Sovereign Immunity

Sovereign Immunity

The legal protection that prevents a sovereign state or person from being sued without consent.

Sovereign immunity is a judicial doctrine that prevents the government or its political subdivisions, departments, and agencies from being sued without its consent. The doctrine stems from the ancient English principle that the monarch can do no wrong.

Suits against the United States

In early American history, the courts supported the traditional view that the United States could not be sued without congressional authorization (chisholm v. georgia, 2 U.S. [2 Dall.] 419, 478, 1 L. Ed. 440 [1793]; Cohens v. Virginia, 19 U.S. [6 Wheat.] 264, 412, 5 L. Ed. 257 [1821]). This Immunity applied to suits filed by states as well as individuals (Kansas v. United States, 204 U.S. 331, 27 S. Ct. 388, 51 L. Ed. 510 [1906]). Thus, for many years, those who had contract and tort claims against the government had no legal recourse except through the difficult, inconvenient, and often tardy means of convincing Congress to pass a special bill awarding compensation to the injured party on a case by case basis.

The federal government first began to waive its sovereign immunity in areas of law other than torts. In 1855 Congress established the U.S. Court of Claims, a special court created to hear cases against the United States involving contracts based upon the Constitution, federal statutes, and federal regulations. In 1887 Congress passed the Tucker Act (28 U.S.C.A. §§ 1346 (a) (2), 1491) to authorize federal district courts to hear contractual claims not exceeding $10,000 against the United States. Other Special Courts were later created for particular types of nontort claims against the federal government. The U.S. Board of General Appraisers was created in 1890 and was replaced in 1926 by the U.S. Customs Court, and the U.S. Court of Customs Appeals was created in 1909 and then replaced in 1926 by the U.S. Court of Customs and Patent Appeals. These courts handled complaints about duties levied on imports. The Board of Tax Appeals, created in 1924 to handle internal revenue complaints, was replaced in 1942 by the Tax Court of the United States.

Not until 1946, however, did Congress address the issue of liability for torts committed by the government's agencies, officers, or employees. Until 1946 civil servants could be individually liable for torts, but they were protected by sovereign immunity from liability for tortious acts committed while carrying out their official duties. But the courts were not always consistent in making that distinction.

Finally, in 1946 Congress passed the Tort Claims Act (28 U.S.C.A. §§ 1346(b), 2671–2678), which authorized U.S. district courts to hold the United States liable for torts committed by its agencies, officers, and employees just as the courts would hold individual defendants liable under similar circumstances. This general waiver of immunity had a number of exceptions, however, including the torts of Battery, False Imprisonment, false arrest, Malicious Prosecution, Abuse of Process, libel, slander, Misrepresentation, deceit, interference with contractual rights, tort in the fiscal operations of the Treasury, tort in the regulation of the monetary system, and tort in combatant activities of the armed forces in wartime.

By 1953 the U.S. Supreme Court had drawn distinctions under the Tort Claims Act between tortious acts committed by the government at the planning or policy-making stage and those committed at the operational level. In Dalehite v. United States, 346 U.S. 15, 73 S. Ct. 956, 97 L. Ed. 1427 (1953), the Supreme Court held that the Tort Claims Act did not waive sovereign immunity as to tortious acts committed at the planning stage; immunity applied only to torts committed at the operational stage.

Congress also waived sovereign immunity in cases seeking injunctive or other nonmonetary relief against the United States in a 1976 amendment to the Administrative Procedure Act (5 U.S.C.A. §§ 702–703).

Suits against the States

The doctrine of sovereign immunity applies to state governments within their own states, but it was not initially clear whether states had immunity as to suits involving other states or citizens of other states. In the 1793 case of Chisholm v. Georgia, the U.S. Supreme Court permitted a North Carolina citizen to sue Georgia for property that Georgia had seized during the American Revolution. The states' strong disapproval of the Court's decision in Chisholm led to the prompt adoption of the Eleventh Amendment to the U.S. Constitution in 1795. The Eleventh Amendment specifically grants immunity to the states as to lawsuits by citizens of other states, foreign countries, or citizens of foreign countries in the federal courts. This limitation was judicially extended to include suits by a state's own citizens in Hans v. Louisiana, 134 U.S. 1, 10 S. Ct. 504, 33 L. Ed. 842 (1890).

The U.S. Supreme Court still has jurisdiction to hear suits by one state against another. In addition, the courts have construed the Eleventh Amendment as permitting appellate proceedings in cases originally instituted by a state if the defendant asserted rights under the U.S. Constitution, statutes, or treaties (Cohens v. Virginia), or in cases against state officials alleged to have violated such rights (Osborn v. Bank of the United States, 22 U.S. [9 Wheat.] 738, 6 L. Ed. 204 [1824]). The latter category has resulted in extensive litigation in federal courts against state and local officers alleged to have violated the civil rights act of 1871 (42 U.S.C.A. Section 1983). Claims brought under the act are not subject to sovereign immunity.

However, the Fourteenth Amendment does allow Congress to abrogate state sovereign immunity. Section 5 grants Congress the enforcement power to advance the goals of the amendment, which include the guarantees of due process and Equal Protection of the laws. Congress has used this power to apply modern Civil Rights laws as well as patent and trademark laws to state governments. This power was not questioned until the mid-1990s, when the Supreme Court began to issue decisions that strike down the application of federal statutes to the state governments. In Seminole Tribe v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), the Court established a two-part test for determining whether Congress abrogated the states' immunity when enacting a particular statute. It ruled that absent a state's waiver, states retain their sovereign immunity unless (1) Congress unequivocally expressed its intent to abrogate the immunity, and (2) Congress acted pursuant to a valid exercise of its enforcement power under Section 5 of the Fourteenth Amendment. The Court held that, in order to satisfy the first prong of the test, Congress must make its intent to abrogate the States' immunity unmistakably clear.

The Court proceeded to apply this two-part test in a series of cases. In Florida Prepaid Post-secondary Education Expense Board v. College Savings Bank, 527 U.S. 627, 119 S.Ct. 2199, 144 L.Ed.2d 575 (1999), the Court ruled that the state of Florida could invoke its sovereign immunity to block federal lawsuits against it by a bank charging it with patent and trademark law violations. The Court found that Congress had clearly intended to abrogate state sovereign immunity but had failed to satisfy the second part of the test. The Court stated that "Congress must identify conduct transgressing the Fourteenth Amendment's substantive provisions, and must tailor its legislative scheme to remedying or preventing such conduct." Because Congress had failed to identify a pattern of patent infringement by the states or a pattern of constitutional violations, the Eleventh Amendment barred the laws' application to the states.

The Supreme Court, in Alden v. Maine, 527 U.S 706, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999), ruled that a group of state employees could not sue their state employer using the provisions of the Fair Labor Standards Act (29 U.S.C.A. 201 et seq.). In Kimel v. Florida Board of Regents, 528 U.S. 62, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000), the Court found that the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C.A. §§621-634, did not apply to state governments. The ADEA could not be applied because under the second part of the Seminole Tribe test, there must be a "congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Using this standard, the Court found that the ADEA was not "appropriate legislation." The Court noted that age is not a Suspect Classification under the Equal Protection Clause of the Fourteenth Amendment. Therefore, states may "discriminate on the basis of age without offending the Fourteenth Amendment if the age classification is rationally related to a legitimate state interest." The ADEA prohibited "substantially more state employment decisions and practices than would likely be held unconstitutional" under the equal protection, rational basis standard.

The Supreme Court also invalidated the application of part of the Americans with Disabilities Act (ADA), Pub. L. 101-336 (1990), to state government. In University of Alabama v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001), the Court struck down ADA applicability to damage lawsuits involving alleged disability employment discrimination by state governments. Congress could only be authorized to include the states within ADA reach if it identified a history and pattern of unconstitutional employment discrimination against disabled persons. However, the Court concluded that the legislative record "simply fails to show that Congress did in fact identify a pattern of irrational state discrimination in employment against the disabled." The Court asserted that Congress had published only a handful of incidents to support this conclusion. Absent a compelling historical pattern of discrimination, such as the racial discrimination against African Americans that justified the Voting Rights Act of 1965, the Court saw no merit in stripping states of their immunity from citizen lawsuits for money.

The Court continued its promotion of states' rights in Federal Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 743, 122 S.Ct. 1864, 152 L.Ed.2d 962 (2002). In this case the Court demonstrated its continuing commitment to Federalism by extending a state's sovereign immunity to federal administrative law proceedings. Though the case involved a fairly obscure federal commission, the Court's precedent could be extended to the many federal agencies and commissions that oversee the environmental and natural resources.

The Supreme Court did restrict Eleventh Amendment immunity, on procedural grounds, in Lapides v. Board of Regents of the University System of Georgia, 535 U.S. 613, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002). In this action the Court ruled that states could not claim Eleventh Amendment immunity when they voluntarily remove a case to federal court. By doing so the Court concluded that the state had voluntarily waived its immunity, thereby giving a plaintiff the chance to argue the merits of the case. The decision was likely to encourage states to litigate actions in state court if state law waives sovereign immunity.

In state court actions, immunity continues to be allowed in the absence of consent to be sued. Depending on the type of case, however, different levels of immunity may apply. Absolute immunity is generally allowed for judges and Quasi-Judicial officers, such as prosecuting attorneys and Parole board members. For executive officers, immunity is a function of the amount of discretion they possess to make decisions and the circumstances in which they act (Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 [1974]). But immunity has been denied to officials acting in excess of statutory authority (Greene v. Louisville and Interurban Railroad Co., 244 U.S. 499, 37 S. Ct. 673, 61 L. Ed. 1280 [1917]) or under an unconstitutional statute (Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 [1908]). Immunity has been allowed when state property is involved or the state is an essential party for granting relief (Cunningham v. Macon and Brunswick Railroad Co., 109 U.S. 446, 3 S. Ct. 292, 27 L. Ed. 992 [1883]).

Until a Supreme Court decision in 1979, it was generally assumed, and decided by a court in at least one case (Paulus v. South Dakota, 52 N.D. 84, 201 N.W. 867 [1924]), that a state's immunity must be recognized not only in its own courts but also in the courts of other states throughout the country. The U.S. Supreme Court addressed the issue in Nevada v. Hall, 440 U.S. 410, 99 S. Ct. 1182, 59 L. Ed. 2d 416 (1979). That case involved an employee of the University of Nevada who was driving in California on official business and injured a California resident in an automobile accident. The Supreme Court held that the common-law doctrine of sovereign immunity had not passed to the states when the United States was created; therefore, it is up to the states to decide whether to recognize and respect the immunity of other states. Thus, the Supreme Court held in Hall that California could properly refuse to respect Nevada's sovereign immunity in the California courts.

Like the federal government, the states often relied on private laws to provide relief to specific individuals who would otherwise be unable to sue due to sovereign immunity doctrines. Recognizing that this arrangement was an inefficient and nonuniform way to provide relief from immunity doctrines, the states began to waive all or parts of their immunity from lawsuits. Many states created administrative bodies with limited capacity to settle claims against the state. Several states authorized suits against municipal corporations, counties, and school districts whose officers or employees injured individuals while performing proprietary, but not government, services. The distinction between proprietary and government services proved impossible to apply uniformly. Under modern law government services are widely considered to include police services, fire department services, and public education. Depending on the state involved, streets, sidewalks, bridges, parks, recreational facilities, electricity suppliers, gas suppliers, and airport functions can be considered either government or proprietary services.

As of 2003, most states had waived their immunity in various degrees at both the state and local government levels. Generally, state supreme courts first abolished immunity via judicial decisions; later, legislative measures were enacted at the state and local level to accept liability for torts committed by civil servants in the performance of government functions. The law varied by state and locality, however.

Suits against Foreign Governments

Until the twentieth century, mutual respect for the independence, legal equality, and dignity of all nations was thought to entitle each nation to a broad immunity from the judicial process of other states. This immunity was extended to heads of state, in both their personal and official capacities, and to foreign property. In the 1812 case of The Schooner Exchange v. M'Faddon, 11 U.S. (7 Cranch.) 116, 3 L. Ed. 287, a ship privately owned by a U.S. citizen was seized in French waters by Napoleon's government and converted into a French warship. When the ship entered the port of Philadelphia, the original owner sought to regain title, but the Supreme Court respected the confiscation of the ship because it occurred in accordance with French law in French waters.

With the emergence of socialist and Communist countries after World War I, the traditional rules of sovereignty placed the private companies of free enterprise nations at a competitive disadvantage compared to state-owned companies from socialist and Communist countries, which would plead immunity from lawsuits. European and U.S. businesses that engaged in transactions with such companies began to insist that all contracts waive the sovereign immunity of the state companies. This situation led courts to reconsider the broad immunity and adopt instead a doctrine of restrictive immunity that excluded commercial activity and property.

Western European countries began waiving immunity for state commercial enterprises through bilateral or multilateral treaties. In 1952 the U.S. State Department decided that, in considering future requests for immunity, it would follow the shift from absolute immunity to restrictive immunity. In 1976 Congress passed the Foreign Sovereign Immunities Act (28 U.S.C.A. § 1601 et seq.) to provide foreign nations with immunity from the jurisdiction of U.S. federal and state courts in certain circumstances. This act, which strives to conform to International Law, prohibits sovereign immunity with regard to commercial activities of foreign states or their agencies or with regard to property taken by a foreign sovereign in violation of international law. Customary international law has continued to move toward a restrictive doctrine.

Further readings

Doernberg, Donald L. 2004. Sovereign Immunity and/or the Rule of Law: The New Federalism. Durham, N.C.: Carolina Academic Press.

Durchslag, Melvyn R. 2002. State Sovereign Immunity: A Reference Guide to the United States Constitution. Westport, Conn.: Praeger.

Siegel, Jonathan R. 2003. "Waivers of State Sovereign Immunity and the Ideology of the Eleventh Amendment." Duke Law Journal 52 (April).

Cross-references

Federal Tort Claims Act; Feres Doctrine; Immunity; Judicial Immunity; Section 1983; Tort Law.