Double-Dipping Against Uncle Sam: Suing the Federal Government in Multiple Courts at the Same Time

Abstract

This article previews the issues and arguments in Keene Corp. v. United States, on the Supreme Court’s appellate docket for the 1992-93 Term. Keene Corporation presents the Supreme Court with a highly technical jurisdiction question relating to a litigant's ability to sue the federal government simultaneously in both the Court of Federal Claims and the United States district courts. Keene Corporation's appeal to the Supreme Court presents three issues. First, Keene asks whether the jurisdictional statute for the Federal Claims Court requires dismissal of its lawsuit in the Claims Court, when Keene has sued in both district court and the Claims Court because federal law precludes Keene from bringing all of its claims in the same federal court. Second, Keene asks whether the Claims Court jurisdictional statute bars adjudication of its case there even when the non-Claims Court action is no longer pending. Third, Keene asks whether, assuming that the Supreme Court upholds the dismissal, the Federal Circuit's new interpretation of the jurisdictional statute should apply retroactively to its own case, should be saved under doctrines of non-retroactivity or equitable tolling, or should apply prospectively only to future litigants.

In essence, this case presents the Court with competing frustrations: the frustration of the Keene Corporation in seeking redress against the government when federal law requires that different claims be adjudicated in different courts, and the frustration of the federal government in having to defend itself against seemingly duplicative litigation in multiple courts around the country. Although a sleeper of a jurisdictional case, the Court's determination of the jurisdictional issues in Keene is highly important because it will have widespread impact in lawsuits involving multiple claims against the United States as a defendant. In particular, the Court's resolution of the jurisdictional issues in Keene will affect litigants involved in mass-tort litigation where the United States is also a party to the lawsuit.

Finally, this case is significant because the United States Court of Appeals for the Federal Circuit, in deciding that Keene could not pursue its claims against the government in multiple forums, overturned a number of prior precedents that were intended to ameliorate the harshness of the existing jurisdictional rules that create a jurisdictional bar to such lawsuits against the government in multiple forums. If the Supreme Court upholds the Federal Circuit's decision in overruling the holdings of these cases, this reversal will represent a significant, stricter attitude concerning the ability of litigants to pursue multiple claims against the government.