United States v. White Mountain Apache Tribe, 537 U.S. 465, 18 (2003)

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Thomas, J., dissenting

damages is whether an Act "can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained." United States v. Testan, 424 U. S. 392, 400 (1976) (quoting Eastport S. S. Corp. v. United States, 178 Ct. Cl. 599, 607, 372 F. 2d 1002, 1009 (1967)) (emphasis added). Instead of faithfully applying this test, however, the Court engages in a new inquiry, asking whether common-law trust principles permit a "fair inference" that money damages are available, that finds no support in existing law. Ante, at 473. But even under the majority's newly devised approach, there is no basis for finding that Congress intended to create anything other than a "bare trust," which we have found insufficient to confer jurisdiction on the Court of Federal Claims in United States v. Mitchell, 445 U. S. 535 (1980) (Mitchell I). Because the 1960 Act "can[not] fairly be interpreted as mandating compensation by the Federal Government for damage sustained" by the White Mountain Apache Tribe (Tribe), Testan, supra, at 400, I respectfully dissent.


In United States v. Testan, supra, at 400, the Court stated that a "grant of a right of action [for money damages against the United States] must be made with specificity." Accord, Army and Air Force Exchange Service v. Sheehan, 456 U. S. 728, 739 (1982) (stating that, under the Tucker Act, "jurisdiction over respondent's complaint cannot be premised on the asserted violation of regulations that do not specifically authorize awards of money damages"). The majority agrees that the 1960 Act does not specifically authorize the award of money damages; indeed, the Act does not even "spea[k] in terms of money damages or of a money claim against the United States." Gnotta v. United States, 415 F. 2d 1271, 1278 (CA8 1969) (Blackmun, J.). Instead, the Court holds that the use of the word "trust" in the 1960 Act creates a "fair inference" that there is a cause of action for money damages in favor of the Tribe. Ante, at 474-475.

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