April 22nd, 2022
So You Want to Sue the Government: A Brief Introduction to Business-Related Civil Claims Against the United States
You are considering a business-related lawsuit against the federal government. Maybe the Treasury Department denied a meritorious grant application. Maybe a regulatory body is arbitrarily penalizing a federally subsidized development project. Maybe an executive agency is in breach of a government contract. Now what?
This post provides a brief introduction to business-related civil claims against the United States, including government contract disputes, other claims for money damages, and claims to compel or set aside federal agency actions.
In some ways, the federal government is like any other party when it comes to civil litigation—in the right circumstances, it can be named as a defendant, required to produce relevant information about a case, and subjected to the binding judgment of a court or administrative tribunal. In other ways, though, litigation against the government is unique. Among the most important differences is that your right to sue the federal government is not unlimited—you may sue the government only in certain types of cases for which Congress has agreed the government may be sued (lawyers call this a “waiver of sovereign immunity”). If your case does not fall within one of those categories, it will be dismissed.
There are three types of business-related claims for which Congress has agreed to allow civil suits against the government (in addition to tax claims, civil rights claims, and certain tort claims, all of which are outside the scope of this post). The first is claims relating to government contracts under the Contract Disputes Act, 41 U.S.C. § 7101 et seq. The second is claims for money damages under the Tucker Act, 28 U.S.C. § 1491, or the Little Tucker Act, 28 U.S.C. § 1346. The third is claims to compel or set aside agency action under the Administrative Procedure Act, 5 U.S.C. § 701 et seq. Which category your case falls under will determine many important things, including the forum in which you may bring your case, your deadline for bringing it, and the type of relief you may seek.
Does Your Claim Arise Under a Commercial Contract with the Government?
If your claim arises under a commercial contract with a federal agency (including the military), it is governed exclusively by the Contract Disputes Act. Often referred to simply as “government contracts,” these include contracts for the procurement of services and for the procurement or disposal of government property (other than land).
Most claims under the Contract Disputes Act may be brought in either of two forums: (1) a special administrative tribunal called a Board of Contract Appeals; or (2) the United States Court of Federal Claims. Jury trials are not available in either forum—your case will be heard and decided by a judge. Federal district courts have no jurisdiction over these disputes (except for disputes involving contracts with the Tennessee Valley Authority, which are uniquely addressed under the Contract Disputes Act).
In order to bring a claim before either a Board of Contract Appeals or the Court of Federal Claims, you first must obtain a final decision from the contracting officer assigned to your contract. You then have 90 days to challenge that decision before a Board of Contract Appeals, or 12 months to challenge the decision in the Court of Federal Claims. Appeals from decisions of either tribunal may be brought in the United States Court of Appeals for the Federal Circuit.
Do You Seek Money from the Government That Does Not Relate to a Tax Dispute?
If your goal is to collect money the government owes you and it is not related to a tax dispute, you may bring a case under either the Tucker Act (for claims above $10,000) or the Little Tucker Act (for claims not above that amount). Both acts allow you to sue the government for damages arising under either a contract with the United States or any statute that requires the federal government to pay you money (a so-called “money-mandating statute”), such as a statute that establishes a federal grant program.
Tucker Act claims must be brought in the Court of Federal Claims, while Little Tucker Act claims may be brought in either the Court of Federal Claims or a federal district court (except for claims arising under a government contract, which may not be brought in a district court regardless of the amount at issue). In both instances, you must file your claim within six years of when the government first became liable for the payment. (For a discussion of a recent Federal Circuit decision discussing an important exception to this six-year limitations period, see our previous post here.) As with claims under the Contract Disputes Act, your case will be heard and decided by a judge, not a jury. Appeals from decisions under both the Tucker Act and the Little Tucker Act may be brought in the Court of Appeals for the Federal Circuit.
The primary relief available under the Tucker Act and Little Tucker Act is money damages. However, you may also obtain certain equitable relief “as an incident of and collateral to” a monetary judgment if the additional relief is necessary to provide a complete remedy. For example, if you are a military veteran and you win a Tucker Act claim seeking disability retirement pay, the court may also issue an order directing the appropriate military branch to correct your records so you will continue to receive such pay in the future.
Do You Want a Court to Compel the Government To Do Something or Refrain from Doing Something?
If your primary goal is not to collect money, but instead to compel the government to do something or refrain from doing something, then you may bring your case under the Administrative Procedure Act. That statute allows you to seek a court’s review of any agency action that causes you legal harm. A court may set aside such an action if it finds it to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
Claims under the Administrative Procedure Act must be brought in a federal district court. Importantly, you may only challenge a final agency action under the Administrative Procedure Act. That means a preliminary or procedural agency decision is not reviewable. You also may need to exhaust an agency’s administrative appeals process before bringing your case in district court, but only if a statute or the agency’s rules require you to do so. Once an agency action is considered final, you then have six years to file your case in a district court. Appeals from district court decisions under the Administrative Procedure Act may be brought in the appropriate federal circuit court.
The Administrative Procedure Act only covers claims “seeking other than money damages.” That means you may not seek the payment of money as your primary relief—instead, you must seek an order setting aside an agency decision or compelling or prohibiting an agency action. Limited monetary relief may be available, however, under certain circumstances. For example, if you ask a court to set aside an agency decision regarding a development project’s eligibility for federal grant payments, the fact that a favorable judgment will lead to future grant payments will not necessarily make the Administrative Procedure Act inapplicable.
Do You Seek Some Combination of Monetary and Equitable Relief?
As apparent above, many government disputes have both monetary and equitable components. For example, you may want an order declaring a housing project eligible for federal subsidies, but your ultimate goal is to receive the subsidies themselves. Or, you may want to collect money owed to you under a government contract, but that will require a court to interpret contractual provisions that will determine the rights and obligations of the parties going forward.
For that reason, the three statutes discussed above are not always mutually exclusive. Depending on the nuances of your case, you may have options with respect to when and where you may file and what you may seek as relief. An experienced attorney can help you weigh all relevant benefits and risks based on the specific facts of your case.
Grammata Law Firm helps clients navigate litigation against governmental entities for both money damages and injunctive relief. For more information, contact Grammata at 202-937-0458 or .
