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2.5 Litigation Against the Government

Updated 2015 by Jeffrey S. Gutman

Section 1331 is the principal basis of federal jurisdiction in litigation against the federal government and its agencies for injunctive relief. Under Bivens v. Six Unknown Named Agents, individual employees of the federal government are subject to suit for damages for acts in violation of plaintiffs’ federal constitutional rights.Jurisdiction over such actions is also provided by § 1331. In addition, Congress has enacted a variety of specific jurisdictional statutes governing particular kinds of litigation against the government based on the nature of the judicial proceeding or the subject matter of the controversy. These jurisdictional grants may also contain specific remedial provisions that establish conditions to suit or create immunities.

2.5.A. Mandamus Jurisdiction

Section 1361 of Title 28 confers on the district courts “jurisdiction of any action in the nature of mandamus to compel” a federal officer, employee, or agency “to perform a duty owed to the plaintiff.” The mandamus jurisdiction conferred by this provision is available only if the plaintiff has a clear right to relief, the duty breached is “a clear nondiscretionary duty,”2 and no other remedy is available.If a federal official, however, goes far beyond “any rational exercise of discretion,” mandamus may lie even when the action is within the statutory authority granted.4 The significance of this statute as a separate source of federal jurisdiction has faded with the abolition of the amount in controversy requirement for federal question jurisdiction and with the elimination of the sovereign immunity defense to suits against federal agencies, officers, and employees for injunctive relief.5

2.5.B. Administrative Procedure Act

The Administrative Procedure Act creates a cause of action against agencies of the federal government acting under federal law. The Act authorizes judicial review, establishes the form and venue of judicial review proceedings, states what agency actions are reviewable, and describes the scope of review of such actions.6 The Act eliminates the defense of sovereign immunity in cases seeking relief other than money damages and claiming that a federal agency, officer, or employee acted or failed to act in an official capacity or under color of legal authority.7

While these judicial review sections of the Act are important in providing for judicial review of agency action and describing its scope, they do not of their own force confer jurisdiction on the district courts.8 A plaintiff bringing an action under the APA, therefore, must also have a jurisdictional foundation for the action. Federal question jurisdiction under § 1331 is typically available for claims under the APA.9

2.5.C. Tucker ActDamage Claims Against the Federal Government

The Tucker Act gives the U.S. Court of Federal Claims jurisdiction

to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress 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.10

When it applies, the Tucker Act provides the exclusive method by which to file actions against the United States.11

For damage claims of $10,000 or less, the U.S. Court of Federal Claims and federal district courts have concurrent jurisdiction.12 If the claim is over $10,000, the Court of Federal Claims has exclusive jurisdiction.13 If a plaintiff wishes to remain in district court instead of the Court of Federal Claims, the plaintiff may waive all damages over $10,000.14 If a plaintiff has multiple claims, none of which individually exceeds $10,000, the claims are not aggregated for jurisdictional purposes.15 The Court of Federal Claims is also authorized to grant very limited equitable relief and declaratory judgments, most notably in cases involving termination of government contracts and challenges to awards of such contracts.16

The Act creates no substantive rights; it confers jurisdiction and waives sovereign immunity over claims based on a “money-mandating” constitutional provision or statute or contract that themselves create the right to damages against the United States.17 The Tucker Act, therefore, can be used as the jurisdictional basis for claiming government benefits provided for by a substantive statute. The statute of limitations for bringing a claim is six years.18

In some cases, the exclusive jurisdiction of the Court of Federal Claims over damage claims exceeding $10,000 is not a bar to a plaintiff’s request for equitable relief from a district court if there is another basis for federal jurisdiction.19  The district courts have jurisdiction over mixed claims involving both injunctive (or declaratory) relief and monetary relief that does amount technically to “damages” in excess of $10,000.20 On the other hand, courts look behind the pleadings to determine whether the jurisdictional provisions of the Tucker Act apply.21 A plaintiff may not avoid jurisdiction in the Court of Federal Claims by “framing a complaint in the district court as one seeking injunctive, declaratory, or mandatory relief when, in reality, the thrust of the suit is one seeking money [damages] from the United States.”22

All appeals from non-tax claims under the Tucker Act, whether arising in the Court of Federal Claims or district courts, go to the U.S. Court of Appeals for the Federal Circuit.23 The Federal Circuit also has exclusive jurisdiction of appeals from the district courts that contain a mixture of Tucker Act and Federal Tort Claims Act claims.24

2.5.D. Federal Tort Claims Act

Pursuant to the Federal Tort Claims Act (FTCA),

district courts . . . have exclusive jurisdiction of civil actions on claims against the United States, for money damages, . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.25

Under the FTCA, federal district courts may entertain tort claims for damages against the United States based on the actions of government employees in cases in which the United States has not abrogated its sovereign immunity under the Tucker Act. The FTCA’s consent to be sued and waiver of sovereign immunity apply only to cases in which “a private person” would be liable. Further, under the statute, the United States is exempt from (i.e., it has not waived its sovereign immunity for) claims based on discretionary acts of government employees,26 claims based on injury suffered in a foreign country,27 intentional torts,28 claims requiring an inquiry into sensitive military matters,29 and misrepresentation.30

The extent of the United States’ liability under the Act is determined by state law, except that punitive damages are not allowed.31 The Supreme Court, however, has liberally permitted damages that were more than a plaintiff’s actual loss, as long as the damages were not intended to punish the defendant for intentional actions.32

The Act also imposes certain procedural prerequisites to filing a suit in district court. For instance, before filing a civil action, a plaintiff must “file an administrative claim to the appropriate Federal agency” within two years after the claim accrues.33 The administrative claim must specify the amount requested by way of compensation, and a plaintiff may not later in court seek an amount in excess of the administrative claim.34   If the agency does not dispose of the administrative claim within six months, the claimant may consider the lack of decision to be a final denial and proceed to court.35 If the agency denies the administrative claim, suit must be filed within six months of the date of mailing of such denial.36


Updated 2015 by Jeffrey S. Gutman

1.Bivens v. Six Unknown Named Agents, 403 U.S. 388, 397 (1971). Suits against federal employees in their individual capacities are not suits against the United States for purposes of venue or service of process.

2. Pittston Coal Group v. Sebben, 488 U.S. 105, 121 (1988) (quoting Heckler v. Ringer, 466 U.S. 602, 616 (1984)); see also Ingalls Shipbuilding Inc. v. Asbestos Health Claimants, 17 F.3d 130, 133 (5th Cir. 1994) (“Mandamus is only appropriate when the claim is clear and the duty of the officer is ministerial and so plainly prescribed as to be free from doubt. Mandamus is thus not generally available to review discretionary acts of public officials.”) (internal quotations and citations omitted).

3. See Baptist Memorial Hospital v. Sebelius, 603 F.3d 57, 62 (D.C. Cir. 2010); Taylor v. Barnhart, 399 F.3d 891, 894 (8th Cir. 2005); Lifestar Ambulance Service v. U.S., 365 F.3d 1293, 1295 (11th Cir. 2004), cert. denied543 U.S. 1050 (2005) (plaintiff must exhaust administrative remedies). Mandamus has also been invoked successfully in efforts to overturn judicial rulings, see, e.g.Cheney v. United States District Court, 542 U.S. 367, 380-82 (2004) (ultimately successful effort to vacate discovery orders in Federal Advisory Committee Act case); to challenge a court’s decision to transfer the venue of a case, see, e.g., In re Chatman-Bey, 718 F.2d 484, 487–88 (D.C. Cir. 1983); and to compel performance of a prior court order, see, e.g., Kahmann v. Reno, 967 F. Supp. 731, 733–34 (N.D.N.Y. 1997).

4. See United States ex rel. Schonbrun v. Commanding Officer403 F.2d 371, 374 (2d Cir. 1968), cert. denied, 394 U.S. 929 (1969).

5. 5 U.S.C. § 702; see Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1235-36 (10th Cir. 2005) (noting that district court had mandamus jurisdiction in prison conditions case and that mandamus and injunctive relief might be “interchangeable”).

6. Administrative Procedure Act, 5 U.S.C. §§ 701–706. Other sections of the Administrative Procedure Act address agency procedure and the interaction of agencies and Congress. See 5 U.S.C. §§ 551 et seq.  A full discussion of the Act is found in Chapter 5.1.B of this Manual.

7. 5 U.S.C. § 702.

8. See Califano v. Sanders, 430 U.S. 99, 105–07 (1977).

9. While jurisdiction is found in 28 U.S.C. § 1331, practitioners should also look to the agency’s organic statute or other provisions in the Judicial Code. For instance, some suits to review agency actions are committed to the exclusive jurisdiction of the court of appeals. See  28 U.S.C. §§ 2341–2351.

10. 28 U.S.C. § 1491(a)(1) (the “Big Tucker Act”).

11. Congress has the power to remove the Tucker Act as a jurisdictional basis for suit, but it must manifest that intent unambiguously. See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1017 (1984); Slattery v. United States, 635 F.3d 1298, 1321 (Fed. Cir. 2011) (en banc). However, when provisions in other statutes specify comprehensive remedial schemes, those statutes displace the Tucker Act and its waiver of sovereign immunity. United States v. Bormes, 133 S. Ct. 12, 18 (2012) (interpreting Fair Credit Reporting Act); United States v. Fausto, 484 U.S. 439, 452–55 (1988) (finding Civil Service Reform Act implicitly withdraws certain actions by civil servants from reach of Tucker Act).

12. 28 U.S.C. § 1346(a)(2) (the “Little Tucker Act”).

13. Jan’s Helicopter Service v. FAA525 F.3d 1299, 1304 (Fed. Cir. 2008).

14. See Roedler v. Department of Energy255 F.3d 1347, 1351 (Fed. Cir. 2001); Smith v. Orr855 F.2d 1544, 1552–53 (Fed. Cir. 1988).

15. See Baker v. United States722 F.2d 517, 518 (9th Cir. 1983); Glaskin v. Klass, 996 F. Supp. 67, 73 (D. Mass. 1998).

16. 28 U.S.C. § 1491(a)(2), (b)(2).

17. United States v. Navajo Nation, 556 U.S. 287, 290 (2009); United States v. Testan, 424 U.S. 392, 398-400 (defining “money-mandating” statutes).One exception is that the Little Tucker Act does not provide jurisdiction for claims arising under the Contract Disputes Act of 1978, 41 U.S.C. §§ 601 et seq. See 28 U.S.C. § 1346(a)(2).

18. 28 U.S.C. § 2501John R. Sand & Gravel Company v. United States, 552 U.S. 130 (2008).

19. Brown v. United States, 631 F. Supp. 954, 957 (D.D.C. 1986); see Favereau v. United States, 44 F. Supp.2d 68, 71 (D. Me. 1999); see also Village of Oakwood v. State Bank & Trust Co., 539 F.3d 373 (6th Cir. 2008) (district court jurisdiction available under FDIC’s sue-and-be-sued clause).

20. Bowen v. Massachusetts, 487 U.S. 879, 910 (1988) (state seeking monetary and equitable relief under Medicaid program). Significantly, in Bowen the Court held that not all actions that would result in the payment of money were necessarily actions for money damages: “The fact that a judicial remedy may require one party to pay money to another is not a sufficient reason to characterize the relief as ‘money damages’” Id. at 893.

21. Suburban Mortgage Associates v. United States Department of Housing and Urban Development, 480 F.3d 1116, 1124-26 (Fed. Cir. 2007); Tootle v. Secretary of Navy, 446 F.3d 167, 169 (D.C. Cir. 2006).

22. Burkins v. United States, 112 F.3d 444, 449 (10th Cir. 1997) (internal quotations omitted).

23. 28 U.S.C. § 1295(a)(2)–(3).

24. United States v. Hohri, 482 U.S. 64, 75-76 (1987).

25. Federal Tort Claims Act, 28 U.S.C. § 1346(b)(1).

26. 28 U.S.C. § 2680(a). The test for what is a “discretionary function” also has been much litigated, but the general formulation of the inquiry involves whether the action “involve[d] an element of judgment or choice” and whether the conduct was “based on considerations of public policy.” Berkovitz v. United States, 486 U.S. 531, 536 (1988); see United States v. Gaubert, 499 U.S. 315 (1991). Federal employees are absolutely immune from tort liability if the attorney general certifies that the employee was acting within the scope of employment. 28 U.S.C. § 2675(d). If the certification is made, the United States is substituted as the defendant. Id.

27. See Sosa v. Alvarez-Machain, 542 U.S. 692, 700 (2004).

28. 28 U.S.C. § 2680(h). For two recent Supreme Court cases dealing with this exemption, see Millbrook v. United States, 133 S. Ct. 1441, 1446 (2013) (waiver of sovereign immunity extends to acts or omissions of law enforcement officers that arise within scope of their employment, regardless of whether they are “engaged in investigative or law enforcement activity, or are executing a search, seizing evidence, or making an arrest”); Levin v. United States, 133 S. Ct. 1224 (2013) (Gonzalez Act abrogates FTCA’s intentional tort exception and permits suit against United States alleging medical battery).

29. Feres v. United States, 340 U.S. 135, 138 (1950).

30. Block v. Neal, 460 U.S. 289 (1983).

31. 28 U.S.C. § 2674see also Molzof v. United States, 502 U.S. 301, 305–06 (1992).

32. See Molzof, 502 U.S. at 306–07.

33. 28 U.S.C. § 2401(b) (statute of limitations); 28 U.S.C. § 2675(a) (requirement of administrative claim); United States v. Kubrick, 444 U.S. 111, 113 (1979). 

34. 28 U.S.C. § 2675(b).

35. Id. § 2675(a).

36. 28 U.S.C. § 2401(b). Both of these FTCA time limits are subject to equitable tolling. United States v. Wong, No. 13-1074 (U.S. April 22, 2015).