A Primer on the Doctrine of Federal Sovereign Immunity

Abstract

Because the federal government is a party, as plaintiff or defendant, in between one-fifth and one-quarter of all civil cases in the federal courts, any student of federal litigation should develop an understanding of the unique principles, rules, and statutes that govern when the sovereign is a party to a court action. As but one concrete indication of the importance of the subject, the Supreme Court continues to devote substantial attention to recurring questions of sovereign immunity, the distinctive jurisdictional statutes governing litigation with the United States, special forums for adjudication of particular types of governmental disputes, the limitations on governmental liability in tort and contract, and the availability of and standards for awards of attorney's fees against the government and its agencies. The concept of sovereign immunity - that is, the immunity of the United States from suit without its express permission - underlies and permeates this field of litigation with the federal government. As Justice Holmes admonished nearly a century ago, "[m]en must turn square corners when they deal with the Government." Rock Island, A. & L.R. Co. v. United States, 254 U.S. 141, 143 (1920) (Holmes, J.). Yet, far too often, attorneys representing clients against the government fail to heed - or even recognize - this classic proverb of federal government litigation. The reason is that they fail to appreciate the persisting influence of sovereign immunity. The purpose of this article is to provide something of a primer on the doctrine of federal sovereign immunity, for both practicing lawyers and scholars. In this article, the author draws together the sometimes scattered pieces of the federal sovereign immunity puzzle, including a consideration of the opposing arguments on the legitimacy of the doctrine, the contested history of the doctrine, a discussion of its evolution in Supreme Court decisions, a summary of the current state of the doctrine, an outline of the tapestry of statutory authorizations for suit against the federal government, and an analysis of the continuing tension underlying the doctrine as now played out in judicial construction of statutory waivers. [This article is adapted from a chapter in Gregory Sisk's forthcoming treatise on Litigation with the Federal Government, which is scheduled for publication in 2005 by the American Law Institute - American Bar Association.]