| Chapter 2: Jurisdiction V. Litigation Against the Government Section 1331 is the principal basis of jurisdiction in litigation, otherwise not provided for, against the federal government and its agencies, officers, and employees./55/ V.A. General Considerations Under Bivens v. Six Unknown Named Agents, individual employees of the federal government are subject to actions for damages for acts in violation of plaintiffs’ federal constitutional rights./56/ Jurisdiction over such actions is provided by Section 1331. Congress has enacted, in addition to Section 1331, a variety of specific jurisdictional grants for 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 often also contain specific remedial provisions that establish conditions to suit or create immunities. V.B. 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 duty breached is “a clear nondiscretionary duty”/57/ and no other remedy is available./58/ 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./60/ V.C. 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./61/ 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./62/ 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./63/ A plaintiff bringing an action under the Act, therefore, must also have a jurisdictional foundation for the action. Federal question jurisdiction under Section 1331 is typically available for claims under the Act./64/ V.D. Tucker Act— Damage Claims Against the Federal Government The Tucker Act gives the U.S. Court of Federal Claims jurisdiction
When it applies, the Tucker Act provides the exclusive method by which to file actions against the United States./66/ For damage claims of $10,000 or less, the U.S. Court of Federal Claims and federal district courts have concurrent jurisdiction./67/ If the claim is over $10,000, the Court of Federal Claims has exclusive jurisdiction. 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./68/ If a plaintiff has multiple claims, none of which individually exceeds $10,000, the claims are not aggregated for jurisdictional purposes./69/ 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./70/ The Act creates no substantive rights; it confers jurisdiction over claims based on statutes, contracts, or regulations that themselves create the right to damages against the United States./71/ The Tucker Act, therefore, can be used as the jurisdictional basis for claiming government benefits provided for by a substantive statute. For instance, a widow’s claim to U.S. Department of Defense Survivor Benefit Plan payments was held to be substantially a claim for money damages and, therefore, within the Court of Federal Claims’ jurisdiction under 28 U.S.C. § 1491./72/ 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. In Brown v. United States, for example, plaintiff sought damages from her federal employer in excess of $10,000 and declaratory and injunctive relief as well./73/ Under Section 1491, the Court of Federal Claims had exclusive jurisdiction over the action, but since that court had no authority to grant her equitable relief, the district court concluded that it could consider the plaintiff’s request for a declaratory judgment./74/ 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./75/ 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.”/76/ 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./77/ 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./78/ V.E. Federal Tort Claims Act Pursuant to the Federal Tort Claims Act (FTCA),
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. However, the reverse is not true—there are situations in which government may escape liability in circumstances in which a private person would be liable. For instance, the Act does not authorize actions for strict tort liability./80/ The Act also contains an armed services exemption known as the Feres doctrine./81/ 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,/82/ and from claims based on injury suffered in a foreign country./83/ The extent of the United States’ liability under the Act is determined by state law, except that punitive damages are not allowed./84/ 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./85/ The Act also imposes certain procedural prerequisites to filing a claim in district court. For instance, a plaintiff must “first present[ ] the claim to the appropriate Federal agency” and his claim must “have been finally denied by the agency in writing and sent by certified or registered mail.”/86/ 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./87/ 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./88/ V.F. Social Security Litigation Against the Federal Government Under 42 U.S.C. § 405(g), federal courts have jurisdiction to hear social security cases, regardless of the amount in controversy./89/ They have such jurisdiction after “any final decision of the Commissioner of Social Security made after a hearing.”/90/ In most social security cases, a claimant dissatisfied with an initial determination, which is made by a state agency under authority delegated by the Commissioner, must request a de novo reconsideration by the local Social Security Administration (SSA) district office. If still dissatisfied, the claimant may request a hearing before an administrative law judge, followed by review by the Social Security Administration Appeals Council. The Council’s decision represents the commissioner’s “final decision,” reviewable by a federal district court under Section 405(g)./91/ If a claimant does not request review by the Council, all procedural avenues are not yet exhausted “and, as a result, [there is] no judicial review in most cases.”/92/ The principal difficulty with this procedure is the series of time-consuming delays involved in exhausting the available administrative remedies. Because such delays are onerous for claimants, the courts allow various exceptions to the exhaustion requirement. The Supreme Court has held that Section 405(g) imposes a nonwaivable presentment requirement that a claimant present a claim to the SSA and obtain a decision./93/ The Social Security Administration Appeals Council can waive the exhaustion requirement if it does so intentionally and clearly./94/ Federal courts may exercise jurisdiction once the presentment requirement is satisfied if the plaintiff’s claim is (1) collateral to a substantive claim of entitlement, (2) colorable in its showing that denial of relief will cause irreparable harm, and (3) one whose resolution would not serve the purposes of exhaustion./95/ 55. See the discussions in Sections V.D. and V.E. of this chapter of contract and tort actions against the United States. 56. Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Suits against federal employees in their individual capacities are not suits against the United States for purposes of venue or service of process. 57. Pittston Coal Group v. Sebben, 488 U.S. 105, 121 (1988) (quoting Heckler v. Ringer, 466 U.S. 602, 616 (1984)); Ingalls Shipbuilding Inc. v. Asbestos Health Claimants, 17 F.3d 130, 133 (5th Cir. 1994) (“Mandamus is only appropriate when the claim is clear and the duty of the officer is ministerial and so plainly prescribed as to be free from doubt. Mandamus is thus not generally available to review discretionary acts of public officials.”) (internal quotations and citations omitted). 58. See Taylor v. Barnhart, 399 F.3d 891, 894 (8th Cir. 2005); Lifestar Ambulance Services v. U.S., 365 F.3d 1293, 1295 (11th Cir. 2004), cert. denied, 125 S. Ct. 866 (2005) (plaintiff must exhaust administrative remedies). Mandamus has also been invoked successfully in efforts to overturn judicial rulings. See Cheney v. United States District Court, 542 U.S. 367 (2004) (ultimately successful effort to vacate discovery orders in Federal Advisory Committee Act case); to challenge a court’s decision to transfer the venue of a case, see, e.g., In re Chatman-Bey, 718 F.2d 484, 487–88 (D.C. Cir. 1983); and to compel performance of a prior court order, see, e.g., Kahmann v. Reno, 967 F. Supp. 731, 733–34 (N.D.N.Y. 1997). 59. See United States ex rel. Schonbrun v. Commanding Officer, Armed Forces, 403 F.2d 371, 374 (2d Cir. 1968), cert. denied, 394 U.S. 929 (1969). 60. 5 U.S.C. § 702; see Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1235-36 (10th Cir. 2005) (district court had mandamus jurisdiction in prison conditions case, noting that mandamus and injunctive relief might be “interchangeable”). 61. 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. §§ 551 et seq. A full discussion of the Act is found in Chapter 5, Section II, of this Manual. 62. 5 U.S.C. § 702. 63. See Califano v. Sanders, 430 U.S. 99, 105–07 (1977). 64. While jurisdiction is found in 28 U.S.C. § 1331, practitioners should also look to the agency’s organic statute or other provisions in the Judicial Code. For instance, some suits to review agency actions are committed to the exclusive jurisdiction of the court of appeals. See 28 U.S.C. §§ 2341–2351. 65. Tucker Act, 28 U.S.C. §§ 1346(a)(2), 1491. Id. § 1491(a)(1). 66. Congress has the power to remove the Tucker Act as a remedy, but Congress must manifest that intent unambiguously. See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1017 (1984); California v. United States, 271 F.3d 1377, 1382 (Fed. Cir. 2001). However, when provisions in other statutes specify comprehensive remedial schemes, the Supreme Court cautioned, the Tucker Act may give way. United States v. Fausto, 484 U.S. 439, 452–55 (1988) (Civil Service Reform Act implicitly withdraws certain actions by civil servants from the reach of the Tucker Act). 68. See 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). 69. See Baker v. United States, 722 F.2d 517, 518 (9th Cir. 1983); Glaskin v. Klass, 996 F. Supp. 67, 73 (D. Mass. 1998). 70. 28 U.S.C. § 1491(a)(2), (b)(2). 71. One exception is that the district court version of the 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). 72. Dean v. United States, 10 Cl. Ct. 563 (1986). 73. Brown v. United States, 631 F. Supp. 954 (D.D.C. 1986). See also Favereau v. United States, 44 F. Supp.2d 68, 71 (D. Me. 1999). 74. Brown, 631 F. Supp. at 957. 75. Bowen v. Massachusetts, 487 U.S. 879 (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. 76. Burkins v. United States, 112 F.3d 444, 449 (10th Cir. 1997) (internal quotations omitted). 77. 28 U.S.C. § 1295(a)(2)–(3). 78. United States v. Hohri, 482 U.S. 64 (1987). 79. Federal Tort Claims Act, 28 U.S.C. § 1346(b)(1). 80. Dalehite v. United States, 346 U.S. 15, 44–45 (1953). E.g., property owners may not sue for damages caused by sonic booms from military jets because strict liability is the only cause of action. Laird v. Nelms, 406 U.S. 797 (1972). 81. The Feres doctrine takes its name from Feres v. United States, 340 U.S. 135, 146 (1950), in which the Supreme Court held that the United States could not be held liable for “injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” (emphasis added). Determining what activities are “incident to service” has been a frequently litigated issue, and courts generally take a broad view of the term. See, e.g., United States v. Johnson, 481 U.S. 681, 692 (1987) (dismissing wrongful death action by widow of deceased coast guard helicopter pilot); Costo v. United States, 243 F.3d 863, 867–68 (9th Cir. 2001) (Navy sailors drowned during Navy-led recreational rafting trip). But see, Fleming v. United States Postal Service, 186 F.3d 697 (6th Cir. 1999) (Army sergeant major injured in automobile accident with U.S. Postal Service employee while off-base not barred by Feres). See generally Schnitzer v. Harvey, 389 F.3d 200, 202-03 (D.C. Cir. 2004) (considering serviceman’s duty status, site of injury and nature of activity to dismiss claim by injured military prisoner). 82. 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). 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. 83. Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). 84. 28 U.S.C. § 2674; Molzof v. United States, 502 U.S. 301, 305–06 (1992). 85. Molzof, 502 U.S. at 306–7. 86. 28 U.S.C. § 2675(a). This is sometimes referred to by the courts as a jurisdictional requirement. See Gonzales v. United States, 284 F.3d 281, 288 (1st Cir. 2002); Henderson v. United States, 785 F.2d 121, 123 (4th Cir. 1986). Considering the requirement jurisdictional means that it may not be waived. See Gonzales, 284 F.3d at 288. 87. 28 U.S.C. § 2675(b). 89. 42 U.S.C. § 405(g), provides: “Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Commissioner of Social Security may allow. Such action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides, or has his principal place of business, or, if he does not reside or have his principal place of business within any such judicial district, in the United States District Court for the District of Columbia.” 90. Judicial review of Supplemental Security Income cases under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381 et seq., is available under the same terms as review under Title II. See 42 U.S.C. § 1383(c)(3). In Medicare cases involving Part A (hospital and insurance) benefits under Title XVIII, however, judicial review is not available where the amount in controversy is less than $1,000. See 42 U.S.C. § 1395ff(2). 91. Under 42 U.S.C. § 405(h), federal question jurisdiction under 28 U.S.C. § 1331 is unavailable in any action “to recover on any claim” arising under the subchapter. 92. Sims v. Apfel, 530 U.S. 103, 107 (2000) (Clearinghouse No. 53,049) (“In administrative-law parlance, such a claimant may not obtain judicial review because he has failed to exhaust administrative remedies.”). 93. See generally Heckler v. Ringer, 466 U.S. 602, 617–18 (1984); Mathews v. Eldridge, 424 U.S. 319, 330–32 (1976); Weinberger v. Salfi, 422 U.S. 749, 766–67 (1975); see also Tataranowicz v. Sullivan, 959 F.2d 268, 274–75 (D.C. Cir. 1992) (Medicare case). 94. Coleman v. Barnhart, No. C 05-00289, 2005 U.S. Dist. LEXIS 14512, at *9 (N.D. Cal. Jul. 7, 2005); see Chamberlain v. Barnhart, 382 F. Supp. 2d 867, 872-73 (E.D. Tex. 2005). 95. Bowen v. City of New York, 476 U.S. 467 (1986) (permitting review when commission used a secret, illegal policy to deprive claimants of disability evaluation process); see Kildare v. Saenz, 325 F.3d 1078, 1082 (9th Cir. 2003); see Chamberlain, 382 F. Supp. 2d at 872-73 . VI. Supplemental Jurisdiction >
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