When the Government’s Best Defense Is a Good Offense: Litigating Fraud and Other Counterclaim Cases Before the U.S. Court of Federal Claims

The U.S. Federal Government is always the defendant in cases before the U.S. Court of Federal Claims. The Federal Government cannot initiate suit in the COFC; rather, a private party initiates an action in the COFC by filing suit against the Federal Government, which is represented, in such cases, by the U.S. Department of Justice. The initial litigation risk calculus performed by the assigned DOJ trial attorney handling a COFC matter often favors the plaintiff because, from the Government’s point-of-view, as the defendant, there is only downside. In other words, assuming that the Government may owe the plaintiff some money, the issue becomes one of quantum only. Put yet differently, the best outcome the Government can hope for at the outset of a case is dismissal or a judgment in the Government’s favor, but there is no potential upside.