The Continuing Drift of Federal Sovereign Immunity Jurisprudence

By Sisk, Gregory C. | William and Mary Law Review, November 2008 | Go to article overview

The Continuing Drift of Federal Sovereign Immunity Jurisprudence


Sisk, Gregory C., William and Mary Law Review


ABSTRACT

With the enduring doctrine of federal sovereign immunity, it is too late in the day to suggest that the United States should be treated as an ordinary party in the federal courts. Yet as the Supreme Court has become more comfortable with the increasingly common encounter with a statutory waiver of immunity, the rigidity of interpretive approach has eased. An early jaundiced judicial attitude has resolved into a greater respect for the legislative promise of relief to those harmed by their government. After sketching the history of statutory waivers over the past century-and-a-half and examining Supreme Court decisions across the decades, this Article maintains that a coherent and principled jurisprudence of federal sovereign immunity has been gradually emerging. The Court now reserves absolute jurisdictional analysis for verifying the existence of a statutory waiver for a general class of claims, while judiciously employing strict construction to preclude judicial implication of new causes of actions or remedies. By contrast, the Court is more inclined to use ordinary modes of statutory construction when examining other standards, limitations, or exceptions in statutory waivers, even presuming that procedural rules apply in government cases in the same manner as in private litigation. Unfortunately, a recent Supreme Court decision resurrected an old line of cases that translated a statute of limitations for certain claims against the United States into a jurisdictional rule. This Article suggests that the negative effect of this decision on the course of the law, although not negligible, is limited by the decision's reliance on stare decisis. This Article concludes that the Court should speak more purposively to its interpretive approach in the future if the renewed drift in its federal sovereign immunity jurisprudence is to be arrested.

TABLE OF CONTENTS

INTRODUCTION

 I. THE CONCEPT AND WAIVER OF FEDERAL
    SOVEREIGN IMMUNITY
    A. The Conceptual Grounding, Persistent Criticism, and
       Perseverance of the Doctrine of
       Federal Sovereign Immunity
    B. A History of Statutory Waivers of
       Sovereign Immunity
       1. The Origin of Statutory Waivers: Contracts,
          Money, and the Court of Claims
       2. The Decades of Slow Growth of Statutory Waivers:
          Admiralty and Tort
       3. The Modern Acceleration of Statutory Waivers:
          From Employment Discrimination to
          Attorney's Fees
       4. The Broad Tapestry of Statutory Authorizations for
          Suit Against the Federal Government
II. ARRESTING THE DRIFT: TOWARD A COHERENT THEORY OF
    JUDICIAL CONSTRUCTION OF STATUTORY WAIVERS OF
    SOVEREIGN IMMUNITY
    A. The Importance of Sound Rules of Construction:
       Upholding the Promise of Statutory Waivers of
       Sovereign Immunity
    B. Sovereign Immunity and Jurisdiction:
       Preserving Jurisdictional Analysis in Its Place
       1. Existence of Legislative Consent for a Class of
          Claims as a Jurisdictional Prerequisite
       2. Early Decisions that Overextended
          Jurisdictional Analysis
       3. Reserving Jurisdictional Inquiry for Core Matters,
          While Removing Other Standards, Limitations,
          Exceptions, and Procedural Rules from
          Jurisdictional Analysis
    C. Construction of a Waiver's Substantive Scope:
       Strict in Theory, Calibrated and
       Pragmatic in Practice
       1. Strong Presumption Against Interpreting a
          Waiver To Allow a New Cause of
          Action or Remedy
       2. Strictness of Construction Lessens with
          Greater Judicial Familiarity with a
          Statutory Waiver: The Evolution of the
          Tucker Act in the Supreme Court
       3. The Fading of Strict Construction with Distance
          from the Core Substance of the
          Waiver of Immunity
    D. Applying Procedural Rules for Suits Against the
       Sovereign in the Same Manner as with
       Private Parties
III. … 

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