INTRODUCTION
The concept of federal sovereign immunity is anchored on the sovereign immunity doctrine. This doctrine provides that the federal government cannot be sued unless it has given explicit permission to be sued. The concept, whether applying to the state or federal government, has been assailed for its contradicting tension with constitutionalism - a legal principle that exists to limit governmental powers vis-à-vis fundamental rights of individuals (Sisk 74). Jackson (2003), thus, noted that the concept is a “place of contest between the values of Constitutionalism” with limiting governmental powers, on one hand, and judicial hesitance brought about by commitment to democratic decision-making to make the government answerable, on the other (Jackson 521). Permission to be sued is usually incorporated and implied in legislations that outline the remedies of private entities against the government in specific cases.
EVOLUTION OF EFEDERAL SOVEREIGN IMMUNITY IN THE US: LANDMARK CASES
The history of federal sovereign immunity in the United States is rooted in the English law. It is disputed, however, whether the framers of the Constitution intended the doctrine to be preserved, and, therefore, cannot be subjected to change. Prior to the ratification of the Constitution, for example, some prominent members of its framers publicly endorsed the doctrine. Alexander Hamilton thought that the doctrine is inherent in sovereignty while James Madison explained that the clause “to controversies to which the United States shall be a party” in section 2 of Article III of the Constitution did not imply a waiver of sovereign immunity, but merely conferred jurisdiction to the federal courts in cases where a state is a party. It does not confer the right to call any state to court. On the other and John Marshall, who later became US Supreme Court Chief Justice, believed that it was irrational to drag the sovereign power to court. All these pronouncements were cited in the case of Welch v. Texas Department of Highways, 483 U.S. 468 (1987), which held that those declarations by the aforesaid prominent framers of the Constitution were reason to \believe that the sovereign immunity doctrine was not abandoned by the Constitution (cited Sisk 76-77).
After almost a hundred years of ratifying the Constitution, the Supreme Court began to consider the issue of the scope and the rationale of the doctrine. In United States v. Lee, 106 U.S. 196 (1882), the SC deliberated on the scope of the doctrine. The case involved the Arlington estate owned by General Robert E. Lee of the Confederates. At the outbreak of the Civil War in 1861, the Lee family abandoned the estate, which was immediately seized by the Unionists. They turned the land into their headquarters and later utilized a portion of it as a cemetery for the military members who died during the war. The property was later sold to the US government at a tax sale on the pretext that the Lees were unable to pay their land taxes. Mrs. Lee, however, was willing to pay the $100 they owed to the government, but was refused on the grounds that she needed to make the payment personally and not through a mere agent. The Lees later filed an ejectment suit against a government officer. The SC, in a five-to-four decision, ordered the reinstatement of the property to the Lees. It was held that the doctrine does not extend to individuals although they happen to be officers of the government (cited Sisk 76-77).
In Larson v. Domestic and Foreign Commerce, 337 US 682 (1945), the War Assets Administration, a government agency, contracted with a private entity for the sale of coal surplus. Later, however, the WAA refused to deliver the coal to the seller and was in the process of entering into a contract with another. The first buyer sued the head of WAA to prevent the sale of the coal to other entities and to declare its contract with WAA as valid and the other as invalid. The District Court dismissed the case on the grounds of lack of jurisdiction. It contended that the suit was against the federal government and without its consent it cannot be sued. In the present case, the WAA had statutory authority to enter into a contract on behalf of the government and any action he makes to validate that duty is deemed an action of the government. Thus, an action can only brought against an officer of the government if his actions are not authorized by law, or even if authorized, but the law itself is constitutionally void. Ultimately, however, the question to be asked must be whether the relief sought was to be obtained from the government, in which case the action is against the federal government (cited Sisk 76-77).
In Malone v. Bowdoin, 369 US 643 (1962), the plaintiffs filed an ejectment suit against a Forest Service Officer of the US, who occupied a piece of land claimed by the plaintiffs. The duties of the Officer required him to be in possession of the land in question, which was allegedly bought previously by the government. Despite the similarities with the early case of US v Lee, the Court dismissed it for lack of jurisdiction contending that it was a case against the federal government and, therefore required consent by the sovereign. Nonetheless, the Court justified the Lee case as one that took place in a time where the just compensation for the taking of property was not yet available to the plaintiffs (cited Sisk 76-77).
IMMUNITY WAIVER
As earlier indicated, the federal sovereign immunity doctrine precludes suing the government without its consent. If it gives consent or waived its right under the doctrine, it can then be sued. The waiver is often done by Congress itself through the laws it passes. The Constitutional Amendments themselves provide grounds for bringing a suit against the federal government through the Takings Clause, the Just Compensation Clause and the Tax Rebate Claims. In addition, various laws explicitly waive the right of the government under the federal sovereignty doctrine. One such law is the 1887 Tucker Act, which allows suits against the government in contracts that it, or its agencies, has entered into. In Burr v FHA, 309 U.S. 242 (1940), however, the Court held that the government can create agencies that can act as litigants on its behalf in contractual cases and to limit the liability to agency funds. In such cases, the liability is limited to the amount held by an agency (Lobato & Theodore 15). Another law that waives federal sovereign immunity is the Federal Tort Claims Act 1948 or FTCA, which grants private citizens the right to sue the federal government for certain types of torts committed by federal government agents. The Administrative Procedure Act or APA likewise allows actions against federal agencies, except monetary ones (Sisk 603).
CONCLUSION
The doctrine of federal sovereign immunity is rooted in the English state sovereign immunity. In the US jurisdiction, the doctrine implies that the federal government cannot be sued unless it gives its consent. The doctrine has evolved in a number of ways through the years, but today, the federal government can be sued only under certain laws that waive its rights. Some of these laws include the Tucker Act, for contract breaches, the FCTA, for tortuous acts of its agents, and the APA, which grants the judiciary the right to review federal agency actions.
Works Cited
Jackson, Vicki. Suing the Federal Government: Sovereignty, Immunity, and Judicial Independence. 35 Georgetown Washington International Law Review, 521-609 (2003).
Larson v. Domestic and Foreign Commerce, 337 US 682 (1945).
Lobato, John and Theodore, Jeffrey. Federal Sovereign Immunity. Harvard Law School Briefing Paper No. 21, Federal Budget Policy Seminar. www.law.harvard.edu/faculty/hjackson/FedSovereign_21.pd
Malone v. Bowdoin, 369 US 643 (1962).
Sisk, Gregory. Litigation with the Federal Government. USA: ALI-ABA, 2006. Print.
Sisk, Gregory. The Tapestry Unravels: Statutory Waivers of Sovereign Immunity and Money Claims Against the United States. The George Washington Law Review, vol. 71: 602- 706, 2003.
United States v. Lee, 106 U.S. 196 (1882).
