The Housing Authority for the City of Slidell sued the Federal government in the Court of Federal Claims, asserting claims arising out of Department of Housing and Urban Development contract called an Annual Contributions Contract (“ACC”). The Federal government moved to dismiss Slidell’s suit for lack of jurisdiction. The Federal government contended that claims arising under ACC’s belong in district court pursuant to the Administrative Procedures Act.
The court noted that the Federal government’s position in the United States Court of Federal Claims (“COFC”) was inconsistent with the position it had taken in another case pending before the Seventh Circuit. In the Seventh Circuit case, the Federal government argued that claims arising under a HUD ACC are essentially breach of contract claims that fell under the COFC’s Tucker Act jurisdiction.
During oral argument on the Federal government’s motion to dismiss, the court asked the Federal government to address the conflicting positions. The Federal government alleged its positions on jurisdiction were not inconsistent pointing to a confession of error brief that had been authorized by the Solicitor General and filed in the case pending before the Seventh Circuit. The Federal government claimed that its position was that the district court, not the COFC, has jurisdiction over ACC claims. The court determined that the Federal government’s characterization of the confession of error brief was false. Instead of asserting that the district court had exclusive jurisdiction over ACC claims, the brief admitted that district courts have concurrent jurisdiction with the COFC.
In light of this, the court denied the Federal government’s motion to dismiss. The court ordered the government to file a supplemental brief explaining whether (1) it stood by the its view in the as articulated in the Seventh Circuit that the COFC and district courts have concurrent jurisdiction, or (2) it believed the claims in the Seventh Circuit case were somehow distinguishable from the claims before the COFC. The court concluded the order by noting that if the Federal government did not file a brief, the court would understand that the government’s current view was consistent with the position it took in the Seventh Circuit—i.e., that the district courts and the COFC have concurrent jurisdiction.
The Federal government did not file a supplement brief. The court ordered a status conference to give the Federal government another opportunity to explain itself. At the conference, the Federal government asserted that it did not file a brief because it did not want to waste the court’s or the parties’ time rehashing arguments that had already been addressed, and that the Federal government did not believe that a brief would meaningfully advance the case. When pressed further, the Federal government claimed that its position was perhaps that the Seventh Circuit case was distinguishable from the COFC case. That distinction, the Federal government now claimed, was not based on difference provision in the ACC’s but rather on the ways in which the claims had been pleaded in the complaints in each case.
The court did not accept the Federal government’s argument and reasoned that by not filing a brief, the Federal government had effectively made a false representation the court. As noted, the court’s order stated that the court would understand the failure to file a brief as meaning that the Federal government’s position was consistent with its concurrent-jurisdiction position asserted in the Seventh Circuit. But if that was the case, then the Federal government’s previous argument—that district courts have sole jurisdiction over ACCs—had misrepresentation.
The court further opined that the government’s position at the status conference amounted to a failure to follow the court’s order. Nothing in the court’s order on supplemental briefing allowed the Federal government to decline to file a supplemental brief while simultaneously avoiding an admission that the court properly ruled on the motion to dismiss. The court’s order had given the Federal government three options: (1) file a brief explaining how its position was consistent with its position in the Seventh Circuit, (2) file a brief explaining how this case was distinguishable from the Seventh Circuit, or (3) not a file brief in which case the court would assume that the Federal government had adopted the position it taken before the Seventh Circuit. The court found, however, that the Federal government had improperly elected a fourth option: decline to file a supplement while taking an undisclosed stealth position contrary to the court’s order.
The court reasoned, in declining to file a supplemental brief, the Federal government had failed to disclose its true view regarding the court’s jurisdiction over ACC cases. In fact, the government had, in effect, affirmatively represented to the court a view of jurisdiction—district courts only—to which it did in fact subscribe. The court noted that it had spent countless hours trying to untangle the Federal government’s mismatched arguments, and it still didn’t know whether the Federal government’s positions were reconcilable.
Ultimately, it appeared to the court that the Federal government was trying to avoid a judicial estoppel to preserve various inconsistent positions on ACC jurisdiction in different cases pending before different courts. As the court noted, however, the purpose of the doctrine of the judicial estoppel is to protest the integrity of the judicial system, and the Federal government’s equivocation on this issue was creating confusion and wasting time.
The court reserved judgment on whether it should sanction the Federal government. Instead, it ordered the Federal government to file a supplemental brief explaining whether and how its position in this case was distinguishable from its position before the Seventh Circuit.