Chapter § 6.02 Actions for Money Damages
| Jurisdiction | United States |
| Publication year | 2020 |
§ 6.02 Actions for Money Damages
[1] The United States Court of Federal Claims
In the early to mid-1850s, Congress satisfied monetary claims against the United States by enacting private bills (i.e., a bill that provides a benefit to a specific person).12 As that process became more cumbersome, in 1855, Congress created the Court of Claims to “hear and determine all claims founded upon any law of Congress, or upon any regulation of an executive department, or upon any contract, express or implied, with the government of the United States.”13 But the court operated merely as an advisory body, making recommendations to Congress, which had final say over whether to pass a private bill to effectuate a decision.14 This process proved increasingly unworkable to resolve a growing number of Civil War claims. In 1863, at the urging of President Lincoln, Congress authorized the Court of Claims to enter final judgments.15
In 1982, Congress split the Court of Claims into an appellate tribunal and trial court. The trial division of the court became the Claims Court.16 Congress merged the appellate division of the court with the Court of Customs and Patent Appeals to create the Court of Appeals for the Federal Circuit (the “Federal Circuit”).17 In 1992, Congress renamed the Claims Court, the “Court of Federal Claims.”18 Today, the Court of Federal Claims now consists of 17 judges appointed by the President and confirmed by the Senate for 15-year terms. Judges who have completed their terms may continue to hear cases as senior judges.19 The Federal Circuit has exclusive jurisdiction to hear appeals from the Court of Federal Claims, from certain administrative agencies, and claims arising under certain statutes.20 We begin by discussing several important aspects of the Court of Federal Claims.
[a] The Tucker Act
The jurisdiction of the Court of Federal Claims to hear suits against the United States is limited: As we discussed in section 6.01, “[t]he United States, as sovereign, is immune from suit save as it consents to be sued.”21 “The Constitution does not refer to sovereign immunity, and the rules pertaining to the defense are judge made.”22 Critically, a waiver of immunity cannot be implied but must be “unequivocally expressed.”23 The Tucker Act, the principal statute governing the Court of Federal Claims’ jurisdiction, waives sovereign immunity for “any claim against the United States founded either upon the Constitution, or any Act of Congress [i.e, a statute] or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.”24 The Tucker Act has two companion statutes that also waive sovereign immunity. The Little Tucker Act gives district courts “original jurisdiction, concurrent with the [Court of Federal Claims]” of any “civil action or claim against the United States, not exceeding $ 10,000 in amount.”25 And, as discussed below, the Indian Tucker Act confers jurisdiction on the Court of Federal Claims to hear any claim brought by Native American tribes against the United States that “is one which otherwise would be cognizable in the Court of Federal Claims if the claimant were not an Indian tribe.”26
These statutes do not create substantive rights; they are purely jurisdictional provisions that operate to waive sovereign immunity for claims premised on other sources of law (e.g., statutes or contracts).27 A claimant must identify that separate source of substantive law that creates the right to money damages to establish jurisdiction.28 The test for determining whether a source of law can support jurisdiction is whether it can be “fairly be interpreted as mandating compensation by the Federal Government for the damages sustained.”29 This is referred to as the requirement for a “money-mandating” source of law.30
[b] Statute of Limitations
The statute of limitations applicable to the Court of Federal Claims is “jurisdictional.”31 Section 2501 of the Judicial Code provides that “[e]very claim of which the [Court of Federal Claims] has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues.”32 Thus, where a statute conferring the substantive right to bring suit in the Court of Federal Claims has a shorter or longer statute of limitations for private parties, the six-year limitations period applicable to the Court of Federal Claims will generally trump the statutorily prescribed period.33 It is generally stated that a claim “first accrues” when all the events have occurred which fix the alleged liability of the defendant and entitle the plaintiff to institute an action.34 The “proper focus, for statute of limitations purposes, ‘is upon the time of the [defendant’s] acts, not upon the time at which the consequences of the acts became most painful.”35 A claim doesn’t accrue unless the claimant knew or should have known that it existed.36 To demonstrate ignorance of a claim, a claimant must show either that the federal government “has concealed its acts with the result that plaintiff was unaware of their existence or [that plaintiff’s] injury was ‘inherently unknowable’ at the accrual date.”37 Whether the pertinent events have occurred is determined under an objective standard; “a plaintiff does not have to possess actual knowledge of all the relevant facts in order for the cause of action to accrue.”38
[c] Rules of the Court of Federal Claims
The Court of Federal Claims has adopted its own rules of procedure under the authority Congress bestowed in section 2503(b) of the Judicial Code.39 These rules incorporate and are based on the Federal Rules of Civil Procedure applicable to civil actions tried by a U.S. district court sitting without a jury.40 In fact, for ease of reference to comparable rules, chapter titles and numbers of rules of the Court of Federal Claims are identical to chapter titles and numbers contained in the Federal Rules of Civil Procedure.41 Local rules applicable only in Court of Federal Claims actions are set forth in Titles X and XI of rules or in separate appendices.42 Appendix A of the rules outlines case management procedures that may be modified by a judge “[f]or the purpose of promoting the efficient administration of justice.”43
[d] Class Actions
Class actions in the Court of Federal Claims are governed by the court’s Rule 23 (the “COFC Rule”).44 This rule is largely modeled on Federal Rule of Civil Procedure 23, but there are significant differences between the two rules. In the main, like Federal Rule 23, the court may certify a class action under COFC Rule 23 if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.45 Also, the court must find that the United States has acted or refused to act on grounds generally applicable to the class, “that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for . . . adjudicating the controversy.”46
However, “[b]ecause the relief available in this court is generally confined to individual money claims against the United States, the situations justifying the use of a class action are correspondingly narrower than those addressed” in Federal Rule 23.47 For instance, COFC Rule 23 does not accommodate the factual situations redressable through declaratory and injunctive relief contemplated under Federal Rule 23(b)(1) and (b)(2).48 Also, unlike the Federal rule, the court’s rule contemplates only opt-in class certifications, not opt-out classes. Opt-out classes are “viewed as inappropriate . . . because of the need for specificity in money judgments against the United States, and the fact that the court’s injunctive powers—the typical focus of an opt-out class—are more limited than those of a district court.”49 Finally, the Court of Federal Claims’ Rule 23 does not contain a provision comparable to Federal Rule 23(f), providing that a court of appeals may permit an appeal from an order granting or denying class-action certification.50 Still, the Court of Federal Claims may certify questions to the Federal Circuit under section 1292(b) or 1295 of the Judicial Code.51
[2] Waivers of Federal Sovereign Immunity
[a] Bid Protests
Federal agencies obligated $500 billion through contracts for products and services in fiscal year 2017.52 Procurement statutes and regulations, such as the Competition in Contracting Act of 1984 (“CICA”)53 and Federal Acquisition Regulations System (“FAR”),54 establish mostly uniform standards for how agencies acquire goods and services. The procurement statutes also provide limited waivers of sovereign immunity to allow contractors to “protest” (i.e., object to) solicitations and contract awards when federal agencies fail to comply with procurement laws. A protest can be lodged in three different venues: (1) the procuring agency, (2) the Government Accountability Office (“GAO”), or (3) the Court of Federal Claims.55 While these forums share some common features, such as using the same definition of “interested party” to govern who may file a valid protest,56 the procedures and available remedies vary in each one. Also, parties that disagree with the outcome of a bid protest before a procuring agency or GAO can often still file protests before the Court of Federal Claims, but the reverse route (filing a protest with a procuring agency or GAO after an adverse decision in the Court of Federal Claims) is generally impermissible due to timeliness requirements for filing at the agency and GAO.57
[i] Protests Before the Procuring Agency
Provisions of FAR...
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