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47.

Court of Federal Claims Litigation

The United States Court of Federal Claims has jurisdiction over a wide range of claims against the government including, but not limited to, contract disputes, bid protests, takings claims, tax refund suits, patent and copyright matters, Indian claims, civilian and military pay cases, and vaccine cases. When more than $10,000 is claimed, the Court of Federal Claims possesses exclusive jurisdiction in these cases pursuant to the Tucker Act, 28 U.S.C. § 1491.

Under the "Little Tucker Act," 28 U.S.C. § 1346, the district courts possess concurrent jurisdiction with the Court of Federal Claims to entertain any monetary claim against the United States for an amount not exceeding $10,000 "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 not sounding in tort." As explained further below, an important exception is contracts subject to the Contract Disputes Act, 41 U.S.C. § 7101 et seq. (CDA). The district courts have no jurisdiction over such claims. 28 U.S.C. § 1346(a)(2).

Although the general rule is that jurisdiction is established at the time of filing, a claim which is for $10,000 or less when filed, but is accruing so that it will be for more than $10,000 at the time of judgment is within the exclusive jurisdiction of the Court of Federal Claims. Simanonok v. Simanonok, 918 F.2d 947, 950-51 (Fed. Cir. 1990). A plaintiff may remain in the district court under the Little Tucker Act even if his damages exceed $10,000 if he waives all recovery in excess of $10,000. E.g., Zumerling v. Devine, 769 F.2d 745, 748 (Fed. Cir. 1985); Stone v. United States, 683 F.2d 449, 451 (D.C. Cir. 1982).

Disputes arising out of commercial contracts with the federal government are governed by the Contract Disputes Act, 41 U.S.C. § 7101 et seq. (CDA). Both claims by a contractor against the government and claims by the government against a contractor must be decided first by a contracting officer. 41 U.S.C. § 7103(a). A contractor may contest the contracting officer's final decision either by filing a direct action in the Court of Federal Claims or by appealing to a board of contract appeals. 41 U.S.C. § 7104. The CDA provides the exclusive method for resolution of any dispute relating to a government contract and district courts possess no jurisdiction in these cases. 28 U.S.C. § 1346(a)(2) ("(T)he district courts shall not have jurisdiction of any civil action or claim against the United States founded upon any express or implied contract with the United States or for liquidated or unliquidated damages in cases not sounding in tort which are subject to sections 8(g)(1) and 10(a)(1) of the Contract Disputes Act of 1978"); 28 U.S.C. § 1491(a)(2) ("The Court of Federal Claims shall have jurisdiction to render judgment upon any claim by or against, or dispute with, a contractor arising under section 10(a)(1) of the Contract Disputes Act of 1978."); see, e.g., Texas Health Choice, L.C. v. Office of Personnel Mgmt., 400 F.3d 895, 898-99 (Fed. Cir. 2005) ("The CDA exclusively governs Government contracts and Government contract disputes" and, "[w]hen the [CDA] applies, it provides the exclusive mechanism for dispute resolution.") (citations omitted). For further discussion of affirmative suits under the CDA, see USAM 4-4.420.

"Bid protests," or challenges to procurement decisions, also fall with the Court of Federal Claims' jurisdiction. The Tucker Act, as amended in 1996, provides the court "jurisdiction to render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement." 28 U.S.C. § 1491(b). Prior to January 2001, district courts decided pre- and post-award bid protests pursuant to the Administrative Procedure Act. The seminal case is Scanwell Laboratories, Inc. v. Shaffer, 424 F.2d 859 (D.C. Cir. 1970). Since January 2001, the Court of Federal Claims is the only trial court possessing such jurisdiction. See Emery W.W. Airlines, Inc. v. United States, 264 F.3d 1071, 1078-79 (Fed. Cir. 2001).

If a case within the exclusive jurisdiction of the Court of Federal Claims is filed in the district court, United States Attorneys should be vigilant in moving to dismiss or transfer cases. To avoid any jurisdictional "ping pong," however, it is important to consult with the section that ordinarily would handle the case in the Court of Federal Claims. Accordingly, please contact the National Courts Section of the Commercial Litigation Branch before moving to dismiss or transfer. Call (202) 514-7300 and ask for an Assistant Director.

[updated September 2013] [cited in USAM 4-4.210; Civil Resource Manual 148]