THE UNITED STATES COURT OF FEDERAL CLAIMS
(By Ganzorig Gombosuren, with
Judge Eric Bruggink of the Court of Federal Claims)

The purpose of this short article is to describe to Mongolian judges and lawyers some of the characteristics and procedures of the United States Court of Federal Claims. I do not pretend to cover all the details of how the Court of Federal Claims operates. Instead, the article is limited to making some brief observations about the Court of Federal Claims, and to describing some of the differences between the rules and practices of the Court of Federal Claims and the usual rules of civil procedure in Mongolia.

The Court of Federal Claims is a civil court with several specific characteristics. It is a trial court, and it has a special administrative jurisdiction. One of the unique things about this court is that it is only allowed to accept claims filed against the United States government. Many of the claims filed with this court come from parties who say that the government or its representatives failed to fulfill the government?s contractual obligations, and that this failure caused financial damages to the party bringing the claim. This means that although the court is financed from the federal budget, on many occasions it will still rule against the United States government. Despite this fact, however, the judges on the Court of Federal Claims do not face pressure from the government, and the court receives all the funding and resources that it needs. Thus, by establishing this court, the United States government helps guarantee its citizens the Constitutional right to be compensated for damages caused by the federal government or by federal employees.

Contrary to what is done in the Mongolian civil courts, the Court of Federal Claims does not use a jury. The major issue in a case before the Court of Federal Claims usually involves the application of the law, and this is decided by a single judge. All other issues, including the collecting of evidence and the finding of facts, are usually managed by the parties, who work together to reach agreement. Another special aspect of this court is that it offers consultation and advice to the United States Congress upon request, whereas all other federal courts in the United States are strictly prohibited by law from offering consultation or advice to other branches of the government or to private citizens. In other words, the Court of Federal Claims has a consultative as well as a judicial status.

Finally, despite the fact that the Court of Federal Claims is a federal court, the court's judges do not receive lifetime appointments, as provided for in Article 3 of the United States Constitution. Where (Article 3) judges receive lifetime appointments, Court of Federal Claims judges instead receive 15-year appointments. Judges on the Court of Federal Claims are considered (Article 1) judges.

Before coming to the United States, I worked for a long time in the judicial system in Mongolia, so I already had some knowledge about the judiciary. Working at an American court, however, was a really unique experience for me. On the first day of my internship, I was sworn in at the office of the court's clerk. I swore that I would not improperly disclose information that I obtained during my work at the court. After being sworn in, I received an identification card with a photo, which said that I was a federal employee. Thus, I have been working for the United States government for about 3 months, and for that I am very proud.

During my internship the clerk of the court, the court administrator, and the secretary and law clerks for Judge Eric Bruggink. The court clerk introduced me to the initial procedures for filing a claim in this court, and showed me how the case moves through the Court of Federal Claims after it has been accepted. One thing that was interesting to me at this stage was the process for assignment of the case. It is a very simple procedure, kind of like a lottery. There is a small box, in which there are pieces of folded paper with the names of judges written on them. The assistant administrator at the court will pick out one of the pieces of paper to determine to whom a coming case must be assigned. The judge whose name is indicated on the paper will have the next case. Of course, the case load of each judge is also considered when cases are being handed out. The Court of Federal Claims procedure is very random, very effective, and very different from our own case assignment procedure. In Mongolia, a chief judge assigns the cases to other judges, and this sometimes causes controversy or results in complaints from the party who has lost the case. The case assignment procedure in the Court of Federal Claims is one of the key things that helps the court's judges remain independent from any outside interference.

In Judge Bruggink?s chamber, there is a secretary, and there are also two law clerks. The law clerks help the judge prepare for a case by reading the parties' briefs, and by helping the judge to do research and draft opinions. The clerks help the judge a lot, freeing him from some of the lengthy writing found in the court's opinion, which usually takes an enormous amount of time. Having two law clerks, therefore, allows a judge to have more time for thoughtful reading, effective research, and fruitful thinking. Moreover, the clerks' help contributes to keeping cases moving quickly, which in turn assists in keeping down the overall caseload. The secretary also offers important help to Judge Bruggink, by answering the phone, scheduling meetings, and keeping detailed records about all the cases.

While I was doing my internship, I attended several court hearings and court conferences. I was also able to learn some interesting facts about United States history. Several of the cases I saw at the court would seem unusual to Mongolians; for instances, one case involves Native American land claims that go back some 200 years; another set of cases is the vaccine cases, in which groups of plaintiffs claim that vaccines given to them by the United States government have caused their health problems.

At the court hearings, there were excellent procedures for making court records. The court has a contract with a special private agency that makes records. The court will inform the agency about the date of a court hearing or meeting, and a special reporter will be sent to the hearing to participate in making the records. After about one week, the agency prepares a written report that contains a record of what was said and done at the hearing, and this report will then be sent to the court. I think that this is a very good procedure, because it allows both the state and a private company to benefit. The private company benefits when the state pays for court reports, and the state does not have all of the problems related to staffing the court with people whose only job is to make records.

The Court of Federal Claims has been well supplied. The court building is nice, and the judge's chambers are comfortable. There are well developed communication systems, good computers, and sports facilities. All of these factors contribute to a pleasant working atmosphere. During my internship, I used to attend some of the phone conferences. Once, Judge Bruggink was held a conference to set up a trial date; he held the conference over the phone with representatives of the parties, even though one of them was in Washington, D.C., and the other was in Seattle, Washington. It was a very good solution that allowed everyone to save time and money.

One of the more remarkable observations I made while at the court involved the process used in executing the court's judgments. During my internship, I was interested in learning more about the implementation of the court's rulings. The reason for this was that in Mongolia, we sometimes have had great difficulties in forcing the Government to execute the court's judgments. After discussing the issue with Judge Bruggink and his clerk I found out that each year, the United States Congress establishes a special fund that provides for effective execution of the judgments of the Court of Federal Claims. This can be a very good example for Mongolia.

Another positive difference that I observed at this court was the absence of prosecutors at the court?s meetings. In Mongolia, quite often, we see prosecutors even at civil trials. This might be traditional for civil law countries, but it is contrary to the system in common law courts such as the Court of Federal Claims. The logic in the Court of Federal Claims system is clear. Each party is to have its own lawyer, no matter whether the party is the state or an individual citizen. Particularly, in cases where the disputing parties are both private citizens, there is nothing for the prosecutor to do.

There is a special procedure available in the Court of Federal Claims, as in all other federal courts in the United States, which permit a small group of persons to come to court on behalf of a much larger group of persons who claim to have suffered the same injury. For example, in one case decided by Judge Bruggink on July 8, 1998, ten landowners brought a claim against the government, claiming that it had wrongfully taken control over land underneath abandoned railroad beds. In the last century, railroads were given the right to run trains over these railroad beds, with the understanding that if they were ever abandoned by the railroad, the land would go back to the original owners. Instead, the American Congress passed a bill allowing these railbeds to be converted to trails to be used for bicyclists and runners, without paying the landowners. The potential group of landowners is about 500. These individual plaintiffs are now allowed to bring the case as a "class action". In other words, all the members of the class could benefit from a judgment. They are notified of the case and asked if they want to join. This is permitted by Federal Rule of Civil Procedure 23. There are of course certain standards a plaintiff must meet before he can represent a class. The rule is typically used when the defendant has done something that has, or may, affect a large number of people. For example, a civil rights case. If you wish to see the case, it can be found at an internet site: http://www.law.gwu.edu/fedcl/ under the name, Moore, et al. v. United States. Look under cases decided in the last half of 1998.

The last issue that I noticed, which was remarkable and completely different than in Mongolia, was that defendants or plaintiffs would not meet with a judge alone to discuss a case. These so-called ex parte communications are prohibited. There is a special provision in the Code of Conduct for judges in the United States that regulates this issue. Usually, when one party wants to meet with the judge, they or the judge notify the other party and give notice about the matter that is to be discussed with the judge. This gives the other party the chance to attend the meeting, if they consider it necessary. This is a good system to prevent judges from taking bribes, and to prevent people from gossiping that judges are involved in bribery. Also, in this system, nobody could complain that the other party had improperly influenced the judge.

The experiences described in this article all come from having seen the United States Court of Federal Claims in practice, and they are meant to give readers an opportunity to compare some of the differences in civil procedure in the United States and Mongolia, and to make their own decisions about the advantages and disadvantages of both systems. This will allow Mongolia the choice to make changes to its judiciary at its own discretion. Even though this article has been very brief, many of the issues raised in it relate to important problems, including the judicial budget, the independence of the judiciary, case management, and proper ethics for judges. We hope that this article will offer help in resolving some of the problems that Mongolian judges are facing today.

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