Document Type


Publication Date



Part I of this Article summarizes the relevant provisions of the Tucker Act, and examines courts' interpretations of whether a district court had jurisdiction over a claim when a potential judgment exceeded $10,000. This Article suggests that, over time, traditional Tucker Act jurisdiction has been distorted by the appearance of a new kind of plaintiff' seeking "structural reform" rather than the kinds of compensation envisioned by the Act. This Article also suggests that Tucker Act jurisdiction has been distorted by two congressional actions: the creation of the judgment fund; and amendments to the Administrative Procedure Act. These congressional actions could be construed to extend district court jurisdiction over claims for money damages. As a result, the distinction between Tucker and non- Tucker Act remedies has been blurred. Part II of this Article explicates the case law before and after the passage of the APA and its relevant amendments. This Article notes how, in the 1980's, the Department of Justice (DOJ) began to assert that state suits against the Federal Government seeking reimbursement of grant-in-aid funds should be treated as Tucker Act claims and tried in the United States Claims Court, rather than as non-Tucker Act claims to be tried in the district courts. Although the DOJ achieved some measure of success, Judge Bork, in a masterful display of judicial legerdemain, offered alternative reasoning which became the basis for the Bowen decision. This alternative was superficially attractive but intrinsically false and created the impression that Bowen had diminished the traditional jurisdiction of the Claims Court and Court of Appeals for the Federal Circuit.

Part III discusses and analyzes the Bowen case, outlining its procedural history, and highlighting the United States Supreme Court's efforts to distinguish Bowen from the "run of the mill" Tucker Act suits. In part IV, this Article offers alternative interpretations of the Bowen ruling. Finally, part V of this Article advances the "preferred solution" and suggests how the Bowen decision can be reconciled with a century of case law, thereby avoiding the kind of judicial nihilism evidenced in this Article's introductory quotation.



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.