Kilpatrick Stockton Native American Team Wins Key Jurisdictional Ruling In Federal Circuit

WASHINGTON, DC (MARCH 19 – LAWFUEL) – On March 16, 2009, the U.S. Court of Appeals for the Federal Circuit in Tohono O’odham v. United States handed down a key jurisdictional decision upholding the right of the Tohono O’odham Nation to pursue its claims in the U.S. Court of Federal Claims for gross breaches of trust duties by the United States in mismanagement of the Nation’s trust property. The decision will have implications for numerous other tribes that have similar trust claims pending in the Court of Federal Claims (CFC).

In the CFC, the court dismissed the Nation’s case for lack of jurisdiction based upon a post-Civil War statute that prohibits a litigant from filing a claim in the CFC when it has the same claim pending in another court. In late 2006, the Nation filed an action for an historical accounting in the U.S. District Court to compel the government to provide it with a full and complete accounting of all trust assets and a restatement of its accounts to correct any errors discovered in the accounting. It also filed suit in the CFC seeking money damages for breaches of trust in the management and investment of the Nation’s trust assets. In dismissing the case, the CFC held the claims in each court were the same because they arose from the “same operative facts” and sought the “same relief.” Specifically, the court held that the plaintiff sought the same relief in both courts because both cases asked for an accounting and both had monetary consequences.

In a 2-1 decision, the Federal Circuit has now reversed. The majority held the two suits did not present the “same claims” because the equitable relief sought in the District Court is not the same relief as the money damages sought in the CFC. In particular, the court held that the money damages sought in the CFC for money that should have been earned through prudent management and investment of trust assets but in fact was not did not constitute the same relief as the restatement of the Nation’s accounts in the District Court that would return money missing from the Nation’s accounts. In addition, the court held that the Nation’s request for an equitable accounting of all of its trust assets in the District Court did not seek the same relief as its claims in the CFC merely because the CFC might require a post-liability accounting in aid of its judgment to determine the amount of money damages owed.

The Nation was represented on appeal by Kilpatrick Stockton’s Native American Practice Group and its Appellate Team. Appellate lawyer Mark Levy argued the case.

Mr. Levy recently argued his 16th case in the U.S. Supreme Court, and the National Law Journal referred to him as one of the “ ‘ who’s who’ of Supreme Court bar veterans arguing this term.” He has been involved in well over 100 cases on the merits before the Court, served as Deputy Assistant Attorney General in the Civil Division at the Department of Justice in the Clinton Administration, and previously was an Assistant to the Solicitor General. Mr. Levy is a member of the Advisory Committee for the Federal Rules of Appellate Procedure and on the adjunct faculty at the University of Virginia Law School. He is also a Fellow of the American Academy of Appellate Lawyers and a Master in the Edward Coke Appellate American Inn of

Mr. Levy is an appellate columnist for National Law Journal and is frequently quoted by some of the world’s leading news organizations. He is also listed in various publications such as Chambers USA: America’s Leading Business Lawyers for Appellate Law, The Best Lawyers in America (Appellate), The Best Lawyers in Washington, D.C. (Appellate), Washington, D.C. Super Lawyers, Who’s Who in America, Who’s Who in American Law, Who’s Who Legal: USA — Commercial Litigation, and Lawdragon 3000 Leading Lawyers in America.

About Kilpatrick Stockton’s Native American Affairs Practice

The Native American Affairs Practice provides comprehensive legal services to Native Americans and tribal governments to achieve their objectives. Kilpatrick Stockton lawyers have represented tribal governments in matters involving the expansion, enhancement and protection of tribal sovereignty, the enforcement of the federal trust responsibility, holding the United States accountable for commitments both treaty-based and statutory, the protection of land and natural resources, federal recognition, gaming and financing of tribal projects. We are committed to preserving, promoting and protecting tribal sovereignty and self-determination for Indian Nations, and are dedicated to providing top-notch legal services to aid tribal governments in achieving the goals they have articulated for their communities. We strongly believe in the furtherance of the government-to-government relationship between tribes and the United States and in ensuring that the legal commitments that have been made by the U.S. government to the Indian Nations are honored.

About Kilpatrick Stockton LLP

Kilpatrick Stockton LLP is a full-service international law firm with more than 500 attorneys in nine offices across the globe: Atlanta and Augusta, GA.; Charlotte, Raleigh and Winston-Salem, NC.; New York, NY; Washington, D.C.; Dubai; London; and Stockholm. Kilpatrick Stockton’s delivery of innovative business solutions provides results-oriented counsel for corporations, from the challenging demands of financial transactions and securities to the disciplines of intellectual property management. Collaboration among Kilpatrick Stockton’s corporate, litigation and intellectual property attorneys provides knowledgeable and proactive guidance for companies at every stage of the business life cycle. Kilpatrick Stockton was recently recognized as the North American Law Firm of the Year for IP as well as for Excellence in Trademark Practice/Litigation in North America at the recent 2008 World Leaders International IP Awards program in London. For more information, please visit


Scroll to Top