Tucker Act (Litigator Series)

THIS CASEBOOK contains a selection of 32 U. S. Court of Appeals decisions that analyze, interpret and apply provisions of the Tucker Act. The selection of decisions spans from 2012 to the date of publication.

To bring a claim against the United States, a plaintiff must identify an unequivocal waiver of sovereign immunity. FAA v. Cooper, ___ U.S. ___, 132 S.Ct. 1441, 1448, 182 L.Ed.2d 497 (2012). Courts are required to read waivers of sovereign immunity narrowly and construe any ambiguities in the statutory language in favor of immunity. Id. But "[e]ven when suits are authorized[,] they must be brought only in designated courts." United States v. Shaw, 309 U.S. 495, 501, 60 S.Ct. 659, 84 L.Ed. 888 (1940). This is because "it rests with Congress to determine not only whether the United States may be sued, but in what courts the suit may be brought." Minnesota v. United States, 305 U.S. 382, 388, 59 S.Ct. 292, 83 L.Ed. 235 (1939). Franklin-Mason v. Mabus, 742 F. 3d 1051 (DC Cir. 2014)

The Tucker Act expressly waives sovereign immunity for "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." 28 U.S.C. § 1491(a)(1). Marcum LLP v. US, 753 F. 3d 1380 (Fed. Cir. 2014).

The Tucker Act confers jurisdiction upon the Court of Federal Claims over "any claim against the United States founded . . . upon any express or implied contract with the United States. . . ." 28 U.S.C. § 1491(a)(1) (2011). This jurisdictional provision operates to waive the sovereign immunity of the United States for claims premised on other sources of law, such as a contract or statute. United States v. Navajo Nation, 556 U.S. 287, 290 (2009). The Tucker Act, however, does not create a substantive cause of action, and, as such, "a plaintiff must identify a separate source of substantive law that creates the right to monetary damages." Fisher v. United States, 402 F.3d 1167, 1127 (Fed. Cir. 2005). While the separate source of law need not explicitly provide for enforcement through damages, liability is triggered only if the source can be fairly interpreted as mandating compensation from the Government. Navajo Nation, 556 U.S. at 290 (citation omitted). Higbie v. US, (Fed. Cir. 2015).

In United States v. Mitchell, the Supreme Court noted that the Tucker Act waived the government's immunity from "suit for claims founded upon statutes or regulations that create substantive rights to money damages" and that "the separate statutes and regulations" creating the substantive rights "need not provide a second waiver of sovereign immunity, nor need they be construed in the manner appropriate to waivers of sovereign immunity." 463 U.S. at 218-19, 103 S.Ct. 2961. Ford Motor Co. v. US, 768 F. 3d 580 (6th Cir. 2014).

"The Tucker Act is displaced, however, when a law assertedly imposing monetary liability on the United States contains its own judicial remedies." United States v. Bormes, ___ U.S. ___, 133 S.Ct. 12, 18, 184 L.Ed.2d 317 (2012); see also St. Vincent's Med. Ctr. v. United States, 32 F.3d 548, 549-50 (Fed.Cir.1994). Marcum LLP v. US, ibid.

Contract law is a separate source of law compensable under the Tucker Act. As with private agreements, when a government contract is breached, there is a presumption that a damages remedy will be available. Sanders v. United States, 252 F.3d 1329, 1334 (Fed. Cir. 2001). Typically, in a contract case, the presumption that money damages are available satisfies the Tucker Act's moneymandating requirement. Holmes, 657 F.3d at 1314. Higbie v. US, ibid.

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