make such decisions with the best available understanding of the Constitution's command, it is not the best way for the body politic to make these decisions for several reasons.

First, courts operate on a case-by-case basis without any general prescriptive rules. This means that neither government nor citizen has much guidance as to what will or will not be a taking. The last 73 years of taking jurisprudence (since Pennsylvania Coal Co. v. Mahon, 260 U.S. 393(1922)) have failed to clarify the rules very much further than Justice Holmes' famous line which noted:

The general rule at least is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. 260 U. S. 393, 415.

This is a clear indication that the legislative and executive powers of general statutory law may be needed to set general policies.

A second reason why courts alone are not the best way of dealing with this problem is that they do not have the general expertise and responsibility for government that is held by both the Congress and the President. Courts only resolve narrow disputes; after the fact. The law-making branches can create a system that minimizes and simplifies disputes as well as preventing some of them from occurring. Finally, the history of most of the branches of law we apply has showed a beneficial interrelationship of statutory law and judicial decision-making. For example, the enforcement of various provisions of the Fourteenth Amendment's due process and equal protection clauses has depended upon the combination of judicial decisions informed and directed by various civil rights acts. Neither pure judicial decision-making nor the simple enactment of statutes has ever fully-achieved the protection of individual rights or any other major governmental policy.

The proposed legislation also addresses a jurisdictional problem that tends to bring discredit upon the courts and make litigation in this area far more expensive. I refer to the current split in remedial jurisdiction between the Court of Federal Claims (generally monetary) and the district courts (generally non-monetary). Since at least the 19th century, the traditional split between the powers to give legal and equitable remedies has been the subject of criticism. Modem practice has tended toward uniting these remedies. Under the historical system that was established to give the citizen the right to legal redress against the government, the split of legal and equitable remedies still exists. It causes the citizen-litigant, and in the longrun the government, serious problems. As the late Senior Circuit Judge Philip Nichols, Jr. noted in a contract case:

While damages are supposed or imagined to provide a disincentive to violating the legal rights of others, the government here may even enjoy incentives to commit such violation in some circumstances, when equitable relief and tort liability are both unavailable. I am not advocating judicial lawmaking, however. The matter would appear to call for congressional attention as it involves the waiver of sovereign immunity." Prudential Insurance Co. of America v. United States, 801 F.2d 1295, 1303 (Fed. Cir. 1986) (Nichols, J., Concurring).

The split between legal and equitable remedies often has the effect of requiring the citizen to sue in two separate courts to obtain full relief in what is really one case. It may require a citizen to consecutively bring a suit in a district court challenging the propriety of an administrative decision or regulation, and after all appeals have been exhausted, to start all over again seeking monetary relief.

Further, the effect of 28 U.S.C. § 15001 may even require the plaintiff to make a risky decision that could result in a dismissal of his or her monetary claim because the plaintiff had to challenge both the financial loss and the administrative decision at the same time. For this reason the court believes that the section of the bill repealing 28 U.S.C. § 1500 will significantly improve the administration of justice at the court. Section 1500 today serves no useful purpose and is a serious trap for the unsophisticated lawyer or plaintiff. This is true inspite of the Federal Cir

1See, eg, Loveladies Harbor, Inc. v. United States, 28 F.3d 1171, 1173 (Fed. Cir. 1994). For a general discussion of the existing limbo that government claims litigants face resulting from $1500 and the need for remedial legislation, see The Nash and Cibinic Report, September 1993, Notes 1 53, pp. 141-44; Payson R. Peabody, Thomas K. Gump and Michael S. Weinstein, A Confederate Ghost that Haunts the Federal Courts: The Case for Repeal of 18 U.S.C. § 1500, 4 Fed. Cir. B.J. 95 (Summer 1994). The Supreme Court has indicated that any relief from the current impasse must come from Congress. Keene Corp. v. United States, 113 S. Ct. 2035, 2045 (1993) ("It may well be *** that $1500 operates in some circumstances to deprive plaintiffs of an opportunity to assert rights that Congress has generally made available to them. * * * But the 'proper theater' for such arguments * * is the halls of Congress. ***"").

cuit's valiant efforts to limit the section's potential for harm. In addition, since the doctrinal lines between a taking and a tort are anything but clear, even a sophisticated lawyer may not be able to figure out which court has jurisdiction today. And the risk of a wrong decision may destroy the plaintiffs claim because of the expiration of the statute of limitations.

This problem has been characterized as the Tucker Act shuffle, where it seems to some plaintiffs that the government is telling the district court there is no jurisdiction because this is a taking, and is telling the Court of Federal Claims there is no jurisdiction because it is a tort. It should be noted that in an area of our jurisdiction that has complete concurrent remedies, the tax area, (which accounts for between a quarter and a third of the total docket) the concurrent jurisdiction has been working very well in the view of all parties; the government, the private bar, and the tax community generally.

Section 205(a) of the bill confers concurrent jurisdiction upon the district courts and the Court of Federal Claims to address cases asserting claims under the substantive provisions of the Omnibus Act. The subsection provides that, notwithstanding any other provision of law and notwithstanding the issues involved, the relief sought, or the amount in controversy, each court shall have concurrent jurisdiction over both claims for monetary relief and claims seeking invalidation of any Act of Congress or any regulation of an agency as defined in the Act adversely affecting private property rights. This provision of the bill is consistent with the goal of increasing the fairness and efficiency of the administration of justice in the taking area. It eliminates much of the current remedial split between the courts that has contributed to increased cost and perhaps the related uncertainty of where and when to litigate what is in reality one cause of action. Further, section 205(a) is fully consistent with our earlier comments concerning the desirability of the repeal of 28 U.S.C. § 1500.

In the taking and contract areas the current jurisdictional and remedial split hurts government, citizens, and the integrity of the rule of law. The government often has to guess what is and what is not a taking. This hurts its ability to plan, budget, and make rational choices to protect the environment. Likewise, for the citizen, the current state of taking law gives minimal guidance as to when a suit has little chance of success and when it should be undertaken. Finally, the current state of the remedial split creates the appearance of a legal system designed to frustrate rather than fulfill the promise of the Fifth Amendment. This is a significant danger to a Nation founded upon a legal document and based upon a deep commitment to the rule of law.

Several jurisdictional provisions have, over the years, consumed inordinate amounts of resources of the private bar, government counsel, and the courts to resolve matters that can be solved by simple clarifications. Four such items are addressed below. Enactment of these provisions will permit litigants and the court to more often move directly to the merits of a case instead of diverting resources to the resolution of threshold jurisdictional issues.

(a) The first jurisdictional change amends 28 U.S.C. § 1491(a)(1) to provide that the Court of Federal Claims has jurisdiction over all non-tort claims against the government for monetary relief (and then deletes certain superfluous and confusing wording).

Prior to the Supreme Court's decision in Bowen v. Massachusetts, 487 U.S. 879(1988), there was general agreement and a common assumption that the Court of Claims (and its successor court) had jurisdiction over virtually all non-tort claims against the federal government, founded on federal statutes or regulations, seeking money judgments, including those asserted in cases seeking review of final agency action (unless Congress had precluded any judicial review or had specifically designated another court for review of a particular type of agency action). Thus, prior to Bowen, it was generally assumed that the court had jurisdiction under the Tucker Act of agency-review claims of the type asserted by the plaintiff in Bowen. Indeed, the position of the Department of Justice and the Department of Health and Human Services (and the understanding of three dissenting justices, including the Chief Justice) in that case was that the Court of Federal Claims (then designated United States Claims Court) had exclusive court jurisdiction over the monetary reimbursement claims asserted by Massachusetts. Bowen, 487 U.S. at 890–91.

This clear understanding of the Court of Claims (and successor court) jurisdiction existed even though the Court of Claims' general jurisdiction was typically deemed limited to suits for "damages" or "money damages." See 487 U.S. at 914-16, 919. The decision in Bowen narrowly construed the term "money damages" as used in the Administrative Procedure Act, 5 U.S.C. §702, and concluded that the monetary relief to which Massachusetts was entitled under a federal statute was "specific" or

equitable relief, not money damages.2 The decision and rationale in Bowen have resulted in two areas of confusion and potential disruption concerning the jurisdiction of the Court of Federal Claims. First, because the Supreme Court characterized the monetary relief sought in that case, although founded upon a federal statute or regulation, as equitable relief, it may plausibly be argued that the Court of Federal Claims, under current law, no longer has jurisdiction to address similar kinds of cases constituting judicial review of agency action. Second, given the Supreme Court's narrow definition of "damages" and its broad definition of "specific" relief; see 487 U.S. at 893-901, it could also plausibly be contended that the Court of Federal Claims now lacks jurisdiction to address many other claims long considered as damages claims within its Tucker Act jurisdiction, e.g., military and civilian pay claims, see 487 U.S. at 893, 919. "[I]f actions seeking past due sums are actions for specific relief * * * then the Claims Court is out of business. Almost its entire docket fits this description." Bowen, 487 U.S. at 919 (Scalia, J., dissenting). While this has not happened, and seems not likely to happen, the Bowen decision's language has certainly confused the law in this area.

Enactment of the jurisdictional provisions of this bill (Section 205(c)) will clarify the court's jurisdiction so that the common understandings which existed prior to Bowen will be plainly stated. The litigating public will know precisely where to bring claims for judicial review of agency action and other federal claims for monetary relief and have the assurance that the court with jurisdiction can address the claims completely. The bill will further clarify § 1491(a)(1) by deleting the potentially confusing and superfluous words "or for liquidated or unliquidated damages." See Eastport Steamship Corp. v. United States, 178 Ct. Cl. 599, 614, 372 F.2d 1002, 1013 (1967) (referring to the deleted wording as "that still-amorphous and unfamiliar part of our jurisdiction ").

(b) The second jurisdictional change will extend ancillary jurisdiction under the Federal Tort Claims Act, 28 U.S.C. §§2674 and 2675, when a claim is related to one otherwise plainly within the subject-matter jurisdiction of the Court of Federal Claims. This will avoid wasteful and duplicative litigation by authorizing the Court of Federal Claims to grant complete relief or otherwise address and dispose of the entire controversy in cases within its jurisdiction when a related claim, although sounding in tort, may fairly be deemed to arise from the same operative facts as the primary claim within the court's jurisdiction. This provision will most frequently find application in contract and takings claims when the factual context giving rise to such claims may also be deemed to give rise to claims which courts may construe as tort claims. (The Court of Federal Claims already has jurisdiction over tort claims asserted by the government as counterclaims under 28 U.S.C. § 1503, see, e.g., Cherry Cotton Mills, Inc. v. United States, 327 U.S. 536 (1946); Martin J. Simko Constr. Co. v. United States, 852 F.2d 540, 542 (Fed. Cir. 1988), and referred by Congress pursuant to 28 U.S.C. § 1492, see, e.g., Innocent Victims of the Occupation of Wounded Knee v. United States, 229 Ct. Čl. 465 (1981); Burt v. United States, 199 Ct. Cl. 897 (1972).)

This provision cannot be interpreted or construed as providing general Tort Claims Act jurisdiction such as is exercised by the district courts, but only that which is ancillary to and directly related to cases and claims over which the court otherwise has jurisdiction, most likely those involving contracts and takings.

Other needed changes which will be accomplished by section 205(c) of the bill concern the power of the court to grant appropriate relief in all cases and clarify the applicability of the Administrative Procedure Act (APA) standard of review in appeals of matters from administrative agencies.

(c) This section amends 28 U.S.C. §1491(a)(2) by inserting a new first sentence providing that in any case within its jurisdiction, the court shall have the power to grant injunctive and declaratory relief when appropriate. The court already has broad equity powers to fashion relief in military and civilian pay cases, 28 U.S.C. § 1491(a)(2), and in certain contract cases (pre-award bid protests), 28 U.S.C. §1491(a)(3), and has additional declaratory judgment jurisdiction in certain tax cases, 28 U.S.C. § 1507. This amendment will extend similar power to fashion relief to other monetary claims within the court's jurisdiction.3

2"Damages" was defined as relief "intended to provide a victim with monetary compensation for an injury to his person, property, or reputation"; "specific relief" was defined to include the recovery of a payment of money based on statutory or regulatory entitlement thereto. Bowen v. Massachusetts, 487 U.S. at 893.

For related background material concerning application of equitable doctrines and fashioning of equitable relief, e.g., rescission or reformation of contract, in federal claims litigation, see Pauley Petro. Inc. v. United States, 219 Ct. Cl. 24, 36-40, 591 F.2d 1308, 1315–17 (1979) (hold

Continued

This provision is a corollary to the amendment clarifying jurisdiction over claims for "monetary relief," since, as explicated by the Supreme Court in Bowen v. Massachusetts, 487 U.S. at 893-901, many judgments for a sum of money constitute awards of "specific relief deemed equitable in nature, especially in contract cases and in most review-of-agency-action cases, including military and civilian pay and price support cases. Enactment of this provision will remove all doubt concerning the authority of the court to award complete relief and otherwise render appropriate judgments in cases within its jurisdiction.

(d) This section adds a new paragraph (5) to 28 U.S.C. § 1491(a) making it clear that in cases which constitute judicial review of administrative agency action, the APA standards of review set forth in 5 U.S.C. §706 shall apply. One would assume, from the face of § 706 ("To the extent necessary to decision and when presented, the reviewing court shall *** [duties of court reviewing agency action and scope of review defined]" (emphasis added)), that it is already plainly applicable to the "reviewing court" in every case which constitutes judicial review of agency action.

The former Court of Claims, in a number of opinions, referred to the Administrative Procedure Act, 5 U.S.C. §702, as the legislative basis for a plaintiffs right to seek judicial review of final agency action of various kinds by a suit under the Tucker Act. Sanders v. United States, 219 Ct. Cl. 285, 300, 594 F.2d 804, 812 (1979) (military pay case; review of a decision of the board for correction of military records); Jarett v. United States, 195 Ct. Cl. 320, 326-29, 451 F.2d 623, 626-28 (1971) (civilian pay case; review of decision of Maritime Administration; "one need not burn the midnight oil to discover the relevance of the Administrative Procedure Act*** 5 U.S.C. §§ 701-706"; "we must conclude that *** [the suit] is a case coming within section 702, thereby giving plaintiff a right of review "); Keco Industries, Inc. v. United States, 192 Ct. Cl. 773, 781, 428 F.2d 1233, 1238 (1970) (bid protest case; pursuant to 5 U.S.C. §702, "judicial review

of agency action will not be denied unless there is clear and convincing evidence of a contrary legislative intent "); Hertzog v. United States, 167 Ct. Cl. 377, 384 (1964) (military pay case; review of decision of board for correction of military records).

Likewise, decisions of the Court of Federal Claims have found the APA controlling in cases constituting judicial review of agency_action. Bradley v. United States, 26 Cl. Ct. 699, 701-03 (1992), aff'd per curiam, 1 F.3d 1252 (Fed. Cir. 1993) (prevailing wage rate case; review of rulemaking decision of Treasury Department; review standards in 5 U.S.C. §706 apply); Simons v. United States, 25 Cl. Ct. 685, 694695 and n. 18 (1992) (dairy termination program case; review of decision of USDA, review standards in 5 U.S.C. §706 apply); Dory v. United States, 24 Cl. Ct. 615, 624-26 (1991) (dairy termination program case; review of decision of USDA, review standards in 5 U.S.C. §706 apply); Pender Peanut Corp. v. United States, 20 Cl. Ct. 447, 451-52 and n.3 (1990) (farm price support case; review of decision of USDA; review standards of 5 U.S.C. §706 apply); Stegall v. United States, 19 Cl. Ct. 765, 769-70 (1990) (farm subsidy program case; review of decision of USDA; "The Administrative Procedure Act [5 U.S.C. §§ 701-706] *** provides the framework for determining when a court may review an agency's determination. *** The APA is not a jurisdictional statute. ").

Despite this history of invocation and application of the judicial review provisions of the Administrative Procedure Act, 5 U.S.C. §§ 701–706, in cases before the old

ing that the Court of Claims could employ substantive equitable doctrines as an incident to adjudication of claims seeking monetary relief).

The Administrative Procedure Act, 5 U.S.C. §706, provides the following scope and standards for judicial review of agency action:

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall—

(1) compel agency action unlawfully withheld or unreasonably delayed;

(2) hold unlawful and set aside agency action, findings, and conclusions found to be

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.

Court of Claims and the Court of Federal Claims, two recent decisions of the Court of Appeals for the Federal Circuit have clouded the issue concerning applicability of the APA in agency review cases before the Court of Federal Claims. Mitchell v. United States, 1 F.3d 1252, 1993 WL 190890 (Fed. Cir., June 4, 1993) (unpublished disposition) (military pay case; review of decision of board for correction of military records) (asserting without explanation that Claims Court has no authority to invoke the APA); Murphy v. United States, 993 F.2d 871, 874 (Fed. Cir. 1993) (military pay case; review of decision of board for correction of military records) (asserting without explanation that "the Claims Court has no authority to invoke the APA ").8

The addition of the proposed new paragraph to 28 U.S.C. § 1491(a) will end all doubt and confusion concerning the applicability of the Administrative Procedure Act, and especially the judicial review standards of 5 U.S.C. § 706, to agency review cases litigated in the Court of Federal Claims. This provision will be of obvious assistance to litigants in such cases and promote the court's efficiency in handling such cases. This clarification will make plain, whenever there is occasion to construe 5 U.S.C. §§ 701-706, that with respect to a permitted appeal from agency action to any court with jurisdiction over the appeal, be it district, circuit, or Federal Claims, the standards of review set forth in 5 U.S.C. § 706 apply and control.6

CONCLUSION

The United States Court of Federal Claims is uniquely "The Citizens' Court,” and it is the principal forum for monetary claims against the United States. The court's jurisdiction originated in 1855, when Congress acted to resolve a problem of tremendous proportion. Because sovereign immunity barred legal redress of wrongs committed by the United States government, the only option for a citizen with a claim against the government was a private bill before the Congress. Thus, in each session of Congress, numerous citizens and groups sought private bills. As this system of private bills proved too burdensome, inefficient, and likely to spawn corrupt practices, Congress created the Court of Claims.

The creation of a court to do justice responded to a basic democratic imperative: fair dealing by the government in disputes between the government and the private citizen. Indeed, as Abraham Lincoln noted:

It is as much the duty of Government to render prompt justice against itself, in favor of citizens, as it is to administer the same between private individuals.

Throughout its history, the Court of Claims strove to give vitality to the spirit of Abraham Lincoln's admonition.

Through various changes in the structure and names of the court, the basic jurisdiction of the present United States Court of Federal Claims has remained remarkably stable for well over a century. It is a jurisdiction where the federal government may be sued for its alleged violations of the rights of citizens. It is both a tribute to our Congresses and Presidents, as well as to our Nations' deeply ingrained respect for legal rights, that since 1855, the notion that government must deal with its citizens on the basis of legal equality has never been seriously questioned. The

"More recently, however, a panel of the Court of Appeals for the Federal Circuit indicated that both the Federal Circuit and the Court of Federal Claims employ review standards prescribed by the Administrative Procedure Act, 5 U.S.C. §706, when conducting judicial review of agency action. McCall Stock Farms, Inc., No. 93-5077 (Fed. Cir. Dec. 23, 1993) (slip op. at 9) (citing Foote Mineral Co. v. United States, 228 Ct. C1.230, 233-34, 654 F.2d 81, 85 (1981), for proposition that the ordinary standards for review of agency action reflected in the APA, 5 U.S.C. §706(2), governed judicial review of agency action in the Court of Claims and citing Heinemann v. United States, 796 F.2d 451, 454-55 (Fed. Cir. 1986), for proposition that the Federal Circuit and Court of Federal Claims both employ these same standards in reviewing agency action).

This more recent pronouncement is consistent with the review provision set forth in the bill. It is sometimes mistakenly assumed that the Administrative Procedure Act assigned judicial review of agency action to the district courts. The judicial review provisions of the APA (originally constituting section 10 of the Act of June 11, 1946, Pub. L. 79 404; now set out, as amended, in 5 U.S.C. 88 701-706) are emphatically not jurisdictional provisions. Califano v. Sanders, 430 U.S. 99, 104-07 and n.6 (1977) ("None of the [APA judicial review] sections * ** is phrased like the usual grant ofjurisdiction to proceed in the federal courts. Furthermore, there is no basis for concluding that Congress *** actually conceived of the Act in jurisdictional terms. We thus conclude that the APA does not afford an implied grant of subjectmatter jurisdiction permitting federal judicial review of agency action. "); McGrath v. United States, 207 Ct. Cl. 978, 521 F.2d 1406 (1975) ("The Administrative Procedure Act is not a jurisdictional statute but merely outlines procedures for judicial review of administrative action. ")