  United States Court of Appeals
      for the Federal Circuit
                ______________________

  MARVIN M. BRANDT AND MARVIN M. BRANDT
            REVOCABLE TRUST,
             Plaintiffs-Appellants,

                          v.

                  UNITED STATES,
                  Defendant-Appellee.
                ______________________

                      2012-5050
                ______________________

    Appeal from the United States Court of Federal
Claims in No. 09-CV-265, Chief Judge Emily C. Hewitt.
                 ______________________

               Decided: March 26, 2013
               ______________________

     STEVEN J. LECHNER, Mountain States Legal
Foundation, of Lakewood, Colorado, argued for plain-
tiffs-appellants.

    BRIAN C. TOTH, Attorney, Environmental & Natu-
ral Resources Division, United States Department of
Justice, of Washington, DC, argued for defendant-
appellee. With him on the brief was IGNACIA S.
MORENO, Assistant Attorney General.
                ______________________
2                                              BRANDT   v. US
    Before PROST, O’MALLEY, and REYNA, Circuit Judges.
    Opinion for the court filed by Circuit Judge O’MALLEY.
      Concurring opinion filed by Circuit Judge PROST.
O’MALLEY, Circuit Judge.
    Marvin M. Brandt and Marvin M. Brandt Revocable
Trust (collectively, “Brandt” or “plaintiffs”) appeal from
the final decision of the United States Court of Federal
Claims dismissing their takings claim for lack of jurisdic-
tion under 28 U.S.C. § 1500. Brandt v. United States, 102
Fed. Cl. 72 (2011). Because we find that § 1500 does not
bar Brandt’s complaint, we reverse and remand the case
to the Court of Federal Claims for further proceedings
consistent with this opinion.
                        BACKGROUND
    This case involves an alleged taking of Brandt’s prop-
erty interests in a railroad right-of-way that traverses his
property. In 1908, the United States granted the railroad
right-of-way at issue to the Laramie, Hahn’s Peak, and
Pacific Railroad Company for railroad purposes. In 1976,
the government conveyed 83.32 acres of land partially
burdened by the railroad right-of-way to Melvin M.
Brandt and Lula M. Brandt – the parents of Marvin M.
Brandt. The land patent conveyed the property in fee
simple and stated that it was subject to the right-of-way.
The property was placed into a family trust, which Brandt
acquired in 2002.
    In 1987, the Wyoming and Colorado Railroad Compa-
ny, Inc. (“WYCO”) acquired the railroad right-of-way and
operated the rail line for a number of years. In May 1996,
WYCO filed a Notice of Intent to Abandon Rail Service
with the Surface Transportation Board (“STB”). The STB
approved abandonment of the rail line in December 2003,
and, in January 2004, WYCO notified the STB that it had
completed its abandonment of the railroad right-of-way.
 BRANDT   v. US                                             3
                  A. District Court Litigation
    In July 2006, the United States filed suit in the Unit-
ed States District Court for the District of Wyoming
seeking declaratory judgment that title to the abandoned
right-of-way had vested in the government. Specifically,
the United States alleged that, “[u]nder the National
Trails System Improvements Act of 1988, 16 U.S.C.
§ 1248(c), any and all right, title, and interest in rights-of-
way of the type described in the Abandoned Railroad
Right-of-Way Act of 1922 (43 U.S.C. § 912) are retained by
the United States upon a judicial decree of abandonment.”
Amended Compl. for Decl. Judgment of Abandonment and
Quiet Title, United States v. Wyoming and Colorado
Railroad Co., No. 2:06-cv-184 (D. Wyo. Mar. 9, 2007), ECF
105, ¶ 31.
     On August 8, 2006, Marvin M. Brandt filed an answer
and counterclaims asserting that the court should quiet
title in his favor. 1 In a separate counterclaim, Brandt
alleged that, to the extent the government acquired some
interest in the portion of the land formerly occupied by
the railroad easement, that interest would constitute a
taking for which just compensation is owed. Recognizing
the district court’s jurisdictional limitations, and because
the value of the land at issue exceeded $10,000, Brandt
requested that the district court transfer his takings
counterclaim to the Court of Federal Claims. By agree-
ment of the parties, the district court bifurcated the case,


    1 On October 1, 2007, Marvin M. Brandt Revocable
Trust and Marvin M. Brandt, Trustee filed a First
Amended Answer and Counterclaims, substituting them-
selves as the real parties in interest. First Amended
Answer and Counterclaims, United States v. Wyoming
and Colorado Railroad Co., No. 2:06-cv-184 (D. Wyo. Oct.
1, 2007), ECF 137-2. The substance of the answer and
counterclaims remained unchanged.
4                                              BRANDT   v. US
staying the takings counterclaim while it resolved the
quiet title claims.
    In April 2008, after the parties filed cross-motions for
summary judgment, the district court granted summary
judgment in favor of the government, finding that it
retained a reversionary interest in the railroad right-of-
way. United States v. Brandt, No. 06-cv-184, 2008 U.S.
Dist. LEXIS 111935, *26-27 (D. Wyo. Apr. 8, 2008). In
that decision, the court noted that, if Brandt decided to
pursue a takings claim in excess of $10,000, the Court of
Federal Claims would have exclusive jurisdiction over
that claim and thus “any takings issues brought before
this Court would be dismissed for want of subject matter
jurisdiction.” Id. at *27.
     Brandt subsequently moved to transfer his takings
claim to the Court of Federal Claims pursuant to 28
U.S.C. § 1631. In response, the government asked the
court to deny the motion to transfer and dismiss the
takings counterclaim for lack of subject matter jurisdic-
tion. In its motion to dismiss, the government indicated
that “[d]ismissal of the claim upon entry of this Court’s
judgment will appropriately require the Trust to file a
new, current pleading in the Court of Federal Claims
which recognizes the Judgment entered by this Court. It
is, after all, this Court’s Judgment which allegedly forms
the basis of the Trust’s taking claim.” United States’
Motion to Dismiss Third Counterclaim, United States v.
Wyoming and Colorado R.R. Co., No. 2:06-cv-184 (D. Wyo.
Apr. 18, 2008), ECF 173, ¶ 10.
    Almost one year later, in March 2009, the district
court entered judgment in favor of the United States and
against Brandt. In relevant part, the court declared and
decreed that: (1) WYCO abandoned the railroad right-of-
way “for all purposes including the National Trails Sys-
tem Improvements Act of 1988, 16 U.S.C. § 1248(c), and
the Abandoned Railroad Right-of-Way Act of 1922 (43
 BRANDT   v. US                                            5
U.S.C. § 912);” (2) the government retained a reversionary
interest in the railroad right-of-way; (3) “as a result of the
abandonment by WYCO, title to the railroad right-of-way
is hereby vested and quieted in the United States, and the
United States is entitled to the quiet and peaceful use and
possession of the railroad right-of-way;” and (4) the inter-
est vested in the government includes the right to con-
struct and operate a recreational trail. Judgment, United
States v. Wyoming and Colorado R.R. Co., No. 2:06-cv-184
(D. Wyo. Mar. 2, 2009), ECF 200, ¶¶ 3-6. Two days later,
the court denied Brandt’s motion to transfer and granted
the government’s motion to dismiss Brandt’s takings
counterclaim without prejudice.
    On April 29, 2009, Brandt appealed the district
court’s judgment quieting title in favor of the government
to the Tenth Circuit Court of Appeals. In a decision dated
September 11, 2012, the Tenth Circuit affirmed, conclud-
ing that the “district court correctly held that the interest
in the abandoned railroad right-of-way belongs to the
United States.” United States v. Brandt, No. 09-8047,
2012 U.S. App. LEXIS 19058, *6 (10th Cir. 2012). 2



    2 In reaching this conclusion, the Tenth Circuit rec-
ognized that “[m]uch of the trust’s argument is foreclosed
by circuit precedent which we are bound to follow.”
Brandt, 2012 U.S. App. LEXIS 19058, at *5 (citation
omitted).   Specifically, the court acknowledged that,
although “the Seventh Circuit, the Federal Circuit and
the Court of Federal Claims have concluded that the
United States did not retain any reversionary interest in
these railroad rights-of-way, we are bound by our prece-
dent.” Id. at *6 (citing Samuel C. Johnson 1988 Tr. v.
Bayfield County, 649 F.3d 799, 803-04 (7th Cir. 2011);
Hash v. United States, 403 F.3d 1308, 1317 (Fed. Cir.
2005); Beres v. United States, 64 Fed. Cl. 403, 427-28
(2005)).
6                                               BRANDT   v. US
           B. Court of Federal Claims Proceedings
     On April 28, 2009 – one day before he appealed the
district court’s decisions to the Tenth Circuit – Brandt
filed the instant takings claim in the Court of Federal
Claims. In the complaint, Brandt alleged that the district
court’s decree of abandonment with respect to the railroad
easement and decision quieting title in favor of the gov-
ernment effectuated a taking in violation of the Fifth
Amendment. Specifically, Brandt alleged that, but for the
court’s application of 16 U.S.C. § 1248(c), the easement
would have terminated upon abandonment and no longer
would have burdened his property. Brandt argued that
the court had jurisdiction pursuant to the Tucker Act, 28
U.S.C. § 1491(a)(1), because: (1) the case is a suit against
the government seeking just compensation; and (2) as of
the date of filing, “Plaintiffs have no claims for or in
respect to this claim pending in any other court.” Com-
plaint, Brandt v. United States, No. 09-cv-265 (Fed. Cl.
Apr. 28, 2009), ECF 1, ¶ 2.
    In response, the government moved to either dismiss
Brandt’s complaint for failure to state a claim or stay
proceedings pending resolution of Brandt’s appeal to the
Tenth Circuit. In a decision dated October 27, 2009, the
Court of Federal Claims chose to stay proceedings. In
June 2011, following the Supreme Court’s decision in
United States v. Tohono O’odham Nation (“Tohono”), 131
S. Ct. 1723 (2011), the government moved to lift the stay
and dismiss Brandt’s takings claim for lack of subject
matter jurisdiction under 28 U.S.C. § 1500. In Tohono,
the Supreme Court clarified that two suits “are for or in
respect to the same claim, precluding jurisdiction in the
CFC, if they are based on substantially the same opera-
tive facts, regardless of the relief sought in each suit.” Id.
at 1731. Given this language, the government argued
that, because Brandt’s takings claim in the Court of
Federal Claims and his counterclaim in the district court
 BRANDT   v. US                                          7
were based on substantially the same operative facts, the
court lacked jurisdiction under § 1500.
    In the November 30, 2011 decision at issue on appeal,
the Court of Federal Claims granted the government’s
motion and dismissed Brandt’s takings claim on grounds
that § 1500 precluded jurisdiction. Specifically, the court
found that: (1) Brandt’s case was “pending” within the
meaning of § 1500 when he filed in the Court of Federal
Claims because the time for filing a notice of appeal to the
Tenth Circuit had not yet expired; and (2) Brandt’s tak-
ings claim filed in the Court of Federal Claims was “for or
in respect to” the claims filed in Wyoming district court
because they shared “substantially the same operative
facts.” Brandt, 102 Fed. Cl. at 76. Brandt timely ap-
pealed those issues to this court, and we have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(3).
                       DISCUSSION
    We review the Court of Federal Claims’ 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). It is well-established that the
plaintiff bears the burden of establishing the court’s
jurisdiction by a preponderance of the evidence. Taylor v.
United States, 303 F.3d 1357, 1359 (Fed. Cir. 2002).
    While the Tucker Act, 28 U.S.C. § 1491(a)(1), grants
the Court of Federal Claims jurisdiction over “any claim
against the United States founded either upon the Consti-
tution, or any Act of Congress or any regulation of an
executive department, or upon any express or implied
contract with the United States, or for liquidated or
unliquidated damages in cases not sounding in tort,”
§ 1500 divests the court of jurisdiction when a related
action is pending in another court. Specifically, § 1500
provides, in relevant part, that the Court of Federal
Claims “shall not have jurisdiction of any claim for or in
respect to which the plaintiff or his assignee has pending
8                                               BRANDT   v. US
in any other court any suit or process against the United
States . . . .” 28 U.S.C. § 1500. As the Supreme Court
recently explained, § 1500 “effects a significant jurisdic-
tional limitation” and was designed to “save the Govern-
ment from burdens of redundant litigation.” Tohono, 131
S. Ct. at 1729-30. Where § 1500 applies, the Court of
Federal Claims lacks subject matter jurisdiction and must
dismiss the complaint. Id. at 1727.
    To determine whether § 1500 applies, a court must
make two inquiries: (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. Trusted Inte-
gration, 659 F.3d at 1163-64 (citing Tohono, 131 S. Ct. at
1727). If the answer to either of these questions is nega-
tive, then the Court of Federal Claims retains jurisdiction.
Id. As to the first inquiry, it is undisputed that a counter-
claim – such as the quiet title counterclaim Brandt as-
serted in the district court action – is a “suit or process”
within the meaning of § 1500. See Frantz Equip. Co. v.
United States, 98 F. Supp. 579, 580 (Ct. Cl. 1951). As to
the second, two suits are “for or in respect to” the same
claim “if they are based on substantially the same opera-
tive facts, regardless of the relief sought.” Tohono, 131 S.
Ct. at 1731. Importantly, the legal theories underlying
the asserted claims are irrelevant to this inquiry. Trusted
Integration, 659 F.3d at 1164 (citing Keene Corp. v. United
States, 508 U.S. 200, 212 (1993) (“That the two actions
were based on different legal theories [does] not mat-
ter.”)).
    Brandt argues that the Court of Federal Claims erred
in dismissing his takings complaint for two separate and
independently sufficient reasons. First, Brandt argues
that, at the time plaintiffs filed the Court of Federal
Claims complaint, the district court counterclaims were
no longer “pending” within the meaning of § 1500. Sec-
 BRANDT   v. US                                         9
ond, Brandt contends that the district court counterclaims
and later-filed takings action do not share the same
operative facts because the takings claim asserted here
arises from the district court’s March 2, 2009 judgment
quieting title in the government. 3 According to Brandt,
either of these factors, standing alone, is sufficient to
show that jurisdiction was proper in the Court of Federal
Claims. Because we agree with Brandt on the first issue,
we need not address the second. For the reasons ex-
plained below, we conclude that the Court of Federal
Claims erred in dismissing Brandt’s takings claim for lack
of jurisdiction under § 1500.
    On appeal, the parties dispute whether the district
court case was “pending” when plaintiffs filed their tak-
ings complaint in the Court of Federal Claims. Whether
an earlier-filed “suit or process” is “pending” for § 1500
purposes is determined at the time the complaint is filed
with the Court of Federal Claims. See Keene, 508 U.S. at


   3   As to the second issue – whether the claims assert-
ed involve substantially the same operative facts – the
parties disagree as to which claims the court should
compare. Specifically, they disagree on the question of
whether the § 1500 analysis applies to claims over which
the district court concludes that it lacks jurisdiction.
According to Brandt, because the district court lacked
jurisdiction over his takings counterclaim, that claim is
irrelevant for § 1500 purposes, and we should compare his
district court quiet title counterclaim to the Court of
Federal Claims takings complaint. In contrast, the gov-
ernment maintains that, after Tohono, the question of
“whether the district court had jurisdiction to provide the
relief that Brandt sought in his counterclaim makes no
difference.” Appellee’s Br. 43. Because we agree with
Brandt that his earlier-filed district court counterclaims
were not “pending” at the time he filed this action, we
need not resolve this complex question.
10                                              BRANDT   v. US
207 (noting that jurisdiction “depends upon the state of
things at the time of the action brought”) (citation omit-
ted)).
     The relevant question on appeal is whether a claim or
counterclaim is “pending” under § 1500 after judgment is
entered but before the time for filing an appeal has ex-
pired. We have not addressed this question previously,
and there is a split of authority on it in the Court of
Federal Claims. Compare Vero Technical Support, Inc. v.
United States, 94 Fed. Cl. 784, 795 (2010) (“The right to
an appeal, if still available and not renounced by plaintiff,
is part of an ongoing suit or process initiated by plaintiff
in the District Court, for which reason, plaintiff’s claim is
still ‘pending’ for purposes of a section 1500 analysis.”);
and Jachetta v. United States, 94 Fed. Cl. 277, 283 (2010)
(holding that “a suit is pending for purposes of section
1500 until its final adjudication on appeal or until the
time for appeal has run”); with Young v. United States, 60
Fed. Cl. 418, 425 (2004) (“The Court concludes that, once
a claim is dismissed or denied, it is no longer pending in
another court, for purposes of Section 1500, until a motion
for reconsideration or notice of appeal is filed.”); and
Bolduc v. United States, 72 Fed. Cl. 187, 196 (2006) (“Mr.
Bolduc could have filed a claim here in the weeks between
July 8, 2003 and August 1, 2003 – the time between the
entry of judgment in the district court and the plaintiff’s
filing of the notice of appeal to the First Circuit.”).
    Brandt argues that, at the time plaintiffs filed their
complaint in the Court of Federal Claims, they had no
suit or process against the United States pending in any
court because: (1) on March 2, 2009, the Wyoming district
court entered judgment in favor of the United States and
against Brandt on the quiet title issue; (2) the district
court dismissed Brandt’s takings counterclaim on March
4, 2009 for lack of jurisdiction; (3) Brandt filed the instant
takings action on April 28, 2009; and (4) Brandt did not
appeal any aspect of the district court’s decision until
 BRANDT   v. US                                         11
April 29, 2009. 4 According to Brandt, “because all litiga-
tion in the District Court had concluded at the time the
Brandts filed their Complaint in the instant case, the
Brandts had no ‘suit or process against the United States’
pending in any court.” Appellants’ Br. 18.
    In support of his position, Brandt relies primarily on
two cases: this court’s prior decision in Boston Five Cents
Savings Bank, FSB v. United States (“Boston Bank”), 864
F.2d 137 (Fed. Cir. 1988), and the Court of Federal
Claims’ decision in Young, which cites to Boston Bank. In
Boston Bank, the plaintiff filed suit in district court
seeking a declaratory judgment. Although the district
court granted summary judgment against the plaintiff,
the First Circuit vacated that judgment on appeal and
remanded the case for further proceedings. Id. at 138.
On remand, the plaintiff moved to amend the complaint to
add a claim for money damages. That motion was denied
“on the basis of inexcusable delay.” Id. The plaintiff
subsequently filed suit in the Claims Court of seeking
monetary damages. Although the Claims Court dis-
missed the plaintiff’s complaint for lack of jurisdiction
under § 1500, this court reversed, finding that, “at the
time the Claims Court action was filed, no money claim
was pending in the district court within the purview of
section 1500.” Id. at 139. In reaching this conclusion, we
rejected the government’s argument that, “until the
damage claim raised in the district court is resolved on
appeal, that claim is pending.” Id. In other words, even
though the plaintiff might have appealed the denial of its
motion to amend after judgment was entered in the



   4   Importantly, Brandt did not appeal the district
court’s conclusion that it lacked jurisdiction over his
takings claim; he only appealed “the district court’s judg-
ment quieting title in the United States.” Brandt, 2012
U.S. App. LEXIS 19058, at *2.
12                                               BRANDT   v. US
district court, the possibility of appeal did not make that
claim “pending” for § 1500 purposes.
     In Young, the Court of Federal Claims cited Boston
Bank to support its conclusion that it “can exercise juris-
diction over claims that have been dismissed by another
court and not yet appealed.” Young, 60 Fed. Cl. at 424
(“Although the denial of the motion to add the money
damage claim [in Boston Bank] could have been subse-
quently appealed once a judgment was entered in the
district court (the trial had at that time not yet started),
this prospective event did not make that claim ‘pending’
for purposes of Section 1500.”). The court also cited its
own earlier decisions for the proposition that, “if a claim
filed here had already been dismissed or rejected by
another court, it is the actual filing of a notice of appeal of
that other court’s decision that would make the claim
‘pending,’ and not the mere fact that the time to appeal it
has yet to run.” Id. (citations omitted). Given this au-
thority, the court in Young concluded that, “between the
time of dismissal or judgment and the filing of a notice of
appeal, there was no legal action pending for Section 1500
purposes.” Id. at 425.
     The government argues that Brandt’s reliance on Bos-
ton Bank is misplaced because there, the district court
denied the plaintiff’s motion to amend and thus the claim
for money damages was never added to the plaintiff’s
district court complaint. Here, in contrast, Brandt’s quiet
title and takings counterclaims were added to the district
court litigation when he asserted them in his answer.
The government further argues that, unlike the situation
here, the Claims Court complaint in Boston Bank was not
filed during the time frame between the entry of judgment
and the notice of appeal. While the government is correct
that the precise factual scenario in Boston Bank is not
identical to that presented here, it nevertheless supports
the idea that a dismissed or denied claim is no longer
pending for § 1500 purposes until a notice of appeal or
 BRANDT   v. US                                            13
motion for reconsideration is filed. See Young, 60 Fed. Cl.
at 425.
     In the decision currently on appeal, the Court of Fed-
eral Claims relied on Vero Technical and Jachetta in
concluding that a suit is pending for § 1500 purposes
“until it is finally adjudicated on appeal or until the time
to file an appeal has expired.” Brandt, 102 Fed. Cl. at 79
(citing Jachetta, 94 Fed. Cl. at 283; Vero Technical, 94
Fed. Cl. at 795). Those cases – neither of which is binding
on this court – are not particularly helpful here because,
as discussed below, they relied primarily on the Supreme
Court’s interpretation of the word “pending” in Carey v.
Saffold, 536 U.S. 214 (2002), without recognizing the
specialized nature of the statute at issue in that case. In
addition, Vero Technical and Jachetta are factually dis-
tinguishable because: (1) in Jachetta, the plaintiff had a
Rule 60(a) motion to correct the judgment pending in the
district court at the time he filed suit in the Court of
Federal Claims 5; and (2) both cases emphasized that the
plaintiff chose to file first in the district court, whereas in
this case, it was the government that initiated proceed-
ings by filing its declaratory judgment action in district
court. See Jachetta, 94 Fed. Cl. at 283 (“By commencing a
suit in the district court, plaintiff engaged a process that
carries with it a right to an appeal. So long as that right
remains exercisable, the process of which it is a part is


    5  Indeed, the Jachetta court pointed to the plaintiff’s
Rule 60(a) motion as an alternative ground supporting its
decision to dismiss the plaintiff’s complaint under § 1500:
“even if the facts of Carey are found to be sufficiently
distinguishable to limit the applicability of the Court’s
analysis therein, we cannot accept plaintiff’s construction
of section 1500. . . . Plaintiff’s Rule 60(a) motion was
therefore a pending process within the meaning of section
1500 and jurisdiction is consequently lacking on that
ground.” Jachetta, 94 Fed. Cl. at 283-84.
14                                              BRANDT   v. US
properly regarded as pending.”) (internal citation omit-
ted)); Vero Technical, 94 Fed. Cl. at 795 (“The right to an
appeal, if still available and not renounced by plaintiff, is
part of an ongoing suit or process initiated by plaintiff in
the District Court, for which reason, plaintiff’s claim is
still ‘pending’ for purposes of a section 1500 analysis.”).
     In Carey, which the government cites on appeal, the
Supreme Court interpreted the word “pending” in the
context of the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”). AEDPA “requires a state prisoner
seeking a federal habeas corpus remedy to file his federal
petition within one year after his state conviction has
become ‘final.’” Carey, 536 U.S. at 216 (citing 28 U.S.C.
§ 2244(d)(1)(A)). The statute also provides that the one
year period “does not include the time during which an
application for state collateral review is ‘pending’ in the
state courts.” Id. (citing 28 U.S.C. § 2244(d)(2)). At the
outset of its analysis, the Supreme Court noted that the
dictionary defines “pending” as “in continuance” or “not
yet decided.” Id. at 219. Applying those definitions in the
§ 2244(d) context, the Court concluded that an application
for state post-conviction review is “pending” “until the
application has achieved final resolution through the
State’s post-conviction procedures.” Id. at 220. In reach-
ing this conclusion, the Court emphasized that a “federal
habeas petitioner must exhaust state remedies before he
can obtain federal habeas relief,” which requires the
petitioner to “invoke one complete round of the State’s
established appellate review process.” Id. (citation omit-
ted). Given these circumstances, the Court concluded
that the word “pending,” in the context of AEDPA, includ-
ed the time between a lower state court’s decision and the
filing of a notice of appeal to a higher state court.
    In Jachetta, the Court of Federal Claims concluded
that the Carey “analysis fits the present case” because,
“[b]y commencing a suit in the district court, plaintiff
engaged a process that carries with it a right to an ap-
 BRANDT   v. US                                           15
peal.” Jachetta, 94 Fed. Cl. at 283. Although the court
generally acknowledged the factual differences in Carey,
it nonetheless adopted the definition of “pending” set forth
therein without any explanation as to why that definition
would apply outside of the AEDPA context, and concluded
that “a suit is pending for purposes of section 1500 until
its final adjudication on appeal or until the time for
appeal has run.” Jachetta, 94 Fed. Cl. at 283. Likewise,
in Vero Technical, the court agreed with the analysis set
forth in Jachetta and concluded that a case is still “pend-
ing” in the district court if the right to appeal is available
and “not renounced by plaintiff.” Vero Technical, 94 Fed.
Cl. at 795.
    We conclude that the government and the Court of
Federal Claims’ reliance on Carey in the § 1500 context is
misplaced. While AEDPA requires exhaustion of state
remedies prior to filing for federal habeas relief, there is
no similar requirement in § 1500. Indeed, as Brandt
points out, application of Carey’s exhaustion requirement
in the § 1500 context would mean that a litigant must
seek and litigate an appeal prior to filing suit in the Court
of Federal Claims. There is no such requirement in the
statute and we decline to impose one. Because AEDPA is
a specialized statute dealing with a narrow area of the
law, we conclude that it is inapplicable here. 6


    6  The government also cites Eikenberry v. Callahan,
653 F.2d 632 (D.C. Cir. 1981) and Winkler v. Andrus, 614
F.2d 707 (10th Cir. 1980) – both of which are readily
distinguishable. For example, in Eikenberry, the appellee
argued that a case could only be “pending” when it was
being heard in district court. 653 F.2d at 635. The court
rejected this argument, finding that the “ordinary mean-
ing of ‘pending’ includes cases pending on appeal” and
that “certainly a statute which specifies that it shall apply
to any pending civil action must apply to a case pending
on direct appeal from the District Court.” Id. There,
16                                              BRANDT   v. US
     The text of § 1500 refers to a claim “which the plain-
tiff . . . has pending in any other court.” 28 U.S.C. § 1500.
Black’s Law Dictionary defines “pending” as “[r]emaining
undecided; awaiting decision <a pending case>.” Black’s
Law Dictionary 1248 (9th ed. 2009). Although the parties
agree that a claim is pending when a notice of appeal is
filed and docketed, they disagree as to whether a dis-
missed claim is a “pending” claim under the statute. The
government argues that it is, and that a suit is “pending”
in another court for purposes of § 1500 until it is no longer
appealable. We disagree.
    From a statutory interpretation standpoint, the prob-
lem with reading “pending” in § 1500 to include the time
after judgment is entered but before an appeal is filed is
that it reads the words “in any other court” out of the
statute. If, as the government submits, a case is pending
during that interim period, in which court is it pending?
The government fails to acknowledge that: (1) when a
district court enters judgment and that judgment becomes


however, there was no question that the appeal was
noticed and active when described as “pending.” In
Winkler, the Tenth Circuit indicated that: (1) “one who
deals with property while it is in litigation does so at his
own peril”; and (2) “[w]e have considered whether the
presence of administrative proceedings is notice that a
lawsuit is pending, and the majority rule is that a lawsuit
is determined pending throughout the time in which
appellate review of the original judgment may be taken.”
614 F.2d at 714. As Brandt points out, the cited lan-
guage is largely dicta and the narrow issue in Winkler
was whether constructive notice of administrative pro-
ceedings would destroy bona fide purchaser status under
the Mineral Leasing Act. Importantly, neither case
addressed the central issue here: whether a dismissed
claim is a “pending” claim within the meaning of § 1500
before a notice of appeal is filed.
 BRANDT   v. US                                          17
final, the case is closed on the court’s docket; and (2) if a
party files an appeal, a new case is opened on the Court of
Appeal’s docket. And, as the court in Young recognized, it
is the actual filing of the notice of appeal that makes the
claim “pending” – “not the mere fact that the time to
appeal it has yet to run.” 60 Fed. Cl. at 424. In other
words, despite the government’s assertions to the contra-
ry, there is a period of time when a case is not, as the
statute requires, “pending in any other court.” 7
    The government further argues that “a strict con-
struction of the term ‘pending’ is required because Section
1500 is a limitation on the congressional waiver of the
United States’ sovereign immunity.” Appellee’s Br. 23.
Because the plain language of the statute reveals that the
case must actually be pending in another court for § 1500
to apply, resort to sovereign immunity principles is nei-
ther necessary nor proper. See Richlin Sec. Serv. Co. v.
Chertoff, 553 U.S. 571, 590 (2008) (“There is no need for


    7  The government also argues that, if we find that
Brandt’s counterclaims were not “pending” at the time he
filed suit in the Court of Federal Claims, the validity of
the order-of-filing rule articulated in Tecon Eng’rs, Inc. v.
United States, 343 F.2d 943 (Ct. Cl. 1965) would be at
issue. In Tecon, the court held that a later-filed action in
another court does not divest the Court of Federal Claims
of jurisdiction. Id. at 949. Because Brandt filed his
takings complaint in the Court of Federal Claims before
he filed his appeal to the Tenth Circuit, the order-of-filing
rule set forth in Tecon, which was not at issue in Tohono,
and which remains the law of this circuit, is satisfied. See
Hardwick Bros. Co. II v. United States, 72 F.3d 883, 886
(Fed. Cir. 1995) (explaining that Tecon’s order-of-filing
rule “remains good law and binding on this court”); see
also Tohono, 131 S. Ct. at 1729-30 (“The Tecon holding is
not presented in this case because the CFC action here
was filed after the District Court suit.”).
18                                              BRANDT   v. US
us to resort to the sovereign immunity canon because
there is no ambiguity left for us to construe.”). According-
ly, the government’s reliance on the doctrine of sovereign
immunity is misplaced.
     Finally, the government submits that interpreting the
term “pending” “to include the period before all appeal
rights have expired is consistent with Section 1500’s
purpose of protecting the United States against redun-
dant litigation.” Appellee’s Br. 22-23. According to the
government, Brandt should have affirmatively waived his
right to appeal the district court’s decision to signify that
the case was officially terminated. The government cites
no authority requiring a litigant to forgo its appellate
rights in these circumstances, and we have found none.
Although the government is correct that § 1500 “was
enacted to prevent a claimant from seeking recovery in
district court and the Court of Claims for the same con-
duct pleaded under different legal theories” and to pre-
vent the government from having to defend against
duplicative lawsuits, Trusted Integration, 659 F.3d at
1163, here, it was the government – not Brandt – that
affirmatively chose to file suit in district court. And, as
Brandt points out, once the government filed suit, he was
compelled to file counterclaims relating to the abandoned
railroad easement or risk waiving his right to do so. See
Fed. R. Civ. P. 13(a)(1)(A) (“A pleading must state as a
counterclaim any claim that – at the time of its service –
the pleader has against an opposing party if the claim:
arises out of the transaction or occurrence that is the
subject matter of the opposing party’s claim”). 8



     8 The government’s argument that Brandt should
have affirmatively waived a right to appeal from the quiet
title determination is particularly strange given the
Tenth Circuit’s concession that other courts to have
considered the government’s retention of rights in these
 BRANDT   v. US                                         19
    Given the statutory text, we conclude that, once a
claim is dismissed or denied, it is no longer “pending” for
§ 1500 purposes until a motion for reconsideration or
notice of appeal is filed. Here, the Wyoming district court
entered judgment in favor of the government on March 2,
2009, and dismissed Brandt’s takings counterclaim two
days later. In its March 4, 2009 order, the court stated
that, “[i]n light of the dismissal of the final claim before
this Court, this case is now fully adjudicated before this
Court and no matters remain outstanding.” Order Grant-
ing Plaintiff’s Motion to Dismiss the Third Counterclaim,
United States v. Wyoming and Colorado R.R. Co., No.
2:06-cv-184 (D. Wyo. Mar. 4, 2009), ECF 202, at 5. It is
undisputed that Brandt filed the takings complaint in the
Court of Federal Claims on April 28, 2009, and his Notice
of Appeal to the Tenth Circuit on April 29, 2009. Accord-
ingly, at the time Brandt filed the instant case, he had no
“suit or process against the United States” pending in any
other court. Because Brandt did not have claims “pend-
ing” for purposes of § 1500 when he filed his takings
complaint, we find that the Court of Federal Claims’
dismissal for lack of jurisdiction was inappropriate. In
light of this conclusion, we need not and do not reach
Brandt’s alternative argument that the district court
counterclaims and his takings complaint do not share the
same operative facts. 9


abandoned railroad rights-of-way, including this one,
would have reversed the district court’s judgment.
    9  We also do not reach a related and complicated
question which the parties debate at length in their
briefs—whether “a § 1500 analysis is inapplicable to a
claim over which the district court concludes it lacks
jurisdiction.” E. Shawnee Tribe of Okla. v. United States,
582 F.3d 1306, 1312 n. 4 (Fed. Cir. 2009) (vacated on
other grounds by Tohono, 131 S.Ct. 1723) (citing Love-
ladies Harbor, Inc. v. United States, 27 F.3d 1545, 1554
20                                              BRANDT   v. US
                       CONCLUSION
    For the foregoing reasons, the final judgment of the
Court of Federal Claims is reversed and remanded for
further proceedings consistent with this opinion.
                       REVERSED




(Fed. Cir. 1994) (en banc) (finding that where district
court determined it lacked jurisdiction over a claim, that
claim was “without legal significance” in a § 1500 analy-
sis); but see Frantz, 98 F. Supp. at 580 (finding applicabil-
ity of § 1500 “is not conditioned upon the question of
whether the district court had jurisdiction of the claim
asserted by the plaintiff herein.”).
  United States Court of Appeals
      for the Federal Circuit
                 ______________________

  MARVIN M. BRANDT AND MARVIN M. BRANDT
            REVOCABLE TRUST,
             Plaintiffs-Appellants,

                            v.

                   UNITED STATES,
                   Defendant-Appellee.
                 ______________________

                       2012-5050
                 ______________________

      Appeal from the United States Court of Federal
 Claims in No. 09-CV-265, Chief Judge Emily C. Hewitt.
                  ______________________
PROST, Circuit Judge, concurring.
    I concur in the judgment of the court, but do so only
because we are bound to follow the order-of-filing rule
established by Tecon Engineers, Inc., v. United States, 343
F.3d 943 (Ct. Cl. 1965). The plaintiffs filed their case in
the Court of Federal Claims one day prior to filing an
appeal with the Tenth Circuit of a related district court
judgment. The plain language of § 1500 divests the Court
of Federal Claims of jurisdiction over a case when another
suit—like the plaintiffs’ appeal—is pending “in any other
court.”
    However, as the majority notes, the order-of-filing
rule created in Tecon restricts the applicability of § 1500
to the time a case is filed in the Court of Federal Claims.
2                                               BRANDT   v. US
Majority Op. at 17 n.7. Because the plaintiffs’ appeal
became pending at the Tenth Circuit after their case was
filed with the Court of Federal Claims, the order-of-filing
rule requires us to hold that the Court of Federal Claims
was never divested of jurisdiction over the plaintiffs’ case.
The result also would have been the same if the plaintiffs
had filed a second district court action instead. See
Tohono O’Odham Nation v. United States, 559 F.3d 1284,
1291 (Fed. Cir. 2009) (explaining that, because of the
order-of-filing rule, § 1500 “merely requires that the
plaintiff file its action in the Court of Federal Claims
before it files its district court complaint”), rev’d on other
grounds and remanded, 131 S. Ct. 1723 (2011).
     The order-of-filing rule thus creates a virtual amnesty
period under § 1500 for cases in the Court of Federal
Claims filed before a related appeal or district court
action. But the existence of that amnesty period is con-
trary to the plain purpose and language of § 1500. The
Supreme Court has held that Congress’s “clear” purpose
for § 1500 was “to save the Government from burdens of
redundant litigation.” United States v. Tohono O’Odham
Nation, 131 S. Ct. 1723, 1730. Because of the order-of-
filing rule, complainants can easily subvert that purpose
and avoid the jurisdictional restrictions in § 1500 by
simply filing first in the Court of Federal Claims and then
in another court. By merely delaying filing of a second
related suit by only a day—as the plaintiffs did here—
complainants can force the government to defend itself in
the Court of Federal Claims and another court in redun-
dant co-pending suits. See also Kaw Nation of Okla. v.
United States, 103 Fed. Cl. 613, 615 (Fed. Cl. 2012) (de-
laying filing of second related suit by mere hours avoided
§ 1500). That is clearly not how Congress envisioned
§ 1500 would restrict access to the Court of Federal
Claims.
     We have even overruled Tecon on those grounds while
sitting en banc. UNR Indus., Inc. v. United States, 962
 BRANDT   v. US                                               3
F.2d 1013, 1022-23 (Fed. Cir. 1992) (en banc), aff’d sub.
nom., Keene, 508 U.S. at 216; 1 but see Hardwick Bros. Co.
II v. United States, 72 F.3d 883, 886 (Fed. Cir. 1995)
(holding that Tecon survived UNR because of Keene).
Although the Supreme Court found the relevant portion of
that decision to be beyond the merits of the appeal, the
logical force of our reasoning to dispense with the order-
of-filing rule remains.
    Section 1500 states that the “[Court of Federal
    Claims] shall not have jurisdiction of any
    claim . . . in respect to which the plaintiff . . . has
    pending in any other court any suit or process.” A
    case filed subsequent to a [Court of Federal
    Claims] complaint is clearly a “pending . . . suit or
    process.” Thus, by the command that the [Court
    of Federal Claims] “shall not have jurisdiction,”
    upon the occurrence of the triggering event, the
    filing of suit in another court, the [Court of Feder-
    al Claims] is automatically divested of jurisdic-
    tion. Congress wanted not to dictate the order in
    which a claimant files suits in the [Court of Fed-
    eral Claims] and another court on the same claim,
    but to discourage him from doing so altogether.
    Otherwise the purpose of saving the government
    from defending the same claim in two courts at
    the same time would be defeated.
UNR, 962 F.2d at 1022-23.




    1   The Supreme Court has never addressed our hold-
ing in Tecon. See Tohono, 131 S. Ct. at 1729 (“The Tecon
holding is not presented in this case . . . .”); Keene Corp. v.
United States, 508 U.S. 200, 222 n.4 (1993) (“We do not
decide whether [§ 1500] also continues to bar a plaintiff
from prosecuting a claim . . . .”).
4                                               BRANDT   v. US
    In light of recent Supreme Court guidance on § 1500,
we should revisit Tecon once again and dispose of the
order-of-filing rule. The Supreme Court admonished us in
Tohono for narrowing the scope of § 1500 and feeling
“bound by Circuit precedent that left [§ 1500] without
meaningful force.” Tohono, 131 S. Ct. at 1729-30. The
Court expressly stated that we were “wrong to allow [our]
precedent to suppress [§ 1500]’s aims” because we “should
not render statutes nugatory through construction.” Id.
Continuing to apply the order-of-filing rule does just that.
     It cannot be reasonably questioned that cabining the
jurisdictionally restrictive reach of § 1500 to only the time
of filing a complaint with the Court of Federal Claims and
never thereafter defeats Congress’s unequivocally clear
purpose for the statute. The plain language of § 1500
removes jurisdiction from the Court of Federal Claims
over “any claim” that a plaintiff also has “pending in any
other court.” 28 U.S.C. § 1500. There is no language in
the statute that restricts its application to the time a case
is filed in the Court of Federal Claims; the statute’s
applicability persists throughout a suit. Any doubts to
the contrary should fall to Congress’s clear intent—
especially because § 1500 effects a restriction on Con-
gress’s waiver of sovereign immunity. See, e.g., Smith v.
United States, 507 U.S. 197, 201-03 (1993); Ardestani v.
INS, 502 U.S. 129, 137 (1991).
     The Supreme Court warned us against relying on our
precedent to transform § 1500 into a hollow jurisdictional
restriction “without meaningful force.” See Tohono, 131 S.
Ct. at 1729-30. Our continued acquiescence to the order-
of-filing rule established in Tecon does just that. As
argued by the government, the propriety of the order-of-
filing rule is directly raised in this appeal because the
parties agree that the plaintiffs’ Tenth Circuit appeal was
pending under § 1500 at the time the Court of Federal
Claims dismissed this case under the statute for lack of
jurisdiction. We should take this opportunity to overrule
 BRANDT   v. US                                         5
Tecon and finally dispense with the ill-conceived order-of-
filing rule.
