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Dico, Inc. v. United States

ELR Citation: 25 ELR 20979
Nos. No. 93-5124, 48 F.3d 1199/40 ERC 1346/(Fed. Cir., 02/24/1995)

The court holds that the U.S. Court of Federal Claims lacked jurisdiction under 28 U.S.C. §1500 over a manufacturer's claim for compensation under the Fifth Amendment to the U.S. Constitution for response costs the manufacturer incurred cleaning up contaminated groundwater pursuant to a U.S. Environmental Protection Agency (EPA) order under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). At the time the manufacturer filed this suit in the Court of Federal Claims, it had a pending district court action against the government in which it sought reimbursement for those same expenses under CERCLA §106(b). Although generally plaintiffs may maintain a cause of action in district court and in the Court of Federal Claims if they seek different relief in the two actions, the manufacturer did not in fact pursue different relief in the two suits. In both actions the manufacturer primarily sought compensation for losses already incurred. In its CERCLA suit filed in district court the manufacturer sought money from the government from a portion of its overall remediation costs. In the manufacturer's Court of Federal Claims suit, the manufacturer sought money from the government for the same expenses, in exactly the same amount, yet on due process and taking theories of law. The factual allegations, including especially the relevant cost elements, and the prayers for monetary relief and injunctive relief in the two actions are essentially the same. That the legal theories on which the manufacturer's claims rely are different does not mean that the relief is different.

Counsel for Plaintiff
Charles F. Lettow
Cleary, Gottlieb, Steen & Hamilton
1752 N St. NW, Washington DC 20036
(202) 728-2700

Counsel for Defendant
Robert L. Klarquist
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000