles and 
inefficiencies that prevent plaintiffs with claims against the 
United States from receiving redress for Federal Government 
actions that violate their constitutional, statutory, or 
contractual rights. Currently, 28 U.S.C. Sec. 1500 prohibits 
the U.S. Court of Federal Claims (CFC) from exercising 
jurisdiction over any claim in which the plaintiff has pending 
in any other Federal court a lawsuit against the United States 
arising out of the same incident, even if the lawsuit in the 
CFC seeks different relief. When combined with other limits on 
the CFC's jurisdiction, this jurisdictional bar forces 
plaintiffs to pick and choose among potentially meritorious 
claims against the United States and leads to plaintiffs being 
denied relief for unlawful government actions. This 
jurisdictional bar, as Justice Sonia Sotomayor has explained, 
causes ``plaintiffs whom Congress has forced to file parallel 
actions in the CFC and a district court to obtain complete 
relief [to] choose either to forgo relief in the district court 
or to file first in the district court and risk the expiration 
of the statute of limitations on their claims in the CFC.''\1\ 
H.R. 5683 efficiently fixes the jurisdictional problems created 
by 28 U.S.C. Sec. 1500 in order to ensure that government 
employees, members of the armed forces, property owners, 
government contractors, Indian tribes, and others can receive 
the relief they are entitled to from actions taken by the 
Federal Government.
---------------------------------------------------------------------------
    \1\United States v. Tohono O'odham Nation, 131 S. Ct. 1723, 1738 
(2011) (Sotomayor, J., concurring).
---------------------------------------------------------------------------

                Background and Need for the Legislation

    In many cases under current Federal law, plaintiffs with 
multiple claims against the United States government arising 
out of a single incident are required to file at least two 
separate actions to receive complete or even partial relief for 
their injuries: one in Federal district court and a second in 
the U.S. Court of Federal Claims (CFC). However, Federal law 
also prevents plaintiffs from having both a district court and 
the CFC consider both suits if they arise from substantially 
the same operative facts. These contradictory requirements of 
Federal law put plaintiffs into a jurisdictional Catch-22 when 
seeking redress against the Federal Government for 
infringements on their constitutional, statutory, or 
contractual rights.
    H.R. 5683, the ``Ensuring Access to Justice for Claims 
Against the United States Act,'' addresses this problem by 
amending section 1500 of title 28, United States Code, with 
respect to the jurisdiction over civil actions against the 
United States pending in, or on appeal from, the CFC. 
Currently, section 1500 prohibits the CFC from exercising 
jurisdiction over any claim in which the plaintiff has pending 
in any other Federal court a lawsuit against the United States 
arising out of the same incident, even if the lawsuit in the 
CFC seeks different relief. When combined with other limits on 
the CFC's jurisdiction, including the statute of 
limitations,\2\ the jurisdictional bar in section 1500 forces 
plaintiffs to pick and choose among potentially meritorious 
claims against the United States and leads to plaintiffs being 
denied relief for unlawful government actions. The 
jurisdictional bar, as Justice Sotomayor has observed, causes 
``plaintiffs whom Congress has forced to file parallel actions 
in the CFC and a district court to obtain complete relief [to] 
choose either to forgo relief in the district court or to file 
first in the district court and risk the expiration of the 
statute of limitations on their claims in the CFC.''\3\
---------------------------------------------------------------------------
    \2\The statute of limitations for cases before the Court of Federal 
Claims (CFC) is 6 years. 28 U.S.C. Sec. 2501 (2014). For cases in the 
CFC, the statute of limitations is a condition on the United States' 
waiver of sovereign immunity and therefore is a limit on the court's 
jurisdiction. John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 
133-34 (2008).
    \3\United States v. Tohono O'odham Nation, 131 S. Ct. 1723, 1738 
(2011) (Sotomayor, J., concurring).
---------------------------------------------------------------------------
    The Ensuring Access to Justice for Claims Against the 
United States Act efficiently fixes the ``jurisdictional 
dance''\4\ created by section 1500 in order to ensure that 
government employees, members of the armed forces, property 
owners, government contractors, Indian tribes, and others can 
receive the relief they are entitled to from actions taken by 
the Federal Government. It is fundamentally unfair to those 
whose rights have been violated by the Federal Government to 
allow the procedural obstacles created by section 1500 to 
stand. As Abraham Lincoln admonished in his first annual 
message to Congress, ``[i]t is as much the duty of Government 
to render prompt justice against itself in favor of citizens as 
it is to administer the same between private individuals.''\5\
---------------------------------------------------------------------------
    \4\Loveladies Harbor v. United States, 27 F.3d 1545, 1549 (Fed. 
Cir. 1994).
    \5\President Abraham Lincoln, First Annual Message to Congress 
(Dec. 3, 1861).
---------------------------------------------------------------------------

                               BACKGROUND

A. The U.S. Court of Federal Claims
    The CFC is the principal forum for litigating monetary 
claims against the United States. Since 1855, the CFC and its 
predecessor, the Court of Claims, have provided a fair forum to 
allow claimants to bring suit against the Federal Government 
for alleged violations of their rights.\6\ As has been observed 
by its former Chief Judge Loren A. Smith, the CFC is the 
institutional scale that weighs the government's actions 
against the standard measure of the law and helps make concrete 
the spirit of the First Amendment's guarantee of the right ``to 
petition the Government for redress of grievances.''\7\
---------------------------------------------------------------------------
    \6\The CFC was recreated in October 1982 by the Federal Courts 
Improvement Act pursuant to Article I of the Constitution. Federal 
Courts Improvement Act of 1982, Pub. L. No. 97-164 (1982). As part of 
the 1982 Act, the CFC retained all the original jurisdiction of the 
U.S. Court of Claims; the Court of Claims' appellate jurisdiction was 
shifted to the Court of Appeals for the Federal Circuit. From 1982 
until 1992, the CFC was named the U.S. Claims Court.
    \7\U.S. Court of Federal Claims Bar Association, United States 
Court of Federal Claims: The People's Court (2005).
---------------------------------------------------------------------------
    The CFC has nationwide jurisdiction, primarily pursuant to 
the Tucker Act, over monetary claims against the United States 
in excess of $10,000 that do not sound in tort and has 
concurrent jurisdiction with United States District Courts for 
non-tort claims $10,000 and below.\8\ The court is based in 
Washington, D.C., and its judges hear cases around the country 
at locations that are most convenient to the parties and the 
witnesses. Cases the court adjudicates include patent cases, 
government contract disputes, Fifth Amendment takings claims, 
tax refund suits, military and civilian pay cases, vaccine 
injury petitions, and Indian claims. The Federal Government is 
always the defendant in cases before the CFC.
---------------------------------------------------------------------------
    \8\See 28 U.S.C. Sec. 1491 (2014) (``The United States Court of 
Federal Claims shall have jurisdiction to render judgment upon 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 . . . 
[or] to render judgment on an action by an interested party objecting 
to a solicitation by a Federal agency for bids or proposals for a 
proposed contract or to a proposed award or the award of a contract or 
any alleged violation of statute or regulation in connection with a 
procurement or a proposed procurement.'').
---------------------------------------------------------------------------
B. 28 U.S.C. Sec. 1500
    The lineage of 28 U.S.C. Sec. 1500 runs back to the 
aftermath of the Civil War, when its original purpose was to 
preclude duplicative actions seeking compensation for seized 
property (primarily cotton) by parties who had given aid to 
Confederate soldiers.\9\ As the Supreme Court has explained, 
section 1500 originated during a time
---------------------------------------------------------------------------
    \9\Keene Corp. v. United States, 508 U.S. 200, 206 (1993).

        when residents of the Confederacy who had involuntarily 
        parted with property (usually cotton) during the war 
        [were] su[ing] the United States for compensation in 
        the Court of Claims. When these cotton claimants had 
        difficulty meeting the statutory condition that they 
        must have given no aid or comfort to participants in 
        the rebellion they resorted to separate suits in other 
        courts seeking compensation not from the Government as 
        such but from Federal officials. . . . It was these 
        duplicative lawsuits that induced Congress to prohibit 
        anyone from filing or prosecuting in the Court of 
        Claims ``any claim . . . for or in respect to which he 
        . . . shall have commenced and has pending'' an action 
        in any other court against an officer or agent of the 
        United States. The statute has long outlived the cotton 
        claimants. . . .\10\
---------------------------------------------------------------------------
    \10\Id. at 206 (internal citations omitted).

    As currently written, section 1500 deprives the CFC of 
jurisdiction over a claim that arises from substantially the 
same operative facts as a claim pending in another Federal 
---------------------------------------------------------------------------
court, regardless of relief sought. Section 1500 reads in full:

        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.\11\
---------------------------------------------------------------------------
    \11\28 U.S.C. Sec. 1500.

    This jurisdictional bar created by section 1500 is 
problematic because although most claims for money damages 
against the United States must be filed in the CFC, other 
claims against the government, including tort claims and claims 
for equitable relief, must be brought in district court.\12\ As 
a result, a plaintiff with multiple claims against the United 
States arising out of a single incident (e.g., a contract claim 
and a tort claim) must often file those claims in different 
Federal courts. If a plaintiff brings each claim in the proper 
court (the contract claim to the CFC and the tort claim to 
district court), section 1500 may require the CFC to dismiss 
the contract claim. The statute may therefore force a plaintiff 
to choose which of its potentially meritorious claims to 
pursue: if the statute of limitations for claims in the CFC 
expires before the district court action has concluded, a 
plaintiff will be foreclosed from prosecuting meritorious 
claims that may only be brought in the CFC.
---------------------------------------------------------------------------
    \12\See, e.g., 28 U.S.C. Sec. 1346(b)(1) (2014) (granting Federal 
district courts exclusive jurisdiction over tort claims against the 
United States).
---------------------------------------------------------------------------
C. The Problem that 28 U.S.C. Sec. 1500 Creates
    While preventing duplicative litigation is as worthy a goal 
today as when section 1500 was first enacted in 1868, the 
provision no longer serves this purpose. As the former Chief 
Judge Loren Smith, has observed:

        Although, on its face, Sec. 1500 may appear to prevent 
        wasteful duplicative litigation, in practice it has had 
        precisely the opposite effect. Elimination of this 
        jurisdictional bar to suits related to cases in other 
        courts will save much wasteful litigation over non-
        merits issues and will leave the court free to deal 
        with potential duplication through discretionary means. 
        The Court can stay duplicative litigation, if the 
        matter is being addressed in another forum, or proceed 
        with the case, if the matter appears to be stalled in 
        the other forum.\13\
---------------------------------------------------------------------------
    \13\Court of Federal Claims Technical and Procedural Improvements 
Act: Hearing Before the Subcomm. on Courts and Admin. Practice of the 
S. Comm. on the Judiciary, 102d Cong. 2-15 (1992) (statement of C.J. 
Loren A. Smith).

    The American Bar Association's section on public contract 
law put it more bluntly: ``Section 1500 is an antiquated 
statute . . . that has long since run its course. For decades 
now, this tattered remnant of the Civil War has served to 
create mischief for litigants and headaches for the 
courts.''\14\ Moreover, Administrative Conference of the United 
States (ACUS), a non-partisan, congressionally-mandated 
administrative law think thank, has concluded that section 1500 
``is an undesirably blunt tool for reducing the duplicative 
burdens that may arise from simultaneous litigation. Federal 
courts have both the authority and the competence . . . to 
prevent double recoveries and ease the burdens of simultaneous 
litigation . . . without unfairly depriving plaintiffs of the 
opportunity to pursue all potentially meritorious claims 
against the United States.''\15\
---------------------------------------------------------------------------
    \14\American Bar Association, Section on Public Contract Law Report 
to the House of Delegates on ABA Resolution 300 at 1 (``ABA Report'').
    \15\Administrative Conference of the United States, Administrative 
Conference Recommendation 2012-6 at 5 (2012) (``Administrative 
Conference Recommendation'').
---------------------------------------------------------------------------
    For decades both the CFC and the Court of Appeals for the 
Federal Circuit (the circuit court with appellate jurisdiction 
over the CFC) had interpreted section 1500 in a manner that 
allowed cases to be maintained in the CFC even if the plaintiff 
had an action arising out of the same operative facts pending 
in another Federal court as long as the two actions sought 
different relief.\16\ In 2011, however, the Supreme Court in 
United States v. Tohono O'odham Nation struck down this 
interpretation of the statute concluding 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.''\17\ As a 
result, as Justice Sotomayor noted in her concurrence with the 
Court's opinion, ``[u]nder the Court's construction of 
Sec. 1500, plaintiffs whom Congress has forced to file parallel 
actions in the CFC and a district court to obtain complete 
relief must now choose either to forgo relief in the district 
court or to file first in the district court and risk the 
expiration of the statute of limitations on their claims in the 
CFC.''\18\
---------------------------------------------------------------------------
    \16\See, e.g., Loveladies Harbor, 27 F.3d at 1551 (``For the Court 
of Federal Claims to be precluded from hearing a claim under Sec. 1500, 
the claim pending in another court must arise from the same operative 
facts, and must seek the same relief.'').
    \17\131 S. Ct. at 1731.
    \18\Id. at 1738.
---------------------------------------------------------------------------
    It is not uncommon under the Supreme Court's 2011 
interpretation of section 1500 for the CFC to be deprived of 
jurisdiction over potentially meritorious claims against the 
United States that would otherwise be within its authority to 
adjudicate. Section 1500 ``frequently compels plaintiffs with 
multiple claims to pursue only one claim and abandon the 
others.''\19\ ``[S]ophisticated businesses and pro se parties 
alike have fallen into the Sec. 1500 trap. The statute has 
affected Federal employees, property owners, businesses, local 
governments, and Indian tribes.''\20\ ACUS has identified the 
following examples of potentially meritorious claims against 
the United States that have been adversely affected by section 
1500:
---------------------------------------------------------------------------
    \19\Res. Invs., Inc. v. United States, 114 Fed. Cl. 639, 643 
(2014).
    \20\Emily S. Bremer and Jonathan R. Siegel, ``Clearing the Path To 
Justice: The Need To Reform 28 U.S.C. Sec. 1500,'' 65 Ala. L. Rev. 1, 
31 (2013).

         LA Federal employee who sued the government in 
        district court under both the Equal Pay Act and Title 
        VII of the Civil Rights Act of 1964. Her Equal Pay Act 
        claim was transferred to the CFC and was dismissed 
        under Section 1500.\21\
---------------------------------------------------------------------------
    \21\Griffin v. United States, 590 F.3d 1291 (Fed. Cir. 2009).

         LProperty owners who sued in the CFC, claiming 
        the government had taken their property without just 
        compensation. Their claim was dismissed because they 
        had previously sued in district court on a tort 
        theory.\22\
---------------------------------------------------------------------------
    \22\Vaizburd v. United States, 46 Fed. Cl. 309 (2000).

         LA local government that was sued by the 
        United States in district court over taxation of 
        certain Federal office buildings filed a counterclaim 
        against the United States for the taxes it believed it 
        was owed. The counterclaims were transferred to the CFC 
        and dismissed under Section 1500.\23\
---------------------------------------------------------------------------
    \23\United States v. Cnty. of Cook, 170 F.3d 1084 (Fed. Cir. 1999).

         LAn Indian tribe that sued in the CFC for 
        breach of trust. Its claims were dismissed because it 
        sued on similar claims in district court on the same 
        day.\24\
---------------------------------------------------------------------------
    \24\Passamaquoddy Tribe v. United States, 82 Fed. Cl. 256 (2008).

    These ``duplicative'' cases are the result of the fact that 
plaintiffs with claims against the United States may have 
reasonable grounds for filing multiple lawsuits arising out of 
a single incident given the complex statutory scheme waiving 
sovereign immunity for such claims. In many cases, however, 
section 1500 forces plaintiffs to choose among valid claims and 
abandon some claims as the price of pursuing others. 
Alternatively, plaintiffs may be forced to wait several years 
for a claim to run its course in one court before filing 
another claim arising out of the same incident in the CFC, at 
the risk of ending up on the wrong side of the 6-year statute 
of limitations. For these reasons and others, section 1500 
creates an unnecessary and highly problematic jurisdiction bar.
D. Support for this Legislation
    There is broad support for repealing and replacing 28 
U.S.C. Sec. 1500, as is done by the Ensuring Access to Justice 
for Claims Against the United States Act. First, Congress 
itself has expressed from time to time its desire to fix the 
results created by section 1500.\25\ Additionally, judges on 
both the CFC and the Federal Circuit Court of Appeals have 
voiced support for the repeal of section 1500. Indeed, judges 
have characterized section 1500 as: an ``outdated and ill-
conceived statute''; ``unfair and unworkable''; ``a badly 
drafted statute . . . [that] does not lend itself easily to a 
sensible construction''; ``an anachronism''; ``an awkward tool 
that has outlived its original purpose''; and a ``trap for the 
unwary.''\26\ Moreover, the Administrative Conference of the 
United States, the American Bar Association, and the National 
Congress of American Indians, among others, have expressed 
strong support for addressing section 1500:
---------------------------------------------------------------------------
    \25\See S. 1028, 106th Cong. Sec. 6(a)(2)(A) (1999); H.R. 992, 
105th Cong. Sec. 3(a) (as passed by House, Mar. 12, 1998); S. 2271, 
105th Cong. Sec. 6(a)(2)(A) (1998); S. 1256, 105th Cong. 
Sec. 8(a)(2)(A) (1997); S. 781, 105th Cong. Sec. 205(d)(2)(A) (1997); 
S. 343, 104th Cong. Sec. 5(b)(2) (1995); S. 605, 104th Cong. 
Sec. 205(d)(2)(A) (1995); S. 371, 104th Cong. Sec. 8(b)(1) (1995); H.R. 
489, 104th Cong. Sec. 6(c)(2)(A) (1995); S. 135, 104th Cong. 
Sec. 6(c)(2)(A) (1995); S. 1355, 103d Cong. Sec. 1(a) (1993); S. 2521, 
102d Cong. Sec. 10(c) (1992).
    \26\Low v. United States, 90 Fed. Cl. 447, 455 (2009) (cataloging 
some of the criticisms of section 1500).

         LAdministrative Conference of the United 
        States: ``The Administrative Conference recommends that 
        Congress repeal Section 1500. The Conference further 
        recommends that Congress replace Section 1500 with a 
        provision that permits plaintiffs to bring 
        congressionally authorized suits arising from the same 
        set of operative facts in the Court of Federal Claims 
        and other Federal courts at the same time, but also 
        contains a presumptive stay mechanism to mitigate any 
        burden on the courts or parties from simultaneous 
        litigation.''\27\
---------------------------------------------------------------------------
    \27\Administrative Conference Recommendation.

         LAmerican Bar Association: ``The American Bar 
        Association urges Congress to repeal and replace 28 
        U.S.C. Sec. 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.''\28\
---------------------------------------------------------------------------
    \28\American Bar Association Resolution 300.

         LNational Congress of American Indians: ``The 
        NCAI supports the reform or repeal of 28 U.S.C. 
        Sec. 1500 in a manner that would protect the ability of 
        tribal plaintiffs to pursue claims involving 
        substantially the same operative facts against the 
        United States in both the Court of Federal Claims and 
        in other Federal courts.''\29\
---------------------------------------------------------------------------
    \29\Resolution #SAC-12-061 (2012).
---------------------------------------------------------------------------

                               DISCUSSION

    In 1886, Representative John Randolph Tucker introduced 
legislation, which has come to be known as the Tucker Act, to 
revise the jurisdiction and procedures of the Court of Claims 
in order to ``give the people of the United States what every 
civilized nation of the world has already done--the right to go 
into the courts to seek redress against the Government for 
their grievances.''\30\ This Committee reported that the Tucker 
Act was a ``comprehensive measure by which claims against the 
United States may be heard and determined.''\31\
---------------------------------------------------------------------------
    \30\18 Cong. Rec. 2680 (1887) (remarks of Rep. Bayne); see id., at 
622 (remarks of Rep. Tucker); id., at 2679 (colloquy between Reps. 
Tucker and Townshend); id., at 2680 (remarks of Rep. Holman).
    \31\H.R. Rep. No. 1077, 49th Cong., 1st Sess., 1 (1886).
---------------------------------------------------------------------------
    However, despite the intended comprehensive nature of the 
Tucker Act, the complexity of the statutes that govern the 
jurisdiction of Federal courts to hear cases asserting claims 
against the United States have hindered the ability of 
plaintiffs to seek comprehensive redress for unlawful 
government actions. This complex jurisdictional scheme 
regularly causes plaintiffs problems when the Federal 
Government acts in a manner that raises questions regarding 
both of the validity of the action and, if valid, the economic 
consequences of the government's conduct. In general, questions 
regarding whether the government has power to exercise its 
authority must be brought in district court and questions 
regarding whether monetary compensation is due to a plaintiff 
because of the government's exercise of its authority must be 
brought in the CFC.
    Furthermore, even among monetary claims against the United 
States, a single exercise of the government's authority could 
lead to different causes of action against the government that 
must be brought in different Federal courts. For example, 
actions against the United States under the Federal Tort Claims 
Act must be brought in Federal district court,\32\ whereas 
contract actions against the government must be brought in the 
CFC.\33\ And, actions to quiet title between private property 
owners and the United States must be filed in Federal district 
court,\34\ while Fifth Amendment takings claims for just 
compensation relating to title disputes must be filed in the 
CFC.\35\
---------------------------------------------------------------------------
    \32\See 28 U.S.C. Sec. 1346(b)(1) (2014).
    \33\See 28 U.S.C. Sec. 1491(a)(1) (2014).
    \34\See 28 U.S.C. Sec. 2409a (2014).
    \35\See 28 U.S.C. Sec. 1491(a)(1) (2014).
---------------------------------------------------------------------------
    This jurisdictional scheme would be understandable--
different Federal courts have different specialties and 
expertise--but for the fact that section 1500 precludes 
plaintiffs with multiple types of claims arising from the same 
incident from pursuing all of their claims against the United 
States. While the Tucker Act grants the CFC jurisdiction to 
hear a variety of monetary claims against the United States, 
section 1500 limits the court's jurisdiction by prohibiting the 
CFC from adjudicating ``any claim for or in respect to which 
the plaintiff . . . has pending in any other court any suit or 
process against the United States.'' Thus, if a plaintiff's 
claims arise from a single incident and could be asserted in 
both Federal district court and the CFC, section 1500 requires 
the plaintiff to forgo its remedy in Federal district court to 
pursue its remedy in the CFC. If the plaintiff pursues both 
cases, it risks dismissal of the monetary claim filed in the 
CFC.
    Although the original purpose of section 1500 was to 
protect the United States against lawsuits that could lead to 
double recoveries, modern preclusion principles protect against 
this result. A plaintiff can no longer file suit against the 
United States in the CFC and individual government officials 
acting in their official capacities in district court and 
recover in both cases: ``Today, it is well established that a 
government and its officers, at least in their official 
capacities, are in privity for purposes of res judicata. Thus, 
a judgment in a suit against a Federal officer in his official 
capacity will bind the United States government and vice 
versa.''\36\
---------------------------------------------------------------------------
    \36\Bremer & Siegel, supra note 20, at 19.
---------------------------------------------------------------------------
    Simply put, section 1500 is no longer needed and leaving 
this unnecessary statute in place regularly leads to injustices 
for plaintiffs with claims against the United States:

        To dismiss claims under Sec. 1500 when it no longer 
        serves its purpose is unjust. A basic principle of 
        modern civil procedure is that plaintiffs are permitted 
        to pursue all the claims that they may have against a 
        single defendant and are not required to ``elect'' 
        among claims. This rule should be as valid against the 
        United States as against any other defendant. By 
        depriving plaintiffs of potentially meritorious claims 
        on the ground that they have filed related claims 
        elsewhere, Sec. 1500 works an injustice. . . . [I]t is 
        unfair to punish a plaintiff for bringing suit against 
        the United States in two different courts when the 
        plaintiff is simply doing what is required by 
        Congress's jurisdictional scheme.\37\
---------------------------------------------------------------------------
    \37\Id. at 20.

    The unfair and wasteful results created by section 1500 
deny plaintiffs access to justice for wrongs committed by the 
United States government. Those who have been subject to 
unlawful actions by the Federal Government should be permitted 
to pursue all their claims against the United States without 
being forced for technical, non-meritorious reasons to have to 
choose among which of their potentially meritorious claims to 
pursue. As the Federal Circuit has observed, ``[b]ecause this 
nation relies in significant degree on litigation to control 
the excesses to which Government may from time to time be 
prone, it would not be sound policy to force plaintiffs to 
forego monetary claims in order to challenge the validity of 
Government action, or to preclude challenges to the validity of 
Government action in order to protect a Constitutional claim 
for compensation.''\38\ In short, section 1500 interferes with 
the sound and efficient administration of justice and creates a 
jurisdictional dance for unwary plaintiffs.
---------------------------------------------------------------------------
    \38\Loveladies Harbor, 27 F.3d at 1555-56.
---------------------------------------------------------------------------
    The Ensuring Access to Justice for Claims Against the 
United States Act eliminates these wasteful obstacles to 
justice and inefficient court procedures. The Act repeals and 
replaces section 1500 with a procedure that avoids the burdens 
that could be created by forcing the United States to litigate, 
at the same time, two cases arising out of the same incident 
while simultaneously protecting plaintiffs' ability to seek 
complete relief when actions of the Federal Government violate 
their legal rights.
    The Act accomplishes this by striking the jurisdictional 
bar from section 1500 and replacing it with a presumptive stay 
provision. Under the presumptive stay provision, a plaintiff 
could file and maintain actions arising out of a single 
incident in both the CFC and the district court at the same 
time, but the action that was filed second would be stayed 
until the first-filed action is no longer pending. The stay 
could be lifted by the agreement of the parties or upon a 
finding by a judge that the stay is not in the interest of 
justice. This presumptive stay provision provides judges with 
flexibility to manage potentially duplicative litigation 
against the United States in a manner that is consistent with 
modern judicial practice.
    H.R. 5683 removes unnecessary procedural obstacles that 
Congress has placed in the way of the ability of plaintiffs to 
receive redress from actions taken by the Federal Government 
that infringe upon their constitutional, statutory, or 
contractual rights. This legislation will clear the path to 
justice for a wide variety of claimants with many different 
kinds of claims. In so doing, H.R. 5683 helps the United States 
fulfill its duty ``to render prompt justice against itself in 
favor of its citizens.''\39\
---------------------------------------------------------------------------
    \39\President Lincoln, supra note 5.
---------------------------------------------------------------------------

                                Hearings

    The Committee on the Judiciary held no hearings on H.R. 
5683.

                        Committee Consideration

    On November 13, 2014, the Committee met in open session and 
ordered the bill H.R. 5683 favorably reported, without 
amendment, by voice vote, a quorum being present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that there 
were no recorded votes during the Committee's consideration of 
H.R. 5683.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

                        Committee Cost Estimate

    With respect to clause 3(c)(3) of rule XIII of the Rules of 
the House of Representatives, an estimate and comparison 
prepared by the Director of the Congressional Budget Office 
under section 402 of the Congressional Budget Act of 1974 was 
not submitted to the Committee before the filing of the report.

                    Duplication of Federal Programs

    No provision of H.R. 5683 establishes or reauthorizes a 
program of the Federal Government known to be duplicative of 
another Federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111-139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

                  Disclosure of Directed Rule Makings

    The Committee estimates that H.R. 5683 specifically directs 
to be completed no specific rule makings within the meaning of 
5 U.S.C. Sec. 551.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
5683, will amend 28 U.S.C. Sec. 1500 in order to ensure that 
claimants with multiple claims against the United States are 
able to seek complete legal relief for their injuries.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 5683 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.

                      Section-by-Section Analysis

    The following discussion describes the bill as reported by 
the Committee.
Section 1. Short Title
    Section 1 sets forth the short title of the legislation as 
the ``Ensuring Access to Justice for Claims Against the United 
States Act.''
Section 2. Jurisdiction of the United States Court of Federal Claims
    Subsection (a) replaces the current text of 28 U.S.C. 
Sec. 1500 with a presumptive stay provision. The presumptive 
stay provision provides that if a plaintiff has a civil action 
pending in, or on appeal from, the Court of Federal Claims, and 
that plaintiff also has pending in any other Federal court a 
civil action that includes a claim against the United States 
(or an agency or officer of the United States) arising from 
substantially the same set of operative facts as the suit in 
the CFC, the court presiding over the action that was filed 
later shall stay the action until the action that was filed 
first is no longer pending. Subsection (a) further provides 
that the stay may be lifted upon agreement of the parties or 
upon a determination by the court that the stay is not in the 
interest of justice. Finally, the subsection establishes that 
if the cases covered by section 1500 are filed on the same day, 
the case filed in the CFC shall be treated as the first filed 
case.
    Subsection (b) provides that the changes made to 28 U.S.C. 
Sec. 1500 shall apply to all cases currently pending in the 
Federal courts, whether filed before, on, or after the date of 
enactment. The Act's presumptive stay provision, however, does 
not apply in a case in which the action filed later (as 
determined in accordance with the legislation) is pending on 
the date of enactment in a Court of Appeals of the United 
States or the Supreme Court of the United States, or in a case 
in which judgment has been entered as of such date of enactment 
but for which the time to file an appeal has not expired.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, existing law in which no change 
is proposed is shown in roman):

                      TITLE 28, UNITED STATES CODE



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PART IV--JURISDICTION AND VENUE

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           CHAPTER 91--UNITED STATES COURT OF FEDERAL CLAIMS

Sec.
1491. Claims against United States generally; actions involving 
          Tennessee Valley Authority.
     * * * * * * *
[1500. Pendency of claims in other courts.]
1500. Presumption of stay.

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[Sec. 1500. Pendency of claims in other courts

    [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.]

Sec. 1500. Presumption of stay

    (a) Definitions.--In this section--
            (1) the term ``court'' means any of the courts 
        described in section 610; and
            (2) the term ``Court of Federal Claims'' means the 
        United States Court of Federal Claims.
    (b) Presumption of Stay.--Except as provided in subsection 
(d), if a civil action is pending in, or on appeal from, the 
Court of Federal Claims, and the plaintiff or assignee of the 
plaintiff also has pending in any other court a civil action 
that includes a claim against the United States or an agency or 
officer of the United States arising from substantially the 
same set of operative facts, the court presiding over the 
action that was filed later shall stay the action, in whole or 
in part, until the action that was filed first is no longer 
pending.
    (c) Determining First-Filed Action.--
            (1) Appeals.--For purposes of subsection (b), the 
        date of filing for a civil action that is pending on 
        appeal from the Court of Federal Claims is the date on 
        which the action was filed in the Court of Federal 
        Claims.
            (2) Actions or appeals filed on same day.--For 
        purposes of subsection (b), if the actions described in 
        subsection (b) were filed on the same day, without 
        regard to the time of day, the action that is pending 
        in, or on appeal from, the Court of Federal Claims 
        shall be treated as having been filed first.
    (d) Exceptions.--The requirement to stay an action under 
subsection (b) shall not apply if--
            (1) the parties in each of the actions that include 
        a claim based on substantially the same set of 
        operative facts otherwise agree; or
            (2) the required stay is not, or ceases to be, in 
        the interests of justice.

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