Opinion
Nos. 89-1638, 89-1639 and 89-1648.
November 29, 1990.
Joe G. Hollingsworth, Spriggs Hollingsworth, Washington, D.C., argued for plaintiffs-appellants in nos. 89-1638, -1639. With him on the brief was William J. Spriggs, Washington, D.C. Also on the brief were Paul G. Gaston and Catherine R. Baumer, Washington, D.C., Paul C. Warnke, Clifford Warnke, Washington, D.C., was on the brief for plaintiff-appellant in no. 89-1648. With him on the brief were Harold D. Murray, Jr. and Philip H. Hecht, Washington, D.C. Also on the brief were John E. Kidd, Anderson Kill Olick Oshinsky, P.C., New York City, and Lauren B. Homer, Anderson Kill Olick Oshinsky, P.C., Washington, D.C.
David S. Fishback, Senior Trial Counsel, Dept. of Justice, Washington, D.C., argued for defendant-appellee. With him on the brief were Stuart M. Gerson, Asst. Atty. Gen., J. Patrick Glynn, Director, Harold J. Engel, Deputy Director and Douglas C. Page, Trial Atty., Washington, D.C. Also Robert M. Loeb and Barbara C. Biddle, Dept. of Justice, Washington, D.C., were on the Petition for Rehearing and Suggestion for Rehearing In Banc.
Appeal from the United States Claims Court.
Before RICH, MAYER and PLAGER, Circuit Judges.
ON PETITION FOR REHEARING [2] ORDER
On August 30, 1990, the Government filed a combined Petition for Rehearing and Suggestion for Rehearing In Banc in UNR Indus., Inc. v. United States, 911 F.2d 654 (Fed. Cir. 1990).
A timely filed Government motion for an extension of time in which to file a petition was granted.
In its petition, the Government noted, and we have confirmed, that Eagle-Picher (E-P), the appellant in appeal No. 89-1639, had a petition for writ of certiorari pending before the Supreme Court on June 1, 1989, the date the Claims Court judge ruled on the Government's motion to dismiss under 28 U.S.C. § 1500 (1988). This fact was not disputed by E-P in its response to the Government's petition.
Section 1500 states:
The United States Claims Court 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 . . . [emphasis added].
There can be no doubt that a petition for writ of certiorari is a "suit or process" within the meaning of § 1500. Therefore, because E-P had a suit or process in the form of a petition for writ of certiorari pending before the Supreme Court at the time the Claims Court entertained and acted on the Government's § 1500 motion, § 1500 bars Claims Court jurisdiction as to E-P.
Therefore, our judgment in UNR Indus., Inc. v. United States, 911 F.2d 654 (Fed. Cir. 1990) is modified by this order only to the extent that the order of the Claims Court dismissing the suit by E-P in appeal No. 89-1639 for lack of jurisdiction is affirmed. The petition for rehearing is denied with respect to appeal Nos. 89-1638 and 89-1648. Judge Mayer concurs in the affirmance of the dismissal of E-P's appeal.