  United States Court of Appeals
      for the Federal Circuit
                ______________________

            MINISTERIO ROCA SOLIDA,
                 Plaintiff-Appellant

                           v.

                  UNITED STATES,
                  Defendant-Appellee
                ______________________

                      2014-5058
                ______________________

    Appeal from the United States Court of Federal
Claims in No. 1:12-cv-00541-EDK, Judge Elaine Kaplan.
                 ______________________

              Decided: February 26, 2015
               ______________________

    JOSEPH F. BECKER, Center for Justice and Constitu-
tional Litigation, Reno, Nevada, argued for plaintiff-
appellant.

    ANNA KATSELAS, Environment and Natural Resources
Division, United States Department of Justice, Washing-
ton, DC, argued for defendant-appellee. Also represented
by ELIZABETH ANN PETERSON, SAM HIRSCH, GREGORY D.
PAGE, ANDREW C. MERGEN, KATHERINE J. BARTON.
                 ______________________

  Before WALLACH, TARANTO, and CHEN, Circuit Judges.
2                  MINISTERIO ROCA SOLIDA V. UNITED STATES


    Opinion for the court filed by Circuit Judge WALLACH.
     Concurring opinion filed by Circuit Judge TARANTO.
WALLACH, Circuit Judge.
    This case presents the question of whether a suit
brought against the United States in the United States
Court of Federal Claims (“Claims Court”) must be dis-
missed for lack of subject matter jurisdiction because an
earlier-filed related claim against the United States
remains pending in a United States district court. Be-
cause the Claims Court correctly held jurisdiction is
improper under these circumstances, this court affirms.
                       BACKGROUND
    In 2006, plaintiff-appellant Ministerio Roca Solida
(“Roca Solida”), a non-profit religious organization, pur-
chased a forty-acre parcel of land in Nevada. At the time
of purchase, a desert stream flowed across the property,
the water rights to which Roca Solida also purchased.
The water supplied a recreational pond and was used for
baptisms, among other uses. Roca Solida’s property is
situated within a national wildlife refuge that is managed
by the U.S. Fish and Wildlife Service (“FWS”). According
to defendant-appellee United States, an FWS water
restoration project completed in 2010 “restored [the]
stream to its natural channel,” the effect of which was to
divert the stream away from Roca Solida’s property,
depriving it of water it would have otherwise enjoyed.
Appellee’s Br. 2–3.
    In response, Roca Solida instituted two lawsuits
against the United States. First, it brought suit in federal
district court in Nevada, seeking declaratory, injunctive,
and compensatory relief on the basis of alleged violations
under the First and Fifth Amendments to the United
States Constitution, and also “at least $86,639.00 in
damage[s]” under the Federal Tort Claims Act, 28 U.S.C.
MINISTERIO ROCA SOLIDA V. UNITED STATES                     3


§§ 1346(b), 2671–80. Appellant’s App. 41. Second, it
brought suit two days later in the Claims Court, seeking
declaratory relief and compensatory damages on the basis
that the diversion project constituted an unlawful taking
in violation of the Fifth Amendment and asserting FWS
negligently executed the water diversion project, causing
$86,639 in damages to “land, structures, and animals.”
Id. at 14–15.
    The United States moved to dismiss the Claims Court
action for lack of subject matter jurisdiction in light of the
pending district court action under 28 U.S.C. § 1500
(2006). The Claims Court dismissed the case without
prejudice. Roca Solida timely appealed. This court has
jurisdiction to review the decision of the Claims Court
under 28 U.S.C. § 1295(a)(3) (2012).
                        DISCUSSION
                   I. Standard of Review
    An order dismissing a case for lack of subject matter
jurisdiction under 28 U.S.C. § 1500 is reviewed de novo.
Trusted Integration, Inc. v. United States, 659 F.3d 1159,
1163 (Fed. Cir. 2011). The plaintiff bears the burden of
establishing jurisdiction. Taylor v. United States, 303
F.3d 1357, 1359 (Fed. Cir. 2002).
           II. Jurisdiction Is Barred by Statute
    The Claims Court “has no jurisdiction over a claim if
the plaintiff has another suit for or in respect to that
claim pending against the United States or its agents.”
United States v. Tohono O’Odham Nation, 131 S. Ct.
1723, 1727 (2011). This rule derives from 28 U.S.C.
§ 1500, which states:
    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
4                MINISTERIO ROCA SOLIDA V. UNITED STATES


    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.
28 U.S.C. § 1500 (emphasis added). Two inquiries are
required when determining whether § 1500 applies: “(1)
whether there is an earlier-filed suit or process pending in
another court, and, if so, (2) whether the claims asserted
in the earlier-filed case are for or in respect to the same
claim(s) asserted in the later-filed Court of Federal
Claims action.” Brandt v. United States, 710 F.3d 1369,
1374 (Fed. Cir. 2013) (internal quotation marks and
citation omitted). Roca Solida does not dispute the suit
filed in Nevada district court constitutes an earlier-filed
suit for purposes of the first inquiry.
    With respect to the second inquiry, the Supreme
Court has explained that “[t]wo suits are for or in respect
to the same claim, precluding jurisdiction in the [Claims
Court], if they are based on substantially the same opera-
tive facts, regardless of the relief sought in each suit.”
Tohono, 131 S. Ct. at 1731 (emphases added). That is, the
two co-pending suits need not be identical. See id. at 1728
(quoting Keene Corp. v. United States, 508 U.S. 200, 212
(1993)) (“The phrase ‘in respect to’ . . . ‘make[s] it clear
that Congress did not intend the statute to be rendered
useless by a narrow concept of identity.’”). In addition, it
is irrelevant whether the relief sought in the two co-
pending suits is the same or different (e.g., injunction
versus money damages). Id. at 1731. All that matters is
that the two suits be based on “substantially the same
operative facts.” Id.
    In this case, the Claims Court found the two pending
actions “[met] the standard set forth in Tohono,” i.e., they
were “‘based on substantially the same operative facts.’”
MINISTERIO ROCA SOLIDA V. UNITED STATES                  5


Ministerio Roca Solida v. United States, No. 12-541L, at 3
(Fed. Cl. Jan. 15, 2014) (quoting Tohono, 131 S. Ct. at
1731). The Claims Court noted “the claims in both ac-
tions arise from [Roca Solida’s] ownership of the same
parcel of land and water and its alleged injuries as a
result of the same FWS water diversion project,” and also
noted the two complaints used “virtually identical lan-
guage.” Id.
     In Plaintiff’s Opposition to United States’ Motion to
Dismiss, Roca Solida argued takings claims “do not (nec-
essarily) subsume other claims arising from the same
nucleus of operative fact.” Appellant’s App. 53 (emphasis
added); see id. at 59. On appeal, Roca Solida repeats this
language, see Appellant’s Br. 14, also noting its
“[c]omplaints are similar because they describe the same
errant project,” Reply Br. 10. Although Roca Solida
criticizes the “same operative facts” standard articulated
in Tohono, it does not argue that its co-pending suits are
not based on substantially the same operative facts. See
Reply Br. 8 (“The Tohono [C]ourt’s notion that claims are
identical if they arise from the same transaction or have a
substantial overlap in the operative facts is deeply
flawed . . . .”).
    This court concludes Roca Solida’s two co-pending
suits are based on substantially the same operative facts.
Jurisdiction in the Claims Court is therefore barred under
§ 1500.
  III. Appellant’s Arguments Are Precluded by Binding
                       Precedent
    Roca Solida presents three principal arguments chal-
lenging, in effect, the Supreme Court’s interpretation of
§ 1500. These arguments relate to Congressional intent,
pre-Tohono judicial interpretation of § 1500, and the
extent to which the rule of Tohono fulfills the goals of
judicial economy. Roca Solida additionally attempts to
6                MINISTERIO ROCA SOLIDA V. UNITED STATES


distinguish Tohono on the basis that Tohono did not
involve a statute of limitations and the present matter
does. Each of these arguments is addressed in turn.
        A. Tohono Represents Binding Precedent,
        Notwithstanding Appellant’s Assertions of
                  Congressional Intent
    First, Roca Solida argues “Congress did not intend for
§ 1500 to put plaintiffs to a choice between two nondupli-
cative remedies.” Appellant’s Br. 17. It notes § 1500 was
enacted during the aftermath of the Civil War to prevent
duplicative lawsuits that could have allowed plaintiffs to
“obtain[] twice what they deserved.” Id. at 18. Unlike
such duplicative remedies, Roca Solida asserts, its desired
remedies are nonduplicative because it seeks only to be
made whole. 1 Id. at 21. Roca Solida maintains it cannot



    1    In its brief, Roca Solida asserts that “denying ac-
cess to judicial remedies that allow persons to be made
whole according to the Constitution will only further
encourage aggrieved parties to vindicate their own
rights. . . . Southern Nevadans have seen recently exactly
what such self-vindication of rights may look like and
judicial actions fostering such scenes should not be en-
couraged.” Appellant’s Br. 12. During oral argument,
counsel conceded this statement was written in the light
and context of a possibility that disappointed litigants
“may take up arms.” Oral Arg. at 1:55–2:12, Roca Solida
v. United States, available at http://oralarguments.cafc.
uscourts.gov/default.aspx?fl=2014-5058.mp3. Appellant’s
brief, dated May 12, 2014, was filed in the wake of an
armed protest in southern Nevada by supporters of a
rancher named Cliven Bundy against the Bureau of Land
Management. See, e.g., Jeff German, Sheriff: FBI Is
Investigating Threats Made to Law Enforcement During
Bundy Showdown, Las Vegas Review-Journal (May 8,
MINISTERIO ROCA SOLIDA V. UNITED STATES                        7


“be made whole even once,” id. at 21, “[b]ecause the Court
of Claims may not entertain claims for declaratory and
injunctive relief[2] . . . just as the [d]istrict [c]ourt may not
compensate a temporary or permanent taking where
damages exceed $10,000,” id. at 17.
    Roca Solida explains it is seeking injunctive relief
(which the Claims Court cannot provide) in the district
court, and only if injunctive relief is denied will it seek
monetary compensation for the permanent loss of water
(which, if the amount exceeds $10,000, the district court
cannot provide) in the Claims Court. Appellant’s Br. 21.
It notes it has requested a stay in the Claims Court
pending the outcome in the district court. Id. at 5; see
also Appellant’s App. 16.
   In requesting relief that parallels the present case in
important ways, the plaintiff in Tohono brought suit in



2014),      http://www.reviewjournal.com/news/bundy-blm/
sheriff-fbi-investigating-threats-made-law-enforcement-
during-bundy-showdown. Such inflammatory language is
inappropriate.
    2    See Tohono, 131 S. Ct. at 1729 (“[T]he [Claims
Court] has no general power to provide equitable relief
against the Government or its officers.”); id. at 1734
(Sotomayor, J., concurring) (“[A]n action seeking injunc-
tive relief to set aside agency action must proceed in
district court, but a claim that the same agency action
constitutes a taking of property requiring just compensa-
tion must proceed in the [Claims Court].”); Brady v.
United States, 541 Fed. App’x 991, 992 (Fed. Cir. 2013)
(Plaintiff’s “requests for declaratory and injunctive relief
are also outside the jurisdiction of the Claims Court.”);
Hoopa Valley Tribe v. United States, 596 F.2d 435, 443
(Ct. Cl. 1979) (“[T]he Court of Claims has no jurisdiction
of suits for injunctions or declaratory judgments.”).
8                 MINISTERIO ROCA SOLIDA V. UNITED STATES


United States district court, alleging federal officials
breached their fiduciary duty in managing tribal assets
and requesting an accounting, i.e., equitable relief.
Tohono, 131 S. Ct. at 1727. In a simultaneous action
before the Claims Court, the plaintiff sought money
damages on the basis of allegations of “almost identical
violations of fiduciary duty.” Id.
     Holding the Claims Court lacked jurisdiction pursu-
ant to § 1500, the Tohono Court found irrelevant the fact
that there was no “remedial overlap.” Id. at 1728. Plain-
tiffs may not avoid the jurisdictional bar of § 1500, the
Court stated, “by carving up a single transaction into
overlapping pieces seeking different relief,” such as equi-
table relief in the district court and damages in the
Claims Court. Id. at 1730.
     The Supreme Court in Tohono gave due consideration
to Congressional intent, explaining the context and origi-
nal purpose of the predecessor to § 1500. Tohono, 131 S.
Ct. at 1728. It is true, as Roca Solida points out, that
concurring and dissenting opinions in Tohono expressed
views regarding Congressional intent that may have been
contrary to those expressed by the majority. Justice
Sotomayor, in a concurrence joined by Justice Breyer,
read “[t]he legislative history [of § 1500 to] confirm[]
Congress’ intent to preclude requests for duplicative
relief.” Tohono, 131 S. Ct. at 1736 (Sotomayor, J., concur-
ring) (emphasis added). Justice Ginsburg stated in her
dissent that “[w]hen Congress bars a plaintiff from ob-
taining complete relief in one suit . . . and does not call for
an election of remedies, Congress is most sensibly read to
have comprehended that the operative facts give rise to
two discrete claims.” Id. at 1739 (Ginsburg, J., dissent-
ing). These concurring and dissenting opinions, of course,
do not negate the binding nature of the majority opinion.
MINISTERIO ROCA SOLIDA V. UNITED STATES                    9


       B. The Pre-Tohono Judicial Interpretation of
        § 1500 on Which Roca Solida Relies Is No
                    Longer Good Law
    Roca Solida relies on this court’s decision in Love-
ladies Harbor, Inc. v. United States, 27 F.3d 1545 (Fed.
Cir. 1994), for the proposition that “it would not be sound
policy to force plaintiffs to forego monetary claims in order
to challenge the validity of Government action, or[, con-
versely,] to preclude challenges to the validity of Govern-
ment action in order to protect a constitutional claim for
compensation.” Appellant’s Br. 24 (quoting Loveladies, 27
F.3d at 1556).
    As the Claims Court correctly noted, however, Love-
ladies’ holding that § 1500 does not preclude Claims
Court jurisdiction so long as the “pending action in anoth-
er court seeks distinctly different relief,” id. at 1549, was
effectively overruled by Tohono. It provides no solace to
Roca Solida.
       C. Policy Considerations Do Not Allow This
           Court to Ignore Binding Precedent
    In a related argument, Roca Solida asserts “‘actions
seeking different forms of relief that Congress has made
available exclusively in different courts are not [redun-
dant]’” and therefore not inefficient. Appellant’s Br. 25
(quoting Tohono, 131 S. Ct. at 1737 (Sotomayor, J., con-
curring)). Similarly, it notes “‘federal courts have ample
tools at their disposal, such as stays, to prevent . . . bur-
dens [such as parallel discovery]” that might arise from
co-pending suits. Id. (quoting Tohono, 131 S. Ct. at 1737
(Sotomayor, J., concurring)). However, just as the concur-
ring and dissenting opinions in Tohono do not diminish
the binding nature of the Tohono majority opinion, nei-
ther do their policy considerations.
10               MINISTERIO ROCA SOLIDA V. UNITED STATES


     In effect, Roca Solida argues the Supreme Court’s ma-
jority opinion was erroneous and unsound policy. Howev-
er, “this is not the appropriate forum” in which to advance
such an argument, “[h]owever well or ill-founded [it] may
be.” Korczak v. United States, 124 F.3d 227, 1997 WL
488751, at *2 (Fed. Cir. 1997) (unpublished table deci-
sion). “We are duty bound to follow the law given us by
the Supreme Court unless and until it is changed.” Id.
     D. Tohono Has Not Been Effectively Distinguished
     Roca Solida also attempts to distinguish Tohono on
the basis that Tohono did not involve a statute of limita-
tions because Congress through special legislation has
provided “the statute of limitations on Indian trust mis-
management claims shall not run until the affected tribe
has been given an appropriate accounting.” Tohono, 131
S. Ct. at 1731. By contrast, Roca Solida asserts, its tak-
ings claims based on the diversion of water beginning in
August 2010 would begin to be barred in August 2016 by
the six-year statute of limitations generally applicable to
all claims before the Claims Court. See 28 U.S.C. § 2501.
    However, the Supreme Court in Tohono explicitly
considered and rejected the argument that § 1500 should
be interpreted more flexibly where the limited and non-
overlapping jurisdictions of the district court and Claims
Court work a “hardship” on the plaintiff. It stated: “Even
were some hardship to be shown [such as incomplete
relief resulting from the running of a statute of limita-
tions], considerations of policy divorced from the statute’s
text and purpose could not override its meaning.”
Tohono, 131 S. Ct. at 1731; id. at 1730 (“There is no merit
to the Nation’s assertion that the interpretation adopted
here cannot prevail because it is unjust, forcing plaintiffs
to choose between partial remedies available in different
courts.”) (emphasis added). Although Roca Solida argues
this statement is dictum (because no statute of limitations
MINISTERIO ROCA SOLIDA V. UNITED STATES                 11


was at issue in Tohono), this court has previously recog-
nized “the Supreme Court has made clear that the statu-
tory language of § 1500 leaves no room to account for such
hardship.” Cent. Pines Land Co. v. United States, 697
F.3d 1360, 1367 n.6 (Fed. Cir. 2012).
     As Judge Taranto’s concurring opinion indicates, the
Supreme Court in Tohono did not explicitly address the
situation where a plaintiff is prevented from asserting a
right under the United States Constitution by the inter-
play between § 1500 and a statute of limitations. Alt-
hough Roca Solida asserts it is being forced to “choose
between: (1) tort damages and injunctive relief to stop
ongoing and future constitutional violations [including
First Amendment violations] . . . or (2) compensation for a
‘taking’ [under the Fifth Amendment],” Appellant’s Br. 10,
it concedes the statute of limitations will not run until
August 2016, id. at 7 n.9. While the considerations and
analysis presented in the concurring opinion may have
merit, the constitutional question is not sufficiently ripe
for review.
                       CONCLUSION
    The Claims Court does not have jurisdiction over Roca
Solida’s claim because a similar claim remains pending in
a United States district court, because the district court
claim is based on “substantially the same operative facts”
as those in the Claims Court proceeding, and because,
under Tohono, it is irrelevant that the relief sought in
each forum is nonoverlapping or would work a hardship
in the form of incomplete relief. For these reasons, the
decision of the Claims Court is
                      AFFIRMED
  United States Court of Appeals
      for the Federal Circuit
                 ______________________

            MINISTERIO ROCA SOLIDA,
                 Plaintiff-Appellant

                            v.

                   UNITED STATES,
                   Defendant-Appellee
                 ______________________

                       2014-5058
                 ______________________

    Appeal from the United States Court of Federal
Claims in No. 1:12-cv-00541-EDK, Judge Elaine Kaplan.
                 ______________________

TARANTO, Circuit Judge, concurring.
    I agree that we should affirm the Court of Federal
Claims’ dismissal of Roca Solida’s Tucker Act case under
28 U.S.C. § 1500, based on the construction of that sec-
tion’s language in United States v. Tohono O’Odham
Nation, 131 S. Ct. 1723 (2011). I join the court’s opinion.
I do so, however, with the recognition that this applica-
tion of § 1500 may soon present a substantial constitu-
tional question about whether federal statutes have
deprived Roca Solida of a judicial forum to secure just
compensation for a taking; that avoidance of such consti-
tutional questions can sometimes support adoption of
statutory constructions that would otherwise be rejected;
that neither Tohono nor other authorities squarely ad-
dress § 1500’s application when it raises the constitution-
2                              MINISTERIO ROCA SOLIDA   v. US



al question lurking here; but that we need not pursue
special-construction possibilities now—not just because
the problem is not present at the moment, but because
there may be avenues open to addressing the constitu-
tional question if it arises in the dispute between Roca
Solida and the government.
     To summarize: The combination of three statutes—(1)
§ 1500 as construed in Tohono; (2) the Tucker Act’s six-
year statute of limitations, 28 U.S.C. § 2501, which is
jurisdictional and not subject to general equitable tolling;
and (3) the Little Tucker Act’s $10,000 cap on just-
compensation claims in district courts, 28 U.S.C.
§ 1346(a)(2)—threatens to deprive Roca Solida of the
opportunity to secure complete relief for what (we must
assume on the motion to dismiss) might be a taking of its
property. That is because the six-year period allowed for
bringing a Tucker Act suit in the Court of Federal Claims
(which is not limited by dollar amount) may well end
before the § 1500 bar on doing so is lifted by completion of
the Nevada district-court action. But if that occurs, Roca
Solida may have remedies. One possibility, highly prob-
lematic but not foreclosed by today’s decision, is invoca-
tion of the transfer statute, 28 U.S.C. § 1631, to transfer
to the Court of Federal Claims (when the § 1500 bar ends)
the takings claim Roca Solida timely filed in the district
court, a claim broad enough to encompass Roca Solida’s
full claim for just compensation for a permanent or tem-
porary taking. If a full just-compensation remedy is
statutorily unavailable, the district court may be entitled
to adjudicate the permanent-taking claim and order
return of the property if it finds a taking. And if restora-
tive relief is incomplete, as by leaving a temporary taking
uncompensated, questions would arise about whether
tolling of the statute of limitations might be recognized to
avoid unconstitutionality or whether the combination of
remedy-depriving statutes is unconstitutional as applied.
MINISTERIO ROCA SOLIDA   v. US                            3



    It is hardly implausible that the two-forum water-
diversion dispute here will arrive at a point at which
those issues will have to be addressed if raised: according
to the government, the six-year limitations period ends in
August 2016, and neither party has said that the Nevada
case is positively likely to end by then. Nevertheless, the
troubling potential-loss-of-Fifth-Amendment-rights issues
are at present contingent—they may not ripen: the Neva-
da case may be over by August 2016, and that case may
definitively establish the non-existence of a taking that
requires just compensation. Perhaps the likelihood that
such issues will arise, here and more generally, would
permit us to consider, in the present appeal, a constitu-
tional-avoidance exception to § 1500’s otherwise-required
application. But I do not think it advisable to pursue that
question now, partly because, uncertain and complex as
they may be, there are at least some possibilities for Roca
Solida to secure partial or complete relief even if the
Nevada case is still blocking a suit in the Court of Federal
Claims in August 2016. I therefore elaborate on the
problems hovering on the horizon and possible remedial
solutions to those problems.
                                 A
    Roca Solida has proceeded in what appears to be a
sensible way, perhaps the only way possible under federal
statutes, to try to secure complete judicial relief for the
water diversion that it claims was unlawful on several
grounds, including several constitutional grounds.
    Roca Solida has made clear that its main aim has
been to secure restoration of the diverted stream to the
path it once took through Roca Solida’s land. In district
court, it has sought injunctive and declaratory relief from
the government’s diversion of the stream, and among its
grounds it has invoked the First Amendment’s Free
Exercise Clause and the Fifth Amendment’s Due Process
Clause. But as long as the Tucker Act remedy for just
4                              MINISTERIO ROCA SOLIDA   v. US



compensation is available in the Court of Federal Claims,
Roca Solida may not invoke the Fifth Amendment’s
Takings Clause to obtain restoration of the water in
district court, because the Fifth Amendment, insofar as it
applies here, does not bar takings, only takings without
just compensation. See Blanchette v. Conn. Gen. Ins.
Corps., 419 U.S. 102, 127 (1974). 1 And Roca Solida could
not bring a claim for water restoration in the Court of
Federal Claims, whose Tucker Act jurisdiction, including
particularly its takings-claim jurisdiction, is limited to
monetary relief as relevant here. See United States v.
King, 395 U.S. 1, 3 (1969); see also Acadia Technology,
Inc. v. United States, 458 F.3d 1327, 1331 (Fed. Cir. 2006)
(just-compensation claim assumes alleged taking itself
was not wrongful; challenges alleging wrongfulness of
alleged taking must be brought elsewhere).
     Roca Solida has also sought just-compensation dam-
ages, both in district court and in the Court of Federal
Claims. The damages claim in the district court would, at
a minimum, address the alleged temporary taking that
would come to an end if Roca Solida were to succeed in
achieving its primary, restoration objective; and when
filed, it was plausibly valued at no more than $10,000, the
limit for district court jurisdiction under the Little Tucker
Act. But the claim is written broadly enough to cover a
claim of both permanent and temporary taking. At the



    1   Roca Solida has not argued in the Nevada case
that the water diversion could be reversed by injunction
on the Takings Clause ground that it was not for a “public
use.” Cf. Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 543
(2005) (“[I]f a government action is found to be impermis-
sible—for instance because it fails to meet the ‘public use’
requirement or is so arbitrary as to violate due process—
that is the end of the inquiry. No amount of compensa-
tion can authorize such action.”).
MINISTERIO ROCA SOLIDA   v. US                             5



same time, Roca Solida brought the present Court of
Federal Claims takings case under the Tucker Act. That
claim would address the request for just compensation for
a permanent taking, plausibly valued at more than
$10,000, if the non-takings claims for restoration in the
district court fail. It also could provide just compensation
for a temporary taking if, though the water got restored,
the passage of time were to raise the value of the tempo-
rary-taking claim to more than $10,000.
    The Court of Federal Claims case would never need to
be adjudicated if, for example, Roca Solida obtained
restoration of the water in the district court and sought no
more than $10,000 in just compensation for any uncured
taking. Smith v. Orr, 855 F.2d 1544, 1553 (Fed. Cir.
1988). Accordingly, Roca Solida immediately asked the
Court of Federal Claims to stay its Tucker Act case. But
Roca Solida might not obtain restoration of the water in
the district-court case, and even a temporary-taking claim
might grow in value to more than $10,000 given that the
stream diversion occurred in 2010. Should Roca Solida
seek just compensation in excess of $10,000 for either a
temporary or permanent taking, the Court of Federal
Claims appears to be the exclusive judicial forum for
obtaining it, at least if this court’s conclusion in Smith v.
Orr, 855 F.2d at 1552, about the loss of initially proper
Little Tucker Act jurisdiction when the claim rises in
value above $10,000 were applied broadly. See Christo-
pher Vill., L.P. v. United States, 360 F.3d 1319, 1332 (Fed.
Cir. 2004); but cf. pp. 12–13, infra (noting question about
Smith’s scope and soundness).
    Under 28 U.S.C. § 2501, “[e]very claim of which the
United States Court of Federal Claims has jurisdiction
shall be barred unless the petition thereon is filed within
six years after such claim first accrues.” The government
contends that the takings claim accrued in August 2010.
Oral Argument at 24:30–24:40, Ministerio Roca Solida v.
United States, 2014-5058; see John R. Sand & Gravel Co.
6                                MINISTERIO ROCA SOLIDA   v. US



v. United States, 457 F.3d 1345, 1357 (Fed. Cir. 2006),
aff’d, 552 U.S. 130 (2008). Under that assumption, the
six-year period ends in August 2016. The Nevada case
may well extend beyond that date. In that event, apply-
ing § 1500 as construed in Tohono would block Roca
Solida’s ability to initiate an action in the Court of Feder-
al Claims until the statute of limitations has run.
    There would be no such bar if equitable tolling were
available to suspend the running of the clock. But the
Supreme Court has recently held that it is not. John R.
Sand & Gravel Co. v. United States, 552 U.S. 130, 136–39
(2008); 2 see FloorPro, Inc. v. United States, 680 F.3d 1377,
1382 (Fed. Cir. 2012). As a result, because Roca Solida is
pursuing its constitutional and other claims for relief in
district court—claims that it cannot bring and consolidate
in the Court of Federal Claims—the combination of
§ 1500, § 2501, and § 1346(a)(2), under the governing
general standards and considered by themselves, may
soon eliminate Roca Solida’s access to a judicial forum for
obtaining just compensation for what may be a taking.
                             B
     A substantial constitutional question would be raised
if federal statutes forced a claimant to choose between
securing judicial just compensation for a taking of proper-
ty and pursuing constitutional and other legal claims that
challenge, and if successful could reverse, the underlying
action alleged to constitute a taking. See Blanchette, 419
U.S. at 148–49 (withdrawing the Tucker Act remedy,
without a corresponding guarantee of just compensation,
may “raise serious constitutional questions”). Although,



    2    John R. Sand involved a takings claim, but there
was no discussion in the Court’s opinion of any contention
that the plaintiff faced a statutory impediment to present-
ing its takings claim within the six-year period.
MINISTERIO ROCA SOLIDA   v. US                              7



as a general matter, it is the sovereign’s prerogative to
“prescribe the terms and conditions on which it consents
to be sued, and the manner in which the suit shall be
conducted,” Beers v. Arkansas, 20 How. 527, 529 (1858),
the Fifth Amendment’s Takings Clause has long been
treated as guaranteeing a just-compensation remedy, not
just an underlying right. Notably, in First English Evan-
gelical Lutheran Church of Glendale v. County of Los
Angeles, the Supreme Court rejected the government’s
argument that “the prohibitory nature of the Fifth
Amendment . . . combined with principles of sovereign
immunity, establishes that the Amendment itself is only a
limitation on the power of the Government to act, not a
remedial provision.” 482 U.S. 304, 316 n.9 (1987). The
Court explained that, to the contrary, precedent “make[s]
clear that it is the Constitution that dictates the remedy
for interference with property rights amounting to a
taking.” Id.; see also Richard H. Fallon, Jr. et al., Hart &
Wechsler’s the Federal Courts and the Federal System
718–19 (6th ed. 2009) (characterizing the Takings Clause
as establishing a constitutional remedy). 3
    Other, more general authorities may have a bearing
on the constitutional questions that may arise in August
2016. One line of authority concerns congressional depri-
vation of judicial relief for constitutional violations. The
Court has repeatedly noted “the ‘serious constitutional
question’ that would arise if a federal statute were con-



    3    In a related vein is the longstanding exception for
unconstitutional takings to the general rule that a statu-
tory waiver of sovereign immunity is required to permit
an official-capacity suit against a federal officer to restore
property to its rightful owner. Malone v. Bowdoin, 369
U.S. 643, 647–48 (1962); Larson v. Domestic & Foreign
Commerce Corp., 337 U.S. 682, 690, 696–97 (1949); Unit-
ed States v. Lee, 106 U.S. 196, 221–23 (1882).
8                              MINISTERIO ROCA SOLIDA   v. US



strued to deny any judicial forum for a colorable constitu-
tional claim.” Elgin v. Dep’t of Treasury, 132 S. Ct. 2126,
2132 (2012); Webster v. Doe, 486 U.S. 592, 602–03 (1988).
Another line of authority concerns the impermissibility of
imposing “unconstitutional conditions” in various circum-
stances, including those involving alleged takings. The
Court has explained that it has held “in a variety of
contexts that ‘the government may not deny a benefit to a
person because he exercises a constitutional right.’ ”
Koontz v. St. Johns River Water Mgmt. Dist., 133 S. Ct.
2586, 2594 (2013). Cf. Simmons v. United States, 390
U.S. 377, 394 (1968) (in particular criminal-case context,
deeming it “intolerable that one constitutional right
should have to be surrendered in order to assert anoth-
er”).
     I do not address how those and perhaps other authori-
ties would apply if federal statutes were to preclude Roca
Solida from obtaining a judicial award of just compensa-
tion for a taking because it pursued its constitutional and
other legal claims in district court. Rulings in this area
have often been tightly bound to case-specific facts, as
established by a fully developed factual record. In partic-
ular, I do not address whether it is relevant that Roca
Solida first sued in August 2012, two years after the
August 2010 completion of the water-diversion project. I
also put aside, for purposes of this opinion, the possibility
that § 1500 would not have applied if Roca Solida had
filed in the Court of Federal Claims before, rather than
two days after, filing in district court. 4 I conclude only



    4    I put that aside because the government can hard-
ly contend that Roca Solida could easily have avoided
§ 1500 difficulties by reversing the order of filing, alt-
hough Tecon Eng’rs, Inc. v. United States, 343 F.2d 943
(Ct. Cl. 1965), supports such a contention. See Brandt v.
United States, 710 F.3d 1369, 1379 n.7 (Fed. Cir. 2012)
MINISTERIO ROCA SOLIDA   v. US                          9



that serious questions are raised by the apparent com-
bined effect of § 1500, § 2501, and § 1346(a)(2), under
their general governing interpretations, on what may well
be Roca Solida’s situation a year and a half from now.
    The substantiality of the constitutional questions
raises a natural follow-on question: whether § 1500
should be given a distinctively narrow application when
necessary to avoid those questions. Statutes have some-
times been given constructions as applied to particular
situations to avoid substantial constitutional problems,
even when other considerations, including textual consid-
erations, pointed the other way. See, e.g., Bond v. United
States, 134 S. Ct. 2077, 2088–90 (2014); Jinks v. Richland
County, 538 U.S. 456 (2003); Raygor v. Regents of Univ. of
Minn., 534 U.S. 533 (2002); NLRB v. Catholic Bishop of
Chicago, 440 U.S. 490, 200 (1979).
                                 C
    Neither the Supreme Court nor this court has ad-
dressed whether § 1500 should be applied in such circum-
stances. Tohono did not involve a takings claim (it
involved a breach-of-trust claim) under the Tucker Act.



(Tecon “remains the law of this circuit”; holding that a
case was not “pending” during the time between the
district court’s judgment and the filing of a notice of
appeal). The government has argued that Tecon’s order-
of-filing rule is no longer good law, invoking Tohono, 131
S. Ct. at 1729–30, and UNR Indus., Inc. v. United States,
962 F.2d 1013, 1023 (Fed. Cir. 1992) (en banc). Brief for
the United States at 33–36, Brandt v. United States, 2012
WL 1943736 (Fed. Cir. 2012); United States’ Combined
Petition for Panel and En Banc Rehearing, at 9–14,
Brandt, 710 F.3d 1369 (Jun. 10, 2013) (No. 12-5050),
denied, Aug. 19, 2013; see Brandt, 710 F.3d at 1380–82
(Prost, J., concurring) (Tecon should be overruled).
10                               MINISTERIO ROCA SOLIDA   v. US



Keene Corp. v. United States, 508 U.S. 200 (1993), did
involve a takings claim among the Tucker Act claims at
issue, but the court did not have before it or address a
contention that applying § 1500 to bar the Tucker Act
suit, in combination with the statute of limitations,
§ 2501, might force the claimant to choose between giving
up a just-compensation claim and giving up other legal
claims, including other constitutional claims. Indeed, the
government in Keene, addressing the possibility that a
Tucker Act claim might be untimely when the § 1500 bar
ended, represented that “equitable tolling of the statute of
limitations may be available” for a plaintiff with such a
claim. Brief for the United States at 40–41, Keene, 508
U.S. 200 (No. 92-166), 1993 WL 290106, at *40–41. Only
fifteen years later did the Court hold, at the government’s
urging, that § 2501 is jurisdictional and thus not suscep-
tible to equitable tolling. John R. Sand, 552 U.S. at 139.
    Other Supreme Court decisions likewise do not ad-
dress whether § 1500 might properly be read not to bar a
Tucker Act suit when a contrary holding, in combination
with the statute of limitations, would force the claimant
to choose between giving up a just-compensation claim
and giving up other legal claims, including other constitu-
tional claims. See Matson Nav. Co. v. United States, 284
U.S. 352, 354 (1932) (Court of Claims action founded upon
breach of contract); Corona Coal Co. v. United States, 263
U.S. 537, 539 (1924) (Court of Claims action founded upon
act of Congress); In re Skinner & Eddy Corp., 265 U.S. 86,
91 (1924) (Court of Claims action founded upon breach of
contract). Nor, evidently, is the issue decided in rulings
by this court and its predecessors.
                             D
    The foregoing constitutional questions, and their po-
tential consequences for construing § 1500, do not have to
be faced at present. The scenario making the constitu-
tional questions seemingly serious ones may not arise.
MINISTERIO ROCA SOLIDA    v. US                                11



And as a general matter, a “ ‘longstanding principle of
judicial restraint requires that courts avoid reaching
constitutional questions in advance of the necessity of
deciding them.’ ” Camreta v. Greene, 131 S. Ct. 2020,
2031 (2011) (quoting Lyng v. Northwest Indian Cemetery
Protective Assn., 485 U.S. 439, 445 (1988)). Although
application of that principle sometimes requires a judg-
ment call about the degree of contingency involved, the
appropriateness of applying it here is reinforced by the
conclusion that, even with the dismissal under § 1500,
Roca Solida has several possible (not to say certain or
clear) paths to seeking partial or complete judicial relief.
    One possible path to explore can be seen by broaden-
ing the statutory focus, beyond § 1500, § 2501, and
§ 1346(a)(2), to include the transfer statute, § 1631—but
§ 1500 might well block that path. Putting § 1500 to one
side for a moment, it may be that § 1631 would allow the
transfer to the Court of Federal Claims of the takings
claim filed in district court in 2012, once that claim rose
in value to more than the $10,000 allowed under the
Little Tucker Act; and if so, the resulting Court of Federal
Claims action would be treated, for statute-of-limitations
purposes, as if it had been filed in 2012. 28 U.S.C. § 1631
(“[w]henever” a court “finds that there is a want of juris-
diction,” it “shall, if it is in the interest of justice, transfer
such action” to a court “in which [it] could have been
brought at the time it was filed,” where it “shall proceed
as if it had been filed in . . . [the transferee court] on the
date upon which it was actually filed in . . . [the transferor
court]”). Although transfers are not obligatory, avoidance
of statute-of-limitations problems (which a re-filing after
a dismissal might present) is “[a] compelling reason for
transfer,” Texas Peanut Farmers v. United States, 409
F.3d 1370, 1374 (Fed. Cir. 2005), as is the interest in
providing the constitutionally guaranteed judicial forum
for a claim for just compensation for a taking.
12                             MINISTERIO ROCA SOLIDA   v. US



    But § 1500 creates a problem for the transfer possibil-
ity. We have held that, in the transfer situation, (a)
§ 1631 requires asking whether § 1500 would have
blocked the transferred claim if it had been filed in the
Court of Federal Claims at the same time the un-
transferred claims were filed in the district court and (b)
§ 1500 applies to simultaneously filed claims. See United
States v. County of Cook, 170 F.3d 1084, 1090–91 (Fed.
Cir. 1999); see also Griffin v. United States, 590 F.3d
1291, 1293 (Fed. Cir. 2009); Harbuck v. United States, 378
F.3d 1324, 1328 (Fed. Cir. 2004). Under that approach, a
transfer of the takings claim here, even after termination
of the rest of the Nevada action, would seem to raise this
question: would § 1500 have barred the filing of the
takings claim in the Court of Federal Claims in 2012
simultaneously with the filing in the Nevada district
court of all the claims currently in the Nevada case except
the takings claim? That is not the question presented to
us today, but the Tohono standard appears to be a signifi-
cant obstacle to Roca Solida’s obtaining a favorable an-
swer. 5
     Another possible path is through the district court’s
adjudication of the full takings claim, regardless of
amount—but this path itself contains an apparent obsta-
cle, albeit one of uncertain breadth and solidity. As to the
possibility: Longstanding precedent holds that, in general,
satisfaction of statutory jurisdictional prerequisites is to
be “tested by the facts as they existed when the action is
brought.” Smith v. Sperling, 354 U.S. 91, 93 n.1 (1957);



     5   Pursuit of a transfer might also raise other issues,
such as how to preserve the takings claim’s transferabil-
ity—perhaps severance and a stay of the takings claim in
district court, see Fed. R. Civ. P. 21—until the rest of the
Nevada action is no longer pending.
MINISTERIO ROCA SOLIDA   v. US                            13



see Grupo Dataflux v. Atlas Global Grp., L.P., 541 U.S.
567, 570 (2004) (the “time-of-filing rule is hornbook law”);
Keene, 508 U.S. at 209. Under that principle, it may be
that Roca Solida’s takings claim in the district court,
proper when filed because plausibly then valued at no
more than $10,000, can still be adjudicated in district
court and support an award of more than $10,000 if
warranted by post-filing events.
    An obstacle to that conclusion, however, is this court’s
decision in Smith v. Orr, which concluded, in the context
of an employee’s claim for backpay, that a district court
would lose Little Tucker Act jurisdiction once the amount
claimed “accrued to greater than $10,000.” 855 F.2d at
1553. Perhaps Smith v. Orr should be limited to barring
claims, such as backpay claims based on fixed salary
payments, where the non-contingent facts alleged make it
effectively certain from the outset that the amount at
issue will exceed $10,000. Cf. St. Paul Mercury Indem.
Co. v. Red Cab Co., 303 U.S. 283, 288–89 (1938) (Regard-
ing one jurisdictional minimum, “the sum claimed by the
plaintiff controls if the claim is apparently made in good
faith. It must appear to a legal certainty that the claim is
really for less than the jurisdictional amount to justify
dismissal.”). Smith v. Orr itself cited only backpay cases
in reaching its conclusion, 855 F.2d at 1553 nn. 42–45, 47,
and we have not applied Orr outside those circumstances.
See Simanonok v. Simanonok, 918 F.2d 947, 950–51 (Fed.
Cir. 1990). Moreover, a leading scholar, discussing Smith
v. Orr, has stated that “the proposition that a court may
take and then lose trial jurisdiction due to the mere
passage of time may be questioned in light of” Keene and
Grupo Dataflux. Gregory C. Sisk, Litigation With The
Federal Government 238 (4th ed. 2006).
     Alternatively, or in addition, perhaps a special consti-
tutional-avoidance tolling of the § 2501 statute of limita-
tions is justified, despite the general absence of equitable
tolling. There may be an argument for such tolling on a
14                            MINISTERIO ROCA SOLIDA   v. US



ground that borrows from the essential principles stated
in decisions allowing injunctive relief if the Tucker Act
remedy has been withdrawn: “it cannot be doubted that
the [Tucker Act] remedy to obtain compensation from the
Government is as comprehensive as the requirement of the
Constitution” and “the true issue is whether there is
sufficient proof that Congress intended to prevent such
recourse.” Blanchette, 419 U.S. at 127, 126 (internal
quotation marks omitted; emphases as in Blanchette). It
is open to serious question whether Congress intended to
prevent just-compensation relief for a taking through the
combination of § 1500, § 2501, and § 1346(a)(2). If that
combination precludes such relief, even when also consid-
ering the transfer statute, it might be that the combina-
tion should be held unconstitutional as applied, allowing
suit for more than $10,000 either in district court or in
the Court of Federal Claims when the § 1500 bar ends.
    Aside from the possibility of an as-applied constitu-
tional invalidation, if Roca Solida eventually lacks statu-
tory means of obtaining just compensation in court, it
may have a forward-looking judicial remedy should it
prove that its property was taken. Notably, it may be
that the district court can entertain a takings claim to
restore the diverted water if the just-compensation reme-
dy is not available.       The unavailability of a just-
compensation remedy generally allows otherwise-
authorized litigation to obtain forward-looking curative
relief against an alleged taking. See Horne v. Dep’t of
Agric., 133 S. Ct. 2053, 2063 (2013); Eastern Enterprises
v. Apfel, 524 U.S. 498, 521–22 (1998) (plurality opinion)
(where monetary relief against the government is not “an
available remedy,” equitable relief for a taking is “within
the district courts’ power”); Duke Power Co. v. Carolina
Envtl. Study Grp., Inc., 438 U.S. 59, 71 n.15 (1978) (af-
firming the district court’s subject-matter jurisdiction
under 28 U.S.C. § 1331(a) to entertain a request for a
declaratory judgment that, because the Price-Anderson
MINISTERIO ROCA SOLIDA   v. US                                15



Act “does not provide advance assurance of adequate
compensation in the event of a taking, it is unconstitu-
tional”). See also supra p. 7 n.3. 6 The district court may
consider whether such restoration relief is available under
those authorities if Roca Solida can no longer maintain a
Tucker Act case in August 2016.
     The important and deeply rooted interest in the effec-
tiveness of a constitutional guarantee—here, of a just-
compensation remedy for a taking—would be well served
if the answers to the how-to-secure-relief questions turned
out to be clear should they have to be faced. Unfortunate-
ly, it is easy to imagine that the costs, uncertainties, and
delays of litigating over forum, procedure, and remedies
will be substantial—burdens addressed, though probably
not fully lifted, by the availability of interest as a part of a
just-compensation award (see Kirby Forest Indus., Inc. v.
United States, 467 U.S. 1, 10–11 (1984)) and the availabil-
ity of attorney’s fees (see 42 U.S.C. § 4654(c); Bywaters v.



    6     Apart from the Malone/Larson/Lee authorization
of injunctive relief, the Administrative Procedure Act
waives sovereign immunity for challenges to federal
agency action by certain persons “seeking relief other
than money damages,” 5 U.S.C. § 702, and generally
authorizes district courts to “set aside agency ac-
tion . . . found to be . . . contrary to a constitutional right,”
§ 706, when the challenged action is “final agency action
for which there is no other adequate remedy in a court,” §
704. See Match-E-Be-Nash-She-Wish Band of Potta-
watomi Indians v. Patchak, 132 S. Ct. 2199, 2204 (2012);
Bennett v. Spear, 520 U.S. 154, 175 (1997). The preclu-
sion of an adequate Tucker Act damages remedy might
satisfy the § 704 precondition. The government has not
suggested that its position in this two-forum dispute is
that the employee who executed the diversion project
acted beyond her statutory authority.
16                             MINISTERIO ROCA SOLIDA   v. US



United States, 670 F.3d 1221 (Fed. Cir. 2012)). Complexi-
ty, lack of clarity, splitting of jurisdiction, and § 1500’s
rigid rule are features of the current legal landscape at
issue here, and the practical effect of those features may
easily be to cause loss or abandonment of meritorious
constitutional claims. But because there is some possibil-
ity that Roca Solida will have remedies available if need-
ed, I conclude that we should apply § 1500 as construed in
Tohono rather than grapple more definitively with the
constitutional questions that are not yet certain to arise
in this dispute.
