SUITS BY OR AGAINST GOVERNMENT IN US

Article III of the Constitution states that the judicial power of the United States extends "to

Controversies to which the United States shall be a Party." In the Judiciary Act of 1789,

Congress assigned to the district courts, concurrent with the state courts and the U.S. circuit

courts, jurisdiction over common-law suits filed by the United States in which the amount in

dispute was at least $100. The district courts were also granted exclusive jurisdiction over all

seizures on water and land and all government suits for penalties and forfeitures incurred under

the laws of the United States. (In 1815, Congress extended to the district courts jurisdiction over

U.S. common-law suits with an amount in controversy of less than $100.) The 1789 Act granted

the circuit courts, also concurrent with the state courts, jurisdiction over all civil suits, both

common law and equity, in which the United States was a plaintiff or petitioner and the amount

in dispute was greater than $500.(Federal Jurisdiction , 4th Edition, 2003)

 SUITS AGAINST UNITED STATE

History

In early American history, the courts supported the traditional view that the United States could

not be sued without congressional authorization. This Immunity applied to suits filed by states as

well as individuals. Thus, for many years, those who had contract and tort claims against the

government had no legal recourse except through the difficult, inconvenient, and often tardy

means of convincing Congress to pass a special bill awarding compensation to the injured party

on a case by case basis. (West's Encyclopedia of American Law, 2008).

The federal government first began to waive its sovereign immunity in areas of law other than

torts. In 1855 Congress established the U.S. Court of Claims, a special court created to hear cases

against the United States involving contracts based upon the Constitution, federal statutes, and

federal regulations. In 1887 Congress passed the Tucker Act to authorize federal district courts to

hear contractual claims not exceeding $10,000 against the United States. Other Special Courts

were later created for particular types of non-tort claims against the federal government. The

U.S. Board of General Appraisers was created in 1890 and was replaced in 1926 by the U.S.

Customs Court, and the U.S. Court of Customs Appeals was created in 1909 and then replaced in

1926 by the U.S. Court of Customs and Patent Appeals. These courts handled complaints about

duties levied on imports. The Board of Tax Appeals, created in 1924 to handle internal revenue

complaints, was replaced in 1942 by the Tax Court of the United States. (West's Encyclopedia of

American Law, 2008).

Not until 1946, however, did Congress address the issue of liability for torts committed by the

government's agencies, officers, or employees. Until 1946 civil servants could be individually
liable for torts, but they were protected by sovereign immunity from liability for tortious acts

committed while carrying out their official duties. But the courts were not always consistent in

making that distinction. (West's Encyclopedia of American Law, 2008).

Finally, in 1946 Congress passed the Tort Claims Act, which authorized U.S. district courts to

hold the United States liable for torts committed by its agencies, officers, and employees just as

the courts would hold individual defendants liable under similar circumstances. This general

waiver of immunity had a number of exceptions, however, including the torts of Battery, False

Imprisonment, false arrest, Malicious Prosecution, Abuse of Process, libel, slander,

Misrepresentation, deceit, interference with contractual rights, tort in the fiscal operations of the

Treasury, tort in the regulation of the monetary system, and tort in combatant activities of the

armed forces in wartime. (West's Encyclopedia of American Law, 2008).

By 1953 the U.S. Supreme Court had drawn distinctions under the Tort Claims Act between

tortious acts committed by the government at the planning or policy-making stage and those

committed at the operational level. In Dalehite v. United States, , the Supreme Court held that the

Tort Claims Act did not waive sovereign immunity as to tortious acts committed at the planning

stage; immunity applied only to torts committed at the operational stage. (West's Encyclopedia of

American Law, 2008).

Congress also waived sovereign immunity in cases seeking injunctive or other nonmonetary

relief against the United States in a 1976 amendment to the Administrative Procedure Act (5

U.S.C.A. §§ 702–703)

Current Situation
The U.S. Supreme Court now has jurisdiction to hear suits by one state against another. In

addition, the courts have construed the Eleventh Amendment as permitting appellate proceedings

in cases originally instituted by a state if the defendant asserted rights under the U.S.

Constitution, statutes, or treaties or in cases against state officials alleged to have violated such

rights (Osborn v. Bank of the United States).

The latter category has resulted in extensive litigation in federal courts against state and local

officers alleged to have violated the civil rights act of 1871 (42 U.S.C.A. Section 1983). Claims

brought under the act are not subject to sovereign immunity.

However, the Fourteenth Amendment does allow Congress to abrogate state sovereign

immunity. Section 5 grants Congress the enforcement power to advance the goals of the

amendment, which include the guarantees of due process and Equal Protection of the laws.

Congress has used this power to apply modern Civil Rights laws as well as patent and trademark

laws to state governments. (42 U.S.C.A. Section 1983)

Section 1331 of U.S code 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. (Jeffrey S. Gutman, 2015)

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. (Jeffrey S. Gutman, 2015)

i. 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

i. The plaintiff has a clear right to relief

ii. The duty breached is “a clear nondiscretionary duty”

iii. No other remedy is available. (543 U.S. 1050 2005)

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.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.( Simmat v. U.S. Bureau of Prison)

ii. 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.( Administrative Procedure Act, 5 U.S.C. §§ 701–

706)

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.( Administrative Procedure Act, 5 U.S.C. §§

702)
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. (Califano v. Sanders)

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.( 28 U.S.C. § 1331)

iii. Tucker Act—Damage 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. (28 U.S.C.

§ 1491(a)(1)

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

the United States.(28 U.S.C. § 1491(a)(1)

i. For damage claims of $10,000 or less, the U.S. Court of Federal Claims and federal

district courts have concurrent jurisdiction. (28 U.S.C. § 1346(a)(2)

ii. If the claim is over $10,000, the Court of Federal Claims has exclusive jurisdiction.(28

U.S.C. § 1346(a)(2)
 iii. 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. (28 U.S.C. § 1346(a)(2)

iv. If a plaintiff has multiple claims, none of which individually exceeds $10,000, the claims

are not aggregated for jurisdictional purposes.(28 U.S.C. § 1346(a)(2)

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.  (28 U.S.C. § 1491(a)(2), (b)(2)

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. (28 U.S.C. § 1346(a)(2)

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. (28 U.S.C. § 1346(a)(2)

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. The district courts have jurisdiction over mixed

claims involving both injunctive (and declaratory) relief and monetary relief that does amount

technically to “damages” in excess of $10,000. On the other hand, courts look behind the

pleadings to determine whether the jurisdictional provisions of the Tucker Act apply. 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.”(Burkins v. United States)
Appeals

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.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. (28 U.S.C. § 1295(a)(2)–(3)

iv. 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. (Federal Tort Claims

Act, 28 U.S.C. § 1346(b)(1)

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, claims based on

injury suffered in a foreign country, intentional torts, claims requiring an inquiry into sensitive

military matters, and misrepresentation.( Feres v. United States)

The extent of the United States’ liability under the Act is determined by state law, except that

punitive damages are not allowed.  (28 U.S.C. § 2674) 

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.( 28 U.S.C. § 2401(b))

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. ( 28 U.S.C. § 2401(b))

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.  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.  (28 U.S.C. § 2675(b)

If the agency denies the administrative claim, suit must be filed within six months of the date of

mailing of such denial.  (28 U.S.C. § 2401(b))

SUITS AGAINST UNITED STATE

“An express power is no where given in the constitution,” the right of the United States to sue in

its own courts “is clearly implied in that part respecting the judicial power. Indeed, all the usual

incidents appertaining to a personal sovereign, in relation to contracts, and suing, and enforcing

rights, so far as they are within the scope of the powers of the government, belong to the United

States, as they do to other sovereigns.( Constitution Of The United States 1274 (1833))

 As early as 1818, the Supreme Court ruled that the United States could sue in its own name in

all cases of contract without congressional authorization of such suits.( Dugan v. United States) 

Later, this rule was extended to other types of actions. In the absence of statutory provisions to

the contrary, such suits are initiated by the Attorney General in the name of the United States

(United States v. Beebe)

By the Judiciary Act of 1789, and subsequent amendments to it, Congress has vested in the

federal district courts jurisdiction to hear all suits of a civil nature at law or in equity brought by

the United States as party plaintiff.( 28 U.S.C. § 1345)

 As in other judicial proceedings, the United States, like any party plaintiff, must have an interest

in the subject matter and a legal right to the remedy sought.(United States v. San Jacinto Tin Co)

Under the long-settled principle that the courts have the power to abate public nuisances at the

suit of the government, the provision in § 208(2) of the Labor Management Relations Act of

1949, authorizing federal courts to enjoin strikes that imperil national health or safety was upheld

on the grounds that the statute entrusts the courts with the determination of a “case or
controversy” on which the judicial power can operate and does not impose any legislative,

executive, or non-judicial function. Moreover, the fact that the rights sought to be protected were

those of the public in unimpeded production in industries vital to public health, as distinguished

from the private rights of labor and management, was held not to alter the adversary (“case or

controversy”) nature of the litigation instituted by the United States as the guardian of the

aforementioned rights(United Steelworkers v. United States)

Also, by reason of the highest public interest in the fulfillment of all constitutional guarantees,

“including those that bear . . . directly on private rights, . . . it [is] perfectly competent for

Congress to authorize the United States to be the guardian of that public interest in a suit for

injunctive relief.”(United States v. Raines)

BIBLIOGRAPHY

https://www.lawfareblog.com/foreign-official-immunity-lawsuits-against-foreign-government-

officials-us-courts

https://law.justia.com/constitution/us/article-3/28-cases-to-which-the-united-states-is-a-party.html

https://www.povertylaw.org/clearinghouse/fpmd/chapter2/section5

Suits against the States. (n.d.) West's Encyclopedia of American Law, edition 2. (2008).

Retrieved April 28 2019 from

 https://legal-dictionary.thefreedictionary.com/Suits+against+the+States

United States ex rel. Schonbrun v. Commanding Officer, 403 F.2d 371, 374 (2d Cir. 1968), cert.

denied, 394 U.S. 929 (1969).

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”).

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. §§ 551et seq.  A full discussion of the Act is found in Chapter 5.1.B of this Manual.

5 U.S.C. § 702.

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

 28 U.S.C. § 1491(a)(1) (the "Big Tucker Act").

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).

28 U.S.C. § 1346(a)(2) (the "Little Tucker Act").

 Jan's Helicopter Service v. FAA, 525 F.3d 1299, 1304 (Fed. Cir. 2008).

Roedler v. Department of Energy, 255 F.3d 1347, 1351 (Fed. Cir. 2001); Smith v. Orr, 855 F.2d

1544, 1552–53 (Fed. Cir. 1988).

Baker v. United States, 722 F.2d 517, 518 (9th Cir. 1983); Glaskin v. Klass, 996 F. Supp. 67, 73

(D. Mass. 1998).

 28 U.S.C. § 1491(a)(2), (b)(2) .

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).

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

 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).

 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.

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).

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

 28 U.S.C. § 1295(a)(2)–(3).

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

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

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

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).

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

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

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

Molzof, 502 U.S. at 306–07.

 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). 

28 U.S.C. § 2675(b).

 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).