INTRODUCTION I. DOUBLE IMMUNITY A. The First Layer of Sovereign Immunity: Immunity from Suit 1. Origins of the first layer of sovereign immunity a. Origins of federal immunity from suit b. Origins of state immunity from suit 2. Applying the first layer." a jurisdictional defense subject to waiver by clear statement B. The Second Layer of Sovereign Immunity: Immunity from Monetary Judgment 1. The Court's early approach to monetary claims against a sovereign 2. The Court's new double immunity approach to monetary claims against a sovereign in Nordic Village, Lane, and Sossamon 3. Other applications of double immunity II. THE UNCERTAIN ORIGINS OF THE SECOND LAYER OF SOVEREIGN IMMUNITY A. Constitutional Underpinnings for the Second Layer of Immunity? B. Common Law Underpinnings for the Second Layer of Immunity? C. Double Immunity: A Judge-Made Rule 1. The requirement of express statutory authorization for atypical monetary awards 2. The strict construction rule for interpreting the scope of a waiver III. THE ADVERSE IMPACTS OF SOVEREIGN DOUBLE IMMUNITY A. Policy Arguments in Support of Double Immunity B. Policy Arguments Against Double Immunity 1. Harm to private plaintiffs 2. Harm to legislative supremacy 3. Harm to the sovereign itself IV. A BETTER RULE: REVERSING THE PRESUMPTION IN THE SECOND LAYER OF IMMUNITY CONCLUSION
The exemption of the sovereign from suit involves hardship enough, where consent has been withheld. We are not to add to its rigor by refinement of construction, where consent has been announced.
--Justice Benjamin Cardozo (1)
When followers of the Supreme Court discuss the most prominent cases of the 2010 Term, the Court's relatively obscure decision in Sossamon v. Texas is rarely mentioned. (2) At first glance, the omission is perhaps for good reason. The case involved an unexceptional (albeit serious) factual scenario: a prisoner who claimed that the state had prevented him from worshipping in a state prison chapel in violation of a federal statute, the Religious Land Use and Institutionalized Persons Act (RLUIPA). (3) The actual legal question presented in Sossamon was, moreover, a narrow matter of statutory interpretation: "[W]hether the States, by accepting federal funds, consent to waive their sovereign immunity to suits for money damages under [RLUIPA]." (4) And the answer may have seemed straightforward based on the text of the law alone, since the statute expressly provides that "[a] person may assert a violation of [RLUIPA] ... in a judicial proceeding and obtain appropriate relief against a government." (5)
So what, then, was the fuss all about? In the aftermath of a series of controversial Rehnquist Court decisions limiting Congress's power to abrogate state sovereign immunity using its Commerce Clause and other various Article I powers, (6) the fuss might have concerned whether Congress has the power to circumvent those limits by purchasing a waiver of the very state immunity that it could not abrogate. (7) Many had reacted to the Rehnquist-era decisions limiting congressional power to abrogate state immunity with alarm--Justice Stevens, for example, famously complained that sovereign immunity had become "a mindless dragon that indiscriminately chews gaping holes in federal statutes." (8) Allowing Congress to end-run those limits through its use of the Spending Clause power, then, would seem no small thing. But the Court in Sossamon found little difficulty on that point, confirming that a Spending Clause-induced waiver of state sovereign immunity is indeed permissible. (9)
The entire case turned instead on a particular rule: the requirement that, in order to sue a sovereign defendant for monetary damages, a private plaintiff must demonstrate not only that the sovereign has waived its immunity from suit by consenting to the action in the first instance, but also that the sovereign has unequivocally waived its immunity from a damages remedy in that suit. (10) As the Court put it in Sossamon, "[t]he waiver of sovereign immunity must extend unambiguously to ... monetary claims." (11) Applying this rule, the Court held in Sossamon that even though the states, by accepting federal funding under RLUIPA, had plainly waived their immunity from suits in general, the statute's authorization of "appropriate relief" was insufficiently clear to permit claims for monetary damages. (12)
It turns out that this rule--which I call the doctrine of "double immunity"--is of a mysterious pedigree. The Supreme Court cited two cases for the proposition in Sossamon: Lane v. Pena (13) and United States v. Nordic Village. (14) But neither of those cases identifies a clear source for the rule. (15) And in fact, the Court's longstanding approach prior to cases like Lane and Nordic Village was to permit suits for money damages against a sovereign defendant so long as the defendant consented to be sued in general, irrespective of whether the waiver specifically mentioned monetary damages. (16)
Yet if the path that led to the double immunity rule is unclear, the aftermath of the rule has been anything but: the federal courts have applied it across a wide variety of contexts to insulate sovereign defendants from costly private litigation, even though those defendants have given their ex ante consent to be sued. (17) In this sense, the Court's decision in Sossamon is important not just because of the outcome of the case--state prisons can violate statutorily protected religious liberties without having to pay damages--but because it reflects the Court's growing solicitude for insulating culpable and consenting sovereign actors from liability. What is more, this solicitude has been fully embraced in the lower federal courts. In one case, a federal district court held that even though the State of Wisconsin was liable for $225,000 in monetary damages to a blind vendor's business, and even though Wisconsin had consented to be sued for its wrongful actions, the double immunity rule nevertheless shielded the state from having to pay the vendor a single dollar. (18)
Despite this result and others like it, the academy has yet to call attention to or analyze the development of the double immunity rule. This Article seeks to fill that gap by exploring the rule's origins, contours, and justifications. Part I begins with an examination of double immunity as it was created in Nordic Village and Lane, the two cases cited for the rule in Sossamon. I start with a brief overview of the first layer of immunity, the historically rooted precept that a court may not exercise jurisdiction over a state (19) or federal (20) defendant unless the sovereign in question has waived its immunity by consenting to the suit. (21) Although this first layer of sovereign immunity is a settled norm that has been the topic of thorough attention in both its federal and state incarnations, (22) scant scrutiny has been paid to the second layer of immunity conferred in Nordic Village and Lane, which treats a sovereign as immune from monetary relief absent clear authorization of such a remedy--even if the sovereign has already consented to the suit. (23) The bulk of Part I is spent discussing this second layer of immunity and how it came into existence. Part I includes several examples of how federal courts have applied the double immunity rule across a variety of contexts to shelter even culpable federal and state defendants from monetary remedies.
After witnessing the broad impact of the double immunity rule, I explore the possible justifications for the rule in Part II. This is admittedly a difficult task, as the Court has never articulated a clear rationale for why the rule should exist. In the end, I argue that neither the Constitution nor the common law supports the notion that sovereign immunity should create an initial immunity from suit and, even once that immunity has been waived, a separate immunity from ordinary monetary remedies. Part II then suggests the actual origin of the double immunity doctrine: it is a mistaken extension of a line of cases properly denying plaintiffs monetary relief against a sovereign defendant where such relief is not traditionally available in ordinary private litigation either--for instance, attorneys' fees, reimbursement for costs, or other atypical monetary judgments.
If, as I argue, there is no sound common law, constitutional, or other doctrinal grounding for the double immunity rule, Part III explains why courts are ill advised to apply it as a policy matter. To begin with, by offering federal and state defendants double immunity, courts enable the improvident outcome whereby plaintiffs who have unquestionably been granted the right to sue a sovereign defendant by the sovereign itself might prevail on the merits of their claims and yet still go without an appropriate remedy. Second, the judge-made rule frustrates the intent of the legislatures who have unequivocally consented to suit in the first place: it would be odd indeed to assume that lawmakers intend to create a right to suit but not a corresponding remedy, yet this is precisely what the double immunity rule presumes. Finally, the rule may not even achieve its ostensible goal of protecting sovereign dignity, since its practical impact is to make injunctive relief the default remedy--a form of relief that may well be more intrusive than damages. (24)
I conclude the Article by suggesting an alternative to the double immunity rule, which I believe the courts would do better to apply when considering what remedies ought to be available against a sovereign that has already waived its immunity from suit. Under my proposed rule, a plaintiff would be entitled to recover the same monetary remedies against a sovereign defendant that has waived its immunity from suit as would be available against an ordinary private defendant in similar circumstances, with the notable exception that a sovereign should be able to declare by clear statutory expression that particular remedies ought not to be provided. This rule, which flips the existing presumption on its head, is more in line with historical notions of sovereign immunity and, I argue, is more respectful of the needs of injured plaintiffs, the intent of legislatures, and the interests of the sovereigns themselves.
I. DOUBLE IMMUNITY
TO understand the Court's double sovereign immunity rule is simply to understand the two intertwining layers of protection of which it is comprised. Accordingly, this Part begins with a brief analysis of the first layer of immunity, state and federal immunity from suit. It then explores the less-scrutinized second layer: the immunity against a monetary remedy that persists even after a sovereign defendant has already consented to the suit.
A. The First Layer of Sovereign Immunity: Immunity from Suit
It is indisputable as a descriptive matter that the federal and state governments enjoy immunity from private lawsuit absent their consent. But the consensus does not extend to the sources of this immunity or to the way in which each has been applied. What follows is a short overview of the origins of the first layer of immunity in the federal and state contexts, and a description of how the Court has applied this immunity using clear statement rules.
1. Origins of the first layer of sovereign immunity
As the Supreme Court announced more than a century ago, "It may be accepted as a point of departure unquestioned, that neither a State nor the United States can be sued as defendant in any court in this country without their consent...." (25) Although the Court's summary declaration explains the profound effect of state and federal sovereign immunity, it elides some important questions about the origins of each immunity. I briefly review those questions now.
a. Origins of federal immunity from suit
The Supreme Court first recognized the existence of a federal sovereign immunity defense in 1821. (26) Yet from the Founding, the notion that the federal government should enjoy immunity from suit has stood on less-than-certain footing. (27) To begin with, there is no clear textual grant of sovereign immunity in the Constitution itself. (28) Supporters of federal immunity have instead generally relied on a combination of structural and historical arguments. For instance, the Framers often spoke of federal immunity as an unquestioned aspect of the new nation, perhaps drawing from the English common law and the oft-repeated Blackstonian maxim that, "the king can do no wrong." (29) Alexander Hamilton wrote in The Federalist No. 81, "[i]t is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent." (30) Similarly, before his service as Chief Justice, John Marshall observed, "[i]t is not rational to suppose that the sovereign power should be dragged before a court." (31) Observations of this character tend to support the dominant view to day that federal sovereign immunity was simply an "accepted premise" at the Founding, even if it lacks a textual toehold in the Constitution. (32)
On the other hand, the very structure and nature of the democratic republic created at the Founding might be understood to preclude the application of sovereign immunity to the national government. (33) The Supreme Court expressed some solicitude to this view in United States v. Lee, an 1882 case concerning the federal government's seizure of land from General Robert E. Lee's estate for a national cemetery, writing, "[u]nder our system the people, who are there called subjects, are the sovereign. Their rights ... are not bound to give way to a sentiment of loyalty to the person of a monarch." (34)
Even still, a number of scholars have offered explanations for why federal immunity may be consistent with the Constitution. For example, some have argued that the Appropriations Clause implicates a degree of federal sovereign immunity: if Congress is vested with the sole authority to appropriate public money, perhaps no judgment can be paid without its initial consent. (35) Another argument is that "Congress' control over the jurisdiction of the federal courts gives it considerable powers simply to refuse to authorize suits against the government." (36) In the Judiciary Act of 1789, Congress expressly granted lower federal courts jurisdiction only over cases in which the United States was plaintiff or petitioner, implicitly barring suits in which the federal government was the defendant. (37) Therefore, "[w]hat we call the 'sovereign immunity' of the United States in many respects could be described instead as a particularized elaboration of Congress' control over the lower court's jurisdiction." (38) In any event, regardless of its shaky textual and historical grounding, the bottom line is that "the doctrine of sovereign immunity is in no danger of falling out of official favor any time soon." (39)
b. Origins of state immunity from suit
If the origins of federal sovereign immunity might be viewed as controversial, so much more could the same be said about the roots of state sovereign immunity. The simplest explanation is that states enjoy sovereign immunity from suit by virtue of the Eleventh Amendment, which was enacted in order to overturn the Court's infamous decision in Chisholm v. Georgia. (40) In Chisholm, the Court interpreted Article III, along with the Judiciary Act of 1789, to permit a citizen of South Carolina to sue the State of Georgia, rejecting the State's sovereign immunity defense. (41) The conventional view explains that state lawmakers immediately protested the Chisholm decision, quickly passing the Eleventh Amendment in order to restore the Framers' original understanding that states should be immune from private suits. (42)
The problem with this conventional narrative, of course, is that if the Eleventh Amendment was intended to enshrine a preexisting notion that states should enjoy sovereign immunity from private actions, it used awfully odd language to meet that task. The Amendment states, "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." (43) Thus, if the Amendment is to serve as the source for state immunity, it is by its own terms underinclusive, since it only bars a suit against a state when it is brought by a citizen from another state. Yet the Court has roundly rejected that limited view of the Amendment ever since Hans v. Louisiana, where the Court considered and rejected a citizen's suggestion that "[t]he letter" of the Amendment did not preclude him from suing his own state, describing that argument as "an attempt to strain the Constitution and the law to a construction never imagined or dreamed of." (44)
The criticisms of state sovereign immunity extend beyond the ill-fitting text of the Eleventh Amendment. A number of scholars have taken umbrage with the logic of the Court's recent sovereign immunity decisions, (45) some have called for abolishing the immunity altogether as "inconsistent with basic principles of the American legal system," (46) and even those who have spoken favorably of the Court's state sovereign immunity jurisprudence admit that "the Eleventh Amendment is a mess." (47) Yet notwithstanding this criticism, it is by now beyond dispute that the states are immune from suit. (48) As Justice Kennedy wrote in Alden v. Maine:
[S]overeign immunity of the States neither derives from, nor is limited by, the terms of the Eleventh Amendment. Rather, as the Constitution's structure, its history, and the authoritative interpretations by this Court make clear, the States' immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today.... (49)
In the view of a majority of the Court today, then, state sovereign immunity is an incontrovertible aspect of our federal system, rooted not just in the Eleventh Amendment, but in a historical understanding of the nature and structure of our Union. And like its federal counterpart, state sovereign immunity certainly does not seem to be going anywhere--if anything, its reach has actually increased in recent years. (50)
2. Applying the first layer: a jurisdictional defense subject to waiver by clear statement
Separate from the degree of support that one believes the Court ought to show toward the existence of federal and state sovereign immunity given their contested origins is the question of just how strong the respective immunities should be in practice. That is, once the existence of a sovereign immunity defense is acknowledged, how and when should it apply? With respect to how it applies, there is widespread agreement that the sovereign immunity defense is a jurisdictional one. (51) If a sovereign is entitled to it, the immunity functions to bar the court's exercise of power over the defendant altogether and precludes an adjudication of the merits of the plaintiff's suit. (52)
From the perspective of a plaintiff seeking to sue a government defendant, however, the jurisdictional nature of the sovereign immunity defense need not signal an absolute deathblow to the plaintiff's chances for redress. Some jurisdictional defenses, after all, may be waived, and sovereign immunity is one such defense. (53) Even as Hamilton wrote in The Federalist No. 81 that a sovereign should not be amenable to suit, for instance, he also recognized that the immunity should cease to apply if the sovereign has granted its consent to be sued. (54)
Once it is accepted that the sovereign immunity defense is jurisdictional and waivable, the plaintiff who wishes to sue a state or federal government defendant naturally turns her focus to the question of how to know when a sovereign has waived its immunity. (55) Both the Court and the academic community have paid increased attention to this question of late, since much turns on it. (56) Loose interpretive rules regarding waiver will reduce the protective reach of sovereign immunity in a way that will advantage plaintiffs, whereas strict rules of waiver construction will protect the sovereign to the disadvantage of plaintiffs.
So on which side of the spectrum does the Court's waiver jurisprudence fall? The answer, especially in the past two decades, is that the Court has adopted a strict approach. (57) There are three primary ways that a sovereign may forego its immunity defense: a federal or state sovereign defendant may unilaterally and voluntarily waive its immunity; Congress can induce states to waive their immunity through the Spending Clause power; and Congress can abrogate state immunity using its Fourteenth Amendment enforcement power. (58) The Court has applied the same strict interpretive approach to putative waivers of immunity across each of the three categories--a waiver of sovereign immunity will only be effectuated if it satisfies a strict clear statement requirement. (59)
John Copeland Nagle has described the impact of these clear statement requirements as "powerful." (60) And the Court has left little doubt that it feels the same way, holding that it would refuse to infer a waiver of immunity based on a general claim of statutory purpose or legislative history, looking instead only to the face of the statutory text itself. (61) This has led some in the academy to go so far as to distinguish between ordinary clear statement rules and "superstrong" clear statement rules such as the one that applies to waivers of sovereign immunity. (62)
One way to think about this clear statement waiver requirement is that it shields a sovereign from ever having to face a particular class of lawsuits unless the sovereign has expressly authorized the suit through a deliberate legislative decision. Of course, if a sovereign cannot be haled into court without its ex ante consent, then neither can a sovereign be forced to pay a monetary judgment without its ex ante consent--by preventing a sovereign from suffering the embarrassment of suit, the first layer of immunity necessarily protects the public fisc as well. Nevertheless, the Court has taken the additional step of protecting the sovereign treasury from even legitimate claims by citizen plaintiffs through its announcement of a second layer of sovereign immunity--an immunity against monetary relief that applies both in the federal context after Nordic Village and in the state context after Sossamon. (63) I shift now to discuss this duplicate layer of immunity and the many cases in which it has prevented private plaintiffs from obtaining appropriate relief.
B. The Second Layer of Sovereign Immunity: Immunity from Monetary Judgment
Justice Frankfurter once cautioned that "when dealing with a statute subjecting the Government to liability for potentially great sums of money, this Court must not promote profligacy by careless construction. [But n]either should it as a self-constituted guardian of the Treasury import immunity back into a statute designed to limit it." (64) This Subpart explains how the Rehnquist and Roberts Courts have disregarded Justice Frankfurter's admonishment by creating a rule that imports a second layer of immunity against monetary judgments back into statutes that have plainly waived the sovereign's immunity to begin with.
1. The Court's early approach to monetary claims against a sovereign
Nordic Village, Lane, and Sossamon were not the first occasions on which the Court considered a private party's ability to sue a sovereign defendant for monetary relief where the sovereign had clearly consented to the suit but made no mention of the relief available in that suit. In fact, for a long period before these three cases, the Court routinely authorized monetary relief against sovereign defendants who had waived their immunity from suit in general terms without expressly declaring that the waiver extended to claims for monetary relief.
In 1940, for instance, the Court confronted the issue in Federal Housing Administration v. Burr. (65) The case involved an action against the Federal Housing Administration (FHA) for monetary relief in the form of garnished wages that it owed to one of its employees. (66) The FHA responded that it could not be subject to suit because it was "an agency of the United States Government and ... therefore, not subject to garnishee proceedings." (67) The Court disagreed, noting that the statute authorizing the creation of the FHA had been amended to include a provision permitting the agency "to sue and be sued in any court of competent jurisdiction." (68) The Court therefore deemed the FHA's sovereign immunity to be waived and allowed the suit to proceed, notwithstanding that it was a claim for money damages and the waiver of immunity did not expressly provide such relief. (69) In reaching this result, the Court reasoned that once the sovereign defendant waived its immunity, it became "no less amenable to judicial process than a private enterprise under like circumstances would be." (70) Moreover, the Court explained, to rule otherwise and require an unequivocal expression about the availability of a particular monetary remedy would "deprive suits of some of their efficacy," since the effect would be to authorize a suit against the government without an appropriate remedy. (71)
The same single layer of immunity was applied again more than four decades later in Franchise Tax Board v. U.S. Postal Service. (72) In that case, the Court considered whether a statutory declaration that the Postal Service could "sue and be sued in its official name" constituted a waiver of the government's sovereign immunity such as would authorize the Franchise Tax Board of California to order the Postal Service to withhold delinquent taxes from the salaries of four employees and transfer the funds to the Board. (73) Without considering whether the text of the waiver expressly extended to monetary relief, the Court ruled--like it had in Burr--that the statutory language constituted a waiver of sovereign immunity and consequently that the sought-after monetary judgment was indeed available against the federal government. (74)
Although Burr and Franchise Tax Board were cases concerning the availability of money damages against federal sovereign defendants who had waived their immunity from suit without expressly mentioning monetary relief, the same approach applied historically in the state immunity context as well. In 1949, Missouri and Tennessee contracted to form the Tennessee-Missouri Bridge Commission, a joint corporate venture run by the two states together for the purpose of building a bridge and operating ferries along the Missouri River. Absent a waiver, the two states would enjoy sovereign immunity from lawsuits brought against the Commission. (75) The compact between the two states, however, authorized the Commission to be sued, although it did so without specifying what remedies the Commission could be sued for. (76) Nonetheless, in Petty v. Tennessee-Missouri Bridge Commission, the Supreme Court ruled that the compact waived the Commission's sovereign immunity and that the widow of a Commission employee who died in an accident aboard one of the Commission's ferry boats could obtain monetary relief from the joint state agency defendant in her tort action. (77) Thus, just as in Burr and Franchise Tax Board, the Petty Court permitted a monetary claim to proceed against a sovereign without requiring the sovereign to expressly mention the availability of such relief.
In summary, for the several decades before Nordic Village, Lane, and Sossamon, the Court applied what was in effect a straightforward single immunity rule to state and federal sovereign defendants: the government defendant could be held liable for a monetary remedy when the sovereign consented to be sued, without regard for whether the initial consent made express mention of such a remedy. That longstanding approach has changed considerably, however, as a result of three of the Court's more recent decisions, beginning with Nordic Village.
2. The Court's new double immunity approach to monetary claims against a sovereign in Nordic Village, Lane, and Sossamon
The circumstance before the Court in Nordic Village was not materially dissimilar from the circumstances in Franchise Tax Board, Burr, and Petty described above. As in the other cases, Nordic Village concerned a lawsuit brought by a private party against a sovereign entity for monetary relief, where the sovereign had consented to be sued. (78) In Nordic Village, the private lawsuit was initiated against the IRS by a bankruptcy trustee who represented creditors of a restaurant that had gone out of business and filed a Chapter 11 petition for bankruptcy. (79) After the restaurant filed for bankruptcy, the owner of the restaurant had withdrawn $26,000 from the company's account and used it to (among other things) write a $20,000 check to the IRS to satisfy his outstanding personal tax liability. (80) Upon learning about the restaurant owner's actions, the bankruptcy trustee initiated a proceeding in bankruptcy court to recover the $20,000 from the federal government, arguing that it was improper for the owner to transfer those funds from the company's accounts after the company had already filed for bankruptcy. (81) The bankruptcy court agreed, quickly voided the transfer, and entered a judgment against the federal government for $20,000, which the district court affirmed. (82)
On appeal to the Sixth Circuit, however, the government raised a jurisdictional defense for the first time, arguing that even though the owner's postpetition transfer was voidable and even though the trustee was entitled to the $20,000 on the merits, the federal government's sovereign immunity barred the monetary judgment. The Sixth Circuit rejected this argument and affirmed the $20,000 judgment. The court agreed that the owner's use of the funds was voidable, (83) and that the trustee was entitled to recover the $20,000 pursuant to [section] 550 of the Bankruptcy Code, which governed transferee liability for voided transfers. (84) The court then explained that sovereign immunity did not bar the recovery action because the government had waived its immunity from such actions in [section] 106(c), which stated, "[N]otwithstanding any assertion of sovereign immunity[,] a provision of this title that contains [the term] 'entity' ... applies to governmental units...." (85) In the view of the appeals court, [section] 106(c) waived the government's immunity from [section] 550 recovery claims because [section] 550 contained the term entity; it authorized recovery of improper transfers from any "entity for whose benefit such transfer was made." (86)
Despite this seemingly straightforward reasoning, the Supreme Court reversed the Sixth Circuit's ruling. Writing for the five-to-four majority, Justice Scalia noted the familiar adage that, in order to be effective, a waiver of the government's sovereign immunity "must be 'unequivocally expressed."' (87) The Court then readily conceded that [section] 106(c) did indeed unequivocally waive the government's immunity from suit. (88) Nonetheless, Justice Scalia wrote, the IRS was judgment-proof because, "[t]hough [[section] 106(c)] ... waives sovereign immunity, it fails to establish unambiguously that the waiver extends to monetary claims." (89) The Court instead reasoned that [section] 106(c) might be read to "permit the bankruptcy court to issue 'declaratory and injunctive'--though not monetary--relief against the Government." (90)
So it was in Nordic Village that a majority of the Court held for the first time that in order for a private plaintiff to be entitled to a monetary recovery against a sovereign defendant, it is insufficient for the sovereign to have enacted a statute that only waives its sovereign immunity from suit in general terms; instead, the statutory language must "establish unambiguously" that the waiver extends to the particular relief of monetary damages as well. (91) Disputes in bankruptcy rarely draw the ire of casual onlookers, but the direct result of the new double immunity rule's application in the case was severe: the decision prevented creditors of the bankrupt Nordic Village restaurant from recovering on their debts, while at the same time enriching the IRS and rewarding the restaurant owner who improperly took money from the bankrupt restaurant's corporate account for personal use.
Two years after Nordic Village was handed down in 1992, the First Circuit described the rule announced in Nordic Village as a newfound "secondary principle of sovereign immunity." (92) And although there was uncertainty at that time whether the Court might limit the application of this so-called secondary principle of sovereign immunity to the bankruptcy context--or whether it would instead view the rule as a trans-substantive requirement to be applied to every purported waiver of sovereign immunity--that uncertainty was clarified in 1996 when the Supreme Court applied the second layer of immunity again in Lane v. Pena.
In Lane v. Pena, the Supreme Court held double immunity to bar monetary relief against a federal defendant under section 504(a) of the Rehabilitation Act. (93) Lane involved a challenge brought by a diabetic first-year student who had been discriminated against and discharged from the United States Merchant Marine Academy on account of his medical condition. (94) The Court held that the Academy had clearly waived its sovereign immunity at least with respect to injunctive relief and therefore the Academy could be ordered to reinstate the cadet. (95) But because the statute did not expressly authorize monetary relief against the Academy, the Court held that sovereign immunity barred the cadet's claim for compensatory damages stemming from the wrongful discharge. (96) Quoting the government's brief and articulating the double immunity principle in its clearest form, the Court explained, "[w]here a cause of action is authorized against the federal government, the available remedies are not those that are 'appropriate,' but only those for which sovereign immunity has been expressly waived." (97)
Nordic Village and Lane thus officially codified the second layer of immunity with respect to the federal government's sovereign immunity, but it was not until Sossamon v. Texas that the Supreme Court would confirm the applicability of the same rule to protect a state sovereign defendant from money damages in an otherwise-consented-to lawsuit. (98) Sossamon therefore settled not just one but two important questions relating to the Supreme Court's approach to state sovereign immunity: it confirmed, first, that Congress could easily purchase waivers of state immunity through its Spending Clause power, (99) and second, that the doctrine of double immunity shields state defendants just the same as federal defendants.
As briefly discussed above, Sossamon concerned the ability of private plaintiffs to sue state defendants under a federal statute, the Religious Land Use and Institutionalized Persons Act (RLUIPA). RLUIPA contains an express waiver of state sovereign immunity, authorizing a prison inmate whose religious liberties have been violated to sue and "obtain appropriate relief against a government," where "government" is defined to include states and state officials. (100)
The question presented in Sossamon was whether this textual waiver of immunity--and its authorization of "appropriate relief"--enabled prison inmate plaintiffs to sue state governments for monetary damages where the states operated their prisons in a manner that infringed on prisoners' religious liberties. Stories of such prison abuses abound; for instance in one case, a Jewish inmate went eight days without eating at a Michigan correctional facility because the facility refused to accommodate his religious duty to keep kosher. (101) That inmate had made numerous requests, to no effect, for any kind of kosher food as simple as "an apple or some kind of vegetable." (102)
Nevertheless, the Court in Sossamon ruled that prisoner suits for monetary damages were barred by the doctrine of double immunity. The Court began by acknowledging that the statute unequivocally authorized suits for "appropriate relief against a government," (103) such that the first layer of immunity had necessarily been waived. (104) The Court concluded, however, that the term "appropriate relief" does not "clearly and unambiguously waive sovereign immunity to private suits for damages" as would be required to authorize such suits under the second layer of sovereign immunity. (105) The Court explained further that even though the term "appropriate relief" could be read to encompass monetary damages--and even though prior Court decisions had construed the term "appropriate relief" precisely that way--the term was still "not so free from ambiguity that we may conclude that the States, by receiving federal funds, have unequivocally expressed intent to waive their sovereign immunity to suits for damages." (106) And just like that, the Court's creation of an additional layer of sovereign immunity from monetary relief for federal defendants who had already waived their immunity from suit (in Nordic Village and Lane) was extended to state defendants as well.
3. Other applications of double immunity
The impact of the Court's new double immunity doctrine has been felt across a variety of contexts, as evidenced by recent decisions in the lower federal courts and the Supreme Court itself. Not only has the doctrine prevented injured private citizens from obtaining redress against government defendants (who have agreed to be sued) in the already mentioned contexts of bankruptcy, disability discrimination, and religious liberties, (107) but so too have federal courts now applied double immunity against wronged persons in cases involving wrongful government destruction of private property and federal programs in support of the blind. (108) In addition, just last Term the Supreme Court relied on the double immunity rule in construing yet another statute, this time to preclude an award of monetary relief against the federal government despite the government's consent to be sued for its violation of rights guaranteed under the federal Privacy Act of 1974. (109)
With respect to the government's improper destruction of private property, the double immunity rule has been held to bar monetary remedies sought under Rule 41 (g) of the Federal Rules of Criminal Procedure. Rule 41 (g) states:
A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return.... If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings. (110)
The question raised in the Rule 41 (g) cases is whether a movant may be entitled to monetary relief in lieu of wrongfully seized property where the government has lost, transferred, or destroyed the property. Prior to the Court's decisions in Nordic Village and Lane, the Second, Eighth, and Ninth Circuit Courts of Appeals had each concluded that a party moving under Rule 41(g) could be awarded monetary relief if the government had lost, transferred, or destroyed the property that the party was entitled to have returned. (111) Indeed, in each of those pre-double immunity cases, the federal government apparently did not so much as attempt to claim a sovereign immunity defense from the sought-after monetary award, a reflection of the Court's traditional approach that a waiver of immunity from suit in general naturally extends to ordinary forms of relief. (112)
But the circuit courts took a striking U-turn regarding the availability of monetary awards under Rule 41(g) after Nordic Village and Lane, holding that because of those cases, Rule 41 (g) movants would not be entitled to monetary relief since the rule does not expressly mention such relief. (113) The Eighth Circuit explained the reason for this sea change in the circuits powerfully, pointing directly to the Supreme Court's new double immunity jurisprudence:
[Prior to Nordic Village and Lane,] some circuits have concluded (or at least strongly suggested) that federal courts may award money damages, pursuant to their inherent power to afford adequate equitable relief, when the moving party is entitled to the return of property the government has lost, destroyed, or transferred....
... But the sovereign immunity landscape has changed in the last ten years....
In the wake of Nordic Village [and] Lane ..., three other circuits have concluded that Rule 41 (e) does not contain the explicit waiver of sovereign immunity required to authorize monetary relief against the government when property cannot be returned. [Citing Soviero, Mora, Thompson v. Covington, and other cases.] We agree. (114)
Reading Rule 41 (g) in light of the double immunity rule, however, produces an astonishing result. If the government carefully stores and monitors private property that it has wrongfully seized, it must return the property to its owner. But if the government sells, transfers, destroys, or otherwise loses control of the property, the individual owner is out of luck--and the government may even keep proceeds it has generated from the property. (115)
The second layer of sovereign immunity has also been applied against private citizens who seek damages from state defendants under the federal Randolph-Sheppard Act. (116) Congress passed the Act in 1936 to offer priority to blind persons seeking to operate vending facilities on federal property. (117) The Act has the declared purposes of "providing blind persons with remunerative employment, enlarging the economic opportunities of the blind, and stimulating the blind to greater efforts in striving to make themselves self-supporting." (118) Under the Act, a blind person who desires a position as a vendor applies for a license from a state agency, which in turn applies to the federal government for placement of the vendor on federal property. Once the state agency and federal government agree on a location for the vending facility, the agency administers the vending facility program and provides the vendor with an initial stock and inventory. (119) Importantly, the Act dictates that blind vendors shall have a right to take the state licensing agency to arbitration in order to remedy any claims they may have against the agency in relation to the agency's management of the program. (120)
In 2006, the district court for the Western District of Wisconsin heard a challenge brought by a blind vendor, Janet Dickey, against Wisconsin's state licensing agency under the Randolph-Sheppard Act, the Wisconsin Department of Workforce Development (DWD). (121) Dickey alleged that the DWD was "negligent in its oversight, responsibility of, and management of the Randolph-Sheppard Program" under which she had been hired, and that as a result of the state agency's negligence, her federal facility employer terminated her employment, resulting in substantial monetary damages. (122) A panel of three arbitrators--including one appointed by the DWD itself--ruled unanimously in Dickey's favor, awarding her $225,000 in lost income.
The district court invalidated the arbitration award. (123) The court recognized that the state clearly had consented to be bound by arbitration decisions as a condition of its participation in the Randolph-Sheppard program. (124) But it also reasoned that the statute's waiver of immunity from arbitration only meant that "states can be found liable for violations of the Act and subject to some form of relief; it does not mean that they are required to submit to awards of money damages." (125) In other words, despite the fact that the State of Wisconsin had plainly waived its immunity from suit in arbitration proceedings, and even though the arbitration panel unanimously agreed that Dickey was entitled to a judgment of $225,000 against the state agency whose negligence had caused her to lose her job, the double immunity rule sheltered the state from having to remedy its wrong.
Finally, the Supreme Court applied the doctrine of double immunity to bar a monetary award in its 2012 decision in FAA v. Cooper. (126) In that case, plaintiff Cooper was an airline pilot diagnosed with the human immunodeficiency virus (HIV). At the time, the Federal Aviation Administration (FAA) did not issue required medical certificates to persons with HIV, and so Cooper did not inform the FAA of his diagnosis. (127) In the meantime, Cooper applied for long-term disability benefits, disclosing in the process his HIV status to the Social Security Administration (SSA). The FAA subsequently launched a joint criminal investigation with the SSA seeking to identify medically unfit persons who had nonetheless obtained FAA flight certification. During the investigation, the SSA revealed Cooper's diagnosis to the FAA, which then revoked his license. Cooper was subsequently charged with making false statements to a government agency in violation of 18 U.S.C. [section] 1001. (128) Cooper responded by suing the FAA and SSA for damages for emotional and mental distress, arguing that the agencies had violated the Federal Privacy Act of 1974, which bars executive branch agencies from disclosing certain confidential records.
The district court ruled in Cooper's favor on the merits of that claim, holding that the Government had indeed violated the Act by disclosing Cooper's HIV status. (129) But the district court rejected Cooper's claim for monetary damages under the double immunity doctrine, ruling that although the Privacy Act waived sovereign immunity for "actual damages," that term did not unequivocally extend to suits for nonpecuniary emotional and mental harm. (130) The Ninth Circuit reversed, reasoning that the term "actual damages" actually does extend to damages for mental and emotional distress. (131)
The Supreme Court reversed again, agreeing with the district court that Cooper was not entitled to monetary relief because of the doctrine of double immunity. (132) The Court began by conceding that there was no doubt that "Congress ha[d] consented to be sued for damages under the Privacy Act. That much is clear from the statute, which expressly authorizes recovery from the Government for 'actual damages."' (133) Citing the double immunity rule from Lane and Nordic Village, however, the Court explained that the relevant question was not simply whether the government had waived its immunity from suit, but also whether the Act's waiver "unambiguously" authorized Cooper's particular suit seeking money damages for mental and emotional distress. (134) "Ambiguity exists" and no monetary award should be allowed, the Court reasoned, "if there is a plausible interpretation of the statute that would not authorize money damages against the Government." (135)
The Court thus placed the burden on Cooper to show that the term "actual damages" unambiguously encompasses damages for emotional or mental harms. The Court recognized that Black's Law Dictionary defines "actual damages" in a way consistent with such a reading, as "[r]eal, substantial and just damages, or the amount awarded to a complainant in compensation for his actual and real loss or injury, as opposed on the one hand to 'nominal' damages, and on the other to 'exemplary' or 'punitive' damages." (136) But the Court also noted an alternative plausible reading in which "actual damages" might instead mean "special damages" as understood in the context of certain common law torts where such damages are "limited to actual pecuniary loss." (137) Accordingly, although the Court acknowledged that Cooper's reading of the statute was hardly "inconceivable," it held that no monetary relief could be awarded under the double immunity rule because "it is plausible to read the statute, as the Government does, to authorize only damages for economic loss." (138)
The results produced by the application of the second layer of sovereign immunity in suits against both federal and state defendants are no doubt confounding. Because of it, persons in the many circumstances discussed above have been barred from recovering appropriate monetary remedies even though the sovereign in each case unambiguously consented to be sued. In all of these decisions, the courts have given effect to the second layer of immunity from monetary relief by using a strong clear statement rule: sovereign immunity bars a monetary judgment absent unambiguous statutory language authorizing the desired relief. (139)
Just as troubling as the results in these cases is the sudden manner in which the Supreme Court departed from its decades-old approach, exemplified in Burr, Franchise Tax Board, and Petty, (140) in which only the traditional first-layer principle of sovereign immunity from suit was given effect. In a pair of decisions over a four-year period, Nordic Village and Lane, the Court effectively overturned that longstanding approach and began applying the second layer of immunity from monetary judgments as well. Identifying this second layer has been my initial objective; my next task is to determine whether the double immunity rule has any merit. To know the answer to this question, though, one has to inquire into the sources and reasoning behind the Court's decision to adopt the rule in the first place. I engage in that inquiry now.…