Did you know that, as a uniformed member of the armed services, you CAN still sue the military? Many military members are unaware of this, which may stem from a number of misbeliefs, including an overgeneralization of the Feres Doctrine which has long prevented service members from recovering against the military in negligence actions like medical malpractice. Recently, Congress expanded the right of recourse for service members in tort claims against the military, creating an administrative process to avail the possibility of recovery (see related article), but it still does not permit a lawsuit.
Waiver of Sovereign Immunity
However, under other legal bases that often apply to military members, they still retain a right to be heard before a judge in federal court. One theory of recovery against the military involves the Tucker Act. This is an example of a waiver of sovereign immunity permitting the government to be sued. Because our laws originate from English common law, suing the government (or the King) generally was not an option. However, recognizing that in many instances this was unfair, Congress carved out specific bases that permit individuals to sue the United States, and the Tucker Act is among them.
What is the Tucker Act?
At a very high level, the Tucker Act, pursuant to 28 U.S.C. § 1491, and the Little Tucker Act, 28 U.S.C. § 1346(a)(2), permit money claims against the government when a person is denied a contractual-based entitlement, like one's pay or basic allowance for housing (BAH). The lawsuit must rely on a money-mandating provision of law or regulation; the provision relied on cannot allow the agency discretion (i.e., “shall” vs “may”). If the amount you are suing over does not exceed $10,000, the lawsuit may be brought in any federal district court around the country under the Little Tucker Act. However, if the amount you are suing over exceeds $10,000, which is most common, then the lawsuit can only be brought under the Tucker Act, in the Court of Federal Claims located in Washington, DC.
All that is typically needed to pursue judicial review under the Tucker Act is any final agency decision. Sometimes, when administrative remedies are made available, like seeking relief through a Board for Correction of Military Records (BCMR), there is a legal requirement to exhaust these administrative remedies first. The Tucker Act does not require this. In fact, there are times where because of the significant delay caused by the BCMR (see related article), the statute of limitations may be close to running by the time you've finally received an answer from the BCMR. Pursuant to 28 U.S.C. § 2501, there is a six-year statute of limitations period by which a lawsuit must be filed in the Court of Federal Claims in order for the lawsuit to survive. This date accrues from when the monies were first denied, and are not tolled or paused merely because you opt to go through an administrative remedy like the BCMR first. Meaning, strategy is key when deciding how to proceed.
We have several clients with an active case in the Court of Federal Claims pursuing a claim for monies they were denied, including a proposed class action for Reservists denied their BAH entitlements. This is an example of a Tucker Act lawsuit.
If you or someone you know has a similar issue, contact us and we can discuss how best to proceed
Pat is one of the founding members of PLG. He handles litigation matters of all kinds in DC, Maryland, and Virginia (the DMV). His experience involves criminal and civil matters in both federal and state court. He previously defended the United States Air Force (USAF) in such matters discussed in this blog and brings this unique perspective to his clients' cases, anticipating the likely response by the military service who has been sued. Call 301-952-9000 to schedule a consultation. You can review Pat's bio here.
DISCLAIMER: The information above is for informational purposes only and is not intended to serve as legal advice for any particular situation. No attorney-client relationship is intended or created by this information and may not be relied upon based on the above-statements. Each individual situation is different and therefore a consultation is necessary before any advice can be relied upon as appropriate and accurate for your situation. This information is current as of January 15, 2020.