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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.1 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.3 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

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