Most government contract lawyers are already familiar with the Tucker Act (28 U.S.C. § 1491), which gives the U.S. Court of Federal Claims jurisdiction over many non-tort claims against the United States, including contract disputes, Fifth Amendment takings, tax refunds, and other matters. But another Tucker Act is often overlooked: the Little Tucker Act (28 U.S.C. § 1346(a)(2)). A recent decision by the U.S. Court of Appeals for the Federal Circuit — National Veterans Legal Services Program v. United States (NVLSP) — reminds us that this other Tucker Act is alive and well.
What is the Little Tucker Act?
As summarized by the Supreme Court (United States v. Bormes, 568 U.S. 6 (2012)), the Little Tucker Act “provides that ‘district courts shall have original jurisdiction, concurrent with the United States Court of Federal Claims,’ of a ‘civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.’” Disputes arising from federal procurement contracts that are subject to the Contract Disputes Act (CDA) (41 U.S.C. § 7101 et seq.), however, are specifically excluded from the Little Tucker Act. As a result, the district courts have no CDA case jurisdiction.
The key distinction between the Tucker Act and the Little Tucker Act for non-CDA cases is that for claims below the $10,000 jurisdictional limit, claimants have a choice of forum: a U.S. District Court or the Court of Federal Claims. In contrast, for claims above $10,000, the Court of Federal Claims has exclusive jurisdiction. Similarly, if after filing in District Court a claim is found to exceed the $10,000 limit (for example, with the addition of attorneys’ fees), the claim will be transferred to the Court of Federal Claims (see Graham v. Henegar, 640 F.2d 732 (5th Cir. 1981)). The plaintiff, however, may waive all damages above the $10,000 cap to stay in district court (Smith v. Orr, 855 F.2d 1544 (Fed. Cir. 1988)).
When a Little Tucker Act case comes to the district court, that court sits as if it were the Court of Federal Claims, i.e., without a jury (28 U.S.C. § 2402). And generally, equitable relief is not available (Bobula v. U.S. Dep’t of Justice, 970 F.2d 854 (1992)). Further, Little Tucker Act claims that do not involve tax issues are only appealable to the Federal Circuit, regardless of the appellate circuit to which the district court belongs (28 U.S.C. § 1295). (Conversely, tax cases may be appealed to the circuit court normally associated with the lower court deciding the case (see 28 U.S.C. §§ 1291, 1295)).
Summary of the recent Federal Circuit Case
The August 6, 2020, NVLSP case involved cross-appeals to the Federal Circuit from the U.S. District Court for the District of Columbia regarding an illegal exaction class-action claim brought under the Little Tucker Act. The claim was that fees incurred by users of the federal courts’ Public Access to Court Electronic Records (PACER) system exceeded the amount that could lawfully be charged. The United States argued that the District Court lacked Little Tucker Act jurisdiction because the statute establishing PACER did not provide a cause of action with a monetary remedy. The Federal Circuit disagreed. The Little Tucker Act — like its cousin, the Tucker Act — was merely a jurisdictional statute allowing certain claims against the United States, with the difference that Little Tucker Act claims do not exceed $10,000. Recovery of money required the existence of a substantive right to that money. The Little Tucker Act provides jurisdiction over two types of non-contract claims: illegal exactions and claims under various “money-mandating” statutes. In this case, there was jurisdiction because “the illegal exaction claim possesses all the basic elements for Little Tucker Act jurisdiction: a non-tort claim against the United States pursuant to a federal source of law whose violation entitles the plaintiff to money from the government.” Finding jurisdiction, the Federal Circuit then affirmed the lower court’s summary judgment decision as to the measure of liability.
Under the Little Tucker Act, claimants with relatively small cases can, by filing their claim in their local district court, spare themselves the time and inconvenience of traveling to Washington, D.C. to appear before the Court of Federal Claims. Filing locally may also provide a more sympathetic forum. Conversely, claimants thinking of filing a case at a district court would do well to consider that their local court is less likely to have familiarity with the substantive law governing the case, given that these sorts of claims are typically filed at the Court of Federal Claims. Foregoing the subject matter expertise of the Court of Federal Claims may add uncertainty to a proceeding before a district court.