Tucker Act Claims Explained: Suing the Federal Government for Money
Understanding the law that lets you recover money from the United States
Introduction
Can you sue the federal government? The answer is complicated. The government has sovereign immunity—it cannot be sued without its consent. But Congress has waived that immunity for certain types of claims through the Tucker Act.
The Tucker Act allows individuals and businesses to sue the United States for money in the U.S. Court of Federal Claims. This guide explains what the Tucker Act covers, how claims work, and what you need to know.
What is the Tucker Act?
The Tucker Act (28 U.S.C. § 1491(a)) is a federal statute that waives the government's sovereign immunity for certain monetary claims. Enacted in 1887, it gives the U.S. Court of Federal Claims jurisdiction over claims against the United States.
The statute provides jurisdiction over claims:
"founded upon the Constitution, 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."
Key limitation: The Tucker Act does not create substantive rights—it only provides a forum. You must identify a separate "money-mandating" source (law or contract) that requires the government to pay.
Types of Tucker Act Claims
Contract Claims
The most common Tucker Act claims involve government contracts.
Express Contracts: Written agreements with the federal government, including:
Procurement contracts (goods and services)
Construction contracts
Service contracts
Lease agreements
Settlement agreements
Implied-in-Fact Contracts: Contracts not written but inferred from conduct:
Course of dealing between parties
Mutual understanding creating binding obligation
Government promises supported by consideration
Contract Disputes Act (CDA): Most government contract disputes are governed by the CDA, which requires:
Submission of claim to contracting officer
Final decision from contracting officer
Appeal to COFC or Board of Contract Appeals
Taking Claims (Fifth Amendment)
The Fifth Amendment prohibits the government from taking private property for public use without just compensation. Taking claims include:
Physical Takings: Government physically appropriates your property:
Condemnation proceedings
Physical occupation
Flooding private land
Taking easements
Regulatory Takings: Government regulation deprives property of economic value:
Regulations eliminating all economically beneficial use
Penn Central regulatory takings (substantial interference)
Land use restrictions
Temporary Takings: Government temporarily deprives owner of property use.
Statutory Claims
Claims under statutes that mandate payment:
Military Pay:
Active duty pay disputes
Reserve pay disputes
Special pay and bonuses
Separation pay
Retirement pay
Federal Employee Pay:
Overtime claims (FLSA)
Back pay
Premium pay
Locality pay
Pay classification disputes
Benefits:
Federal retirement benefits
FEHB (insurance) disputes
Certain veterans benefits
Tax Refund Claims
Claims for tax refunds:
Income tax refunds
Employment tax refunds
Excise tax refunds
Customs duties
Note: Tax refund claims have specific exhaustion requirements through the IRS before COFC jurisdiction attaches.
The "Money-Mandating" Requirement
What Does "Money-Mandating" Mean?
The Tucker Act does not itself create a right to payment. You must identify a separate source that "can fairly be interpreted as mandating compensation by the Federal Government."
Examples of money-mandating sources:
Contract requiring payment
Fifth Amendment (takings)
Military pay statutes (37 U.S.C.)
Federal employee pay statutes (5 U.S.C.)
Specific statutory payment obligations
Not money-mandating:
Statutes requiring agency action (not payment)
Procedural requirements
Due process claims (generally)
Most regulatory statutes
The "Fairly Interpreted" Standard
Courts apply a relatively low threshold. The source need not explicitly require payment—it must only be "fairly interpreted" as mandating compensation.
Factors courts consider:
Language of the statute/regulation
Structure and purpose
Whether discretion exists
Historical interpretation
Tucker Act vs. Little Tucker Act
Tucker Act (28 U.S.C. § 1491)
For claims exceeding $10,000:
Forum: Court of Federal Claims only
Jurisdiction: Exclusive over large monetary claims
Appeal: Federal Circuit
Little Tucker Act (28 U.S.C. § 1346(a))
For claims $10,000 or less:
Forum: Federal district courts
Jurisdiction: Concurrent with COFC
Appeal: Regional circuit courts
Choosing Between Forums
For claims near the $10,000 threshold:
COFC advantages: Specialized expertise, nationwide jurisdiction, Federal Circuit precedent
District court advantages: Geographic convenience, potentially faster, different appellate path
Waiver: If you file in district court, you waive any amount over $10,000.
Statute of Limitations
Tucker Act claims must be filed within six years of when the claim first accrues. (28 U.S.C. § 2501)
When Does a Claim Accrue?
Contract claims: When breach occurs and damages result
Taking claims: When the taking is complete
Pay claims: When pay should have been received
Tolling
Limited tolling: The government generally does not agree to toll limitations. Courts have limited exceptions:
Continuing claims (new accrual each pay period)
Fraudulent concealment (rare)
Practical advice: File promptly. Six years is a long period, but delay can create complications.
COFC Litigation Process
Complaint
Your complaint must:
Identify the money-mandating source
Allege facts supporting jurisdiction
State the claim with specificity
Identify damages sought
Government Response
The Department of Justice represents the United States. The government may:
File motion to dismiss (jurisdiction or failure to state claim)
Answer the complaint
Assert affirmative defenses
Discovery
COFC allows full federal discovery:
Document production
Interrogatories
Depositions
Requests for admission
Motions
Common dispositive motions:
Motion to dismiss for lack of jurisdiction
Motion to dismiss for failure to state a claim
Motion for summary judgment
Trial
If the case proceeds to trial:
Bench trial (no jury at COFC)
Presentation of evidence
Witness testimony
Post-trial briefing
Appeal
COFC decisions are appealed to the U.S. Court of Appeals for the Federal Circuit.
Damages
Types of Damages
Contract damages:
Expectation damages
Reliance damages
Consequential damages (if foreseeable)
Taking compensation:
Fair market value at time of taking
Severance damages
Lost profits in some cases
Pay claims:
Back pay owed
Interest in some cases
Liquidated damages (FLSA)
Interest
Interest on Tucker Act judgments is governed by specific statutory provisions. Interest may be available from different dates depending on claim type.
Attorney's Fees
General rule: Each party bears its own fees.
Exceptions:
Equal Access to Justice Act (EAJA) in certain circumstances
Contract provisions authorizing fees
Specific statutory fee provisions
Common Tucker Act Claims
Military Pay Disputes
Examples:
Improper discharge affecting pay
Denied bonuses or special pay
Incorrect retirement calculations
Reserve pay disputes
Money-mandating source: Military pay statutes (37 U.S.C.)
Government Contract Disputes
Examples:
Non-payment for delivered goods/services
Changed work not compensated
Termination disputes
Defective specifications
Money-mandating source: The contract itself
Property Takings
Examples:
Government flooding private land
Rail-trail takings
Regulatory takings eliminating property value
Government occupation
Money-mandating source: Fifth Amendment
Federal Employee Claims
Examples:
FLSA overtime violations
Classification disputes affecting pay
Denied premium pay
Back pay after improper removal
Money-mandating source: Various pay statutes (5 U.S.C., FLSA)
Frequently Asked Questions
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No. The Tucker Act only covers monetary claims based on money-mandating sources. Tort claims (negligence, personal injury) are governed by the Federal Tort Claims Act and go to district court. Constitutional violations seeking injunctive relief are separate.
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COFC has exclusive jurisdiction over Tucker Act claims exceeding $10,000. District courts handle Little Tucker Act claims ($10,000 or less) and other federal cases. COFC specializes in claims against the government.
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While individuals can represent themselves (pro se), COFC litigation is complex. Most successful claimants have experienced counsel.
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Timelines vary. Simple cases may resolve in months; complex cases can take years. Settlement is possible at any stage.
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Yes. Either party can appeal COFC decisions to the Federal Circuit.
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You can file in either COFC or federal district court. Consider convenience, expertise, and appellate path when choosing.
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For contract claims, the CDA requires submission to the contracting officer first. For most other Tucker Act claims, no exhaustion is required.
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Generally not, unless EAJA applies or your contract provides for fees. The American Rule (each party pays own fees) applies.
When to Consider a Tucker Act Claim
You may have a Tucker Act claim if:
The federal government breached a contract with you
Government action took your property without compensation
You are owed military or federal employee pay
A federal statute requires payment the government hasn't made
Get Help With Your Claim
DC Federal Litigation Counsel represents clients in Tucker Act claims at the Court of Federal Claims.
We handle:
Government contract breach claims
Fifth Amendment taking claims
Military pay disputes
Federal employee pay claims
Tax refund litigation
Contact:
Phone: 956-224-9372
