The Tucker Act

The Tucker Act does not create any substantive right enforceable against the United States for money damages. A substantive right must be found in some other source of law.

- Justice Powell, United States v. Testan, 424 U.S. 392, 398 (1976)

What Is the The Tucker Act?

The United States cannot be sued unless it agrees to be sued. The Tucker Act, passed in 1887, is the agreement. It waives sovereign immunity for most claims for money against the federal government and sends them to a single specialized court in Washington: the **U.S. Court of Federal Claims**. The Act does two things and it is important to keep them apart. It opens a courthouse door, and it names the courthouse. It does **not** give anyone a right to be paid. That is the trap in *United States v. Testan*: a plaintiff has to point to some **other** source of law, a statute, a regulation, or a contract, that can fairly be read as requiring the government to pay money. Lawyers call that a **money-mandating** source. No money-mandating source, no case, no matter how badly the government behaved. The Court of Federal Claims is not an ordinary federal court. Its judges are appointed for fifteen-year terms rather than for life, so it is an Article I court rather than an Article III one. There is no jury. Appeals go to the Federal Circuit, not to the regional circuit where you live. Claims expire after **six years**, and unlike most deadlines that one is jurisdictional, which means the court has to enforce it even if the government never raises it. And here is the feature that has made this 1887 statute one of the most important laws of the current administration: **the Court of Federal Claims generally cannot issue an injunction.** It writes checks. It does not order agencies to do things. Outside of bid protests under § 1491(b) and relief incidental to a money judgment under § 1491(a)(2), it has no general equitable power at all. So the Tucker Act has become the government's favorite jurisdictional argument. When an agency cancels a grant program and the grantees sue in district court asking a judge to turn the money back on, the government's answer is increasingly not "we were allowed to do that." It is: **you are in the wrong court**. This is really a contract claim dressed up as an administrative law claim, the APA's waiver of immunity excludes claims for money, so take it to the Court of Federal Claims, where the most you can win is damages years from now, and where nobody can order us to restart the program. The counter-argument is *Bowen v. Massachusetts* (1988), which drew a line between **money damages**, meaning compensation for a loss, and **specific relief**, meaning the very money you were entitled to receive in the first place. Under *Bowen*, a suit to make an agency pay out funds it was supposed to pay is not a damages suit, and district courts keep jurisdiction. That line held for decades. Then in April 2025, in *Department of Education v. California*, the Supreme Court granted an emergency stay and said the APA's waiver of sovereign immunity "does not extend to orders to enforce a contractual obligation to pay money," pointing to the Tucker Act. It was a four-paragraph order on the emergency docket with no full briefing, and it reset the board. *NIH v. American Public Health Association* followed it in 2025. Since then, nearly every grant-termination case in the country has had to fight about the forum before it can fight about the merits, and a growing column of plaintiffs has given up and refiled in the Court of Federal Claims. That is why this statute keeps turning up in cases that look nothing like each other. Seventeen transgender servicemembers whose retirement orders were rescinded, a state coalition whose anti-terrorism grants were cancelled, an opera company, a transit authority, graduate fellows who were promised tuition. Different facts, same jurisdictional chokepoint. One last thing worth holding onto, because it is easy to miss what is actually at stake in a forum fight. Being sent to the Court of Federal Claims is not merely inconvenient. It changes the remedy. A district court can vacate the decision and put the program back. The Court of Federal Claims, at best and much later, can pay you for the loss. For a plaintiff who wants the program to exist, those are not two versions of winning.