220
Stevens, J., dissenting
of a century ago, see Brown v. United States, 175 Ct. Cl. 343, 358 F. 2d 1002 (1966),3 and I see no reason to interpret it now as a broader prohibition on pretrial proceedings.
It is true that an earlier version of § 1500 provided that a claimant may not "file or prosecute" an action in the Court of Federal Claims while another action is pending. Ante, at 208. That original text, however, did not prescribe the consequences of a prohibited filing. In view of the fact that the text did not then mention the word "jurisdiction," there is nothing to suggest that pendency of another action would have to be treated as a defect warranting automatic dismissal.4 Instead, given the plain statement of the legislation's sponsor that he intended to force an election of remedies before trial, see n. 1, supra, this earlier language is fairly construed as giving the Government the right to avoid duplicative litigation by having the Court of Claims action
3 "At the present time, therefore, the only claim for just compensation pending in a court is that stated in the plaintiffs' petition in this court.
"In these circumstances we grant the motions for rehearing, vacate our prior order dismissing the petition, and now deny the defendant's motion to dismiss. Our earlier order of dismissal was predicated on the fact that the other 'claim remains pending in the said District Court.' That is no longer true, and the claim is no longer 'pending in any other court.' In this situation, we do not believe that 28 U. S. C. § 1500 requires us to deprive plaintiffs of the only forum they have in which to test their demand for just compensation." Brown, 175 Ct. Cl., at 348, 358 F. 2d, at 1004.
See also Boston Five Cents Savings Bank, FSB v. United States, 864 F. 2d 137, 139 (CA Fed. 1988) (staying Court of Federal Claims action while District Court action pending); Prillman v. United States, 220 Ct. Cl. 677, 679 (1979) (same).
4 As Justice Holmes pointed out, in a similar context, "no one would say that the words of the Mississippi statute of frauds, 'An action shall not be brought whereby to charge a defendant,' go to the jurisdiction of the court. Of course it could be argued that logically they had that scope, but common sense would revolt." Fauntleroy v. Lum, 210 U. S. 230, 235 (1908) (internal citation omitted).
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