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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0172%3A11

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1999
- **Citation:** 525 U.S. 255

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0172%3A11. Public record. Not legal advice.