"The most striking feature of Tuesday’s opinion in United States v. Tohono O’odham Nation (No. 09-846) is the apparent disregard for judicial minimalism in Justice Kennedy’s opinion for the Court. The Court, in an opinion joined by Chief Justice Roberts and Justices Scalia, Thomas, and Alito, held that 28 U.S.C. § 1500, which prohibits a suit in the Court of Federal Claims (CFC) on a claim “for or in respect to which” the plaintiff has a suit pending in another court, applies to suits that share operative facts, even if they request different relief. The Court need not have decided that question, however, unless it confronted two suits with no remedial overlap, for precedent had already established that Section 1500 bars the new suit if the two suits share operative facts and request overlapping relief.

The Court’s opinion could therefore be characterized as abandoning judicial minimalism by refusing to decide the case on the narrowest possible grounds. The opinion refuses to even mention the preliminary question on which the oral argument focused: whether the Tohono O’odham Nation’s two suits—one in the CFC seeking money damages for the government’s breach of trust while managing Nation assets, and the other in the U.S. District Court for the District of Columbia seeking an equitable accounting and an accompanying payment of any shortfall for the same breach of trust—do in fact seek overlapping relief. If so, that question could have been dispositive – as it would have been for Justice Sotomayor, who filed an opinion concurring in the judgment that was joined by Justice Breyer.

Why would the Court decline to decide whether the two suits seek similar relief? The opinion itself provides no particular reason, other than a desire to move past the preliminary question to clarify the scope of Section 1500."

Get the Story:
Daniel Thies: The many faces of judicial minimalism (SCOTUSBlog 4/29)

Supreme Court Decision:
Syllabus | Opinion [Kennedy] | Concurrence [Sotomayor] | Dissent [Ginsburg]

Oral Argument Transcript:
US v. Tohono O'odham Nation (November 1, 2010)

Federal Circuit Decision:
Tohono O'odham Nation v US (March 16, 2009)

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