  United States Court of Appeals
      for the Federal Circuit
              __________________________

CENTRAL PINES LAND COMPANY, L.L.C., D, S, &
  T, INC., DROST & BRAME, INC., LINDA LEW
LAWTON DROST, EVELYN GAY LAWTON DUHON,
   JACK E. LAWTON, JR., TOWER MINERALS
    COMPANY, L.L.C., JACK E. LAWTON, SR.,
  AND WILLIAM B. LAWTON COMPANY, L.L.C.,
              Plaintiffs-Appellants,

                          v.
                  UNITED STATES,
                  Defendant-Appellee.
              __________________________

                      2012-5002
              __________________________

    Appeal from the United States Court of Federal
Claims in case no. 98-CV-314, Judge Nancy B. Firestone.
               __________________________

              Decided: October 15, 2012
              __________________________

   ANDREW JACKSON GRAY, III, The Gray Law Firm,
PLC, of Lake Charles, Louisiana, argued for plaintiffs-
appellants.

   KATHERINE J. BARTON, Attorney, Environment and
Natural Resources Division, United States Department of
CENTRAL PINES LAND COMPANY    v. US                        2


Justice, of Washington, DC, argued for defendant-
appellee. With her on the brief were IGNACIA S. MORENO,
Assistant Attorney General, and AARON P. AVILA, Attor-
ney.
              __________________________

  Before NEWMAN, LOURIE, and PROST, Circuit Judges.
PROST, Circuit Judge.

    Central Pines Land Company, L.L.C., D, S, & T, INC.,
Drost & Brame, INC., Linda Lew Lawton Drost, Evalyn
Gay Lawton Duhon, Jack E. Lawton, JR., Tower Minerals
Company, L.L.C., Jack E. Lawton, SR., and William B.
Lawton Company, L.L.C. (collectively, “Central Pines” or
“plaintiffs”) appeal the decision of the United States Court
of Federal Claims (“Claims Court”) to dismiss their tak-
ings claims for lack of jurisdiction pursuant to 28 U.S.C.
§ 1500. Central Pines Land Co. v. United States, 99 Fed.
Cl. 394 (2011). Because § 1500 barred the Claims Court
from having jurisdiction over this action, we affirm.

                        BACKGROUND

    The progression of Central Pines’s two suits informs
the § 1500 issue before us. On August 22, 1996, Central
Pines and others, some of whom are not party to the
current action, filed suit against the United States, et al.,
in the U.S. District Court for the District of Louisiana.
Central Pines alleged it was the owner of all oil, gas, and
other minerals underlying property in Vernon Parish,
Louisiana, which it subdivided into Group A, Group B,
and Group C mineral servitudes. It claimed that between
1943 and 1978, the United States imposed a drilling and
operations moratorium on the three groups and that the
surface has continually been used for bombing and artil-
lery practice. It further alleged that starting in 1992, the
3                        CENTRAL PINES LAND COMPANY    v. US


United States, claiming ownership over the mineral
rights, has granted a series of oil and gas leases covering
the property in interest. Based on these factual allega-
tions, Central Pines filed for declaratory judgment quiet-
ing title to the property. In the alternative, it alleged an
unconstitutional taking without just compensation in
violation of the Fifth Amendment.

    In a pair of decisions issued on April 7, 1999 and July
28, 2008, the district court granted summary judgment to
the United States with regards to Group A and Group B
mineral servitudes because the Louisiana prescription
period was not suspended by the government’s moratori-
ums. With regards to Group C, the district court granted
summary judgment to Central Pines, finding that the
Group C servitude was imprescriptible. On November 28,
2001, the Fifth Circuit affirmed the district court. Cen-
tral Pines Land Co. v. United States, 274 F.3d 881 (5th
Cir. 2001). On October 7, 2002, Central Pines’s petition
for writ of certiorari was denied. Central Pines Land Co.
v. United States, 537 U.S. 822 (2002).

    On April 3, 1998, while summary judgment motions
were pending in district court, Central Pines filed a
complaint in the Claims Court, alleging a taking without
just compensation in violation of the Fifth Amendment.
As in its district court complaint, Central Pines alleged it
was the owner of all oil, gas, and other minerals underly-
ing property in Vernon Parish, Louisiana, which it subdi-
vided into Group A, Group B, and Group C mineral
servitudes. It claimed that between 1943 and 1978, the
United States imposed a drilling and operations morato-
rium on the three groups and that the surface has con-
tinually been used for bombing and artillery practice. It
further alleged that starting in 1992, the United States,
claiming ownership over the mineral rights, has granted a
CENTRAL PINES LAND COMPANY    v. US                         4


series of oil and gas leases covering the property in inter-
est. Central Pines acknowledged that it had filed suit
against the United States, et al., in district court for quiet
title and, alternatively, for an unconstitutional taking in
violation of the Fifth Amendment. Central Pines ex-
plained that its Claims Court suit was brought in the
alternative of its district court action, and requested that
its Claims Court suit be stayed pending resolution in the
district court.

    The Claims Court granted the stay, which remained
in place until November 12, 2002. Upon lifting the stay,
the Claims Court ordered plaintiffs to amend their com-
plaint, and on January 6, 2003, plaintiffs filed a First
Amended and Restated Complaint. They alleged a tem-
porary taking of the Group C mineral servitude and
permanent taking of Group A and Group B mineral
servitudes. The complaint reiterated the same factual
allegations to title and the same government conduct
made in the original complaint, and added allegations
based on the resolution of the district court action. Liti-
gation with regard to these three mineral servitudes
proceeded. In 2004, the Claims Court dismissed the
Group A and Group B claims and limited the Group C
claim to post-1992 action. Central Pines Land Co. v.
United States, 61 Fed. Cl. 527, 530 (2004). After denial of
summary judgment in 2008, Central Pines Land Co. v.
United States, No. 98-314 (Fed. Cl. Sept. 30, 2008), the
case proceeded to trial. At trial, the Claims Court found
that the government’s issuance of protective leases com-
mencing after May 1, 1997, constituted a temporary
taking for which Central Pines was entitled to compensa-
tion. Central Pines Land Co. v. United States, 95 Fed. Cl.
633, 651-53 (2010).
5                        CENTRAL PINES LAND COMPANY    v. US


    On May 26, 2011, while the parties were briefing the
question of attorneys fees and costs and prior to the entry
of final judgment, the United States filed a motion to
dismiss for lack of subject matter jurisdiction pursuant to
28 U.S.C. § 1500, in light of the Supreme Court’s recent
decision in United States v. Tohono O’Odham Nation, 131
S. Ct. 1723 (2011). On September 7, 2011, the Claims
Court granted the United States’ motion to dismiss.
Central Pines Land Co. v. United States, 99 Fed. Cl. 394
(2011). The Claims Court compared the district court
complaint and the original Claims Court complaint line-
by-line, finding that the operative facts alleged in the two
complaints were nearly identical. Id. at 400-02. Because
these two complaints shared the same operative facts and
thus were “for or in respect to” the same claim, § 1500
precluded the Claims Court from exercising jurisdiction
over the plaintiffs’ original Claims Court complaint,
which was filed while the district court action was pend-
ing. Id. The Claims Court also rejected plaintiffs’ argu-
ment that their First Amended and Restated Complaint
was a supplemental complaint that vested the Claims
Court with jurisdiction previously lacking over the origi-
nal complaint. Id. at 402-03.

    Central Pines appeals the dismissal of its Claims
Court action. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(3).

                         DECISION

    We review the Claims Court’s decision to dismiss a
case for lack of subject matter jurisdiction de novo.
Trusted Integration, Inc. v. United States, 659 F.3d 1159,
1163 (Fed. Cir. 2011). Section 1500 limits the Claims
Court’s jurisdiction when a related action is pending in
another court. Specifically, the statute provides:
CENTRAL PINES LAND COMPANY   v. US                        6


   The United States Court of Federal Claims shall
   not have jurisdiction of any claim for or in respect
   to which the plaintiff or his assignee has pending
   in any other court any suit or process against the
   United States or any person who, at the time
   when the cause of action alleged in such suit or
   process arose, was, in respect thereto, acting or
   professing to act, directly or indirectly under the
   authority of the United States.

28 U.S.C. § 1500. Because subject matter jurisdiction
depends on the state of things at the time of the Claims
Court action that was brought, we look to the facts as
they exist when a plaintiff filed his Claims Court com-
plaint to determine if § 1500 applies. Keene Corp. v.
United States, 508 U.S. 200, 207-08 (1993). If a plaintiff,
upon filing, has a suit pending in any other court “for or
in respect to” the same claim, § 1500 bars jurisdiction
over the Claims Court suit. Id. at 209. “Two suits are for
or in respect to the same claim, precluding jurisdiction in
the [Claims Court], if they are based on substantially the
same operative facts, regardless of the relief sought in
each suit,” Tohono O’Odham, 131 S. Ct. at 1731, or the
legal theories asserted, Keene, 508 U.S. at 210.

    On appeal, plaintiffs do not dispute that the district
court action was pending when they filed their Claims
Court action in 1998. Rather, plaintiffs argue that § 1500
does not bar their Claims Court action because the
Claims Court action and district court action were decided
on different facts—specifically, different time periods.1 In

   1     As a corollary to this argument, plaintiffs dispute
whether Rule 12(b)(1) of the Rules of the U.S. Court of
Federal Claims (“RCFC”) was the proper mechanism for
the government to move for dismissal at the late stage of
litigation. It was. An objection to a court’s subject matter
7                          CENTRAL PINES LAND COMPANY     v. US


essence, plaintiffs are advocating a comparison of the
state of the two suits at the time the motion to dismiss
was filed by the government or considered by the Claims
Court. The problem for plaintiffs, though, is that this
argument has been soundly rejected time and again.
Keene, 508 U.S. at 208; Dico, Inc. v. United States, 48 F.3d
1199, 1203-04 (Fed. Cir. 1995) (explaining that “the
§ 1500 bar rises, if at all, at the time the complaint is filed
in the Court of Federal Claims, . . . and is based on well-
plead allegations”); UNR Indus., Inc. v. United States, 962
F.2d 1013, 1022 (Fed. Cir. 1992) (en banc) aff’d sub nom.
Keene, 508 U.S. 200 (“There is nothing in section 1500 to
suggest a free floating jurisdictional bar that attaches
only when the government files a motion to dismiss, or
worse, when the court gets around to acting on it.”).
Thus, to the extent that plaintiffs rely on the ultimate
determinations of the district court and Claims Court,
which were based on different time periods of alleged
government action, their reliance is misplaced because
the § 1500 jurisdictional bar attaches, if at all, at filing.

    To determine whether the § 1500 bar attached when
plaintiffs filed their Claims Court action, we compare the
operative facts asserted at the time the two complaints
were filed. See Tohono O’Odham, 131 S. Ct. at 1731;
Trusted Integration, 659 F.3d at 1169. A review of the
complaint filed by plaintiffs at the district court and at
the Claims Court reveals that the factual allegations are
very similar, save the captions, sections related to relief,
and acknowledgement of the district court action in the


jurisdiction can be raised by any party or the court at any
stage of litigation, including after trial and the entry of
judgment. Arbaugh v. Y & H Corp., 546 U.S. 500, 506-07
(2006).
CENTRAL PINES LAND COMPANY   v. US                       8


Claims Court complaint. Both complaints describe, using
identical language, the same three groups of mineral
servitudes, the same history of conveyances of the land
from the 1920s through the 1980s, the same military and
Forest Service use of the land, the same drilling and
operations moratorium, and the same claim by the United
States of ownership over the mineral leases. Both com-
plaints allege that the government had recognized plain-
tiffs as mineral owners but had been continuously using
the land overlaying the mineral interests for heavy mili-
tary use since 1943, and that the government had granted
leases to the mineral servitudes as early as 1992. These
are not mere background facts; they are critical to plain-
tiffs’ claims in both actions. In fact, both complaints
allege these facts within the context, inter alia, of a
takings claim.2 The district court complaint also alleges a
quiet title action in which plaintiffs’ claim of rightful
ownership to the mineral servitudes is based on these
same exact facts. Because plaintiffs filed two nearly
identical complaints that, at best, repackaged the same
conduct into two different theories, and at worst, alleged
the same takings claim, we find that there is a substan-
tial overlap of operative facts that implicates the § 1500
bar. See, e.g., Tohono O’Odham, 131 S. Ct. at 1731 (find-
ing two suits had substantial overlap of operative facts
where tribe could have filed two nearly identical com-
plaints without changing the claim in either suit in any
significant way); Trusted Integration, 659 F.3d 1166-67.


   2     In the district court complaint, Central Pines al-
leges a takings claim as an alternative to the quiet title
action. Although Central Pines subsequently filed the
same takings claim in the Claims Court, it never moved
to dismiss the takings claim before the district court, and
thus a takings claim was pending when Central Pines
filed its complaint at the Claims Court.
9                         CENTRAL PINES LAND COMPANY    v. US


     Anticipating that § 1500 divests the Claims Court of
jurisdiction over their original complaint, plaintiffs argue
that their First Amended And Restated Complaint is a de
facto supplemental complaint that vested the Claims
Court with jurisdiction in 2003, after the district court
litigation had become final. That pleading reiterates
almost all of the facts and allegations made in the original
complaint, but adds paragraphs relating to the conclusion
of the district court action and divides the original takings
claim into two counts—one count alleging a permanent
taking of Group A and B mineral servitudes and one
count alleging a temporary taking of the Group C mineral
servitude. We agree with plaintiffs that their 2003 plead-
ing constitutes a supplemental complaint (rather than an
amended complaint) because it sets out a “transaction,
occurrence, or event that happened after the date of the
pleading to be supplemented.” RCFC 15(d).

    But, we disagree with plaintiffs that their supplemen-
tal complaint can cure the § 1500 jurisdictional bar pre-
cluding their original complaint.3 Generally, “‘jurisdiction
of the court depends upon the state of things at the time
of the action brought.’” Grupo Dataflux v. Atlas Global
Grp., 541 U.S. 567, 570 (2004) (quoting Mollan v. Tor-
rance, 9 Wheat. 537, 539 (1824)). While we have held
that certain circumstances may exist in which a supple-


    3   To the extent plaintiffs rely on the discussion in
Rockwell International Corp. v. United States, 549 U.S.
457, 474 (2007), to aid their argument, that case is distin-
guishable. In that case, jurisdiction existed when the case
was filed and the question was whether the amended
complaint subsequently divested the court of jurisdiction;
here, plaintiffs argue the inverse. Id. Similarly, several
other cases relied on by plaintiffs relate to amended
rather than supplemental complaints, and thus are not on
point.
CENTRAL PINES LAND COMPANY   v. US                      10


mental complaint can cure a defect in subject matter
jurisdiction, these circumstances “depend[] on a careful
reading of the substantive provision at issue.” Black v.
Sec’y of Health & Human Servs., 93 F.3d 781, 790 (1996).
In instances where statutes impose a prerequisite to filing
which a plaintiff has failed to meet upon filing, a supple-
mental complaint may cure such a defect. See Mathews v.
Diaz, 426 U.S. 67, 75 (1976) (allowing supplemental
complaint to cure failure of a plaintiff to meet statute’s
administrative exhaustion requirements); Black, 93 F.3d
at 790 (allowing a supplemental complaint to cure a
petition that was defective because it was filed before the
$1,000 threshold of reimbursable expenses required by
the Vaccine Act was reached).4 By contrast, if a statute
contains an express prohibition against filing suit, then a
supplemental complaint cannot cure the lack of jurisdic-
tion existing at the onset. Black, 93 F.3d at 790 (citing
McNeil v. United States, 508 U.S. 106, 110-11 (1993), and

   4     Recent cases bring into question whether the
statutory limitations implicated in these cases are truly
jurisdictional or are “nonjurisdictional ‘claim-processing
rules.’” See Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012)
(noting that in the past, the Court was less than meticu-
lous in rendering statutory language jurisdictional);
Henderson ex rel. Henderson v. Shinseki, 131 S. Ct. 1197,
(2011) (holding that the 120-day filing deadline at issue
was “[a]mong the types of rules that should not be de-
scribed as jurisdictional” but rather “claim processing
rules”); Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237,
1248 (2010) (holding copyright statute’s registration
requirement a nonjurisdictional condition although previ-
ously held to be jurisdictional); Arbaugh, 546 U.S. at 510-
11 (holding that employee-numerosity requirement of
Title VII was not jurisdictional). Regardless, these same
cases only confirm that § 1500 is indeed a jurisdictional
statute. See, e.g., Henderson, 131 S. Ct. at 1204 (noting
that when Congress intends a statute to be jurisdictional
it casts the provision in explicit jurisdictional terms).
11                         CENTRAL PINES LAND COMPANY      v. US


Halstrom v. Tillamook Cnty., 493 U.S. 20, 25-26 (1989)).
It would defeat the purpose of the prohibition to permit a
plaintiff to file his complaint during the prohibited period
and then, after the prohibited period expired, rely on a
supplemental complaint to cure the jurisdictional defect.
Id.

    Section 1500 falls squarely within the latter category;
it serves as an “express prohibition against filing claims
for which another suit [is] pending.” Keene, 508 U.S. at
208-09; see Black, 93 F.3d at 791. The statute explicitly
states that the Claims Court “shall not have jurisdiction”
over “any claim” that a party has pending in another
court. 28 U.S.C. § 1500. This language creates a manda-
tory prohibited period—the duration of the district court
action for the same claim—during which the Claims
Court cannot have jurisdiction over any action initiated
by plaintiff for the claim. Keene, 508 U.S. at 509; UNR
Indus., 962 F.2d at 1021 (“By the plain language of sec-
tion 1500, if the same claim is pending in another court
while the plaintiff files his complaint in the Claims Court,
there is no jurisdiction, period, even if the conflicting
claim is no longer pending . . .” (emphasis added)); cf.
Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551
U.S. 644, 661-62 (2007) (collecting cases that note Con-
gress’s use of “shall” indicates a mandatory requirement
void of judicial discretion). The predecessor statute
confirms that § 1500 bars jurisdiction over a Claims Court
action initiated during the prohibited period. That stat-
ute (which has changed in phraseology only)5 states that
“no person shall file . . . any claim . . . for or in respect to
which he . . . has pending any suit or process in any other
court.” Act of Mar. 3, 1911, ch. 231, § 154, 36 Stat. 1138

     5    See H.R. Rep. No. 308, 80th Cong., 1st Sess., A140
(1947).
CENTRAL PINES LAND COMPANY    v. US                       12


(emphasis added); see Keene, 508 U.S. at 209 (holding
amending of “shall file or prosecute” to “shall not have
jurisdiction” was not substantive). Together, the plain
language of the statute and legislative history leave “no
doubt that at least a time-of-filing rule applie[s]” such
that jurisdiction under § 1500 is dependent on the state of
things when the action is brought, and cannot be rescued
by subsequent action of either party or by resolution of
the co-pending litigation. See Keene, 508 U.S at 207-09;
UNR Indus., 962 F.2d at 1021-22 (holding it readily
apparent that “any suit filed in the Court of Claims when
the same claim was pending in another court . . . had to
be dismissed, . . . regardless of intervening actions in the
conflicting case” (emphases added)); British Am. Tobacco
Co. v. United States, 98 Ct. Cl. 438, 441 (1939) (rejecting,
under § 1500’s predecessor, the contention that once the
co-pending district court litigation was final, a party could
prosecute its claim filed prior to the final resolution).
Thus, the Claims Court cannot retroactively acquire
jurisdiction, via the filing of a supplemental complaint or
otherwise, after a co-pending district court action is final;
“The [Claims Court] suit must be dismissed and refiled to
avoid § 1500.” Trusted Integration, 659 F.3d at 1166 n.2
(citing Tohono, 121 S. Ct. at 1731).

    Because plaintiffs filed a complaint in the Claims
Court “for or in respect to” the same claim as their pend-
ing district court action, their Claims Court action lacked
jurisdiction under § 1500. Their supplemental complaint
did not create jurisdiction where none existed at the time
the suit was filed.6 We affirm the Claims Court’s dis-
missal for lack of jurisdiction.

    6  To the extent that § 1500 may impose hardship
upon plaintiffs, the Supreme Court has made clear that
the statutory language of § 1500 leaves no room to ac-
13                       CENTRAL PINES LAND COMPANY   v. US


                        AFFIRMED




count for such hardship. Tohono O’Odham, 131 S. Ct. at
1731 (“Even were some hardship to be shown, considera-
tions of policy divorced from the statute’s text and pur-
pose could not override its meaning.”); Keene, 508 U.S. at
217-218; Corona Coal Co. v. United States, 263 U.S. 537,
540 (1924) (“[T]he words of the statute are plain . . . no
room is left for construction, and we are not at liberty to
add an exception in order to remove apparent hardship in
particular cases.”).
