4 General Statutory Waivers Of Sovereign Immunity

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1 4 General Statutory Waivers Of Sovereign Immunity 4.01 CATEGORIZATION OF STATUTORY WAIVERS OF SOVEREIGN IMMUNITY: SPECIFIC AND GENERAL As discussed at the beginning of Chapter 3, 1 this treatise divides statutory waivers of sovereign immunity into two broad categories: specific waivers (Chapter 3) and general waivers (Chapter 4). Although this division is somewhat artificial, it has a principled basis and serves the purpose of organizing the multitude of statutes into understandable categories (at least for the author of this treatise). As used in this treatise, Specific Statutory Waivers of Sovereign Immunity (the focus of the previous chapter) denotes those statutes that waive the government s immunity for particular types of substantive claims, defined by the type of cause of action cognizable under the particular statute. General Statutory Waivers of Sovereign Immunity (the focus of this present chapter) includes those statutes that waive governmental immunity for general claims seeking a particular type of relief. In other words, the statutes addressed in this chapter waive immunity based primarily upon the form of relief allowed rather than the substantive nature of the claim. Two major statutes form the framework for this chapter, namely (1) the Tucker Act 2 which authorizes non-tort money claims against the United States; and (2) the Administrative Procedure Act 3 which authorizes claims for specific relief against the federal government.the century-old Tucker Act has been superseded in recent decades for certain types of claims that for- 1 See supra U.S.C. 1346(a)(2), See infra 4.02 to U.S.C See infra

2 226 Litigation With The Federal Government 4.02 merly fell within its purview, by such subsequent enactments as the Contract Disputes Act 4 and the Civil Service Reform Act. 5 Nonetheless, the discussion of contract claims and civilian employment claims in this treatise proceeds under the Tucker Act topic heading for practical organizational reasons and because the preexisting Tucker Act structure influenced Congress in developing the current statutory form for resolution of these claims. There are, of course, no true general waivers, that is, no statute that completely eliminates all incidents of sovereign immunity, even in a particular field of law or for a type of relief. Both the Tucker Act and the Administrative Procedure Act contain important limitations that will be highlighted in this chapter.at the close of this chapter, we examine the intersection of these two statutes, with attendant problems (or opportunities, depending on one s perspective) for forum-shopping between separatelycreated courts. PART A: THE TUCKER ACT AND RELATED NON-TORT MONEY CLAIMS TRIAL COURT JURISDICTION THE UNITED STATES COURT OF FEDERAL CLAIMS AND THE UNITED STATES DISTRICT COURT 4.02(a) The United States Court Of Federal Claims 4.02(a)(1) The Origins Of The Court Of Claims What today is the Court of Federal Claims shared its birth with that of the first significant grant of permission by the sovereign United States to its citizens to seek relief against it in the courts. 7 The United States Court of Claims was created by Congress in 1855 and given authority to hear claims 4 Contract Disputes Act of 1978, Pub. L. No , 92 Stat (codified at 41 U.S.C ). See infra 4.08(b). 5 Civil Service Reform Act of 1978, Pub. L. No , 92 Stat (codified as amended in scattered sections of 5 U.S.C.). See infra 4.05(b). 6 Much of the material in Part A of this chapter originally appeared in Gregory C. Sisk, The Tapestry Unravels: Statutory Waivers of Sovereign Immunity and Money Claims Against the United States, 71 GEO.WASH.L.REV. 602 (2003). 7 Richard H. Seamon, Separation of Powers and the Separate Treatment of Contract Claims Against the Federal Government for Specific Performance, 43 VILL. L. REV. 155, (1998).

3 4.02(a)(1) General Sovereign Immunity Waivers 227 against the United States founded upon federal statutes, regulations, and contracts. 8 Prior to 1855, individuals with contract or other monetary claims against the federal government had been barred by sovereign immunity from seeking redress in court, and thus were left to petition Congress to enact legislation in the form of private bills appropriating funds to pay those claims. As originally conceived, the Court of Claims had authority only to make recommendations to Congress to pay claims, thereby serving as an advisor to Congress regarding the merits of such claims. 9 President Lincoln urged Congress to give the power of making judgments final to the Court of Claims, arguing that [i]t is as much the duty of Government to render prompt justice against itself, in favor of its citizens, as it is to administer the same between private individuals. 10 As President Lincoln requested, and under the deluge of Civil War claims, 11 Congress acted in 1863 to grant the Court of Claims power to make binding and final judgments with appellate review by the Supreme Court. 12 From an historical and a practical perspective, it is not at all surprising that the very first congressional waiver of the United States immunity from legal action and liability was focused primarily upon disputes involving government contractors. Dean Harold J. Krent explains that [t]he [pre-civil War waiver of immunity from contract suit] was viewed as indispensable to the efficient operation of government, for without it, qualified private contractors might not undertake government projects and the government could not obtain the goods and services it needed at affordable prices. 13 Professor Gillian Hadfield writes that the waiver of sovereign immunity in contract cases served not only practical ends but promoted democratic theory: The ability of the sovereign to bind itself in contract has been an important step in the evolution of the modern democratic state. 8 Act of February 24, 1855, ch. 122, 10 Stat Michael F. Noone, Jr. & Urban A. Lester, Defining Tucker Act Jurisdiction After Bowen v. Massachusetts, 40 CATH. U. L. REV. 571, 575 (1991); William M. Wiecek, The Origin of the United States Court of Claims, 20 ADMIN.L.REV. 387, 397 (1968). 10 CONG.GLOBE, 37th Cong., 2d Sess., app. 2 (1862). 11 C. Stanley Dees, The Future of the Contract Disputes Act: Is It Time to Roll Back Sovereign Immunity?, 28 PUB.CONT. L.J. 545, 546 (1999). 12 Act of March 3, 1863, ch. 92, 12 Stat Harold J. Krent, Reconceptualizing Sovereign Immunity, 45 VAND. L.REV. 1529, 1565 (1992).

4 228 Litigation With The Federal Government 4.02(a)(2) Through the use of contracts, government has been able to perform its functions more effectively by drawing on private resources to deliver governmental goods and services. Politically, by honoring its contracts, government has reinforced its democratic legitimacy as a government subject to the rule of law. 14 In 1886, Representative John Randolph Tucker introduced a bill in Congress to revise the jurisdiction and procedures of the Court of Claims and to replace the earlier 1855 and 1863 statutes. 15 The Tucker Act, 16 enacted in 1887, remains the foundation stone in the adjudication of money claims against the United States. 17 This statute confirmed the powers and nationwide jurisdiction of the Court of Claims over money claims (other than in tort) based upon federal statutes, executive regulations, and contract, and also expanded that court s authority to include actions based upon the Constitution. Moreover, the Tucker Act granted the then-circuit courts (what today are the District Courts) concurrent jurisdiction with the Court of Claims over monetary claims not exceeding $10,000 in amount. 18 With certain structural modifications, 19 the substance of the Tucker Act has been remarkably stable during the past century. 4.02(a)(2) The Modern Reconstitution Of The Court Of Claims Into The Court Of Federal Claims During the past quarter century, the former Court of Claims has been reconstituted once and renamed twice: First, the Federal Courts Improvement Act of 1982 (FCIA) 20 bifurcated the original Court of Claims into two separate but related judicial entities. The old Court of Claims was an Article III court, with its judges being ap- 14 Gillian Hadfield, Of Sovereignty and Contract: Damages for Breach of Contract by Government,8 S.CAL.INTERDISC. L.J. 467, 467 (1999). 15 H.R. 6974, 59th Cong. (1886). See generally United States v. Mitchell, 463 U.S. 206, 213 (1983). 16 Tucker Act, ch. 359, 24 Stat. 505 (1887) (codified as amended in scattered sections of 28 U.S.C.). As discussed below, see infra 4.02(b), the substance of the Tucker Act is found primarily in 28 U.S.C. 1346(a)(2) (the Little Tucker Act ) and 1941 (the Big Tucker Act ). 17 Dees, supra note 11, at Noone & Lester, supra note 9, at 575. The concurrent jurisdiction of the District Courts over the Little Tucker Act claims is codified today at 28 U.S.C. 1346(a)(2). See infra 4.02(c). 19 On contract claims, see infra 4.05, and on civilian employment law claims, see infra Pub. L. No , 96 Stat. 39 (codified as amended in scattered sections of 28 U.S.C.).

5 4.02(a)(2) General Sovereign Immunity Waivers 229 pointed for life tenure, as with judges on the federal District Courts and Courts of Appeals. 21 As part of the FCIA, Congress established the slightly renamed United States Claims Court as the trial court for Tucker Act claims. and then created the United States Court of Appeals for the Federal Circuit to hear appeals involving these and other claims. 22 Congress designated the Claims Court as an Article I court 23 that is, a court created by Congress pursuant to its legislative powers under Article I of the Constitution and that is comprised of judges who do not have the life-tenure protection guaranteed to members of the regular federal judiciary by Article III of the Constitution. The creation of the Federal Circuit, however, preserved appellate review by an Article III court. In a comprehensive history of the Federal Courts Improvement Act of 1982, Professor Richard H. Seamon explains that this creation of a new trial court was incidental to the creation of the Federal Circuit as the new appellate court with authority over patent appeals as well as appeals from the then- Claims Court. 24 Professor Daniel J. Meador (who should be recognized as the father of the court due to his essential work on court reform legislation while serving in the Department of Justice) confirms that the creation of the Claims Court was incidental, not unimportant, but incidental in the sense that the primary concern [of the Congress] was with appellate matters. 25 In many respects, the division of trial and appellate authority between the then-claims Court and the Federal Circuit was a continuation of preexisting adjudication practice in the former Court of Claims. 26 Before enactment of the FCIA in 1982, Congress had authorized trials to be conducted before non-article III trial commissioners, with appellate review by the Article III judges on the Court of Claims. 27 By advancing from the prior system of court commissioners who handled trial matters in government claims cases to Article I judges with final-judgment authority, the 1982 legislation 21 Glidden Co. v. Zdanok, 370 U.S. 530, 584 (1962) (declaring that the Court of Claims was an Article III court). 22 FCIA 105(a), 133(a), 96 Stat See generally Seamon, supra note 7, at 178 n U.S.C. 171(a). See infra 4.02(a)(3). 24 Richard H. Seamon, The Provenance of the Federal Courts Improvement Act of 1982,71 GEO.WASH. L. REV. 543, 545, (2003). 25 Daniel J. Meador, Origin of the Claims Court, 71 GEO.WASH.L.REV. 599, 599 (2003). 26 See generally Seaboard Lumber Co. v. United States, 903 F.2d 1560, 1565 (Fed. Cir. 1990); Strom Thurmond, Introduction: United States Claims Court Symposium, 40 CATH. U. L. REV. 513, 513 (1991) U.S.C

6 230 Litigation With The Federal Government 4.02(a)(3) upgraded the trial forum for government claims and made it more efficient, 28 while preserving the appellate review by Article III judges, now those on the Federal Circuit. Second, in 1992, the Claims Court was renamed the United States Court of Federal Claims. 29 The court retains that denomination to this day. While the courthouse for the Court of Federal Claims is in the nation s capital, the court s judges regularly hold sessions at other locations with a view to securing reasonable opportunity to citizens to appear before the Court of Federal Claims with as little inconvenience and expense to citizens as is practicable. 30 By statute, hearings of the court shall, if convenient, be held in the counties where the witnesses reside. 31 Indeed, the court may also hold hearings in foreign countries whose laws do not prohibit such proceedings and when the interests of economy, efficiency, and justice will be served. 32 Thus, the court regularly sits outside of Washington, D.C. and schedules hearings and trials in places of greater convenience to the plaintiffs and the witnesses. 4.02(a)(3) The Article I Status Of The Court Of Federal Claims An Article I court consists of judges who are appointed, not for life as are Article III judges, but for a term of years. 33 In Northern Pipeline Construc- 28 Seamon, supra note 24, at Federal Courts Administration Act of 1992, Pub. L. No , 902, 106 Stat. 4506, 4516 (codified in scattered sections of 18 and 28 U.S.C.). On the jurisdictional and structural reforms that accompanied the name change in 1992, see generally Loren A. Smith, The Renovation of an Old Court, 40 FED.B.NEWS & J. 530 (1993) U.S.C Id. 2503(c). 32 Id. 798(b). 33 On the validity of Article I or Legislative courts when appellate review by an Article III court is afforded, see generally Richard H. Fallon, Of Legislative Courts, Administrative Agencies, and Article III, 101 HARV. L. REV. 915, (1988) (stating that the decision whether to use non article III bodies to make initial determinations even of constitutional law should be largely discretionary with Congress, provided that decisions by such non- Article III tribunals are reviewable on appeal by an Article III appellate court); Richard B. Saphire & Michael E. Solimine, Shoring Up Article III: Legislative Court Doctrine in the Post CFTC v. Schor Era, 68 B.U. L. REV. 85 (1988) (generally arguing that the availability of further review in an Article III court constitutionally legitimates non-article III tribunals); Floyd D. Shinomura, The History of Claims Against the United States: The Evolution from a Legislative Toward a Judicial Model of Payment, 45 LA. L. REV. 625, (1985) (arguing