Local Counsel Representation in the U.S. Court of Federal Claims

Litigating cases before the U.S. Court of Federal Claims is a unique challenge, even for experienced lawyers. The Court of Federal Claims (CFC) differs from other federal courts, with its own set of rules: The CFC is a specialized forum with its own culture, procedures, and substantive focus.

Our partners, Nancie G. Marzulla and Roger J. Marzulla, have represented clients in the CFC for decades and have served as local counsel in the Court of Federal Claims on legal teams. This experience has shown us that the judges in the CFC expect high technical competence from litigators and an understanding of the Court’s rules, and many non-CFC practitioners find that it is valuable to have an experienced CFC lawyer on their team.

Eight Ways That Legal Representation in the US Court of Federal Claims Is Unique

Litigants experienced in particular areas of the law, but with no experience in the Court of Federal Claims, find that including local CFC counsel on their legal team is a wise move. We discuss here some ways the Court of Federal Claims is unique in the practice of law.

1. The Court of Federal Claims Is a Bench Trial Court

Lawyers skilled at jury trials have no special advantage in the Court of Federal Claims. Cases are decided by Article I judges, not juries, so litigation strategy must focus on persuading the judge rather than a jury. As a result, strong written advocacy is often more important than dramatic courtroom presentation. Court of Federal Claims judges are well versed in the matters before them and are often highly knowledgeable about constitutional takings, government contracts and administrative law.

2. The Procedural Rules Are Distinct at the Court of Federal Claims

The CFC follows the Rules of the United States Court of Federal Claims (RCFC), and although these rules are based on the Federal Rules of Civil Procedure, they differ in important ways, and facilitate an active and engaged judicial case management. The RCFC have detailed rules for filing claims, conducting discovery, class actions, trial procedures and appeals, all designed to ensure consistency, fairness, and efficiency in litigation involving the federal government.

3. Litigation in the CFC Is National Practice

Even though the Court of Federal Claims is in Washington, DC, the court has nationwide jurisdiction,, including nationwide subpoena power,  with jurisdiction over cases arising from all over the United States. That being said, CFC judges often conduct trials and hearings in the location where the property or witnesses are  located or where the dispute arose.

4. CFC Litigation Always Involves the Department of Justice as the Defendant

At the Court of Federal Claims the only defendant is the government, defended by lawyers from the U.S. Department of Justice, specifically the Environment Division and the Civil Division. This means that opposing counsel are career government litigators with deep institutional knowledge, where professional credibility and reputation are important in “repeat-player” dynamics. Here, the government’s positions are usually consistent and strategically coordinated.

Our partner Roger J. Marzulla served as Assistant Attorney General in charge of the U.S. Justice Department’s Environment and Natural Resources Division, where he learned firsthand the operations and litigation styles of his client agencies within the federal government. Partner Nancie G. Marzulla prosecuted cases in the Civil Rights Division of the U.S. Department of Justice, and was involved in a number of large, enforcement actions on behalf of the United States.

5. The CFC’s Jurisdiction Is Limited to Monetary Claims Against the U.S. Government

The CFC’s jurisdiction is defined by the Tucker Act, which waives the federal government’s sovereign immunity for monetary claims against the United States other than tort. But the Tucker Act does not give the CFC jurisdiction to grant equitable relief (with minor exceptions).

This means that you can only sue the federal government itself—not agencies or individuals. These claims must be for money damages, and fall under categories such as: takings claims, government contract disputes, bid protests, tax refund suits, and military pay and federal employment claims. One exception to the monetary claims limitation is that bid protests in the CFC allow injunctive relief under procurement statutes.

6. A Unique Appellate Path in the Federal Circuit

All appeals in the Court of Federal Claims go exclusively to the United States Court of Appeals for the Federal Circuit, so lawyers must litigate in the CFC with an eye toward Federal Circuit doctrine. The Federal Circuit has nationwide jurisdiction over certain subject areas such as patents, government contracts, and takings, creating a highly developed, specialized precedent and producing less circuit split uncertainty.

7. Takings Matters are a Core Practice in the Court of Federal Claims

The CFC is the primary venue for taking claims under the Fifth Amendment. Takings matters often involve complex valuation issues and interaction with federal regimes such as environmental and financial rules and regulations. Legal teams handling takings claims should have deep familiarity with constitutional takings like frameworks the Penn Central regulatory taking test, and per se or physical taking tests that arise in a variety of contexts.

8. Many Cases Are Decided on the Administrative Record

Cases such as procurement disputes and bid protests are decided in the CFC based on the existing administrative record, with discovery often limited or nonexistent. Because of this, cases become more like appellate reviews of agency actions than traditional trials. WIth this in mind, success in litigation depends on identifying errors in agency decision-making and framing arguments like “arbitrary and capricious.”

Conclusion: The Special Role of Local Counsel in the Court of Federal Claims

Practicing before the U.S. Court of Federal Claims is unique. Litigation in the CFC requires legal proficiency with highly technical constitutional, administrative and contract law and deep familiarity with federal fiscal liability issues and sovereign immunity doctrine. Practicing in the CFC is not so much about broad litigation skills but more about precision in statutory interpretation, mastery of a narrow but complex body of law, and the ability to strategically frame claims to fit within the Tucker Act’s waiver of the government’s sovereign immunity.

Contact our Court of Federal Claims Attorneys