National Courts Section

Attorneys in the National Courts Section have active trial practices in both the United States Court of Federal Claims and the United States Court of International Trade. Many of our cases are decided on dispositive motions, particularly in the trade court, but we also handle numerous trials each year in the United States Court of Federal Claims. These bench trials range from one or two days in length to multi-week, team-based efforts. Because the courts exercise jurisdiction nationwide, attorneys often travel outside of Washington, D.C., for trials and other matters. Attorneys also gain considerable experience preparing for trial through discovery. We routinely take and defend depositions around the country. Our attorneys also participate in settlement activities, including mediation and direct negotiations. Occasionally, our attorneys handle matters in other tribunals, such as the boards of contract appeals.

United States Court of Federal Claims Matters

A brief history of the United States Court of Federal Claims

Although the United States Court of Federal Claims, in its present form, has existed for a little more than a quarter-century, the court’s origin can be traced to the establishment of the United States Court of Claims more than 150 years ago.

The United States Court of Claims was created by the Act of February 24, 1855, primarily to relieve pressure on Congress caused by the volume of private bills. Initially, the court was one in name only, for its power extended only to the preparation of such private bills to be submitted to Congress. The court’s authority later was enhanced by the Act of March 3, 1863, when Congress adopted President Lincoln’s recommendation to empower the court to enter final judgments, with the right to appeal to the Supreme Court in certain cases.

The enactment of the Tucker Act in 1887 codified the court’s jurisdiction in a form that largely has survived to the present day, see 28 U.S.C. § 1491, and generally encompasses legal claims against the United States based upon the Constitution, statute, regulation or contract, excluding claims sounding in tort. The court also was granted special jurisdiction to render advisory findings, but not judgments, on any claim referred to the court by either House of Congress or by an Executive Department (so-called Congressional Reference cases).

In 1982, Congress created the present structure of the court. Specifically, Congress created the United States Claims Court and granted it all of the original jurisdiction possessed by the United States Court of Claims. The trial judges of the United States Court of Claims were designated to serve as the original judges of the United States Claims Court and served by appointment pursuant to Article I of the Constitution. The United States Court of Claims and the United States Court of Customs and Patent Appeals were abolished, and the judges of those two courts were designated to serve as judges of the newly created United States Court of Appeals for the Federal Circuit, and were appointed pursuant to Article III of the Constitution.

In October 1992, the Federal Courts Administration Act renamed the United States Claims Court as the United States Court of Federal Claims. The court, as now constituted, consists of 16 judges, appointed by the President and subject to confirmation by the United States Senate, for terms of 15 years, as well as senior judges. For those interested in a detailed discussion of the court’s history, we recommend W. Cowen, P. Nichols, M. Bennett, The United States Court of Claims, A History (Part II, Origin Development Jurisdiction 1855-1978), reproduced in 216 Ct. Cl. 1 (1978).

Litigation handled by National Courts attorneys in the United States Court of Federal Claims

As discussed in more detail below, National Courts is responsible in the United States Court of Federal Claims for contract and procurement dispute litigation, certain constitutional claims, and pay claims. National Courts does not represent the United States before the Court of Federal Claims in land, tax, patent, vaccine, or Indian claims. These types of claims are handled by other components of the Department of Justice.

Contract claims

The majority of our cases in the United States Court of Federal Claims involve disputes regarding federal government contracts. These disputes arise from and implicate a wide variety of factual and legal scenarios. Though they frequently stem from the federal government’s purchases of goods and services, these cases may also concern more unusual circumstances. The response of Congress to the savings and loan crisis of the 1980s, for example, generated extensive litigation in the United States Court of Federal Claims, as have the federal government’s contractual obligations to store spent nuclear fuel. We have litigated contract cases concerning law enforcement informants, water rights, insurance and grant programs, the sale or disposition of federal property, and many other circumstances, in addition to procurement matters.

Contract disputes can be divided roughly into those governed by the Contract Disputes Act (CDA) and those not governed by the CDA. The CDA generally applies to contracts for goods or services entered into by executive agencies, and it provides a mechanism for agency-level review before a matter can be brought to the United States Court of Federal Claims or a board of contract appeals. Suits brought pursuant to the CDA concern a wide array of procurement disputes, including contract interpretation disputes, claims for increased payments due to changed or additional work, challenges to government decisions to terminate contracts, and other disputes. See, e.g., S & M Management Inc. v. United States, 82 Fed. Cl. 240 (2008); Metric Const. Co., Inc. v. United States, 81 Fed. Cl. 804 (2008).

Our non-CDA matters also concern a wide and diverse range of contract actions. For example, nuclear utilities have filed 71 cases in the United States Court of Federal Claims seeking more than $50 billion in damages allegedly resulting from the delays by the Department of Energy in accepting spent nuclear fuel and high-level radioactive waste under standardized contracts entered into by DOE. Damages sought in these cases typically exceed $100 million and often result in multi-week trials. National Courts attorneys handling these matters work in teams lead by senior litigators. They gain extensive experience preparing for and conducting high-stakes trials. See, e.g., Dominion Resources, Inc. v. United States, 84 Fed. Cl. 259 (2008), and Yankee Atomic Elec. Co. v. United States, 536 F.3d 1268 (Fed. Cir. 2008).

Procurement protests

Procurement protests (often referred to as bid protests) are lawsuits challenging federal government action in connection with awarding government contracts. These actions are permitted to ensure that the government procures its goods and services in a fair and competitive manner. Protests extend to the full range of goods and services the federal government procures -- from high-tech rifle scopes and anti-terrorism devices to more routine matters such as highway construction or medical services. The types of claims protestors frequently make include allegations that the government failed to award a contract pursuant to the terms of its previously published solicitation or that the government unfairly evaluated the protestor’s offer. Litigating procurement protests is often rapid-paced and, hence, exciting. The typical protest involves an immediate hearing on the protestor’s request for preliminary injunctive relief, and a subsequent hearing on the merits (after a round of briefing similar to briefing on a motion for summary judgment). The nature of procurement protests affords attorneys substantial court time, and frequently a quick resolution. See, e.g., Precision Lift, Inc. v. United States, 83 Fed. Cl. 661 (2008); L-3 Global Communications Solutions, Inc. v. United States, 82 Fed. Cl. 604 (2008).

Constitutional claims

Our attorneys also defend certain constitutional claims in the United States Court of Federal Claims. The majority of these matters involve allegations that the United States deprived a person of private property without just compensation, in violation of the fifth amendment to the constitution. The Environmental and Natural Resources Division of the Department of Justice typically handles takings resulting from the application of environmental laws and takings claims involving real property; National Courts primarily handles takings of other property interests. In these matters, plaintiffs typically allege that the federal government has either physically taken property or regulated in some manner that constrains an owner’s continuing use of its property, without just compensation. These cases, which often turn upon Supreme Court precedent, tend to be complex, fact intensive disputes. See, e.g., Acceptance Ins. Companies, Inc. v. United States, 84 Fed. Cl. 111 (2008).

Pay claims

National Court attorneys also defend monetary claims made by federal civilian employees and members of the Armed Forces, usually for allegedly denied wages or benefits. The typical civilian or military pay case can involve a single plaintiff or a large-scale class action. National Courts has defended a variety of civilian pay claims, including claims seeking overtime pay pursuant to the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., and claims alleging discriminatory pay practices under the Equal Pay Act, 29 U.S.C. § 206(d). Similarly, our office defends the Department of Defense and the services against claims of current and former military members. These claims are wide in variety, and include challenges to a service member’s involuntary retirement, separation, or discharge; claims for military disability or retirement benefits; collateral attacks to court martial proceedings; and challenges to the imposition of non-judicial punishment for minor criminal offenses. See, e.g., Lopez-Velazquez v. United States, 85 Fed. Cl. 114 (2008).

Court of International Trade Matters

Brief history of the Court of International Trade

The United States Court of International Trade is an Article III court that handles Customs and international trade matters of great significance. Prior to 1980, cases involving importation and duties on imported goods were handled, first, by the Board of General Appraisers (part of the Department of Treasury), and then by the United States Customs Court. Originally established under Article I and later under Article III of the Constitution, the United States Customs Court’s jurisdiction and powers grew over time but ultimately provided only a patchwork of confusing rules to oversee the nation’s increasingly complex international trade. The United States Court of International Trade was created in 1980, as part of the Customs Court Act of 1980 -- a Congressional effort to develop a more comprehensive system of judicial review for trade matters. The Act granted the court all powers in law and in equity shared by United States district courts and set forth the court’s jurisdiction. The court, located in New York City, consists of nine active judges and four senior judges.

Litigation handled by National Courts attorneys in the United States Court of International Trade

National Courts attorneys handle a variety of trade matters before the United States Court of International Trade. We prosecute civil actions to recover various penalties or customs duties arising out of negligent or fraudulent import transactions. These cases may provide our attorneys with opportunities for jury trials in the court. See, e.g., United States v. Ford Motor Co., 463 F.3d 1267 (Fed. Cir. 2006); United States v. Ford Motor Co., 463 F.3d 1286 (Fed. Cir. 2006).

Additionally, we defend various determinations made by Customs and Border Protection in tariff disputes, the Department of Commerce in antidumping and countervailing duty disputes, and the Department of Labor regarding assistance provided to workers who have lost their jobs because of import competition. See, e.g., United States v. Eurodif, S.A., __ U.S. __, 129 S.Ct. 878 (2009); Mittal Steel Galati S.A. v. United States, 491 F. Supp. 2d 1273 (CIT 2007); Lady Kim T. Inc. v. U.S. Secretary of Agriculture, 491 F.Supp.2d 1366 (CIT 2007).

Our New York Field Office also handles matters related to the classification of goods imported into the United States. See, e.g., Kyocera Indus. Ceramics Corp. v. United States, 469 F. Supp. 2d 1301 (CIT 2006). Finally, we also argue our own appeals in the United States Court of Appeals for the Federal Circuit when matters are appealed from the United States Court of International Trade.

Litigation In Other Trial Fora

Attorneys in National Courts also litigate matters related to our subject matter expertise in other trial and administrative fora. For example, we have handled state-to-state international arbitration of certain trade matters in three arbitrations arising under the 2006 Softwood Lumber Agreement between the United States and Canada -- both conducted in the LCIA (formerly the London Court of International Arbitration). We litigate certain contract matters in district courts. We often represent the Department of Justice in its own contract disputes before the boards of contract appeals. Finally, we also represent government agencies in certain circumstances before the boards of contract appeals.

Other Functions

In addition to our active trial and appellate practices, attorneys in National Courts engage in various other functions related to our areas of expertise. Experienced attorneys in the section routinely provide counsel to other government agencies concerning litigation risk stemming from contractual and other liabilities. Given the intensive nature of our litigation practice, we are also frequently called upon to provide advice and training to other Department of Justice attorneys concerning discovery, trial, and appellate skills. Many of our attorneys are also active members of the bar associations of our respective courts, and we periodically organize the publication of the Court of Federal Claims Bar Association’s Deskbook for Practitioners.