[00:00:08] Speaker 00:
Thank you.

[00:00:38] Speaker 06:
the uh... you want me to lately uh... first case this morning in fourteen five oh six nine resource investments first u f uh... Mr. Paris

[00:01:06] Speaker 04:
Good morning.

[00:01:07] Speaker 04:
Mark Parris on behalf of Appellants, together with Mark Shapiro.

[00:01:11] Speaker 04:
The CFC should reverse for two reasons.

[00:01:14] Speaker 04:
First, the CFC misapplied the Tohono Operative Facts comparison test.

[00:01:20] Speaker 04:
Second, the CFC's reading of the Tohono test cannot stand in light of the doctrine of constitutional avoidance.

[00:01:28] Speaker 04:
Under Tohono, the key inquiries are, what are the operative facts?

[00:01:32] Speaker 04:
You didn't make the constitutional avoidance argument, right?

[00:01:34] Speaker 03:
in your brief.

[00:01:35] Speaker 04:
Yes, we did, Your Honor.

[00:01:38] Speaker 00:
We raised that.

[00:01:42] Speaker 04:
I'll let you know shortly, Your Honor.

[00:01:43] Speaker 04:
Yes, we did raise the issue about an impairment in an application or a constitutional right.

[00:01:52] Speaker 04:
Turning again back to Tohono O'odham, Your Honor.

[00:01:53] Speaker 04:
In the meantime, I will find that site for you.

[00:01:56] Speaker 04:
The operative facts.

[00:01:57] Speaker 04:
What are the operative facts?

[00:01:58] Speaker 04:
The question for the court initially is to identify the operative facts in the court of federal claims,

[00:02:04] Speaker 04:
and in the district court.

[00:02:05] Speaker 04:
The next step then is to compare those operative facts and determine whether there's an overlap.

[00:02:09] Speaker 04:
But it's not just an overlap.

[00:02:11] Speaker 04:
It has to be a substantial overlap of operative facts.

[00:02:14] Speaker 04:
And that's key and critical and crucial.

[00:02:16] Speaker 04:
And the reason for those two modifying words, which bring quality and quantity to the analysis, operative and substantial, is that that puts limits on the application of section 1500.

[00:02:29] Speaker 04:
we need to ensure that there's not a miss or over-application of Section 1500.

[00:02:33] Speaker 03:
Yeah, but under Chihono, they made reference to the transactional test, which does seem to have antecedents in respect to Cottlewater that existed at the time the statute was passed, including the idea of splitting a clause of action.

[00:02:52] Speaker 03:
which was well established by the time the statute was passed.

[00:02:57] Speaker 03:
So it isn't just a question of factual overlap, it's a question of whether if you brought one case, challenge and denial of a permit on one theory, whether you could leave out another theory for recovery, which would be the

[00:03:13] Speaker 03:
takings theory.

[00:03:16] Speaker 03:
And I understand that the takings theory here couldn't have been brought to the district court, but that's not part of the Supreme Court's test here.

[00:03:23] Speaker 03:
So why, under the existing race to the coddle law, wouldn't you have to, if you sued complaining about the denial of the permit, also, at the same time, include a claim for taking?

[00:03:38] Speaker 03:
Well, Your Honor, let me answer that in this fashion.

[00:03:41] Speaker 03:
the answer is first of all you're right to own a good reference the transactions test but this court entrusted integration found that that reference was not controlling in any way and that's why i'm saying that at the time in eighteen sixty-eight in court case for example yes or which the typically uh... uh... uh... uh... uh... uh... uh... uh... uh...

[00:04:04] Speaker 03:
at the time of the original action, even if the facts aren't exactly the same, if it could have been brought, you are barred for the cause of action.

[00:04:13] Speaker 03:
Don't you have that problem here?

[00:04:16] Speaker 04:
We don't have that problem here, Your Honor.

[00:04:18] Speaker 04:
Why not?

[00:04:18] Speaker 04:
And the reason is this.

[00:04:19] Speaker 04:
Let me give you, by example, Central Pines.

[00:04:22] Speaker 04:
So in Central Pines, the difference between Central Pines in our case and in fact between Roca Salida, just decided last week in our case,

[00:04:28] Speaker 04:
is that the same claim was brought in the sense of the operative facts.

[00:04:32] Speaker 04:
Because in both of those cases, they brought a little Tucker Act claim, which has a damages limit of $10,000.

[00:04:40] Speaker 04:
So in those cases, what you had is the same operative facts you had in the district court, a little Tucker Act claim pled.

[00:04:47] Speaker 04:
And in the CFC, the larger Tucker Act claim.

[00:04:50] Speaker 04:
Same operative facts underlying that.

[00:04:52] Speaker 04:
So under that analysis, when you apply Tohono, what you do is have a substantial overlap

[00:04:57] Speaker 04:
of operative facts.

[00:04:58] Speaker 04:
Our situation was such that we could not recover and seek the same remedy in

[00:05:04] Speaker 04:
the district court that we pursued in the CFC.

[00:05:08] Speaker 04:
So for example, our claim was above $10,000.

[00:05:11] Speaker 03:
There was no jurisdiction.

[00:05:12] Speaker 03:
That's exactly the distinction that the HONO rejects.

[00:05:17] Speaker 03:
It doesn't depend on whether you are seeking the same relief in the two cases.

[00:05:24] Speaker 03:
Let's say hypothetically you had a court which had jurisdiction both over the APA challenge and to the takings claim.

[00:05:33] Speaker 03:
and he said he brought us a APA challenge to the denial of a permit.

[00:05:38] Speaker 03:
You would have to join under race judicata.

[00:05:42] Speaker 03:
You would have to join your takings claim at the same time, no?

[00:05:46] Speaker 04:
I agree, your honor.

[00:05:46] Speaker 04:
If you have that ability and capability in a court, our situation is such that the district court did not have jurisdiction over our takings claim.

[00:05:55] Speaker 03:
Well, I understand that.

[00:05:56] Speaker 03:
But when the Supreme Court says we're applying a race judicata test and rejects the relief

[00:06:02] Speaker 03:
It has to be safe that the fact that you couldn't have brought the case for takings in the district court originally isn't part of the race judicata test.

[00:06:15] Speaker 03:
No?

[00:06:15] Speaker 04:
Well, the Tohono O'odham court did not adopt the transactions test, as this court made clear in trusted integration.

[00:06:22] Speaker 04:
Rather than the Supreme Court, Tohono applied a substantial overlap of operative facts test

[00:06:27] Speaker 04:
And in doing that, they applied the test in place at the time the statute was in place.

[00:06:31] Speaker 03:
Well, there was an actor contract test also at that time.

[00:06:34] Speaker 04:
There's an actor contract or evidence test.

[00:06:36] Speaker 03:
Which is the actor contract test is very similar to the transactional test.

[00:06:40] Speaker 04:
It's not the same as the transactions test.

[00:06:42] Speaker 04:
And the way that the government wants to propose a transactions test, you end up in a buck for a world.

[00:06:46] Speaker 04:
You end up in a situation where if, in essence, you apply for an application, you end up potentially coming back to that transaction.

[00:06:54] Speaker 04:
If you define it broadly enough, it captures everything.

[00:06:56] Speaker 04:
The purpose again I think which is important to keep in mind is what did the Tacoma Supreme Court say about section 1500?

[00:07:04] Speaker 04:
What did it say about its purpose and what did it say about how to test it and determine to apply it?

[00:07:09] Speaker 04:
What the court said was the purpose is to preclude duplicative and redundant litigation.

[00:07:14] Speaker 04:
And what they meant by that was, we want to make sure that the government isn't burdened by the same litigation, the same litigation costs, the same discovery in both actions.

[00:07:23] Speaker 04:
So in doing that, what they said is, we're not going to worry about the moniker you put on claim.

[00:07:28] Speaker 04:
We're not going to worry about the moniker you put on theory.

[00:07:31] Speaker 04:
But what we're interested in, setting aside those monikers, are they going to be the same operative facts required to prove both of those claims?

[00:07:39] Speaker 04:
So in trusted integration, for example, it was important that the court noted that

[00:07:44] Speaker 04:
Proof of the claim in the CFC does not establish the claim in the district court and vice versa.

[00:07:51] Speaker 04:
That's our precise situation here.

[00:07:53] Speaker 07:
In that case, it was much easier to differentiate because you had a breach of one contract versus a breach of a totally different contract.

[00:08:03] Speaker 07:
You did have that, yes, exactly.

[00:08:05] Speaker 07:
So that we're talking about two different wrongs arising from two different sets of facts.

[00:08:12] Speaker 07:
But in trusted integration, the court did find that several of the claims were barred under the Sohonov doctrine, because even though there were different claims for release, the operative facts, meaning what facts are necessary to prove your claim, were in fact the same.

[00:08:30] Speaker 04:
I agree.

[00:08:31] Speaker 04:
And that was consistent completely, as you know, with Tohono O'odham.

[00:08:34] Speaker 07:
Right.

[00:08:35] Speaker 07:
So the question here is, what facts, and you're saying that, yes, you couldn't have brought the request for this precise remedy because of the dollar figure, but weren't the underlying facts that were necessary to prove, say, a little Tucker Act claim, the same underlying facts that are necessary to prove the

[00:08:56] Speaker 07:
Yes, they are.

[00:08:59] Speaker 04:
But we couldn't bring a little Tucker app claim.

[00:09:01] Speaker 04:
There wasn't court jurisdiction.

[00:09:02] Speaker 04:
The key here, and you hit on it specifically, which is what are the operative facts in our CFC claim and our district court?

[00:09:08] Speaker 04:
Let me give you by way of example.

[00:09:10] Speaker 04:
In the CFC, we are claiming categorical and a non-categorical takings claim.

[00:09:16] Speaker 04:
The categorical takings claim asks the following question.

[00:09:19] Speaker 04:
Has there been a complete deprivation of all economically viable use of the property?

[00:09:25] Speaker 04:
The focus

[00:09:26] Speaker 04:
of that question and the operative facts, and I'll detail here in a moment, relate to the property and they relate to the applicants, unlike the district court that related to the Corps and their activities.

[00:09:38] Speaker 04:
The district court was done on the record.

[00:09:41] Speaker 04:
The CFC case, 50 depositions, 12 expert reports.

[00:09:45] Speaker 04:
And again, the operative facts and the key inquiries there, what are the revenues and costs?

[00:09:50] Speaker 04:
The effect of a 99-year lease.

[00:09:52] Speaker 03:
And most importantly, in the CFC... It's certainly true that there are additional facts that you would have to plead for the takings claim.

[00:10:00] Speaker 03:
The question is whether that's the sole test.

[00:10:04] Speaker 03:
And Tehono and trusted integration say no, it's not the sole test.

[00:10:09] Speaker 03:
There's an alternative test, which you might call a transactional test or the act or contract test.

[00:10:16] Speaker 03:
And if the transactional test is applied here, you lose, right?

[00:10:20] Speaker 04:
Depends on how you define the transaction again.

[00:10:23] Speaker 04:
And again, with all due respect, trusted integration said the transaction test is not the test.

[00:10:28] Speaker 04:
you look at others, and I think again it's important to understand.

[00:10:31] Speaker 03:
No, it doesn't say that's not the test.

[00:10:33] Speaker 03:
It says that we look to the ratio to Kyle Waltz before the statute of time statute is enacted, and it talks about the act or contract test, which I'm not sure is meaningfully different from the transactional test.

[00:10:50] Speaker 03:
Let's assume for the moment that it's essentially the same.

[00:10:54] Speaker 03:
Under the transactional test, you lose, right?

[00:10:56] Speaker 04:
It depends on how you define the transaction.

[00:10:58] Speaker 04:
if you define the transaction as the acts that are taking place.

[00:11:03] Speaker 04:
So for example, in the district court, the acts involved are asserting jurisdiction.

[00:11:08] Speaker 04:
The acts involved are considering practicable alternatives.

[00:11:11] Speaker 04:
The acts involved are failing to elevate.

[00:11:14] Speaker 04:
That's the district court.

[00:11:16] Speaker 04:
In the CFC, it's appellant's purchase of the land.

[00:11:20] Speaker 04:
So for example, when you drill down again, which is important here... Why isn't it the denial of the permit?

[00:11:25] Speaker 04:
Denial of the permit, Your Honor, is in essence an accrual function.

[00:11:28] Speaker 04:
Could it be an operative fact?

[00:11:30] Speaker 04:
It might be an operative fact.

[00:11:31] Speaker 04:
Let's assume that it is.

[00:11:33] Speaker 04:
But that's not a substantial overlap.

[00:11:35] Speaker 04:
What this court needs to do is analyze and understand in the context of the purpose of the statute, is there a substantial overlap?

[00:11:42] Speaker 04:
Not just some overlap.

[00:11:43] Speaker 04:
And what can happen when you have an overlap of a number of facts?

[00:11:46] Speaker 04:
It can be like trusted integration where it becomes just the res jesti.

[00:11:49] Speaker 04:
Part of the event, part of the background, part of the context.

[00:11:52] Speaker 04:
Will it be pled?

[00:11:53] Speaker 04:
Will it be evidenced?

[00:11:55] Speaker 04:
Potentially.

[00:11:55] Speaker 04:
But it's not operative to prove the claim.

[00:11:58] Speaker 04:
In the CFC, in order to make out... You're just rejecting my hypothetical.

[00:12:04] Speaker 03:
Take my hypothetical.

[00:12:06] Speaker 03:
The transactional test of section 28 of the restatement is applicable.

[00:12:12] Speaker 03:
Put aside for a moment the question of whether that's the same as the old act or contract test.

[00:12:18] Speaker 03:
Under the transactional test, you lose, no?

[00:12:21] Speaker 03:
Because if you sue on one theory complaining about the denial of a permit, you have to join both theories together.

[00:12:29] Speaker 04:
But not in a situation where you don't have the ability to do it.

[00:12:32] Speaker 03:
Res judicata does not apply in a scenario where you can't get... Is that your only answer?

[00:12:36] Speaker 03:
Is that you couldn't have brought that taking the claim in the district court?

[00:12:40] Speaker 04:
The answer is that that test does not apply to our situation because of that.

[00:12:45] Speaker 04:
And in addition, I think, again, we're back to defining what the relevant transaction is in the context of Tohono's test.

[00:12:52] Speaker 04:
Tohono, first of all, didn't adopt the transaction test.

[00:12:55] Speaker 04:
It referenced it, yes.

[00:12:56] Speaker 04:
But it said very clearly its holding was, we need to get beyond, behind the actual claims, behind the theories.

[00:13:04] Speaker 04:
We're not worried about that.

[00:13:06] Speaker 04:
We're not worried about relief, other than insofar as it relates to the proof required.

[00:13:10] Speaker 04:
Once you get behind it, that's the question, that's the test, and the court is called upon to do.

[00:13:15] Speaker 04:
You need to actually make a specific analysis as to whether there's going to be that overlap.

[00:13:37] Speaker 05:
Good morning, Your Honors, and may it please the Court.

[00:13:39] Speaker 05:
My name is Lane McFadden, representing the United States.

[00:13:42] Speaker 05:
Resource Investments sued the government twice in two different courts, challenging the same government agencies' review and decision on the same application for the same federal permit.

[00:13:52] Speaker 05:
And out of the same set of facts arose a number of claims.

[00:13:55] Speaker 05:
Some of them were pending in the District Court when Resource Investments filed its CFC complaint, and so the CFC properly dismissed that complaint under Section 1500.

[00:14:05] Speaker 07:
Well, let me ask you, if we're talking about the evidence test, the evidence test would not satisfy the Tohono application here, would it?

[00:14:14] Speaker 07:
Because there clearly is evidence that is relevant to and required to establish the takings claim that is not required to establish the administrative claims that were filed in the district court.

[00:14:27] Speaker 05:
There is.

[00:14:28] Speaker 05:
There is some evidence required in the CFC that would not have been required in the district court and possibly vice versa.

[00:14:34] Speaker 05:
But that has never been something the court has previously considered in dismissing cases.

[00:14:40] Speaker 05:
And there are a number of examples, given the brief in Carbock and Johns Mansville, of cases where the court has acknowledged that the CFC complaint would require additional proofs.

[00:14:49] Speaker 05:
But that alone did not mean that section 1500 did not result in dismissal of those claims.

[00:14:54] Speaker 05:
And I think the reason is, as this court said in trusted integration in footnote five, we're guided by these 19th century views of race judicata mentioned in Tohono O'odham.

[00:15:04] Speaker 05:
That court and trusted integration goes through both the act or contract test and the evidence test.

[00:15:09] Speaker 05:
And it says in this case, it supports the outcome.

[00:15:12] Speaker 05:
And so we dismiss under section 1500.

[00:15:15] Speaker 05:
But we reject the idea that Tohono compels adoption of the evidence test.

[00:15:19] Speaker 05:
And this court expressly refused to adopt it.

[00:15:22] Speaker 05:
And I think the reason is because throughout the precedent, it's been clear that you look at facts to determine the claim.

[00:15:31] Speaker 05:
Tohono made that certainly very clear.

[00:15:34] Speaker 05:
And in looking at facts, you don't consider the legal theories.

[00:15:37] Speaker 05:
And of course, a different legal theory will lead to a different cause of action.

[00:15:40] Speaker 05:
Here you have courts of different subject matter jurisdiction by statute.

[00:15:43] Speaker 05:
So of course, there will be different evidence and elements of proof.

[00:15:46] Speaker 05:
Whenever you have the classic Section 1500 situation where there's torsious conduct alleged in the district court and a breach of contract arising from the same basic facts, these are different legal theories and different claims.

[00:15:58] Speaker 05:
In the CFC, you have to prove a contract which you don't have to prove.

[00:16:01] Speaker 05:
in the district court and no court has ever said because of those different elements of proof, section 1500 can't apply.

[00:16:08] Speaker 07:
Let me ask you this question.

[00:16:11] Speaker 07:
In Tohono, the argument was made before the Supreme Court that, in fact, the Supreme Court shouldn't interpret section 1500 so broadly because it could raise constitutional implications.

[00:16:23] Speaker 07:
That there, for instance, was a takings claim that was lurking out there and the Supreme Court were to interpret 1500 as to

[00:16:32] Speaker 07:
cut it off that that could raise a constitutional question.

[00:16:36] Speaker 07:
The government's response to the Supreme Court was that the Supreme Court didn't need to address that issue.

[00:16:42] Speaker 07:
for a variety of reasons, but the least of which was the government actually contended that if, in fact, you were comparing a takings claim to an underlying APA claim, the takings claim would arise out of different operative facts.

[00:16:56] Speaker 07:
Isn't that the argument that the government made to the Supreme Court in Alhono?

[00:17:00] Speaker 05:
It does say that in the reply brief.

[00:17:02] Speaker 05:
Again, all of these were sort of issues not presented and suggested that would be the case.

[00:17:06] Speaker 05:
I mean, here we have a counter example.

[00:17:09] Speaker 05:
And the Supreme Court, in response to the argument advanced by the Tohono O'odham Nation, reaffirmed what it had previously said in Keene, which said that we don't have the authority to make exceptions to section 1500, even in the face of extreme hardship.

[00:17:23] Speaker 07:
But extreme hardship is different than a constitutional problem.

[00:17:26] Speaker 07:
And if the Supreme Court thought there was no constitutional problem because you told them that it would always be resolved under the Operative Facts Test, then how can you now argue that we shouldn't resolve it under the Operative Facts Test?

[00:17:41] Speaker 05:
I'm sorry.

[00:17:41] Speaker 05:
I don't have the brief in front of me.

[00:17:42] Speaker 05:
I read it last week.

[00:17:43] Speaker 05:
I don't recall it saying that it would never be that a takings claim and an EVA claim could not overlap or have substantial overlap of Operative Facts.

[00:17:53] Speaker 05:
But one would expect in the cases that are sort of filed sequentially, as they often are, as this case was, that you would get a resolution within the six-year session of limitations, and the district court could then take that resolution to the CFC.

[00:18:09] Speaker 05:
And certainly that could have happened here.

[00:18:11] Speaker 05:
And I would say that as to the doctrine of constitutional avoidance, that in the face of a statute which has repeatedly been said by the Supreme Court and the Federal Circuit,

[00:18:21] Speaker 05:
not to harbor exceptions, that doctrine of constitutional avoidance should only be applied in a situation where a constitutional issue or denial of a constitutional right is inevitable as a result of the application of

[00:18:35] Speaker 07:
But let me just cite a reused citation of the Supreme Court decision, Lingel versus Chevron, and for this proposition explaining that the Just Compensation Clause does not limit the government's interference with property rights and that takings claims merely address the failure to pay compensation for an otherwise proper interference amounting to a taking.

[00:18:54] Speaker 07:
And so you say that whether or not the APA review of a particular administrative agency's actions are sufficiently distinct from the lawfulness of the underlying taking would not give rise to overlapping operative facts.

[00:19:14] Speaker 07:
That's one of the arguments you made to the Supreme Court, right?

[00:19:18] Speaker 05:
I take your reading to be correct.

[00:19:23] Speaker 07:
With respect to the constitutional claim, would the order of filing requirements that we have in TECON and that Love Ladies has now trusted integration has said, or has said it's still good law, would that save the $1,500 from constitutional implications?

[00:19:42] Speaker 05:
I mean, it could.

[00:19:43] Speaker 05:
I mean, it certainly could in many cases avoid the issue of the lack of

[00:19:49] Speaker 05:
timing this to recover under a takings theory.

[00:19:52] Speaker 03:
It would be hard to see how an order of filing requirement would be unconstitutional.

[00:20:00] Speaker 03:
How the order of filing requirement itself would be unconstitutional.

[00:20:03] Speaker 03:
Yeah, the order of filing requirement saying you've got to file in the court of federal claims first and then district court second, or you're barred.

[00:20:11] Speaker 03:
An order of filing requirement like that wouldn't raise constitutional issues, would it?

[00:20:15] Speaker 05:
I don't see that it would.

[00:20:16] Speaker 05:
And I think

[00:20:17] Speaker 05:
It's important to remember here that of the remedies available to the plaintiffs, it is the takings claim that is constitutionally guaranteed, but not the equitable relief bill in district court.

[00:20:27] Speaker 05:
And there is no equivalent constitutional right to APA review of federal agency action.

[00:20:32] Speaker 07:
But you have argued before the Supreme Court in Tohono O'odham itself, before us in Frank and in your PFR and in your petition for cert to the Supreme Court, that the order of filing requirement is just dead wrong, and we should wipe it out.

[00:20:46] Speaker 05:
precisely because it is an exception or amendment to the statute, which the Supreme Court has said in Keene, the courts lack authority to make.

[00:20:56] Speaker 07:
I mean, I think it is, as a practical matter... If the order of filing requirement is what saves you from having a constitutional impediment, then why do you say the order of filing requirement is wrong?

[00:21:08] Speaker 05:
Because the constitutional requirement remains hypothetical.

[00:21:11] Speaker 05:
I mean, it certainly...

[00:21:13] Speaker 05:
As the concurrence in Larocca Salida points out, there are many ways in which one could envision future cases in which a constitutional difficulty might arise.

[00:21:22] Speaker 05:
But this isn't that case, even if the case results in the dismissal of a takings claim, as many cases that precede it have.

[00:21:30] Speaker 07:
But there is no, unlike the theory that the concurrence was laying out, in that case there were still timelines.

[00:21:38] Speaker 07:
There's no time left, right?

[00:21:39] Speaker 05:
There's no time left now.

[00:21:41] Speaker 07:
So the very hypothetical construct that the concurrence was laying out is exactly what we have at issue here.

[00:21:48] Speaker 05:
Well, there are a couple of things.

[00:21:50] Speaker 05:
One is that the question before one creates an exception to the statute under the theory that such exception is required by the Constitution, I think you have to ask whether that result was compelled by the statutes as they are currently written.

[00:22:04] Speaker 05:
Did the six-year statute of limitations

[00:22:07] Speaker 05:
which also is jurisdictional, is that to be faulted for what is now the deprivation of a constitutionally guaranteed remedy.

[00:22:14] Speaker 05:
And here it's not.

[00:22:15] Speaker 05:
I mean, they filed their CFC complaint with more than four years left in the statute of limitations.

[00:22:22] Speaker 05:
As it turned out, the district court case resolved itself in short order, and it could very easily have filed after that, or they could have filed when they did in the CFC.

[00:22:31] Speaker 05:
And then realizing once the district court case resolved itself at the Ninth Circuit's opinion, dismissed and refiled.

[00:22:37] Speaker 05:
I mean, these all sound like technicalities, but these are procedural requirements established by Congress.

[00:22:43] Speaker 05:
And those would have resolved this 1500 issue.

[00:22:45] Speaker 06:
Can I just get clear?

[00:22:47] Speaker 06:
They lost before the district court, and then they were reversed in the Ninth Circuit.

[00:22:51] Speaker 05:
That's right.

[00:22:52] Speaker 05:
I'm sorry.

[00:22:52] Speaker 05:
I'm saying the district court action as the title of it.

[00:22:55] Speaker 05:
The Ninth Circuit had issued its opinion, then it remanded it to district court, and the district court issued its mandate.

[00:23:00] Speaker 05:
The whole thing was concluded with, I think, around three years left in the 2501 statute of limitations for filing a takings claim.

[00:23:08] Speaker 06:
So they could have withdrawn their takings claim and then refiled it?

[00:23:12] Speaker 05:
Yes.

[00:23:14] Speaker 05:
Or they could have waited to see if the statute of limitations was going to end up being a problem.

[00:23:18] Speaker 05:
And the opening brief says,

[00:23:19] Speaker 05:
We filed in the CFC when we did out of concern for the statute of limitations, but I don't know what the concern was with four years left before it ran.

[00:23:27] Speaker 06:
And so given that, what if the ninth sector proceeding had run in the course of six years?

[00:23:35] Speaker 05:
Then it very well might present a constitutional issue that requires resolution, but it didn't.

[00:23:42] Speaker 05:
And so I don't think this is the right vehicle for

[00:23:45] Speaker 05:
crafting an exception to the case that isn't there to the statute, which otherwise does not permit exceptions.

[00:23:51] Speaker 03:
Is the government now arguing in any other cases that the TECON order of filing requirement was wrong and ought to be changed?

[00:24:01] Speaker 05:
I'm not aware of any cases right now where that question is presented, Your Honor, and I'm sorry.

[00:24:05] Speaker 05:
I'm not confident enough to state our absolute position on that, given the current status of the law.

[00:24:11] Speaker 05:
I know Judge Malley has pointed out before, we have previously argued that it was wrong.

[00:24:23] Speaker 06:
What about the operative facts issue that your friend very good to say?

[00:24:29] Speaker 05:
Well, I think, as we've already discussed, I think the evidence test, the test which is overly narrow, which would capture almost nothing filed in multiple courts, which is contrary to how the Supreme Court has suggested one look at it.

[00:24:42] Speaker 05:
And I think the view of does this challenge the same basic factual predicate in both courts,

[00:24:51] Speaker 05:
is the only manner, whether you call it the transactional theory or the act and contract theory from the 19th century, it's the only one that explains the outcome of prior cases in this court and the Supreme Court.

[00:25:02] Speaker 05:
There routinely are cases, well, not routinely, but in these cases in which suits are dismissed in the Court of Federal Claims, they require different elements of proof.

[00:25:11] Speaker 05:
They are based on different causes of action.

[00:25:13] Speaker 05:
There are always going to be some distinct facts alleged in one case and not the other.

[00:25:17] Speaker 05:
But so long as it arises out of the same

[00:25:19] Speaker 05:
basic act of government conduct, those claims have been dismissed.

[00:25:23] Speaker 05:
And I think that's the right way to look at it.

[00:25:25] Speaker 05:
I mean, the race judicata claim identification against the federal government might be a little different than against two private parties because, of course, to have a cause of action against the government, you have to have a waiver of sovereign immunity, and those are generally drawn

[00:25:38] Speaker 05:
towards some discrete action, a final agency action, or taking a property or some identifiable act or conduct by the government.

[00:25:45] Speaker 05:
And what this court has done time and again in face of Section 1500 questions is simply asked, what happened?

[00:25:52] Speaker 05:
What did the government do that led to this lawsuit?

[00:25:57] Speaker 05:
And if it was the same in both courts, the lawsuit was dismissed.

[00:26:00] Speaker 07:
Is there a distinction between the government's action in denying the permit and the delay that was involved in denying the permit?

[00:26:09] Speaker 05:
Those are different facts.

[00:26:11] Speaker 05:
And they're clearly related, obviously.

[00:26:13] Speaker 05:
The denial is the end of the delay, if it was delay.

[00:26:17] Speaker 05:
And they're all part of the permit review and decision process on the same permit.

[00:26:22] Speaker 05:
But the challenge of the extraordinary delay, of course,

[00:26:27] Speaker 05:
was not in the initial complaint in the CFC.

[00:26:31] Speaker 05:
There's one sentence in the Permanent Regulatory Takings Complaint that says, in the alternative, this was a temporary regulatory taking.

[00:26:38] Speaker 03:
But it's in fact, this court looks at the Extraordinary Delay... The view is they didn't sufficiently allege a temporary taking in the original complaint.

[00:26:45] Speaker 05:
They alleged a temporary taking, but not on the theory of extraordinary delay, which is sort of a different view.

[00:26:51] Speaker 05:
They alleged their property was taken for a

[00:26:55] Speaker 05:
finite period of time, concluding at the date, I suppose, of the Ninth Circuit's opinion saying that the court lacked jurisdiction.

[00:27:03] Speaker 05:
But then the amended complaint alleges that the actions of the court were unreasonable and indeed in bad faith and goes to the propriety of the agency's decision making in a way that the initial complaint does not.

[00:27:14] Speaker 05:
That amended complaint is not the relevant complaint for determining jurisdiction because the jurisdiction of the CFC is determined on the date

[00:27:21] Speaker 05:
on which the original complaint is filed.

[00:27:23] Speaker 05:
But even if you look at that claim, there's tons of substantial factual overlap there, because there, unlike the regulatory takings claim, they had asked to investigate the propriety of the agency's decision and all of the interstitial decision points and actions of the agency.

[00:27:38] Speaker 07:
There's no question about substantial factual overlap there.

[00:27:45] Speaker 07:
that a distinction between the fact of a denial and the delay in either denying or not denying a permit are different, arise from different options.

[00:27:55] Speaker 05:
Right.

[00:27:55] Speaker 05:
This case doesn't require that decision.

[00:27:58] Speaker 05:
This case is a challenge to the denial of the permit, and they alleged that resulted in the taking of their property.

[00:28:04] Speaker 05:
And they also alleged it was in violation of the Administrative Procedure Act, and they so alleged at the same time.

[00:28:10] Speaker 05:
And given that, that's a substantial overlap of the operative facts that requires dismissal.

[00:28:14] Speaker 05:
Just real quickly, the only thing that this court has said in an attempt to further define what operative facts might be is the mention in Central Pines that operative facts are those that are not mere background facts.

[00:28:27] Speaker 05:
And that opinion, of course, in describing what are not mere background facts, describes the narrative history over many years of the actions of the government, multiple actions of the government in that case, as well as the ownership of the property and all

[00:28:44] Speaker 05:
You know, critical things you need to know to understand where we got before the lawsuits were filed.

[00:28:50] Speaker 05:
And all of that was considered, not mere background facts.

[00:28:53] Speaker 05:
And I think that same view should hold in this case.

[00:28:57] Speaker 07:
What's your view of the request for supplemental briefings?

[00:29:03] Speaker 05:
We oppose it, Your Honor, on the ground that it seemed unnecessary.

[00:29:06] Speaker 05:
Obviously, if this Court thinks that it would be helpful, we would certainly file supplemental briefs.

[00:29:11] Speaker 05:
in the case, but we remain confident that the Constitutional Buenance Doctrine question isn't presented so squarely in this case.

[00:29:18] Speaker 05:
There's no need to be asked to create an exception to the statute in this case.

[00:29:22] Speaker 05:
And because of that, I don't think there's a need to brief Judge Toronto's concurrence.

[00:29:27] Speaker 05:
And the majority opinion in that case, of course, is consistent with the outcome that we've requested here today.

[00:29:34] Speaker 05:
Thank you.

[00:29:43] Speaker 06:
Did you have a great answer to Judge Seitz's question about leaving the brief?

[00:29:47] Speaker 04:
Yes.

[00:29:47] Speaker 04:
I am going to leave it at that, Your Honor.

[00:29:49] Speaker 04:
Thank you.

[00:29:50] Speaker 04:
It's on page 44 of our opening brief in which we state that a contrary interpretation of section 1500 is particularly problematic, whereas here constitutional rights are at stake.

[00:30:00] Speaker 04:
The doctrine of constitutional avoidance requires that where there are two interpretations of the statute, one which would raise serious constitutional problems.

[00:30:08] Speaker 04:
And it goes on.

[00:30:09] Speaker 04:
We did.

[00:30:11] Speaker 04:
before the court, Your Honor.

[00:30:12] Speaker 07:
On your operative facts question, in your support on Ninth Circuit's claim, there are repeated references to decisions that the court made with respect to the permit, the tests that it employed, the showings that it required.

[00:30:34] Speaker 07:
All of those are relevant to the fact of delay, are they not?

[00:30:39] Speaker 04:
They could potentially be relevant.

[00:30:40] Speaker 04:
They're not necessarily operative, Your Honor.

[00:30:42] Speaker 04:
And it's important, again, when you're looking at the Tohono case, as this court appropriately applied in trust integration, you need to keep in mind the substantial overlap.

[00:30:49] Speaker 04:
So when you're looking at the extraordinary delay focus, the primary focus, and we know this in hindsight, because we're ready to go to trial in this case.

[00:30:58] Speaker 04:
We know this in hindsight, but the primary focus of that particular claim and the operative task was the following.

[00:31:03] Speaker 04:
Assuming a but for world, the government's not in, the government did not assert jurisdiction.

[00:31:08] Speaker 04:
How long would it have taken the applicants, the appellants to secure 17 separate permits from state and local authorities?

[00:31:17] Speaker 04:
That's the primary focus and that's the operative facts and the story that is told to say this is how long it would take.

[00:31:25] Speaker 04:
Here's how long it took.

[00:31:26] Speaker 04:
You don't need all that other information.

[00:31:28] Speaker 04:
Is it similar to trusted integration in the sense that is it part of the res jesty?

[00:31:32] Speaker 04:
Yes it is.

[00:31:33] Speaker 04:
But is it part of the operative facts?

[00:31:35] Speaker 04:
It is not.

[00:31:36] Speaker 04:
And as the court indicated, as the government conceded in Tohono, the Takings case is different than the APA case.

[00:31:44] Speaker 04:
They want to back out from that, and they want to apply this transactions test, which was not adopted by the Supreme Court.

[00:31:49] Speaker 04:
The court has said again and again, this court has followed suit.

[00:31:51] Speaker 07:
I gave the government a hard time, but in fairness, what the government really said in Johano is it might not be the case.

[00:31:58] Speaker 07:
It shouldn't take a definitive position.

[00:32:00] Speaker 04:
They're good at walking in that particular situation, which is one of the very reasons, of course, we out of an abundance of caution, filed our CFC claim while the district court lawsuit was still pending.

[00:32:11] Speaker 04:
Because at that point, Your Honor, it was unclear to us when the statute of limitations necessarily would be triggered.

[00:32:16] Speaker 04:
Under an extraordinary delay fact, for example, there's a concern and a question that would the statute of limitations be triggered when we could have actually secured our permit and ability to move forward from the state, which we think would have happened sometime in the early 90s.

[00:32:34] Speaker 04:
If that triggers it, six years later, we're running close to that statute of limitations.

[00:32:38] Speaker 04:
The law was evolving and changing at that point.

[00:32:40] Speaker 04:
Tab Lakes had come out in 1993, as I recall, had affected some of the temporary takings aspects of it.

[00:32:47] Speaker 07:
Well, I understand you didn't have Tohono, the benefit of Tohono at the time, but it is.

[00:32:51] Speaker 07:
As a matter of fact, it's true, isn't it, that you could have, once the Ninth Circuit reversed, you still had time to dismiss your CFC case and refile, right?

[00:33:01] Speaker 04:
It was unclear, Your Honor, to us, even at that point.

[00:33:06] Speaker 04:
whether the statute of limitations had run, at least as part of the damages, whether you get a running claims running toward analysis or not.

[00:33:13] Speaker 04:
Again, when did the extraordinary delay kick in?

[00:33:15] Speaker 04:
When did it start?

[00:33:17] Speaker 04:
If you're talking at 99, 2000, we might have been too late.

[00:33:20] Speaker 04:
We did not know.

[00:33:20] Speaker 04:
More importantly, of course, at that point, there was no reason to do that.

[00:33:24] Speaker 04:
Love, ladies, was there.

[00:33:26] Speaker 04:
There was no conceivable argument that could have been raised by the government with respect to any lack of jurisdiction.

[00:33:31] Speaker 04:
So there was no call to do that.

[00:33:33] Speaker 04:
But in addition, factually, it was not a certainty.

[00:33:36] Speaker 04:
that we were necessarily within the statute of limitations at that point.

[00:33:43] Speaker 04:
Turning back just briefly to the transactions test.

[00:33:45] Speaker 06:
Your time is up, so... Oh, I'm sorry.

[00:33:48] Speaker 04:
I am into that.

[00:33:49] Speaker 06:
I apologize.

[00:33:52] Speaker 04:
You have one more comment to make about... Well, I was just going to comment on the transactions test, for example, even broadly read if you look at the permit denial.

[00:33:59] Speaker 04:
Permit denial is not a fact that's necessary or even relevant necessarily to the extraordinary delay claim.

[00:34:06] Speaker 04:
that can be made whether there's permit denial or permit approval.

[00:34:11] Speaker 06:
Thank you.