Federal Sovereign Immunity and Compensatory Contempt

By Riess, Daniel | Texas Law Review, May 2002 | Go to article overview

Federal Sovereign Immunity and Compensatory Contempt


Riess, Daniel, Texas Law Review


Notes

Federal Sovereign Immunity and Compensatory Contempt^

No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.1

But the broader reason [for sovereign immunity] is, that it would be inconsistent with the very idea of supreme executive power, and would endanger the performance of the public duties of the sovereign, to subject him to repeated suits as a matter of right, at the will of any citizen, and to submit to the judicial tribunals the control and disposition of his public property, his instruments and means of carrying on the government in war and in peace, and the money in his treasury.2

The lead prosecutor in a criminal fraud case permits the defendant's attorneys to examine thousands of subpoenaed documents pertaining to the case at a document-storage facility. An employee of the facility informs them that she can supply photocopies of any documents that the defense attorneys might consider useful. She does not tell them that she has arranged for the lead prosecutor to receive an additional set of photocopies of any documents that the defense team might select. When the defense attorneys learn of this subterfuge, they file a motion to seal the documents pending a court review of their contents and ask the prosecutor not to show the documents to anyone else. After receiving the motion, the prosecutor reviews the copies, shows them to two other Assistant U.S. Attorneys, and uses them to prepare a key government witness.

At a status conference, the court orders the prosecutor to file the entire set of documents under seal with the court. Before turning them over, IMAGE FORMULA6

however, she makes an additional set of photocopies that she retains for herself. And, during the conference, she lies to the court about her arrangement with the storage facility. She also falsely claims that, after she learned of the arrangement, she contacted an Assistant U.S. Attorney who assured her that such arrangements were routine.

The defense attorneys institute a civil contempt proceeding that reveals the full extent of the prosecutor's misconduct. Because the prosecutor violated a court order, the court holds the government in civil contempt and orders that the defense team be reimbursed for fees and costs incurred in litigating the misconduct issue. The prosecution moves to dismiss the fee award on the ground of federal sovereign immunity, the doctrine that prevents any entity from filing suit against the United States, or collecting damages awards against it, in a manner not expressly authorized by the government. Should the government's motion prevail?3

Many federal courts have suggested that when sovereign immunity conflicts with the judicial contempt power, the former should trump.4 However, two recent cases have concluded that such interference with an Article III court's contempt power could raise separation-of-powers problems because the contempt power may be considered an essential function of the court.5 The issue is further complicated because the doctrine of sovereign immunity itself performs an important separation-of-powers function by preventing undue judicial interference with executive-branch operations.6 However, legal scholarship has yet to address this conflict.7

Resolving this dilemma requires an understanding of the policy rationales underlying federal sovereign immunity and judicial contempt. Part I of this Note examines each doctrine separately, demonstrating how each has evolved over time, what role it plays in the federal courts, and how it IMAGE FORMULA8

operates procedurally. Part II examines the problems that arise when the two doctrines conflict-that is, when the United States (or an executive agency) invokes sovereign immunity when confronted with a contempt sanction. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • A full archive of books and articles related to this one
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Federal Sovereign Immunity and Compensatory Contempt
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

    Already a member? Log in now.