The Continuing Drift of Federal Sovereign Immunity Jurisprudence
Sisk, Gregory C., William and Mary Law Review
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. …