The House Built on a Hillside: The Unique and Necessary Role of the United States Court of Federal Claims

By Kalinowski, Isaiah Richard | Texas Review of Law & Politics, Spring 2019 | Go to article overview

The House Built on a Hillside: The Unique and Necessary Role of the United States Court of Federal Claims


Kalinowski, Isaiah Richard, Texas Review of Law & Politics


Introduction

Imagine yourself as proprietor of a small business, or owner of a local property, a member of the armed services, or parent of an injured child. Now imagine that in this capacity, you have some interaction with the federal government of the united States of America, the sovereign power of the current world hegemon. Within this interaction, the federal government improperly charges you for taxes you do not owe, or seizes your property for public use, or breaches a contract with you, or refuses to pay you for your work in the military or as a civilian federal employee. What can one citizen do to correct a legal wrong in this scenario? It would take a special court to closely examine your claim for legal merit, and, if justified, to hold the most powerful entity in the world to account. Is there a court like that? Perhaps, it might be said, no court could put an individual on equal footing with the sovereign power of the federal government. But there is such a court that acts as leveler of the playing field, created especially for this very purpose. It is a court like none other in the federal system, and has taken on many new challenges over its onehundred-and-sixty-year history, still with the same mission, to mediate the relationship between the people and their government. It is the Court of Federal Claims. This Article is dedicated to that court, its modern role, and its many virtues.

Sixteen years ago, several notable legal authorities convened an academic discussion by contributing articles that discussed the ongoing utility of the united States Court of Federal Claims (COFC).1 At the occasion of the court's fifteenth judicial conference, they looked in retrospect on the preceding twenty years since the court had been reorganized under the Federal Courts Administration Act in 1982.2 The difference in the perspectives held by these scholars centered primarily around two questions: did the Court of Federal Claims perform its designated role well, and would the cases on its docket have been decided just as well elsewhere if the court did not exist? Viewpoints ranged from laudatory recognition of the court's special role, to specific analyses of the court's distinct position within the structure of the Constitution, to suggestions for improving the court's ability to perform its tasks, all the way to arguments that the court was obsolete and unnecessary. Most of the writers commented on the curious assortment of subject matter that sits within the court's jurisdiction: cases before the court are simultaneously rather narrow in focus and particularized, while also quite diverse and wide-ranging in subject matter topics.3 What indeed, they each asked, could be the organizing principle of a court that claimed to be specialized while hearing cases that range between property takings, large-scale vendor contracts, employment disputes, and vaccine injuries? Most of the authors praised the court for its history of vindicating individuals in their claims against the federal government, while some argued that the court had outlived its usefulness. But it was Senior Judge Loren Smith, formerly Chief Judge of the court, whose article best articulated its unique character, the special arete of the court:

The court is the specialist or expert in litigation between citizen and sovereign. This specialty is not found in any specific subjectmatter area of the law. It is not a specialty of technique like mediation or litigation or brief writing. It plays a vital role, however, in creating government legal accountability in the government's day-to-day dealings with citizens.4

This note takes the position espoused by Senior Judge Loren Smith in his article written for that conference, but expands upon it from the perspective of a practicing attorney representing private individuals before this court. As Judge Smith illuminated, to look for a unifying raison d'etre for the court in the specific areas of subject matter within the court's jurisdiction is to "miss the real point. …

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