Passamaquoddy Tribe v. United States

# NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit

PASSAMAQUODDY TRIBE,
Plaintiff-Appellant,

V.
UNITED STATES
Defendant-Appellee.

2008-5110

Appeal from the United States Court of Federal
Claims in 06-CV-942, Judge Lynn J. Bush.

## ON MOTION

Before BRYSON, LINN, and PROST, Circuit Judges.
PROST, Circuit Judge.

ORDER

The United States moves to summarily affirm the
judgment of the United States Court of Federal Claims in
this case. The Passamaquoddy Tribe responds and does
not oppose affirmance. The United States replies.

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The Tribe filed a complaint in the Court of Federal
Claims seeking damages against the United States for the
alleged breach of its trust responsibilities. On the same
day, the Tribe filed a similar complaint in the United
States District Court for the District of Columbia. The
Court of Federal Claims dismissed the complaint, finding
the Tribe's suit barred pursuant to 28 U.S.C. § 1500. The
Tribe appealed to this court.

This court stayed the briefing schedule in this appeal
pending the United States Supreme Court's disposition in
United States v. Tohono O'odham Nation, 131 S.Ct. 1723
(U.S.,2011). In its decision, the Supreme Court reversed
this court's decision in Tohono O'odham Nation v. United
States, 559 F.3d 1284 (Fed. Cir. 2009), concluding that
under § 1500, the Court of Federal Claims lacked jurisdic-
tion over a suit when a suit based on substantially the
same operative facts, regardless of the relief sought, is
pending in a district court.

Summary affirmance of a case "is appropriate, inter
alia, when the position of one party is so clearly correct as
a matter of law that no substantial question regarding
the outcome of the appeal exists." Joshua v. United
States, 17 F.3d 378, 380 (Fed. Cir. 1994). In the present
case, it is clear that summary affirmance is warranted.

Accordingly,

IT IS ORDERED THAT:

(1) The motion is granted.

(2) Each side shall bear its own costs.

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PASSAMAQUODDY TRIBE v. US

FOR THE COURT

AUG 1 7 2011
Date

/s/ Jan Horbaly
Jan Horbaly
Clerk

cc: Keith M. Harper
Aaron P. Avila, Esq.
s20

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
AUG 1 7 2011

JAN HORBALY
CLERK