Amicus Curiae Brief — Department of Army v. Blue Fox, Inc.

Supreme Court, U.S

FILED

No. 97-1642 ocr 8 1998

In The

Cs)

} OFFICE OF THE CLERK

Supreme Court of the Anited States

October Term, 1998

United States Department of the Army,

Petitioner,

v.

Blue Fox, Inc.,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF AMICUS CURIAE OF

THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA IN

SUPPORT OF RESPONDENT

Of Counsel: Herbert L. Fenster*

David A. Churchill

Robin S. Conrad Tami Lyn Azorsky

National Chamber Patrick K. O'Keefe

Litigation Center, Inc. Matthew F. Porter

1615 H Street, N.W. McKenna & Cuneo, L.L.P.

Washington, D.C. 20062 1900 K Street, N.W.

(202) 463-5337 Washington, D.C. 20006

(202) 496-7500

*Counsel for Amicus Curiae The

Chamber of Commerce of

the United States of

America

i

QUESTION PRESENTED

The question presented is:

Whether a party may file a claim founded on a

contract, seeking relief other than money damages, in district

court under the Administrative Procedure Act, 5 U.S.C.

§ 702 (1994), or whether the Tucker Act, 28 U.S.C.

§ 1491(a)(1) expressly or impliedly forbids such actions.

ii iii

Il. THE 1976 AMENDMENTS TO THE

TABLE OF CONTENTS APA WAIVED SOVEREIGN

IMMUNITY FOR ALL CLAIMS

Page SEEKING RELIEF OTHER THAN

ES 10

ERE SR a a i

Il. THE TUCKER ACT DOES NOT

SE a LE a v EXCLUDE CLAIMS BASED ON

CONTRACT FROM THE WAIVER

INTEREST OF AMICUS CURIAE .0....000:scccscccscsssccsccssoessscoseees l OF SOVEREIGN IMMUNITY

SUMMARY OF ARGUMENT.........:c:ce:sssescessessesessessesesersneenees 3 wrsstsinnchao- Sooner aaa

A. Money Damages Often Do Not

EERE RAEI SEEN SO 5 Provide An Adequate Remedy

7 THE COURT SHOULD CLARIFY a ieetrinninernerscmsansenesninneenstiio 13

Se neTd ces core B. The Tucker Act Does Not

Impliedly Forbid A Party From

CONFUSION AMONG THE Obtaining Relief Other Than

CIRCUITS REGARDING THE M Damages Under The

JURISDICTION OF DISTRICT Mudie hat fae A Clete

COURTS TO DECIDE CONTRACT- Founded Upon A Contract 15

i 5 itch Si paeacemammmmaaas

C. The Bowen Framework Should

A. Bowen v. Massachusetts Set The Apply To Claims Founded On

Framework For Analyzing Contract 19

I I nora

Belongs In The District Courts 1. This Court Has Applied

Under The APA Or In The The Bowen Framework

Court of Federal Claims Court To Claims Founded

I I censtustinbontons 5 Upon The Constitution

B. Ths Cou Of Appeals Elove Bare a 19

Tentative In Applying The

Bowen Framework To The

Three Categories Of Claims

Covered By The Tucker Act ............ccececseesereeses 7

j

CONCLUSION

TABLE OF AUTHORITIES

Bowen v. Massachusetts, 487 U.S. 879 (1988) .............. passim

City Stores Co. v. Ammerman, 266 F. Supp. 766

(D.D.C. 1967), aff'd 394 F.2d 950 (D.C. Cir.

DGD disentinctininnsecstennindtcittainiintsanndtnbdebeabenctniesarsseveseen~ene 14

Crane v. United States, 41 Fed. Cl. 338 (1998) .........c.ccc00004 21

Eastern Enterprises v. Apfel, 118 S.Ct.2131,

of ee I Ee eee a passim

Katz v. Cisneros, 16 F.3d 1204 (Fed. Cir. 1994) ............... 8, 22

Kidwell v. Army, 56 F.3d 279 (D.C. Cir. 1995), ........0cccceeseoes 17

Kroblin Refrigerated Xpress, Inc. v. Pitterich, 805

Fe PP EES UIE cntpnctcnsretscensigenatinapatnnnmmanscreseseese 14

Maryland Dep't of Human Resources v. Department

of Health and Human Services, 763 F.2d 1441

A Sn ee 18, 19

National Ctr. for Mfg. Sciences v. United States, 114

eg 4, 8, 9, 14, 22

North Star Alaska v. United States, 14 F.3d 36 (9th

8 Cee 8, 9,24

Osprey Pacific Corp. v. United States, 41 Fed. Cl.

SITTIN ‘nchretnscitsincisieacttesthteniasiniatisintenintndiniensearedesscoeiasnes 21

Transohio Sav. Bank v. nie Office of Thrift

Supervision, 967 F.2d 598 (D.C. Cir. 1992) sc...» passim

Triple-A Baseball Club Assoc. v. Northeastern

Baseball, Inc., 832 F.2d 214 (1st Cir, 1987) <.cccccccccscsssee 14

United States v. Jones, 131 U.S. 1 (1889) scccccccccscesssssseseeseen 17

United States v. Winstar Corp., 518 U.S. 839 (1996) ......0»» 2

Vietnam Veterans of America v. Secretary of the

Navy, 843 F.2d 528 (D.C. Cir. 1988) ..ccccccccccsscsessssseseeee 17

STATUTES AND RULES

9002. 8 asin it a echtnnnntlcnd passim

URE, ONOIG ainsiiiniinhiitichbetbilincnicinnitisiileid 5

SO I aii sc rciciinaieiiniin labialis 5

ID cvisinrctsniencalninhsttitigpionietic passim

SR I vceinsiicdbinrnnieiaiichertirsiinsibitaeare 5

Pub. L. No. 97-164, 96 Stat. 25 (1982) ..ccscsssssvvsssssseeseeseeseee 7

Pub. L. No. 89-554, 80 Stat. 392 (1966) escecvcccvcsisssesseeeseeeen 10

Pub. L. No. 94-574, 90 Stat. 2721 (1976) ccsovccccsssssssssesseeeeee 11

Pub. L. No. 102-572, 106 Stat. 4506 (1992) ........cccssevveeenen 7

Pe aitllencte ot ads le oi herd ite 14

vii

MISCELLANEOUS

H.R. Rep. No. 94-1656 (1976), reprinted in 1976

ES IN ST ee: ae passim

Bete BD, Se CP crcenernssecncnsenspesnsscsssnvctscscansion, passim

Restatement (Second) of Contracts § 357, 359, 360

SETEIIE echseicciaiiinethiapaeinabandiennnplinsbetnaernadusaephasenireczeoreniniinn 14

No. 97-1642

In The

Supreme Court of the United States

October Term, 1998

United States Department of the Army,

Petitioner,

v.

Blue Fox, Inc..,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF AMICUS CURAE OF

THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA IN

SUPPORT OF RESPONDENT

INTEREST OF AMICUS CURIAE

The Chamber of Commerce of the United States of

America (“the Chamber”) is the world’s largest business

federation.' The Chamber represents an underlying

' Pursuant to Supreme Court Rule 37.6, amicus curiae

affirms that no counsel for either party authored any part of

this brief and that no one other than amicus curiae, its

(Footnote continued on next page)

2

membership of more than three million businesses and

organizations of every size, sector and region, many of which

contract with the Federal Government. The Chamber

regularly advocates its members’ views in court on issues of

national concern to the business community.

This Court has long recognized that, when the United

States contracts with private companies, the relationship

between the parties should be the same as when private

companies contract with each other. See, e.g., United States

v. Winstar Corp., 518 U.S. 839, 895 (1996) (Souter, J., for

the plurality) (“‘When the United States enters into contract

relations, its rights and duties therein are governed generally

by the law applicable to contracts between private

individuals.””) (quoting Lynch v. United States, 292 U.S.

571, 579 (1934)). The ability to obtain relief other than

money damages in cases involving contracts is a cornerstone

of contractual relations between private parties.

Likewise, the ability to obtain relief other than money

damages for claims founded upon contracts with the

Government is of great importance to the huge community

that “does business” with the government on a daily basis.

Most of that community are members of the Chamber.

Because the jurisdictional issues in this case will

significantly affect the rights of companies which contract

with the Federal Government to seek relief other than money

(Footnote continued from previous page)

members, or its counsel provided any financial support for

the preparation of the brief.

Pursuant to Supreme Court Rule 37.3, written consent

to the filing of this brief has been obtained from counsel for

petitioners and respondents, and the documents reflecting

consent have been filed with the Clerk’s office.

3

damages in contract cases, the Chamber has a vital interest in

presenting its views on this subject to the Court.

SUMMARY OF ARGUMENT

This case involves the interplay of the waivers of

sovereign immunity conferred by the Administrative

Procedure Act (“APA”), 5 U.S.C. § 702 (1994), and the

Tucker Act, 28 U.S.C. §1491(a)(1). In Bowen vy.

Massachusetts, 487 U.S. 879 (1988), the Court held that

claims seeking money damages were subject to the Tucker

Act waiver of sovereign immunity, while claims seeking

other than money damages were subject to the APA’s waiver

of sovereign immunity.

Bowen’s holding was based on the broad waiver of

immunity effected by the 1976 amendments to the APA.

Those amendments waived sovereign immunity for claims

“seeking relief other than money damages....” 5 U.S.C.

§ 702. The legislative history of those amendments reveals

that Congress intended to “eliminate the defense of sovereign

immunity as \o any action in a Federal court seeking relief

other than money damages and stating a claim based on the

assertion of unlawful action by an agency or by an officer or

employee of the agency.” H.R. Rep. No. 94-1656, at 3

(1976), reprinted in 1976 U.S.C.C.A.N. 6121, 6123. See

also S. Rep. No. 94-996, at 2 (1976) (“S. 800 would

eliminate the defense of sovereign immunity in Federal court

actions for specific relief claiming unlawful action by a

Federal agency, officer, or employee.”).

Petitioner does not challenge any of the holdings of

Bowen. Rather, Petitioner urges the Court to refuse to extend

the Bowen analysis to contract cases. In so doing, Petitioner

seeks to impose an artificial limit on the broad waiver of

sovereign immunity effected by the APA, by urging the

Court to hold that sovereign immunity bars all claims

4

founded on contract except claims for money damages under

the Tucker Act.

The APA’s waiver of sovereign immunity does not

exclude actions founded on contract. Bowen involved a

claim founded upon statute. Recently, this Court has applied

the Bowen framework to claims founded on the Constitution.

See Eastern Enterprises v. Apfel, 118 S. Ct. 2131, __ US.

____ (1998). There is no basis in the Tucker Act or the APA

to distinguish claims founded upon contract from claims

founded upon statute or the Constitution.

The time has come for the Court to make clear that

the Bowen framework applies to claims founded upon

contract, just as the Court has applied it to claims founded

upon the Constitution and statute. Such clarity will be

consistent with the Court’s holdings, the APA and the Tucker

Act, and will minimize the need for courts to engage in the

wasteful exercise of deciding which court should decide the

merits of a case.

5

ARGUMENT

I. THE COURT SHOULD CLARIFY THE REACH

OF BOWEN V. MASSACHUSETS IN LIGHT OF

THE CONFUSION AMONG THE CIRCUITS

REGARDING THE JURISDICTION OF

DISTRICT COURTS TO DECIDE CONTRACT-

RELATED CASES

A. Bowen v. Massachusetts Set The

Framework For Analyzing Whether An

Action Properly Belongs In The District

Courts Under The APA Or In The Court of

Federal Claims Court Under The Tucker

Act

This Court last considered the interplay between the

waivers of sovereign immunity conferred by the APA and the

Tucker Act in Bowen v. Massachusetts, 487 U.S. 879 (1988).

In Bowen the State of Massachusetts sued the department of

Health and Human Services (“HHS”) in district court under

the APA, challenging HHS’ final order refusing to reimburse

the State for a category of expenditures under the State’s

Medicaid program. 487 U.S. at 882. The State alleged that

the order violated the Social Security Act and the HHS

regulations implementing the Medicaid program, and

requested declaratory and injunctive relief requiring HHS to

make the reimbursement. /d. at 883-88.

The State argued that the district court had authority

to grant complete relief under the APA.? 5 U.S.C. § 702.

? For claims permitted under the APA waiver of sovereign

immunity, jurisdiction is proper in the federal district courts

under the federal question statute, 28 U.S.C. § 1331, the

declaratory judgment statute, 28 U.S.C. §§ 2201-2202, or the

(Footnote continued on next page)

6

The United States argued that the APA did not authorize

review because (1) the State sought “money damages” which

cannot be recovered undex § 702 of the APA;’ and (2) § 704

of the APA bars relief because the State had an adequate

remedy at law, a suit for damages in the Claims Court under

the Tucker Act. In essence, the United States contended that

the only permissible suit the State could bring was a suit for

money damages under the Tucker Act, 28 U.S.C.

§ 1491(a)(1).

This Court rejected the government’s arguments. The

Court recognized that payments of money do not always

equate to “money damages,” and held that a suit in equity to

enforce a payment obligation was not a suit for “money

damages” excepted from the APA. The Court also

recognized that the money damages available in the Claims

Court are not always “an adequate substitute” for equitable

relief. Bowen, 487 U.S. at 905.

Bowen thus recognized that those adversely affected

by government action may seek equitable relief and

established a framework for analyzing whether an action

properly belonged in the district courts under the APA, or in

(Footnote continued from previous page)

mandamus statute, 28 U.S.C. § 1361. See, e.g., Sharp v.

Weinberger, 798 F.2d 1521, 1523 (D.C. Cir. 1986).

* Petitioner here also argues that respondent is seeking

money damages, and that for this reason the APA waiver of

sovereign immunity does not apply. Respondent’s action,

however, seeks an equitable lien on appropriated funds that

have already been obligated to pay for the work respondent

performed as a subcontractor to Verdan Technology, Inc.

Therefore, on its face, the action is not seeking money

damages.

7

the Claims Court (subsequently renamed the Court of Federal

Claims*) under the Tucker Act. Consistent with the language

of the APA and the Tucker Act, the Court focused on the

nature of relief sought by the plaintiff. For actions seeking

relief other than money damages, the APA waived sovereign

immunity and the action could be brought in district court.

For actions seeking money damages, the Tucker Act waived

sovereign immunity and the action could be brought in the

Claims Court (or, if for $10,000 or less, in district court).

487 U.S. at 893-901.

B. The Courts Of Appeals Have Been

Tentative In Applying The Bowen

Framework To The Three Categories Of

Claims Covered By The Tucker Act

Bowen was part of a continuing process by which the

Court and Congress have reduced the applicability of the

defense of sovereign immunity. See, e.g., S. Rep. No. 94-

996, at 3-4 (“Congress has made great strides toward

establishing monetary liability on the part of the Government

for wrongs committed against its citizens.”).° This Court has

* Pursuant to the Federal Courts Improvement Act of 1982,

Pub. L. No. 97-164, 96 Stat. 25 (1982), the United States

Claims Court became the successor to the Court of Claims.

Subsequently, pursuant to Title [IX of the Court of Federal

Claims Technical and Procedural Improvements Act of 1992,

Pub. L. No. 102-572, 106 Stat. 4506 (1992), the United

States Claims Court was renamed the United States Court of

Federal Claims.

* As discussed more fully below, S. Rep. No. 94-996

accompanied the bill that became the 1976 amendments to

the APA.

now applied the Bowen framework to claims founded upon

the Constitution, Eastern Enterprises v. Apfel, 118 S. Ct.

2131, _—«U.S. ____ (1998), and upon statute. Bowen v.

Massachusetts, 487 U.S. 879. In both types of cases, this

Court has held that a party may seek relief other than money

damages in distnct court under the APA.

The same framework should be applied to cases

seeking to enforce rights founded on contracts, which is the

third category of claims covered by the Tucker Act. The

courts of appeals, however, have been tentative in applying

the Bowen framework to claims founded on contracts. The

United States Court of Appeals for the Federal Circuit has

applied this Court's decision in Bowen to cases involving

contracts with the Federal Government, and has held that,

where a claimant seeks relief other than money damages, an

action against the Federal Government may lie in the district

courts even when the actions are related to or involve a

contract. See, e.g., National Ctr. for Mfg. Sciences v. United

States, 114 F.3d 196 (Fed. Cir. 1997); Katz v. Cisneros, 16

F.3d 1204 (Fed. Cir. 1994).

In contrast, the Courts of Appeals for the D.C. and

Ninth Circuits have declined to apply Bowen to contract

cases. Both courts have said that the reasoning of Bowen

virtually compelled the conclusion that contract actions for

other than money damages may be brought under the APA.

Transohio Sav. Bank v. Director, Office of Thrift

Supervision, 967 F.2d 598 (D.C. Cir. 1992); North Star

Alaska v. United States, 14 F.3d 36 (9" Cir. 1994). Because

Bowen (in their view) did not involve a contract, however,

both courts declined to so rule "[w]ithout more certain

direction from the Supreme Court." 7ransohio, 967 F.2d at

613; North Star Alaska, 14 F.3d at 38.

Petitioner has sought to capitalize on the confusion

among the courts of appeals by attempting to transfer cases to

9

the court most likely to dismiss them. In National Center for

_ Manufacturing Sciences, the plaintiff filed suit in district

court under the APA seeking an order directing the Air Force

to release funds appropriated for a cooperative agreement

between the plaintiff and the government. 114 F.3d at 198.

The district court, however, found that the claim was a

contract claim against the government in excess of $10,000,

and transferred the case to the Court of Federal Claims. /d.

The plaintiff filed an interlocutory appeal to the Federal

Circuit. Jd.

During the appeal, the government candidly

acknowledged that its strategy was to have the case

transferred to the Court of Federal Claims, and then to seek

dismissal of the complaint on the grounds that the

Appropriations Act was not a money-mandating statute,

which, in turn, would require the plaintiff to “return to

district court and start all over. . . by filing a new complaint,

this time avoiding any suggestion in its complaint that the

Appropriations Act is a money-mandating statute.” /d. at

199. The court decried this situation, noting that “[t)his

proposed scenario threatens to turn this case into a

jurisprudential Flying Dutchman, casting about in search of a

court that can reach the merits of [the plaintiff's] claims.” Jd.

Clarity in understanding where a case should be heard

would avoid the “Flying Dutchman” scenario. Jd. Moreover,

clear guidance on jurisdictional questions such as those

presented in this case will minimize the need for courts to

“engage in the wasteful exercise of deciding not how a

dispute should be resolved, but what court should be

responsible for resolving it.” Jd. at 197, citing Bowen, 487

U.S. at 930 (“[nJothing is more wasteful than litigation about

where to litigate, especially when all the options are courts

within the same legal system that will apply the same law.”)

(Scalia, J., dissenting).

10

seeks to undermine the Court’s recognition in Bowen of the

broad waiver of sovereign immunity effected by the 1976

amendments to the APA by imposing a vestigial element of

sovereign immunity that does not exist. Petitioner seeks to

bar actions for other than money damages that are related in

any way to contracts. The Court should provide a clear

statement that, pursuant to the Court's reasoning in Bowen,

the APA waiver of sovereign immunity does not exclude

actions founded on contracts. To the extent that the Court of

Appeals for the Ninth Circuit held that Respondent could

bring this suit even though it related to a contract, the

Chamber urges the Court to affirm the Ninth Circuit's

decision.

Il. THE 1976 AMENDMENTS TO THE APA

WAIVED SOVEREIGN IMMUNITY FOR ALL

CLAIMS SEEKING RELIEF OTHER THAN

MONEY DAMAGES

The 1976 amendments to the APA were intended to

effect a broad waiver of sovereign immunity for all claims

seeking relief other than money damages. Before the 1976

amendments, section 702 of the APA provided only that “[a]

person suffering legal wrong because of agency action, or

adversely affected or aggrieved by agency action within the

meaning of a relevant statute, is entitled to judicial review

thereof.” Pub. L. No. 89-554, 80 Stat. 392 (1966). The 1976

amendments added, inter alia, the following sentence to

section 702:

An action in a court of the United States

seeking relief other than money damages and

stating a claim that an agency or an officer or

‘employee thereof acted or failed to act in an

official capacity or under color or legal

authority shall not be dismissed nor relief

11

therein be denied on the ground that it is

against the United States or that the United

States is an indispensable party.

Pub. L. No. 94-574, 90 Stat. 2721 (1976). The plain

language of this addiiion states that the APA waives

sovereign immunity for all actions seeking relief “other than

money damages.” No distinction relating to contracts is

stated or even implied.

The legislative history of the 1976 amendments

reveals that the purpose of those amendments was to

eliminate the defense of sovereign immunity in all cases

seeking relief other than money damages. For example, the

House Report which accompanied S. 800 (the bill that

became the 1976 amendments) stated that Congress intended

to “eliminate the defense of sovereign immunity as to any

action in a Federal court seeking relief other than money

damages and stating a claim based on the assertion of

unlawful official action by an agency or by an officer or

employee of the agency.” H.R. Rep. No. 94-1656, at 3

(1976), reprinted in 1976 U.S.C.C.A.N. 6121, 6123. The

Senate report accompanying S. 800 contained a similar

statement. See S. Rep. No. 94-996, at 2 (1976) (“S. 800

would eliminate the defense of sovereign immunity in

Federal court actions for specific relief claiming unlawful

action by a Federal agency, officer, or employee.”).

Similarly, both the House and Senate reports stated

that “the time [has] now come to eliminate the sovereign

immunity defense in all equitable actions for specific relief

against a Federal agency or officer acting in an official

capacity.” H.R. Rep. No. 94-1656, at 9, supra; S. Rep. No.

94-996, at 2. The Senate Report explained that elimination

of the doctrine of sovereign immunity in suits seeking relief

other than money damages was a necessary reform to

12

eliminate an obsolete concept and to strengthen the

accountability of the Federal Government to its citizens:

The doctrine of sovereign immunity

probably descended from the tenet of

medieval English law that the "King can do no

wrong.” Yet even today, 200 years after the

American revolution, the doctrine stands as

barrier to the redress of just grievances against

the United States Government. To the extent

that this obsolete immunity doctrine prevents

the orderly, rational review of actions of

Federal officers, it is inconsistent with the

principles of accountable and responsible

Government.

Congress has made great strides

toward establishing monetary liability on the

part of the Government for wrongs committed

against its citizens .... S. 800 would

strengthen this accountability by withdrawing

the defense of sovereign immunity in actions

seeking relief other than money damages,

such as an injunction, declaratory judgment,

or writ of mandamus.

S. Rep. No. 94-996, at 3-4 (emphasis added). See also H.R.

Rep. No. 94-1656, at 4, supra.

In Bowen, the Court recognized the broad waiver of

sovereign immunity effected by the 1976 amendments to the

APA. The Court noted that “it is undisputed that the 1976

amendment to § 702 was intended to broaden the avenues for

judicial review of agency action by eliminating the defense

of sovereign immunity in cases covered by the

amendment... .” Jd at 891-92. Further, the Court noted

that the 1976 amendment “was unquestionably intended to

13

broaden the coverage of § 702 [of the APA].” Jd. at 896.

This waiver does not exclude actions founded on contracts

from its reach.

iil. THE TUCKER ACT DOES NOT EXCLUDE

CLAIMS BASED ON CONTRACT FROM THE

WAIVER OF SOVEREIGN IMMUNITY

EFFECTED BY THE APA

Petitioner does not challenge any of the holdings in

Bowen. Instead, Petitioner argues that Bowen should not be

extended to claims founded on contracts. In order to accept

Petitioner’s argument, this Court would have to accept two

premises. First, the Court would have to agree that under

contracts, as distinct from the Constitution and statutes,

money damages are always an adequate remedy at law.

Second, the Court would have to agree that the Tucker Act

Neither premise is supported by precedent. Accordingly,

Bowen should be extended to claims founded on contracts.

A. Money Damages Often Do Not Provide An

Adequate Remedy For Contract Rights

The APA’s broad waiver of sovereign immunity

extends only to claims “for which there is no other adequate

remedy in a court....” 5 U.S.C. §704. Petitioner’s

argument that the APA waiver of sovereign immunity

excludes claims based on contracts presumes that money

damages always constitute adequate relief for an adverse

ei ‘(oncontract rights.

Bowen addressed the adequacy of money damages in

the context of a statutory requirement to pay money. Bowen

487 U.S. at 901. The Court rejected the Government’s

argument that section 704 would “bar review of the agency

action in the District Court because monetary relief against

14

the United States is available in the Claims Court under the

Tucker Act” as “restrictive” and “unprecedented.” Jd at

904-05. Because of the “limited relief available in the

Claims Court,” id at 901, namely that the Claims Court did

not have the general equitable powers of a district court, the

Court in Bowen was unwilling to conclude that “a naked

money judgment against the United States will always be an

adequate substitute for prospective relief... .” Jd at 905.

Although Bowen involved a statutory scheme, its

reasoning applies equally well to an effort to enforce contract

rights. See National Ctr. for Mfg. Sciences, 114 F.3d at 200-

01 (because the Court of Federal Claims could not provide

the equitable relief the plaintiff sought, there was no adequate

remedy under the Tucker Act); Transohio Sav. Bank, 967

F.2d at 608, citing Bowen (a money judgment will not always

be an adequate substitute for equitable relief). Because of the

limited relief available in the Court of Federal Claims, a

naked money judgment will not always be an adequate

substitute for prospective relief when the government fails to

perform its contractual obligations.

It is well-recognized at common law that money

damages are not always an adequate remedy for contract-

related actions. See, e.g., Restatement (Second) of Contracts

§ 357, 359, 360 (1981) (describing availability of specific

performance and injunctive relief for contract actions when

damages would not be adequate); U.C.C. § 2-716 (1989)

(describing buyer's right to specific performance); City Stores

Co. v. Ammerman, 266 F. Supp. 766, 776 (D.D.C. 1967)

(specific performance of lease appropriate where legal

remedies inadequate), aff'd 394 F.2d 950 (D.C. Cir. 1968);

Kroblin Refrigerated Xpress, Inc. v. Pitterich, 805 F.2d 96,

103 (3 Cir. 1986) (“Specific performance may be granted

by a court of equity in its discretion if there is no adequate

remedy at law.”); Triple-A Baseball Club Assoc. v.

Northeastern Baseball, Inc., 832 F.2d 214, 223-24 (1* Cir.

15

1987) (citing Restatement (Second) of Contracts § 360 and

drawing analogy to U.C.C. § 2-716.)

Accordingly, there is no presumption in the law that

money damages are always an adequate remedy for

violations of contract rights. To the contrary, under common

law and the Uniform Commercial Code, equitable relief for

violations of contract rights is available. Similarly, money

damages are not necessarily an adequate remedy when the

Federal Government violates contract rights.

B. The Tucker Act Does Not Impliedly Forbid

A Party From Obtaining Relief Other Than

Money Damages Under The Tucker Act

For A Claim Founded Upon A Contract

The second prong of the Government’s argument is

that the Tucker Act impliedly forbids the relief sought by

Respondent. The APA states that “[nJothing herein . . .

confers authority to grant relief if any other statute that grants

consent to suit expressly or impliedly forbids the relief which

is sought.” 5 U.S.C. § 702. Petitioner argues that the Tucker

Act is such a statute.

Petitioner’s argument is based solely on the

limitations on the authority of the Court of Federal Claims to

grant other than money damages in cases filed under the

Tucker Act. Br. for Petitioner at 47-49. The Court of

Federal Claims’ lack of authority to grant equitable relief

+hould not effect the scope of the waiver of sovereign

immunity under the APA.

Both the House and Senate reports that accompanied

the 1976 amendments to the APA state that the “impliedly

forbids” language “merely provides that new authority to

grant specific relief is not conferred when Congress has dealt

in particularity with a claim and intended a specified remedy

16

to be the exclusive remedy.” S. Rep. No. 94-996, at 12; H.R.

Rep. No. 94-1656, at 13, supra (same). The question that

must be addressed, therefore, is whether the Tucker Act was

intended to establish money damages as the exclusive

remedy for claims founded on a contract. As the Bowen

Court stated, the answer is no.°

First, the Tucker Act says nothing about the remedies

available to a plaintiff. See 28 U.S.C. § 1491(a)(1). The

restriction to obtaining money damages is derived from the

limited authority of the Court of Federal Claims, which

cannot grant equitable relief. See Transohio Sav. Bank, 967

F.2d at 608, citing Richardson v. Morris, 409 U.S. 464, 465

(1973); United States v. Jones, 131 U.S. 1 (1889).

Second, in Bowen the Court rejected the view that,

under the Tucker Act, the Claims Court had exclusive

jurisdiction to provide monetary relief. The Court said that

the assumption that the Claims Court had such exclusive

jurisdiction

is not based on any language in the Tucker

Act granting such exclusive jurisdiction to the

° The legislative history of the 1976 amendments to the APA

reveals that the drafters of those amendments did not assume

that the Tucker Act imposed any limits on the ability of a

plaintiff to seek relief other than money damages under the

APA for claims founded on contract. Both the House and

Senate reports state that “the partial abolition of sovereign

immunity brought about by this bill does not change existing

limitations on specific relief, if any, derived from statutes

dealing with such matters as government contracts... .” S.

Rep. No. 94-996, at 12 (emphasis added); H.R. Rep. No.

94-1656, at 13, supra (same).

17

Claims Court. Rather, that court’s jurisdiction

is “exclusive” only to the extent that Congress

has not granted any other court authority to

hear claims that may be decided by the Claims

Court. If, however, § 702 of the APA is

construed to authorize a district court to grant

monetary relief-other than traditional “money

damages”—as an incident to the complete

relief that is appropriate in the review of

agency action, the fact that the purely

monetary aspects of the case could have been

decided in the Claims Court is not sufficient

reason to bar that aspect of the relief available

in a district court.

487 U.S. at 910 n.48.

In other words, the Court said in Bowen that the

Tucker Act did not forbid a party from obtaining relief in the

form of payment of money from the government as an

incident to other relief ordered by a district court under the

APA. It stands to reason, therefore, that the Tucker Act does

not forbid obtaining relief other than the payment of money

under the APA -- that is precisely the purpose of the 1976

amendments to the APA.

Third, allowing actions for claims founded on

contract under the APA is consistent with the purpose of the

Tucker Act. The Court of Appeals for the D.C. Circuit has

stated that a primary purpose of the Tucker Act is “to ensure

that a central judicial body adjudicates most claims against

the United States Treasury,” Kidwell v. Army, 56 F.3d 279,

284 (D.C. Cir. 1995), citing United States v. Hohri, 482 U.S.

64, 71-73 (1987) (describing goal of uniformity behind

creation of Federal Circuit); Vietnam Veterans of America v.

Secretary of the Navy, 843 F.2d 528, 534 (D.C. Cir. 1988)

(recognizing Tucker Act’s interest in uniformity). Even if

actions founded on contracts seeking relief other than money

damages may be brought under the APA, most claims against

the United States Treasury (i.e., claims for money damages)

still would be resolved by a central judicial body -- the Court

of Federal Claims under the Tucker Act. In those cases

where a money damages remedy under the Tucker Act would

be adequate, an action under the APA would not lie. See 5

U.S.C. § 704.’

Finally, in Bowen the Court cited an action founded

on contract as one example of an action that would lie under

the APA. The Court quoted extensively from Judge Bork’s

discussion of the purpose of the 1976 amendment to the APA

in Maryland Department of Human Resources v. Department

of Health and Human Services, 763 F.2d 1441 (D.C. Cir.

1985). Bowen, 487 U.S. at 899 (“Judge Bork’s summary of

the legislative history is especially convincing.”). In

particular, the Court cited Judge Bork’s discussion of the

distinction between claims for money damages (covered by

the Tucker Act) and claims for other relief (permitted under

the APA). Jd. at 899-900.

Judge Bork noted that a plaintiff might file an

equitable action seeking specific relief that would

nonetheless result in the payment of money by the United

States to the plaintiff. Maryland Dep't of Human Resources,

763 F.2d at 1446. In such cases, because the relief sought

would not be money damages, but specific relief, the APA

would waive sovereign immunity over a plaintiff's suit. /d.

’ While an adequate remedy at law may exist in many cases,

as noted above, money damages is not always an adequate

remedy. Whether money damages would be adequate must

be addressed on a case-by-case basis. It cannot be

predetermined for all cases involving contract rights.

19

To illustrate this distinction, Judge Bork noted that

“while in many instances an award of money is an award of

damages, ‘[o]ccasionally a money award is also a specie

remedy.’ Courts frequently describe equitable actions for

monetary relief under a contract in exactly those terms.”

Maryland Dep't of Human Resources, 763 F.2d at 1446,

quoting D. Dobbs, Handbook on the Law of Remedies, 135

(1973) (emphasis added). The Court in Bowen quoted this

ey of Judge Bork’s decision. See Bowen, 487 U.S. at

Judge Bork’s example involved an action founded on

contract in which the relief included the payment of money

(though not money damages). The Court accepted that

situation as an example of an action that would lie under the

APA. Clearly, therefore, where a party seeks relief that does

not even involve the payment of money, the action also

would lie under the APA. Nothing in Bowen would suggest

otherwise.

c. The Bowen Framework Should Apply To

Claims Founded On Contract

1. This Court Has Applied The Bowen

Framework To Claims Founded Upon

The Constitution And Statute

The Tucker Act waives sovereign immunity for three

categories of claims: claims founded upon the Constitution;

claims founded upon law (statutes and regulations); and

claims founded upon contracts. Nothing in the text of the

Tucker Act suggests that claims founded upon cuntract

should be treated any differently from claims founded on the

Constitution, statutes, or regulations. 28 U.S.C. § 1491(a)(1).

This Court already has determined that the APA waiver of

sovereign immunity for suits founded on the Constitution or

20

statutes are unaffected by the Tucker Act. The rule should be

the same for claims founded on contract.

In Eastern Enterprises v. Apfel, 118 S. Ct.2131,_

U.S. __, the Court discussed the appropriate jurisdiction for

claims founded upon the Fifth Amendment. As it did in

Bowen, the Court held that the nature of the relief sought by

the plaintiff determined whether the Tucker Act waiver of

sovereign immunity or the APA waiver of sovereign

immunity applied to such claims.

The plaintiff (Eastern) filed suit in district court

seeking, inter alia, a declaratory judgment that assessments

of premiums under the Coal Act constituted an illegal taking

under the Fifth Amendment and violated the Due Process

Clause. Because the Tucker Act confers jurisdiction over

actions based upon the Constitution for money damages in

excess of $10,000, the Court said that “a claim for just

compensation under the Takings Clause must be brought to

the Court of Federal Claims in the first instance ....” 118 S.

Ct. at 2144.

However, the Court noted that “Eastern does not seek

compensation from the Government. Instead, Eastern

requests a declaratory judgment that the Coal Act violates the

Constitution and a corresponding injunction against . . .

enforcement of the Act as to Eastern.” 118 S. Ct. at 2144-45.

Therefore, the Court concluded that the district court had

jurisdiction over Eastern’s claim pursuant to the APA.

“Based on the nature of the taking alleged in this case, we

conclude that the declaratory judgment and injunction sought

by petitioner constitute an appropriate remedy under the

21

circumstances, and that it is within the district courts’ power

to award such equitable relief.” Jd. at 2145-46.°

Similarly, in Bowen, the Court found that the claim,

which was founded on statute, could be brought under the

APA. The Court held that the Tucker Act did not impliedly

forbid relief. There is no suggestion in the Tucker Act (or

the APA) that claims founded on contract should be treated

differently from claims founded on statute or the

Constitution. Like Constitutional and statutory claims for

money damages, contract claims for money damages are

subject to the Tucker Act waiver of sovereign immunity. But

like Constitutional and statutory claims for relief other than

money damages, contract claims for relief other than money

damages also should be subject to the APA waiver of

sovereign immunity.

* Lower courts also have applied the Bowen framework to

claims founded on the Constitution. See, e.g., Crane v.

United States, 41 Fed. Cl. 338 (1998) (suit alleging that

plaintiff was separated from the Armed Services in violation

of Fifth Amendment due process rights and seeking

reinstatement was a claim for specific relief which lies under

the APA and should be transferred to district court); Osprey

Pacific Corp. v. United States, 41 Fed. Cl. 150 (1998) (claim

for just compensation for taking under the Fifth Amendment

properly brought in Court of Federal Claims under the

Tucker Act).

22

2. The Analysis Of Bowen In The Courts

Of Appeals Is Consistent With

Applying The Bowen Framework To

Claims Founded Upon Contract

The Federal Circuit has extended the Bowen decision

to contract cases, by applying Bowen’s analysis to determine

whether an action properly lies in the district courts under the

APA or in the Court of Federal Claims under the Tucker Act.

In short, the Federal Circuit approaches such cases by

focusing on the nature of the relief sought, just as this Court

did in Bowen. National Ctr. for Mfg. Sciences, 114 F.3d 196;

Katz v. Cisneros, 16 F.3d 1204.

In contrast, both the D.C. Circuit and the Ninth

Circuit have declined to extend the Bowen framework to

actions founded on contract. But in so declining, both

circuits have virtually begged for clear guidance from this

Court. Moreover, their opinions demonstrate that the

application of the Bowen framework to contract cases is

appropriate.

The Court of Appeals for the D.C. Circuit addressed

the issue in 7ransohio Savings Bank v. Director, Office of

Thrift Supervision, 967 F.2d 598. In Transohio the plaintiff

filed suit in district court under the APA seeking an

injunction to enjoin the United States from applying the

capital requirements of the Financial Institutions Reform,

Recovery and Enforcement Act (“FIRREA”) to the plaintiff.

Plaintiff alleged that imposing those requirements would

violate the statute, violate plaintiff's substanti e due process

rights, and constitute a breach of the plaintiff's contract with

the United States. /d. at 603.

The D.C. Circuit, relying on its prior precedent,

distinguished between contract claims and claims founded on

the Constitution or a statute:

—

23

The lesson of [our prior case law], we think is

straightforward: under § 702 and the Tucker

Act, litigants may bring common-law contract

claims only as actions for money damages in

the Claims Court, but they may bring statutory

and constitutional claims for specific relief in

federal district court.

Id. at 610. The court recognized, however, the right of a

party to bring constitutional or statutory actions under the

APA even if the relief requested was the equivalent of

specific performance of the contract.

In distinguishing the contract claims, the court

recognized that Bowen might require a review of the

precedent on which the court relied for the distinction. The

D.C. Circuit stated:

Bowen suggests that courts may have

been reading the Tucker Act too broadly and

the APA too narrowly. . . .

There is no hint in Bowen that the

broad scope of the APA’s sovereign-immunity

waiver, or the nonexclusivity of Claims Court

jurisdict ihe atethinetn

claim involves a contract. Indeed, language in

Bowen seems to imply the contrary. . . .

Transohio makes a strong case that,

after Bowen, the Tucker Act should not be

read to “impliedly forbid” under the APA the

bringing in district court of contract actions

for specific relief, that such a result would be

faithful to the text of the Tucker Act and the

APA, and sensible. Nothing in the language

24

of either the Tucker Act or the APA requires

special treatment for contract claims. .. .

Id. at 612.

Yet, despite its recognition that nothing in Bowen or

the Tucker Act justified the court’s prior distinction among

the categories of claims covered by the Tucker Act, the D.C.

Circuit refused to overrule its prior cases.

Bowen did not involve a contract and it did

not address the ‘impliedly forbids’ limitation

on the APA’s waiver of sovereign immunity.

Supreme Court, we decline to overrule this

Court’s very specific holdings that the APA

does not waive sovereign immunity for

contract claims seeking specific relief.

Id. at 613.

The Ninth Circuit reached a similar conclusion in

North Star Alaska v. United States, 14 F.3d 36 (9” Cir.

1994). In that case, the court noted that Bowen “could be

interpreted as taking a more expansive view of district court

jurisdiction under the APA than we have previously

recognized.” Jd. at 38. However, because Bowen did not

involve a contract, the Ninth Circuit, like the D.C. Circuit,

declined to overrule its prior case law holding that the APA

does not waive sovereign immunity for contract claims

seeking equitable relief, “‘[w]ithout more certain direction

from the Supreme Court.’” Jd (quoting Transohio, 967 F.2d

at 613).

Though they refused to apply Bowen to claims

founded on contracts, the analysis of Bowen in both the D.C.

and Ninth Circuits is consistent with the Federal Circuit’s

25

application of the Bowen framework to contract cases. It is

the D.C. and Ninth Circuits’ refusal to extend Bowen to

contact cases that pointedly demonstrates the need for

will continue to face the “Flying Dutchman” scenario, and

the courts will continue to engage in the wasteful exercise of

Accordingly, the time has come for this Court to

eliminate the confusion. The time has come for this Court to

state that the APA has eliminated all vestiges of the defense

of sovereign immunity for claims against the United States.

It is time for this Court to state that the waiver of sovereign

immunity in the APA includes claims founded on contracts

when they seek relief other than money damages.

CONCLUSION

For the foregoing reasons, the Court should rule that

the APA waives sovereign immunity for all claims against

even where the action involves a claim founded on a

contract. Accordingly, to the extent that the decision below

of the Ninth Circuit rests on such an interpretation of the

APA and the Tucker Act, the Court should affirm the Ninth

Circuit’s decision.

October 8, 1998

26

Respectfully submitted,

Herbert L. Fenster*

David A. Churchill

Tami Lyn Azorsky

Patrick K. O'Keefe

Matthew F. Porter

McKENNA & CUNEO, L.L.P

1900 K Street, N.W.

Washington, D.C. 20006

(202) 496-7500

*Counsel for Amicus Curiae

The Chamber of Commerce

of the United States of

America

Of Counsel

Robin S. Conrad

National Chamber

Litigation Center, Inc

1615 H Street, N.W.

Washington, D.C. 20062

(202) 463-5337