Federal Sovereign Immunity and Compensatory Contempt
Riess, Daniel, Texas Law Review
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,
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
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. …