Fisher v. United States

Tucker Act
Plager (panel opinion)

Question(s) Presented

“First, what must a plaintiff establish regarding the existence of a money-mandating law source in order for the Court of Federal Claims to have subject matter jurisdiction over the case under the Tucker Act? Second, assuming the trial court takes jurisdiction and addresses the merits of the cause, what are the consequences of a failure to prove the elements of the cause of action because the facts of the case do not bring it within the alleged source? And third, even assuming the cause of action is otherwise established, are there matters that are nonjusticiable because of their unique military implications?”


1. “The resolution of the first issue, then, is that Dr. Fisher’s well-pleaded complaint, clearly grounded on a statute that mandates compensation, gives the Court of Federal Claims subject-matter jurisdiction to address the case on the merits.” 2. “Assuming that the Court of Federal Claims has taken jurisdiction over the cause as a result of the initial determination that plaintiff’s cause rests on a money-mandating source, the consequence of a ruling by the court on the merits, that plaintiff’s case does not fit within the scope of the source, is simply this: plaintiff loses on the merits for failing to state a claim on which relief can be granted.” 3. “[W]e examined with some care the issue of justiciability. Our review revealed a line of cases decided by our predecessor court, the Court of Claims, not cited by either party, in which that court in military disability discharge cases did not limit its review, as was generally the case in military matters if any review was allowed, to the question of whether proper procedure was followed.”

Selected Proceedings and Orders
March 9, 2005