Litigation with the Federal Government
Gregory C. Sisk
University of St. Thomas School of Law (Minnesota)
Gregory C. Sisk, LITIGATION WITH THE FEDERAL GOVERNMENT, American Law Institute - American Bar Association, 4th ed., 2006
U of St. Thomas Legal Studies Research Paper No. 06-01
Every lawyer recognizes that the United States government is involved in every federal criminal case. Fewer appreciate that the federal government regularly is a party, as plaintiff or defendant, to more than one-fifth and as much as one-quarter of all the civil cases in the federal courts. Any lawyer who practices regularly in the federal courts eventually will encounter the federal government as a party and will learn, as the Supreme Court stated nearly 60 years ago, "it is too late in the day to urge that the Government is just another private litigant, for purposes of charging it with liability." Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 383 (1947).
The United States is hardly a typical litigant, as it benefits from a plethora of special procedures, defenses, and limitations on liability not available to others. Indeed, the federal government may not be subjected to suit at all absent its own express consent pursuant to the doctrine of federal sovereign immunity. Congress has enacted statutory waivers of sovereign immunity that cover most substantive areas of law and apply to most situations in which a plaintiff would seek relief. However, the federal government retains advantages and immunities not available to private parties. Moreover, while the statutory waivers of sovereign immunity do create something of a broad network or tapestry of authorized judicial actions against the government, they do not cover everything and each individual waiver is subject to significant exceptions. Congress has responded to the problem of sovereign immunity, seeking to find the appropriate balance between allowing access to court relief and protecting important governmental policy operations from judicial intervention. We learn much about a system of government by examining when and how that government responds (or fails to respond) to injuries inflicted by its agents or activities upon its own citizens.
As Justice Holmes admonished nearly a century ago, "men must turn square corners when they deal with the Government." Rock Island, A. & L.R. Co. v. United States, 254 U.S. 141, 143, (1920) (Holmes, J.). Yet, far too often, attorneys representing clients against the government fail to heed - or even recognize - this classic proverb of federal government litigation. And it is impossible to turn squarely unless one learns where those corners are. By offering something of a map, this treatise is dedicated to assisting practitioners in anticipating the curves of the law of federal government litigation so these corners will not be quite as sharp.
In this completely rewritten fourth edition of the treatise, the reader will encounter the following topics among many others: understanding the structure and operation of the Department of Justice as the litigating arm of the federal government; conducting civil discovery against the federal government, its agencies, and officers; negotiating settlement of civil lawsuits against the federal government; navigating the procedural obstacles to make a tort claim against the United States under the Federal Tort Claims Act; appreciating the limits on and exceptions to holding the government liable in tort under the Federal Tort Claims Act, especially when policy concerns are raised; recognizing the immunity of the government from claims for injuries suffered by civilian and military employees; seeing how a personal injury suit against a federal employee may be converted by the government into a suit against itself, even when the result is dismissal of the action by reason of governmental immunity; studying special tribunals with nationwide jurisdiction, such as the Court of Federal Claims, the Court of Appeals for Veterans Claims, and the Court of Appeals for the Federal Circuit; learning about special procedures for asserting contract claims under the Contract Disputes Act, for civilian and military employment claims under the Civil Service Reform Act and the Tucker Act, and for statutory, taking of property, Indian breach of trust, and other monetary claims under the Tucker Act; obtaining awards of attorney's fees against the federal government under multiple statutes, including the Equal Access to Justice Act; and exploring the role of the federal government as a plaintiff in civil litigation, including the scope of its right to sue, whether it is subject to statutes of limitations, and when and how counterclaims may be asserted against it.
Keywords: Federal courts, judicial review, Tucker Act, sovereign immunity, government suits, administrative procedure, Court of Federal Claims, Federal Circuit, government contracts, Federal Tort Claims Act, Department of Justice, Attorney General, Solicitor General, Contract Disputes Act, official immunityAccepted Paper Series
Date posted: January 20, 2006
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