Of Courts, Agencies, and the Court of Federal Claims: Fortunately Outliving One’s Anomalous Character, 71 George Washington Law Review 798 (2003)
Many discussions of the United States Court of Federal Claims reason about it by reference to the "other" federal courts—characterized as either Article III or Article I courts—and by analyzing the degree to which the Court of Federal Claims is or is not distinctive. In this essay, I offer a different perspective by putting the question of the Court of Federal Claims into the context of the broader narrative of the many changes within the federal judicial system over the past century.
When the first Claims Court was created in the middle of the nineteenth century, it was an oddity and an invention. Although it dealt with monetary claims arising from contract disputes, it provided no juries. Instead, it had a separate cadre of judges. Further, all of the court's cases involved the government as a party, and specifically as a defendant. And the court had special links to Congress, both because it could receive cases by reference and because implementation of its remedies depended on congressional appropriations of funds to provide payments.
By the end of the twentieth century, the Court of Federal Claims had ceased to have such an unusual character—not so much because of the relatively minor changes within that court, but because, during the intervening years, Congress had invented many other courts and agencies and had also engrafted variations onto the "regular" federal courts.
What do we learn from weaving together the history of the Court of Federal Claims with that of the federal adjudicatory system in general? First, while that court once marked a frontier, in hindsight, it anticipated structural developments of the twentieth century, both in terms of devolving adjudication to agencies and in terms of staffing federal adjudication with non-life-tenured judges. For example, magistrate and bankruptcy judges now serve within Article III courts in numbers in excess of life-tenured district judges.
Second, the legality of these innovations depended on the United States Supreme Court, which, through constitutional interpretation of Article III, permitted a range of variations in federal adjudicatory institutions.
Third, at a formal level, the Court of Federal Claims is identified by the provision of money damages against the government. In practice, however, both the Court of Federal Claims and other courts and agencies now permit a broader set of remedies against the United States. Moreover, the Court of Federal Claims is not the exclusive venue in which to seek monetary compensation from the federal government.
Fourth, the overlap between the jurisdiction of the Court of Federal Claims and other federal courts and agencies has prompted some to argue for the demise of the Court of Federal Claims and others to propose imposing limitations on where claimants can obtain relief against the government. Both kinds of proposals are misguided. The former seeks jurisdictional coherence but ignores the politics that shape the creation of courts. The latter relies on a formal approach that retreats from the functionalism of twentieth century procedure to leave litigants with fewer means of gaining relief against the government. Just as one reform of the twentieth century was to reread Article III so as to permit the manufacture of scores of federal judges who lacked Article III attributes, another reform of the twentieth century was to collapse the distinctions between law and equity and to permit liberal joinder of claims and parties—all to enhance the remedial capacities of courts.
Fifth, and finally, the fact that the Court of Federal Claims is no longer anomalous is cause for celebration. Its twentieth birthday should be the occasion on which to ask questions—about whether its charter suffices, whether its authority ought to broaden to encompass more parties and more claims, and whether other federal courts or agencies should have greater capacity to call the government to account. Evaluation of the Court of Federal Claims at twenty ought also to prompt contemplation of the remedial authority of both non-life-tenured judges and Article III judges to assess whether their powers suffice to provide the remedies necessary for claimants seeking accountability by and redress against governments in the twenty-first century.
Date of Authorship for this Version
Resnik, Judith, "Of Courts, Agencies, and the Court of Federal Claims: Fortunately Outliving One’s Anomalous Character" (2003). Faculty Scholarship Series. Paper 764.