  United States Court of Appeals
      for the Federal Circuit
                 ______________________

      RESOURCE INVESTMENTS, INC., LAND
              RECOVERY, INC.,
             Plaintiffs-Appellants

                            v.

                   UNITED STATES,
                   Defendant-Appellee
                 ______________________

                       2014-5069
                 ______________________

    Appeal from the United States Court of Federal
Claims in No. 1:98-cv-00419-LB, Judge Lawrence J.
Block.
               ______________________

                  Decided: May 12, 2015
                 ______________________

    MARK S. PARRIS, Orrick, Herrington & Sutcliffe LLP,
Seattle, WA, argued for plaintiffs-appellants. Also repre-
sented by DAVID S. KEENAN, DANIEL D. SYRDAL; MARC
SHAPIRO, New York, NY.

    LANE N. MCFADDEN, Environment and Natural Re-
sources Division, United States Department of Justice,
Washington, DC, argued for defendant-appellee. Also
represented by SAM HIRSCH.
2                         RESOURCE INVESTMENTS, INC.   v. US




                 ______________________

     Before PROST, Chief Judge, DYK, and O’MALLEY, Cir-
                      cuit Judges.
DYK, Circuit Judge.
     Resource Investments, Inc. and Land Recovery, Inc.
(collectively, “Resource Investments”) appeal the Court of
Federal Claims’ (“Claims Court”) dismissal of their Fifth
Amendment takings claim pursuant to 28 U.S.C. § 1500.
We affirm.
                       BACKGROUND
    This case requires that we again consider § 1500,
which limits the Claims Court’s jurisdiction when at the
time of the Claims Court filing there was a pending action
against the United States in another court involving the
same subject matter. Section 1500 provides: “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 pro-
cess against the United States . . . .” 28 U.S.C. § 1500.
The question here is whether Resource Investments’
takings claim in the Claims Court based on the denial of a
federal permit under Section 404 of the Clean Water Act
(“CWA permit”), 33 U.S.C. § 1344, was barred by an
earlier district court suit under the Administrative Proce-
dure Act (“APA”) challenging the permit denial.
    In 1987, Resource Investments purchased a 320-acre
property in the State of Washington which it sought to
use as a landfill. Beginning in 1989, Resource Invest-
ments applied for various state permits to construct the
landfill. Because the proposed landfill project involved
the fill of wetland areas, Resource Investments filed an
application on August 8, 1990, for a CWA permit from the
United States Army Corps of Engineers (“Corps”). See 33
RESOURCE INVESTMENTS, INC.   v. US                       3




U.S.C. § 1344. The requisite state permits were ultimate-
ly issued in 1996 on the condition that Resource Invest-
ments obtain, inter alia, a federal CWA permit from the
Corps. On March 4, 1994, as part of the CWA permitting
process, the Corps determined that it would require a
federal Environmental Impact Statement (“EIS”) for the
proposed landfill site. After the Corps’ draft EIS prelimi-
narily concluded that Resource Investments had not fully
demonstrated that there were no practicable alternatives
to the proposed landfill project (as required by 40 C.F.R.
§ 230.10(a)), Resource Investments requested that the
Corps terminate the federal EIS process, which the Corps
did on June 7, 1996. The Corps formally denied Resource
Investments’ CWA permit on September 30, 1996.
     On October 31, 1996, Resource Investments filed suit
in the United States District Court for the Western Dis-
trict of Washington under the APA, challenging the denial
of the CWA permit. Resource Investments alleged, inter
alia, that the Corps’ permitting process and ultimate
denial of the permit violated the Clean Water Act and was
arbitrary and capricious under the APA, 5 U.S.C. § 500 et
seq. (“count IV”). Count IV alleged “a cost to [Resource
Investments] of several millions of dollars,” J.A. 474, and
that Resource Investments stood to “lose the large sums
already invested in the project, as well as the economic
value of its investment in the project site,” J.A. 483.
    The district court upheld the Corps’ denial of the
permit under the APA, but the Ninth Circuit reversed,
finding that the Corps lacked authority to require a CWA
permit because, under the Resource Conservation and
Recovery Act, 42 U.S.C. §§ 6941–6949a, the regulation of
municipal solid waste in landfills constructed on wetlands
areas lies solely with the Environmental Protection
Agency (“EPA”) or states (such as Washington) with solid
waste permit programs approved by the EPA. See Res.
Invs., Inc. v. U.S. Army Corps of Eng’rs, 151 F.3d 1162,
4                          RESOURCE INVESTMENTS, INC.   v. US




1167–69 (9th Cir. 1998). Under the Ninth Circuit’s hold-
ing, no CWA permit was required, and Resource Invest-
ments began construction of its landfill in October 1998.
The landfill became operational in 1999.
    On May 4, 1998, while the Ninth Circuit appeal was
pending, Resource Investments filed a complaint in the
Claims Court alleging that the Corps’ denial of the CWA
permit was a taking in violation of the Fifth Amendment. 1
The Claims Court complaint alleged that “[i]n denying the
Section 404 permit, the Corps has deprived plaintiffs of
their valuable property interests in the Site without just
compensation.” J.A. 86. And the prayer for relief sought
judgment against the United States “for just compensa-
tion and damages equal to the value of the Site but for the
Corps’ Section 404 Permit denial.” J.A. 91. On October
13, 2005, several years after the Ninth Circuit’s decision
in the appeal of the district court action, Resource In-
vestments filed an amended complaint in the Claims
Court action alleging that the Corps’ denial of the permit
was a temporary taking under various legal theories.
    While the Claims Court action was pending, the Su-
preme Court decided United States v. Tohono O’Odham
Nation, 131 S. Ct. 1723 (2011), holding that “[t]wo suits
are for or in respect to the same claim, precluding juris-
diction in the [Claims Court], if they are based on sub-
stantially the same operative facts, regardless of the relief
sought in each suit.” Id. at 1731. On June 10, 2011, after
the Claims Court action had been pending for several
years, the United States, in light of Tohono, filed a motion



    1   Interestingly, Resource Investments did not allege
that the taking resulted from the assertion that a permit
was required even though no permit was, in fact, neces-
sary.
RESOURCE INVESTMENTS, INC.   v. US                         5




to dismiss the action for lack of subject matter jurisdic-
tion.
    The Claims Court granted the government’s motion to
dismiss, finding that count IV of the district court action
and the Claims Court action shared substantially the
same operative facts, in particular because the denial of
the CWA permit was central to both suits. 2 The Claims
Court found that “the facts underlying the Corps’ decision
to deny the permit were material to plaintiffs’ claim that
the Corps violated applicable regulations because the
denial of the permit was the culmination of a series of
allegedly improper acts taken by the Corps.” J.A. 34. The
Claims Court also denied Resource Investments’ motion
for reconsideration, rejecting Resource Investments’
argument that the denial of the permit was merely the
“impetus” for bringing the two lawsuits, rather than an
operative fact, because “the denial of the permit was in
fact not only operative but also dispositive—as the court
pointed out, but for the denial of the permit, plaintiffs
would not have been able to argue these claims.” J.A. 44–
45.
   Resource Investments appeals. We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(3). We review the Claims
Court’s dismissal for lack of subject matter jurisdiction de


    2    The Claims Court also found that count III of the
district court suit, which alleged violations of the National
Environmental Policy Act, 42 U.S.C. § 4321 et seq., shared
substantially the same operative facts as the Claims
Court action. Resource Investments argues that because
count III was not appealed to the Ninth Circuit, it was not
pending when they filed the Claims Court action. Be-
cause we find that count IV of the district court action
arises from substantially the same operative facts as the
Claims Court action, we need not address count III.
6                           RESOURCE INVESTMENTS, INC.    v. US




novo. Brandt v. United States, 710 F.3d 1369, 1373 (Fed.
Cir. 2013).
                         DISCUSSION
                              I
    As we held in Brandt, “[t]o determine whether § 1500
applies, a court must make two inquiries: (1) whether
there is an earlier-filed ‘suit or process’ pending in anoth-
er 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.”
710 F.3d at 1374. Resource Investments does not dispute
that the district court action constitutes an earlier-filed
suit for purposes of the first § 1500 inquiry.
    In undertaking the second inquiry, we compare count
IV of the district court action with the Claims Court
action to determine whether they are “for or in respect to”
each other. 28 U.S.C. § 1500. The Supreme Court held in
Keene Corp. v. United States, 508 U.S. 200 (1993), that
the relevant comparison under § 1500 analyzes whether
the two suits were “based on substantially the same
operative facts.” Id. at 212. In Tohono, the Court ad-
dressed an issue expressly left unresolved by Keene:
whether the § 1500 bar applied to two actions based on
the same operative facts that sought completely different
relief. Tohono, 131 S. Ct. at 1727–28. The Court held
that the § 1500 bar still applied in that scenario: “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.” Id. at 1731. Here, the Claims
Court held that the same operative facts test was satisfied
because both suits were based on the denial of the CWA
permit and the economic injury to Resource Investments
that the permit denial allegedly caused.
RESOURCE INVESTMENTS, INC.   v. US                            7




    Resource Investments first argues that the denial of
the permit was not an “operative fact” in the Claims
Court action, but rather merely a “background fact.” In
support of this argument, Resource Investments relies on
language in Central Pines Land Co. v. United States, 697
F.3d 1360 (Fed. Cir. 2012), suggesting that overlap in
background facts does not require dismissal under § 1500.
Id. at 1365. But as the Claims Court found, the denial of
the permit was not merely a background fact. The basis
for each of the actions was, in significant part, the Corps’
denial of the permit. The allegations that the Corps
denied the permit, and the alleged economic loss attribut-
able thereto, were central to both count IV of the district
court action and the Claims Court action. The Claims
Court complaint alleged:
    The Section 404 Permit denial furthers no legiti-
    mate government interest; it wholly frustrates
    plaintiffs’ investment backed expectations, denies
    all practical, beneficial and economic use of the
    Site, and wholly destroys the economic value of
    plaintiffs’ property rights in the Site. Accordingly,
    the action of the [Corps] . . . constitutes a taking of
    plaintiffs’ property . . . .
J.A. 71. The Claims Court action’s prayer for relief specif-
ically sought damages “equal to the value of the Site but
for the Corps’ Section 404 permit denial.” J.A. 91 (empha-
sis added). Similarly, count IV of the district court action,
challenging the Corps’ conduct in denying the permit
application, was clearly based on the denial of the permit.
Count IV alleged that “[t]he Corps’ decision to deny the
permit application was the product of its systematic bias,
prejudgment and bad faith in reviewing the permit appli-
cation,” and complained “of the Corps’ misconduct in
reviewing the permit application.” J.A. 473. Count IV
further alleged that the denial of the permit “must be
reversed and remanded with instructions that defendants
8                         RESOURCE INVESTMENTS, INC.   v. US




reconsider the permit application in good faith under the
proper standards as ordered by the Court.” J.A. 486. And
the prayer for relief in the district court action “re-
quest[ed] a determination that the Corps’ decision deny-
ing the permit was unlawful, arbitrary and capricious
because it was the product of systematic bias, prejudg-
ment and bad faith.” Complaint for Judicial Review of
Administrative Action at 103, Res. Invs., Inc. v. U.S. Army
Corps of Eng’rs, No. C96-5920 (W.D. Wash. Oct. 30, 1996).
    Resource Investments argues that even if the permit
denial and economic injury are operative facts common to
the two actions, additional—and different—operative
facts are necessary to establish each claim. For example,
Resource Investments points to the character of the
government action and investment-backed expectations in
the landfill site as operative facts in the Claims Court
action that were irrelevant to the district court action.
    To determine whether the overlap as to the permit
denial and economic loss is sufficient we apply the res
judicata test approved by Tohono. In determining wheth-
er two suits were “based on substantially the same opera-
tive facts,” 131 S. Ct. at 1731, the Supreme Court
analogized § 1500 to res judicata (or claim preclusion),
explaining that “the principles of preclusion law [are]
embodied in” § 1500. Id. at 1730; see also Trusted Inte-
gration, Inc. v. United States, 659 F.3d 1159, 1164 (Fed.
Cir. 2011).    Thus, the Court referenced “[t]he now-
accepted test in preclusion law for determining whether
two suits involve the same claim or cause of action,”
which “depends on factual overlap, barring ‘claims arising
from the same transaction.’” Tohono, 131 S. Ct. at 1730
(quoting Kremer v. Chem. Constr. Corp., 456 U.S. 461, 482
n.22 (1982)). The Court explained that although “[t]he
transaction test is . . . much younger than the rule embod-
ied in § 1500, . . . even in the 19th century it was not
uncommon to identify a claim for preclusion purposes
RESOURCE INVESTMENTS, INC.   v. US                         9




based on facts rather than relief.” Id. (citing J. Wells, Res
Adjudicata and Stare Decisis § 241, p. 208 (1878); 2 H.
Black, Law of Judgments § 726, p. 866 (1891)).
    Under Tohono, the question is whether the second
Claims Court takings suit would have been barred by res
judicata if it had been brought in a district court. Alt-
hough there is an exception to res judicata where “[t]he
plaintiff was unable to rely on a certain theory of the case
or to seek a certain remedy or form of relief in the first
action because of the limitations on the subject matter
jurisdiction of the courts,” Restatement (2d) of Judgments
§ 26(1)(c), that exception does not apply to § 1500 in light
of Tohono’s holding that the statute bars suit on the same
claim regardless of the relief sought. See Tohono, 131 S.
Ct. at 1731; see also id. at 1737–38 (Sotomayor, J., con-
curring).
    In light of Tohono and Trusted Integration, the rele-
vant res judicata inquiry under § 1500 looks to res judica-
ta principles as of 1868, when the predecessor to § 1500 3
was first enacted. See Act of June 25, 1868, ch. 71, § 8, 15
Stat. 77; see also Keene, 508 U.S. at 206–07. In Trusted
Integration, we explained that Tohono “made clear that it
is the [res judicata] tests in place at the time the prede-
cessor to § 1500 was enacted by which we must be guid-
ed.” 659 F.3d at 1168 n.4 (citing Tohono, 131 S. Ct. at
1730). The res judicata bar to “issues that were or could
have been raised” in a prior action, San Remo Hotel, L.P.
v. City & Cnty. of S.F., Cal., 545 U.S. 323, 336 n.16 (2005),
dates back to the mid-nineteenth century. In Aurora City
v. West, 74 U.S. 82 (1868), decided the same year as the
predecessor to § 1500 was enacted, the Court articulated
the res judicata standard as follows:


    3   Section 1500 is “identical in most respects to the
original statute.” Tohono, 131 S. Ct. at 1727.
10                          RESOURCE INVESTMENTS, INC.   v. US




     [W]here every objection urged in the second suit
     was open to the party within the legitimate scope
     of the pleadings in the first suit, and might have
     been presented in that trial, the matter must be
     considered as having passed in rem judicatam,
     and the former judgment in such a case is conclu-
     sive between the parties. Except in special cases,
     the plea of res judicata, says Taylor, applies not
     only to points upon which the court was actually
     required to form an opinion and pronounce judg-
     ment, but to every point which properly belonged to
     the subject of litigation, and which the parties, ex-
     ercising reasonable diligence, might have brought
     forward at the time.
Id. at 102 (citing, inter alia, 2 John Pitt Taylor, A Treatise
on the Law of Evidence § 1513 (3d ed. 1858)) (emphasis
added); see also Beloit v. Morgan, 74 U.S. 619, 622 (1868)
(Res judicata “extends not only to the questions of fact
and of law, which were decided in the former suit, but also
to the grounds of recovery or defence which might have
been, but were not, presented.”).
    Also at the time when the predecessor to § 1500 was
enacted, there were two governing tests for determining
whether claims were precluded by an earlier litigation:
the act or contract test, and the evidence test. Trusted
Integration, 659 F.3d at 1169. Since we conclude that the
act or contract test is satisfied here, we need not address
the evidence test. See id. at 1170 n.5 (“If two suits are
determined to arise from the same claim under either of
these res judicata tests, however, application of the bar of
§ 1500 is likely compelled.”).
    In Tohono, the Supreme Court articulated the nine-
teenth century “act or contract test” as follows: “The true
distinction between demands or rights of action which are
single and entire, and those which are several and dis-
RESOURCE INVESTMENTS, INC.   v. US                        11




tinct, is, that the former immediately arise out of one and
the same act or contract, and the latter out of different
acts or contracts.” 131 S. Ct. at 1730 (quoting J.C. Wells,
A Treatise on the Doctrines of Res Adjudicata and Stare
Decisis § 241 (1879)); see also Trusted Integration, 659
F.3d at 1169. The nineteenth century act or contract test
is narrower than the modern transactional test. See
Restatement (2d) of Judgments § 24 cmt. a; Cent. Pines,
697 F.3d at 1365 (distinguishing background facts that
should not be considered in a § 1500 analysis from opera-
tive facts that were “critical to plaintiffs’ claims in both
actions”).
    Because there are some similarities, however, it can
be informative to refer to authorities on the modern
transactional test when determining whether claims are
based on substantially the same operative facts. See
Trusted Integration, 659 F.3d at 1168 n.4. 4 Under the
transactional test, “[t]he claim extinguished includes all
rights of the plaintiff to remedies against the defendant



    4   See also Beloit, 74 U.S. at 623 (“A party can no
more split up defences than indivisible demands, and
present them by piecemeal in successive suits growing out
of the same transaction.”); Washington, Alexandria, &
Georgetown Steam-Packet Co. v. Sickles, 65 U.S. 333, 338,
343, 345–46 (1860) (reversing a holding of estoppel where
the defendant argued that different counts “represent[ed]
distinct and independent transactions”; the Court noted
that “transactions have become more complicated and
numerous, and law and fact have become more closely
interwoven, so as to render their separation more embar-
rassing”); Wells, § 231, p. 201 (“But the various items
must be connected with the same transaction . . . .”); id. at
§ 239, p. 206 (“all the consequences are but the unavoida-
ble result of a single act”).
12                         RESOURCE INVESTMENTS, INC.   v. US




with respect to all or any part of the transaction, or series
of connected transactions, out of which the action arose.
What factual grouping constitutes a ‘transaction’, and
what groupings constitute a ‘series’, are to be determined
pragmatically, giving weight to such considerations as
whether the facts are related in time, space, origin, or
motivation . . . .” Restatement (2d) of Judgments § 24.
And, contrary to Resource Investments’ argument, the bar
to subsequent litigation applies “even though the plaintiff
is prepared in the second action . . . [t]o present evidence
or grounds or theories of the case not presented in the
first action.” Id. § 25. Different legal theories do not
create separate claims for res judicata purposes even
though “the several legal theories depend on different
shadings of the facts, or would emphasize different ele-
ments of the facts, or would call for different measures of
liability or different kinds of relief.” Id. § 24 cmt. c.
    Thus, in Harbuck v. United States, 378 F.3d 1324
(Fed. Cir. 2004), we determined that an Equal Employ-
ment Act claim in the Claims Court was based on the
same operative facts as a district court Title VII sex
discrimination claim, thus barring the Claims Court suit
under § 1500. Id. at 1328. This was so even though the
appellant argued “that the two suits involved different
claims because the Title VII complaint ‘centered on’ her
non-selection for promotion, and the Equal Employment
Act claim ‘centered around’ her ‘assuming the position of
a male employee . . . and not receiving the same pay.’” Id.
at 1329. In affirming the dismissal under § 1500, we held
that “[t]he difference between the two theories upon
which she relies are but different manifestations of the
same underlying claim that the Air Force discriminated
against women by paying them less than men.” Id.
    Other circuits have come to similar conclusions. In
Hagee v. City of Evanston, 729 F.2d 510 (7th Cir. 1984),
the Seventh Circuit, in a case similar to this one, held
RESOURCE INVESTMENTS, INC.   v. US                        13




that res judicata barred a federal suit alleging, inter alia,
a takings claim due to the revocation of a building permit
because of a prior state lawsuit seeking to enjoin the
revocation of that same permit. Id. at 511, 514. The
Seventh Circuit applied the transactional test and found
that “[t]he appellants’ current suit is for damages alleged-
ly flowing from the very same conduct complained of in
the appellants’ first suit, Evanston’s obstruction of the
appellants’ construction project.” Id. at 515.
    In Hayes v. City of Chicago, 670 F.3d 810 (7th Cir.
2012), a police officer challenged his termination for
misconduct in state court. Id. at 812. He later filed a
Title VII complaint in federal district court. Id. at 813.
On appeal, the Seventh Circuit applied the transactional
test and held that the two suits arose from the same
operative facts “because the underlying transaction of
both actions [wa]s not only related in time, space, origin,
and motivation, but the underlying transaction—Hayes’s
termination from the Chicago Police Department—[wa]s
identical.” Id. at 814. See also Sutliffe v. Epping Sch.
Dist., 584 F.3d 314, 327 (1st Cir. 2009) (“The fact that a
second suit contains some additional factual allegations
does not mean it does not arise from the same factual
transaction.”).
    So too in Trusted Integration, where both the district
court complaint and the Claims Court complaint alleged
that the government failed to adequately offer or promote
plaintiffs’ security compliance product and replaced that
product with a government-developed alternative. 659
F.3d at 1161, 1165. In the Claims Court, the plaintiff
alleged a breach of an implied agreement. Id. at 1165. In
the district court, the plaintiff alleged a breach of fiduci-
ary duty. Id. Applying the act or contract test, we con-
cluded that both actions were based on the same conduct.
Id. at 1165, 1169. We “compar[ed] the conduct pleaded”
in the two actions, and found that “it [was] apparent that
14                         RESOURCE INVESTMENTS, INC.    v. US




each count involve[d] nearly identical conduct.” Id. at
1165. The appellant “was, therefore, alleging that the
same conduct gave rise to different claims based upon
purportedly distinct legal theories.” Id. 5
    Applying these principles, it is clear that the opera-
tive facts outlined in count IV of the district court action
and the Claims Court action are the same, in particular
the allegations with respect to the denial of the CWA
permit and Resource Investments’ economic loss attribut-
able thereto. Thus, the two actions relate to the same
underlying transaction and § 1500 bars the Claims Court
action here.
                              II
    Resource Investments additionally argues that even if
its permanent takings claim in the Claims Court com-
plaint was barred, its temporary takings claim still sur-
vives the § 1500 bar. According to Resource Investments,
the denial of the permit was not an operative fact with
respect to the temporary takings claim because that claim
was based on the delay in the permitting process rather
than the ultimate denial of the permit. We need not
reach this issue for two reasons.
    First, under Supreme Court pleading standards, Re-
source Investments did not sufficiently allege a temporary
takings claim in the original complaint. See Bell Atl.


     5  We distinguished this circumstance from those—
also at issue in Trusted Integration—where, despite an
overlap of certain background facts, those facts necessary
to establish two different causes of action, i.e., the legally
operative facts, differ, and the two claims do not merely
represent alternative legal theories premised on a single
set of facts. 659 F.3d at 1168–70. Those latter circum-
stances are not at issue here.
RESOURCE INVESTMENTS, INC.   v. US                       15




Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“[A] plain-
tiff’s obligation to provide the grounds of his entitlement
to relief requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” (quotations and alteration omitted)); see also
ABB Turbo Sys. AG v. TurboUSA, Inc., 774 F.3d 979, 984
(Fed. Cir. 2014). The sole reference to a temporary tak-
ings claim in Resource Investments’ original Claims Court
complaint alleged: “Even in the event the Corps’ action is
overturned by the federal courts, plaintiffs have suffered a
temporary taking of property which requires compensa-
tion.” J.A. 86. This passing reference is no more than a
conclusory assertion of a temporary taking, which fails to
satisfy the Twombly pleading standard.
     Second, we cannot consider the more extensive tem-
porary takings allegations in Resource Investments’
amended Claims Court complaint. 6 The relevant compar-
ison focuses on whether count IV of the original district
court action arises from substantially the same operative
facts as the original Claims Court complaint.          The
amended Claims Court complaint is irrelevant because of
“the longstanding principle that the jurisdiction of the
Court depends upon the state of things at the time of the
action brought.” Keene, 508 U.S. at 207 (internal quota-
tion marks omitted). As we held in Central Pines,
“[t]ogether, the plain language of the statute and legisla-
tive history leave no doubt that at least a time-of-filing
rule applies such that jurisdiction under § 1500 is de-
pendent 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.” 697



   6    Contrary to Resource Investments’ argument, the
Claims Court did not order it to file an amended com-
plaint. See J.A. 93.
16                         RESOURCE INVESTMENTS, INC.   v. US




F.3d at 1367 (internal quotation marks and alteration
omitted); see also Dico, Inc. v. United States, 48 F.3d 1199,
1203 (Fed. Cir. 1995) (“[T]he § 1500 bar rises, if at all, at
the time the [original] complaint is filed in the Court of
Federal Claims.”).
                             III
     Finally, Resource Investments argues that § 1500
should be construed to avoid constitutional difficulties
which arise because under the Claims Court’s § 1500
analysis Resource Investments is precluded from obtain-
ing relief on its constitutional takings claim. See SKF
USA, Inc. v. U.S. Customs & Border Prot., 556 F.3d 1337,
1349 (Fed. Cir. 2009) (relying on “our well established
obligation to construe statutes to avoid constitutional
difficulties”). But under current Federal Circuit law there
is no significant constitutional issue raised by requiring
the Claims Court action to be filed before the district
court action in order to secure compensation for a takings
claim against the government.
     In Tecon Engineers, Inc. v. United States, 343 F.2d
943 (Ct. Cl. 1965), our predecessor court found that the
§ 1500 bar operates “only when the suit shall have been
commenced in the other court before the claim was filed in
[the Claims Court].” Id. at 949. That rule continues to be
followed in the Claims Court. See, e.g., Otoe-Missouria
Tribe of Indians, Okla. v. United States, 105 Fed. Cl. 136,
138–39 (2012); United Keetoowah Band of Cherokee
Indians in Okla. v. United States, 104 Fed. Cl. 180, 187
(2012); Nez Perce Tribe v. United States, 101 Fed. Cl. 139,
142–43 (2011). We are bound by Tecon, 7 which “remains



     7  In Tohono, the Supreme Court expressly declined
to overrule Tecon, noting that “[t]he Tecon holding is not
presented in this case because the [Claims Court] action
RESOURCE INVESTMENTS, INC.   v. US                        17




the law of this circuit.” Brandt, 710 F.3d at 1379 n.7. In
light of Tecon, we see no constitutional problem with the
first-to-file rule. Resource Investments could have sought
relief for its takings claim had it filed its Claims Court
action before its district court action, and we need not
consider what constitutional issues might be presented if
Tecon were to be overruled. 8 Similarly, the fact that
Resource Investments could have dismissed and refiled its
Claims Court action following the Ninth Circuit’s decision
without facing a limitations problem 9 also eliminates any
constitutional concerns.
                             IV
    Count IV of the earlier-filed district court action and
the Claims Court action were based on substantially the
same operative facts. Under these circumstances, the
Claims Court correctly dismissed Resource Investments’
complaint as barred by § 1500.
                       AFFIRMED




here was filed after the District Court suit.” 131 S. Ct. at
1729–30.
     8   “The government has argued that Tecon’s order-
of-filing rule is no longer good law . . . .” Ministerio Roca
Solida v. United States, 778 F.3d 1351, 1361 n.4 (Fed. Cir.
2015) (Taranto, J., concurring).
     9   The six-year statute of limitations on the Claims
Court takings claim (28 U.S.C. § 2501) did not bar Re-
source Investments from dismissing and refiling because
the July 27, 1998, Ninth Circuit decision was less than
two years following the September 30, 1996, permit
denial.
