Black's Law Dictionary, Fifth Edition, p. 1252
Sovereign immunity. Doctrine precludes litigant from asserting an otherwise meritorious cause of action against a sovereign or a party with sovereign attributes unless sovereign consents to suit. Principe Compania Naviera, S. A. v. Board of Com'rs of Port of New Orleans, D.C.La., 333 F.Supp. 353, 355. Historically, the federal and state governments, and derivatively cities and towns, were immune from tort liability arising from activities which were governmental in nature. Most jurisdictions, however, have abandoned this doctrine in favor of permitting tort actions with certain limitations and restrictions. See Federal Tort Claims Act; Governmental immunity; Tort Claims Acts.
[Black's Law Dictionary, Fifth Edition, p. 1252]
Black's Law Dictionary, Fifth Edition, p. 626
Governmental immunity. The federal, state and local governments are not amenable to actions in tort except in cases in which they have consented to be sued. The federal government under the Federal Tort Claims Act has waived its immunity in certain cases "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S. C.A. $5 1346(b), 2674. Most states have also waived governmental immunity to various degrees at both the state and municipal government levels. See Federal Tort Claims Act.
[Black's Law Dictionary, Fifth Edition, p. 626]
Najim v. CACI Premier Tech., Inc., 368 F. Supp. 3d 935 (2019)
1. Development of Sovereign Immunity Doctrine
a. Historical Background and Incorporation into American LawThe doctrine of sovereign immunity, which was recognized in English common law as early as the thirteenth century, appears to have its roots in England's feudal system, in which "each petty lord in England held or could hold his own court to settle the disputes of his vassals." David [*945] E. Engdahl, Immunity and Accountability for Positive Governmental Wrongs, 44 U. Colo. L. Rev. 1, 2 (1972). Although a lord's vassals were subject to the jurisdiction of his court, "as the court was the lord's own, it [**14] could hardly coerce him." Id. Indeed, the "trusted counsellors who constituted [a lord's] court" could "claim no power over him their lord without his consent." Id. That being said, each "petty lord ...was vassal in his turn, and subject to coercive suit in the court of his own lord." Id. In the organization of the feudal hierarchy, "[t]he king, who stood at the apex of the feudal pyramid" and was "not subject to suit in his own court," was wholly immune from suit because "there happened to be no higher lord's court in which he could be sued." Id. at 2-3; see also United States v. Lee, 106 U.S. 196, 206, 1 S. Ct. 240, 27 L. Ed. 171 (1882) (identifying "the absurdity of the King's sending a writ to himself to command the King to appear in the King's court" as a basis of sovereign immunity in England).
With the rise of the nation-state, this "personal immunity of the king" transformed into "the immunity of the Crown." George W. Pugh, Historical Approach to the Doctrine of Sovereign Immunity, 13 La. L. Rev. 476, 478 (1953). Given the potential harshness of such a doctrine as attached to the Crown rather than the king, legal authorities developed procedures whereby victims could obtain redress for wrongs committed by the government without directly suing the Crown. For example, when a government agent [**15] committed a tort, "English courts permitted suit against the government official or employee who had actually committed the wrong complained of." Id. at 479-80. Indeed, in such situations, the doctrine of sovereign immunity, as embodied in the famous phrase "the king could do no wrong," ensured that the tort victim could obtain a judgment against the agent: theoretically, if "the king could do no wrong, it would be impossible for him to authorize a wrongful act, and therefore any wrongful command issued by him was to be considered as non-existent, and provided no defense for the dutiful" agent. Id. at 480.
Similarly, English law developed the "petition of right," which allowed subjects to petition the king for the ability to sue the Crown in the king's courts—in effect, asking the king to waive sovereign immunity with respect to a specific legal dispute. See James E. Pfander, Sovereign Immunity and the Right to Petition: Toward a First Amendment Right to Pursue Judicial Claims Against the Government, 91 Nw. U. L. Rev. 899, 900-08 (1997). As with tort suits against government agents, the notion that "the king could do no wrong" worked to ensure the availability of a remedy for victims of wrongdoing because the "king, as the fountain of justice and equity, [**16] could not refuse to redress wrongs when petitioned to do so by his subjects." Louis L. Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv. L. Rev. 1, 3 (1963) (citation omitted); see also Engdahl, supra at 3 (describing the "principle that the king could not rightfully refuse to grant a petition of right"). Moreover, because petitions of right and other "prerogative remedies" that allowed subjects to pursue a suit against the Crown "were invariably controlled by the King's justices rather than the King himself," the "rule of law, as opposed to royal whim, largely determined the availability of relief against the Crown." Pfander, supra, at 908. By the eighteenth century, such procedures were so ingrained in the common law that "[i]n the same paragraph in which William Blackstone proclaimed the immunity of the Crown, he also sketched the procedure on the 'petition of right.'" Id. at 901; see also Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 2 L. Ed. 60 (1803) [*946] ("The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment [**17] of his court."). As a result of these procedures for obtaining redress, although the formal immunity of the Crown was deeply rooted in the common law, by the eighteenth century, it operated primarily as merely a matter of formalism, with a variety of procedural work-arounds to ensure that victims could obtain redress for wrongs committed by the Crown's agents.5
Given that sovereign immunity in England was rooted in the common law and linked to the personal immunity of the king, it is not surprising that "[a]t the time of the Constitution's adoption, the federal government's immunity from suit was a question—not a settled constitutional fact." Vicki C. Jackson, Suing the Federal Government: Sovereignty, Immunity, and Judicial Independence, 35 Geo. Wash. Int'l L. Rev. 521, 523 (2003). "The nature of the sovereignty created under the 1789 Constitution was something new and uncertain—it took the people and the institutions time to work out their relationships." Id. at 528. Mapping the old English doctrine of sovereign immunity onto this new system implicated many "[q]uestions of the form of government and of the nature of the sovereignties created" by the Constitution, including whether [**18] there was a sovereign in the new republic and, "[i]f so, where did that sovereignty reside under a system of separated powers" and "[w]hat were the roles of the national legislature, the executive, and the federal courts" in that sovereign system. Id. at 528-29. The answers to these questions were not immediately obvious and, indeed, the courts did not quickly adopt a theory of federal sovereign immunity. In fact, "[t]he first clear reference to the sovereign immunity of the United States in an opinion for the entire [Supreme] Court" did not appear until 1821, when the concept of federal sovereign immunity was discussed in dicta, and the first time sovereign immunity was invoked by the Supreme Court "as a basis to deny relief' occurred in 1846. Id. at 523 n.5.
Indeed, early discussions of federal sovereign immunity by the Supreme Court exhibit a sense that the doctrine may be incompatible with a republican form of government. For example, in Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 1 L. Ed. 440, 2 Dall. 419 (1793), superseded by constitutional amendment, U.S. Const. amend XI, Chief Justice Jay wrote:
Id. at 471-72 (opinion of Jay, C.J.) (emphasis omitted). Although the question was not directly presented in Chisholm, Chief Justice Jay argued that "fair reasoning" suggests that the Constitution permits "that the United States may be sued by any citizen, between whom and them there may be a controversy" by extending judicial power to "controversies to which the United States are a party." Id. at 478; see also Jackson, supra, at 532-33 (reading Justice Wilson's opinion in Chisholm to argue "that the absence of monarch, the role of a written constitution and the process of judicial review suggested that English approaches to sovereign immunity were inapposite to the suability of governments under the United States Constitution" (citing Chisholm, 2 U.S. (2 Dall.) at 453-66 (opinion of Wilson, J.))).It will be sufficient to observe briefly, that the sovereignties in Europe, and particularly in England, exist on feudal principles. That system considers the Prince as the sovereign, and the people as his [**19] subjects; it regards his person as the object of allegiance, and excludes the idea of his being on an equal footing [*947] with a subject, either in a Court of Justice or elsewhere. That system contemplates him as being the fountain of honor and authority; and from his grace and grant derives all franchises, immunities and privileges; it is easy to perceive that such a sovereign could not be amenable to a Court of Justice, or subjected to judicial controul and actual constraint. It was of necessity, therefore, that suability became incompatible with such sovereignty. Besides, the Prince having all the Executive powers, the judgment of the Courts would, in fact, be only monitory, not mandatory to him, and a capacity to be advised, is a distinct thing from a capacity to be sued. The same feudal ideas run through all their jurisprudence, and constantly remind us of the distinction between the Prince and the subject. No such ideas obtain here; at the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects ...and have none to govern but themselves; the citizens of America are equal as fellow citizens, and as [**20] joint tenants in the sovereignty.
Early American courts were not generally forced to confront the question whether the federal government enjoyed sovereign immunity because, as in England, "many judicial remedies for governmental wrongdoing were available" that did not involve direct suit against the government. Jackson, supra, at 523-24. For example, in the early days of the Republic, the usual remedy for torts committed by government officials was a damages suit directly against the official who [**21] committed the tort. Ann Woolhandler, Patterns of Official Immunity and Accountability, 37 Case W. Res. L. Rev. 396,414-16 (1987); see also Ann Woolhandler, Old Property, New Property, and Sovereign Immunity, 75 Notre Dame L. Rev. 919, 922 (2000) ("Individual officers remained liable for their torts under general agency law, even if they were working for a disclosed principal—the state."). In addition, under the Judiciary Act of 1789, "all federal courts could issue writs of habeas corpus," which are inherently directed to government custodians but "have never been regarded as barred by sovereign immunity." Jackson, supra, at 524. Similarly, "the writ of mandamus and the injunction have been available in actions against individual government officials" to address ongoing legal violations. Id. at 525.
Specifically with respect to torts committed by government agents, the Supreme Court confirmed as early as 1804 that, as in England, direct suits against government officers were not barred by sovereign immunity. In Little v. Barreme, 6 U.S. (2 Cranch) 170, 2 L. Ed. 243 (1804), the Court held that a damages suit could proceed against a naval officer who directed the seizure of a ship sailing from France to St. Thomas. Id. at 176-77, 179. Although the seizure conformed to orders [*948] given by the Secretary of the Navy, it was unlawful under the relevant statute, which authorized [**22] seizures of ships sailing to, but not from, French ports. Id. at 177-78. The Court recognized the apparent unfairness of holding a military officer personally liable for following orders but nevertheless concluded that instructions from the executive "cannot change the nature of the transaction, or legalize an act which without those instructions would have been a plain trespass" and, accordingly, the naval captain "must be answerable in damages to the owner of this neutral vessel." Id. at 179.
Although such suits were nominally brought against government officials rather than the government itself, in the early Republic there was a "practice of relatively routine, but not automatic, indemnification" by Congress where an official had been held liable in tort. James E. Pfander & Jonathan L. Hunt, Public Wrongs and Private Bills: Indemnification and Government Accountability in the Early Republic, 85 N.Y.U. L. Rev. 1862, 1868 (2010). "Following the imposition of liability on a government officer, Congress would decide whether to make good the officer's loss in the exercise of its legislative control of the appropriation process," thereby "preserv[ing] the formal doctrine of sovereign immunity while assigning the ultimate loss associated with [**23] wrongful conduct to the government." Id. For example, after the Supreme Court's decision in Little, Captain Little, the naval officer found liable for the unlawful seizure of the ship, submitted a petition for indemnity to Congress, and Congress passed a bill indemnifying him. Id. at 1902. Indeed, between 1789 and 1860, there were at least "57 cases of officers petitioning for indemnification and 11 cases of suitors petitioning for the payment of a judgment against an officer" and, of these cases, over 60% of the petitioners received some form of relief, such as a private bill appropriating money directly to the officer or the victim. Id. at 1904-05.
This two-part officer suit and indemnification system rendered sovereign immunity a formalism that barred suits directly against the government but did not bar recovery from the government, at least with respect to torts committed by government agents. Instead, the function of sovereign immunity was to divide responsibilities between the judiciary and the legislature: the judiciary determined, in a direct suit against the officer, whether the conduct was unlawful and, if so, the amount of damages; and in the case of unlawful conduct, Congress determined whether [**24] the circumstances were such that the government rather than the officer should ultimately bear the loss. See id. at 1868.
Even after the concept of federal sovereign immunity had worked its way into our legal system to become "a familiar doctrine of the common law," The Siren, 74 U.S. (7 Wall.) 152, 153-54, 19 L. Ed. 129 (1869), the idea that the concept should be construed, to the extent possible, as a procedural doctrine rather than a substantive bar to recovery led the Supreme Court to create work-arounds to allow recovery, as demonstrated by a pair of Reconstruction Era cases. In The "when the United States institute a suit, they waive their exemption so far as to allow a presentation by the defendant of set-offs, legal and equitable, to the extent of the demand made or property claimed, and when they proceed in rem, they open to consideration all claims and equities in regard to the property libelled." 74 U.S. (7 Wall.) at 154. In a similar vein, in The Davis, 77 U.S. (10 Wall.) 15, 19 L. Ed. 875 (1870), the Court held that sovereign immunity [*949] does not bar the enforcement of a lien against goods that are seized after the United States has contracted for their delivery but before they are in the possession of the government. Id. at 21-22. Although the seizure in question forced the United States "to the necessity of becoming claimant [**25] and actor in the court to assert [a] claim" to the goods, the Court determined that it technically did not infringe on the immunity of the federal government because the "marshal served his writ and obtained possession without interfering with that of any officer or agent of the government." Id. at 22.
In both of these cases, the Supreme Court relied on formal understandings of the nature of immunity from suit to allow injured parties to maintain claims—either as offset or in rem claims—even though doing so subjected the government's conduct or property rights to judicial review. Moreover, in both cases, the Court invoked the historical remedies available against the Crown in England as a reason for narrowly construing any claim of immunity. In The Siren, the Court observed that "[i]n England, when the damage is inflicted by a vessel belonging to the crown," the "present practice" is to file a suit in rem and have the court direct "the registrar to write to the lords of the admiralty requesting an appearance on behalf of the crown—which is generally given." 74 U.S. (7 Wall.) at 155. Similarly, in The Davis, the Court observed that insiations where "it is made to appear that property of the government ought, [**26] in justice, to contribute to a general average, or to salvage" in maritime cases, the "usual course of take jurisdiction of the matter." 77 U.S. (10 Wall.) at 20. Although these procedures, which were developed to "prevent [the] apprehension of gross injustice in such cases in England," id., could not be identically implemented in the United States given the government's structure, the Court attempted to prevent gross injustice by providing a procedural mechanism that allowed injured parties to obtain relief without directly suing the government.
This formalistic approach to sovereign immunity was reinforced a decade later in United States v. Lee, 106 U.S. 196, 1 S. Ct. 240, 27 L. Ed. 171 (1882), which involved the question whether an ejectment action between private plaintiffs and federal officer defendants should be dismissed as barred by sovereign immunity when the United States asserted ownership of the land. Id. at 196-98. To help explain the limits of sovereign immunity, the Lee Court went through the justifications given in English common law for the immunity of the Crown, explaining how each justification did not serve to support the adoption of the doctrine into the quite different context of the American republican government. According to the Lee Court, "one reason [**27] given by the old judges was the absurdity of the King's sending a writ to himself to command the King to appear in the King's court," but "[n]o such reason exists in our government." Id. at 206. Another reason advanced by English authorities was that "the government is degraded by appearing as a defendant in the courts of its own creation," but the Lee Court rejected this reason "because [the government] is constantly appearing as a party in such courts, and submitting its rights as against the citizen to their judgment." Id. The Lee Court also observed that another reason given for sovereign immunity—"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"—did [*950] not apply to the United States because "no person in this government exercises supreme executive power, or performs the public duties of a sovereign," and it is therefore "difficult to see on what solid foundation of principle the exemption from liability to suit rests." Id. (citation omitted).
Indeed, the Lee Court explained that the differences between the English and American systems of [**28] government are such that English court decisions extending immunity in similar circumstances should be discounted in light of the uniquely American principle that no man is above the law:
Id. at 208-09 (alterations in original); see also Langford v. United States, 101 U.S. 341, 342-43, 25 L. Ed. 1010, 15 Ct. Cl. 632 (1879) (unanimously rejecting the "maxim of English constitutional law that the king can do no wrong" because it does not "have any place in our system of government," where "[w]e have no king" and where it is obvious that "wrong may be done by the governing power"). Accordingly, the Lee Court interpreted the doctrine of sovereign immunity formalistically, barring suit directly against the government but allowing the plaintiffs to proceed with their ejectment action against the government [*951] officers despite the federal government's claim of ownership to the land.[L]ittle weight can be given to the decisions of the English courts on this branch of the subject, for two reasons: —
1. In all cases where the title to property came into controversy between the crown and a subject, whether held in right of the person who was king or as representative of the nation, the petition of right presented a judicial remedy,—a remedy which this court, on full examination in a case which required it, held to be practical and efficient. There has been, therefore, no necessity for suing the officers or servants of the King who held possession of such property, when the issue could be made with the King himself as defendant.
2. Another reason of much greater weight is found in the vast difference in the essential character of the two governments as regards the source and the depositaries of power. Notwithstanding the progress which has been made since the days of the Stuarts in stripping the crown of its powers and prerogatives, it remains true to-day that the monarch is looked [**29] upon with too much reverence to be subjected to the demands of the law as ordinary persons are, and the king-loving nation would be shocked at the spectacle of their Queen being turned out of her pleasure-garden by a writ of ejectment against the gardener. The crown remains the fountain of honor, and the surroundings which give dignity and majesty to its possessor are cherished and enforced all the more strictly because of the loss of real power in the government.
It is not to be expected, therefore, that the courts will permit their process to disturb the possession of the crown by acting on its officers or agents.
Under our system the people, who are there called subjects, are the sovereign. Their rights, whether collective or individual, are not bound to give way to a sentiment of loyalty to the person of monarch. The citizen here knows no person, however near to those in power, or however powerful himself, to whom he need yield the rights which the law secures to him when it is well administered. When he, in one of the courts of competent jurisdiction, has established his right to property, there is no reason why deference to any person, natural or artificial, not even the United [**30] States, should prevent him from using the means which the law gives him for the protection and enforcement of that right.
As these cases, together with the earlier cases allowing for direct suit against government officials, demonstrate, sovereign immunity was incorporated into American common law in the nineteenth century primarily as a procedural mechanism regulating the ways in which injured parties could obtain relief rather than as a substantive bar to recovery in the ordinary case. Indeed, well into the twentieth century, "[f]or tortious or otherwise wrongful action by a government official, [**31] in violation of or not authorized by law, ...officer suits—for mandamus, for ejectment, or other common law remedies—could serve as moderately effective vehicles for contesting claims of right as between governments and private individuals." Jackson, supra, at 554.
Although these procedural work-arounds reduced the need for federal courts to explore the contours of sovereign immunity doctrine by providing some avenues for recovery, by the late nineteenth century, the Supreme Court recognized that the "general doctrine" of federal sovereign immunity, which had first appeared in Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 5 L. Ed. 257 (1821), had "been repeatedly asserted" until it came to be "treated as an established doctrine" by the Court. Lee, 106 U.S. at 207. As the Lee Court observed, this entrenchment in the common law had happened sub silentio: to that point, the Supreme Court had never engaged in a detailed discussion of the doctrine or explained the reasons for it, but rather had implicitly incorporated it into American law. Id. Nevertheless, by the end of the Civil War, the Supreme Court, while narrowly construing the doctrine, invariably adhered to the principle that the federal government could not formally be sued without its consent.
b. Contemporary Sovereign Immunity Practice [**32]Despite these murky beginnings, it is today well established that the United States enjoys the benefit of sovereign immunity and cannot be sued absent a waiver of this immunity. Pornomo v. United States, 814 F.3d 681, 687 (4th Cir. 2016).6
With respect to torts committed by [*952] federal government actors, Congress has "provid[ed] a limited waiver of sovereign immunity for injury or loss caused by the negligent or wrongful act of a Government employee acting within the scope of his or her employment" through the FTCA, which "renders the United States liable for such tort claims in the same manner and to the same extent as a private individual under like circumstances." Id. (internal quotation marks and citations omitted). At the same time, Congress has placed two relevant limitations on the ability of injured parties to recover under the FTCA. First, Congress has carved out multiple exceptions to its waiver of immunity, see 28 U.S.C. § 2680, including, as previously discussed, any claim "arising in a foreign country," id. § 2680(k).7
It was not inevitable that sovereign immunity would develop in this way. Indeed, in many other countries whose legal systems evolved from English common law, sovereign immunity is [**34] no longer a bar to suing the government in tort. For example, in the United Kingdom, the Crown Proceedings Act establishes that "the Crown shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject" in respect of, among other things, "torts committed by its servants or agents." Crown Proceedings Act 1947, 10 & 11 Geo. 6 c. 44, § 2(1); see also Crown Proceedings Act 1950, s 6 (N.Z.) (establishing the same rule for New Zealand). Similarly, in Canada, the "Crown is liable for the damages for which, if it were a person, it would be liable" for "a tort committed by a servant of the Crown" or "a breach of duty attaching to the ownership, occupation, possession or control of property." Crown Liability and Proceedings Act, R.S.C. 1985 c. c-50, s. 3. In Australia, government liability is even broader, as the Australian Constitution gives Parliament the power to "make laws conferring rights to proceed against the Commonwealth," Australian Constitution s 78, and the Judiciary Act of 1903 provides that any "person making a claim against the Commonwealth, whether in contract or in tort, may in respect of the claim bring a suit against [**35] the Commonwealth" in the High Court or various state or territorial courts, Judiciary Act 1903 (Cth)s 56. Perhaps most relevant to the United States given the debates described above about the application of common law sovereign immunity to a republican government, the Irish Supreme Court has held that sovereign immunity did not survive the creation of the Irish Free State because "it is the People who are paramount and not the State" and this system is "inconsistent with any suggestion that the State is sovereign internally." Byrne v. Ireland [1972] IR 241, 295 (opinion of Budd, J.); see also id. at 266 (opinion of Walsh, J.) ("The fact that this English theory of sovereign immunity, originally personal to the King and with its roots deep in feudalism, came to be applied in the United States where feudalism had never been known has been described as one of the mysteries of legal evolution. It appears to have been taken for granted by the American courts in the early years of the United States—though not without some ques•tion....").8
Given the experiences of other countries, as well as the way in which the doctrine of sovereign immunity was adopted into federal common law, it is not surprising that [**36] there is a long history of criticism of the notion that the federal government should be immune from suit. As early as 1953, academics were attacking "the very bases of this unwanted and unjust concept," Pugh, supra, at 476, and a decade later, professor Louis Jaffe succinctly described the basis of academic and judicial unease with the way in which sovereign immunity had developed into a bar to recovery:
Jaffe, supra, at 1-2; see generally Edwin M. Borchard, Government Liability in Tort, 34 Yale L.J. 1, 4-5 (1924) (arguing that the basis of sovereign immunity is the location of absolute sovereignty in the king's person but that the doctrine makes little sense in a country where "sovereignty resides in the American electorate or the people" and that this problem [**37] is "heightened by the fact that whereas in England, to prevent the jurisdictional immunity resulting in too gross an injustice, the petition of right, whose origin has been traced back to the thirteenth century, was devised as a substitute for a formal action against the Crown, in America no substitute except an appeal to the generosity of the legislature has in most jurisdictions been afforded" (footnote omitted)); Erwin Chemerinsky, Against Sovereign Immunity, 53 Stan. L. Rev. 1201, 1201 (2001) ("Sovereign immunity is an anachronistic relic and the entire doctrine should be eliminated from American law."). This criticism of the doctrine has also made its way into the judiciary. Not only do the Supreme Court and other courts have a long history of expressing discomfort with the prospect of wielding sovereign immunity as a substantive shield to recovery, as discussed above, but at least one circuit judge has recently argued in favor of reconsidering the principle of sovereign immunity altogether:The King cannot be sued without his consent. But at least in England this has [*954] not meant that the subject was without remedy .... By a magnificent irony, this body of doctrine and practice, at least in form so favorable to the subject, lost one-half of its efficacy when translated into our state and federal systems. Because the King had been abolished, the courts concluded that where in the past the procedure had been by petition of right there was now no one authorized to consent to suit!
Donahue v. United States, 660 F.3d 523, 526 (1st Cir. 2011) (en banc) (Torruella, J., [*955] concerning the denial of en banc review) (emphasis in original) (citations omitted).9[T]he underpinning for this outcome is an anachronistic judicially invented legal theory that has no validity or place in American law-in this case, sovereign immunity. Two hundred and thirty-five years after we rid ourselves [**38] of King George III and his despotic ascendancy over colonial America, we cling to a doctrine that was originally based on the Medieval notion that "the King can do no wrong." This maxim was blindly accepted into American law under the assumption that it was incorporated as part of the common law in existence when our Nation separated from England. However, this assumption does not withstand historical scrutiny. Furthermore, the present case is the quintessential example of the fact that at times the government can, and does, do wrong.
More importantly, the doctrine of sovereign immunity cannot be sustained in the face of our constitutional structure. Although its language is far from specific in many parts, the Constitution nevertheless contains nothing, specific or implied, adopting the absolutist princip[le] upon which sovereign immunity rests. Furthermore, the record of the debates preceding the adoption of the Constitution are bare of any language or asseveration that might serve as a basis for support of this monarchist anachronism. In fact, the establishment in this country of a republican form of government, in which sovereignty does not repose on any single individual or institution, [**39] made it clear that neither the government nor any part thereof could be considered as being in the same infallible position as the English king had been, and thus immune from responsibility for harm that it caused its citizens.
Although this Court remains mindful of the binding nature of the determinations by the Supreme Court and the Fourth Circuit that the federal government may not be sued in tort without its consent, the deeper understanding of the history and development of sovereign immunity doctrine, as well as the contemporary practice in other countries and the academic and judicial criticism of the path the United States has taken, contextualizes the question presented by the government's motion to dismiss CACI's Third-Party Complaint.
[Najim v. CACI Premier Tech., Inc., 368 F.Supp.3d. 935 (2019)]
Doe Ex Dem. Gaines v. Buford, 31 Ky. 481 (1833)
“Sovereign state” are cabalistic words, not understood by the disciple of liberty, who has been instructed in our constitutional schools. It is an appropriate phrase when applied to an absolute despotism. I firmly believe, that the idea of sovereign power in the government of a republic, is incompatible with the existence and permanent foundation of civil liberty, and the rights of property. The history of man, in all ages, has shown the necessity of the strongest checks upon power, whether it be exercised by one man, a few or many. Our revolution broke up the foundations of sovereignty in government; and our written constitutions have carefully guarded against the baneful influence of such an idea henceforth and forever. I can not, therefore, recognize the appeal to the sovereignty of the state, as a justification of the act in question.“
[Gaines v. Buford, 31 Ky. (1 Dana) 481, 501 (1833)]
Stanley v. Schwalby, 147 U.S. 508, 510 (1893)
“In The Siren, 7 Wall. 152, 154, Mr. Justice Field, who spoke for the court, in adverting to the familiar rule of the common law that the sovereign cannot be sued in his own courts without his consent, and the ground upon which the rule rested, said: "This doctrine of the common law is equally applicable to the supreme authority of the nation, the United States. They cannot be subjected to legal proceedings at law or in equity without their consent; and whoever institutes such proceedings must bring his case within the authority of some act of Congress. Such is the language of this court in United States v. Clarke, 8 Pet. 436, 444. The same exemption from judicial process extends to the property of the United States, and for the same reasons. As justly observed by the learned judge who tried this case, there is no distinction between suits against the government directly, and suits against its property.”
[Stanley v. Schwalby, 147 U.S. 508, 510 (1893)]
Poindexter v. Greenhow, 114 U.S. 270, 5 S.Ct. 903 (1885)
“… the maxim that the King can do no wrong has no place in our system of government; yet it is also true, in respect to the State itself, that whatever wrong is attempted in its name is imputable to its government and not to the State, for, as it can speak and act only by law, whatever it does say and do must be lawful. That which therefore is unlawful because made so by the supreme law, the Constitution of the United States, is not the word or deed of the State, but is the mere wrong and trespass of those individual persons who falsely spread and act in its name."
"This distinction is essential to the idea of constitutional government. To deny it or blot it out obliterates the line of demarcation that separates constitutional government from absolutism, free self- government based on the sovereignty of the people from that despotism, whether of the one or the many, which enables the agent of the state to declare and decree that he is the state; to say 'L'Etat, c'est moi.' Of what avail are written constitutions, whose bills of right, for the security of individual liberty, have been written too often with the blood of martyrs shed upon the battle-field and the scaffold, if their limitations and restraints upon power may be overpassed with impunity by the very agencies created and appointed to guard, defend, and enforce them; and that, too, with the sacred authority of law, not only compelling obedience, but entitled to respect? And how else can these principles of individual liberty and right be maintained, if, when violated, the judicial tribunals are forbidden to visit penalties upon individual offenders, who are the instruments of wrong, whenever they interpose the shield of the state? The doctrine is not to be tolerated. The whole frame and scheme of the political institutions of this country, state and federal, protest against it. Their continued existence is not compatible with it. It is the doctrine of absolutism, pure, simple, and naked, and of communism which is its twin, the double progeny of the same evil birth."
[Poindexter v. Greenhow, 114 U.S. 270, 5 S.Ct. 903 (1885) ]
Annotated Eleventh Amendment, Cornell University
Amdt11.6.4 Tort Actions Against State OfficialsThe Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
In Tindal v. Wesley,1 the Court adopted the rule of United States v. Lee,2 a tort suit against federal officials, to permit a tort action against state officials to recover real property held by them and claimed by the state and to obtain damages for the period of withholding. State immunity afforded by the Eleventh Amendment has long been held not to extend to actions against state officials for damages arising out of willful and negligent disregard of state laws.3 The reach of the rule is evident in Scheuer v. Rhodes,4 in which the Court held that plaintiffs were not barred by the Eleventh Amendment or other immunity doctrines from suing the governor and other officials of a state alleging that they deprived plaintiffs of federal rights under color of state law and seeking damages, when it was clear that plaintiffs were seeking to impose individual and personal liability on the officials. There was no “executive immunity” from suit, the Court held; rather, the immunity of state officials is qualified and varies according to the scope of discretion and responsibilities of the particular office and the circumstances existing at the time the challenged action was taken.5
Footnotes
[Annotated Eleventh Amendment, Cornell]- 1
- 167 U.S. 204 (1897).
- 2
- 106 U.S. 196 (1882).
- 3
- Johnson v. Lankford, 245 U.S. 541 (1918); Martin v. Lankford, 245 U.S. 547 (1918).
- 4
- 416 U.S. 232 (1974).
- 5
- These suits, like suits against local officials and municipal corporations, are typically brought pursuant to 42 U.S.C. § 1983 and typically involve all the decisions respecting liability and immunities thereunder. On the scope of immunity of federal officials, see Article III, “Suits Against United States Officials,” supra.
Bank of the U.S., The v. The Planters' Bank of Georgia, 22 U.S. 904, 9 Wheat 904, 6 L.Ed. 244 (1824)
"It is, we think, a sound principle, that when a government becomes a partner in any trading company, it divests itself, so far as concerns the transactions of that company, of its sovereign character, and takes that of a private citizen. Instead of communicating to the company its privileges and its prerogatives, it descends to a level with those with whom it associates itself, and takes the character which belongs to its associates, and to the business which is to be transacted. Thus, many states of this Union' who have an interest in banks are not suable even in their own courts; yet they never exempt the corporation from being sued."
[Bank of the U.S., The v. The Planters' Bank of Georgia, 22 U.S. 904, 9 Wheat 904, 6 L.Ed. 244 (1824)]
Glidden Co. v. Zdanok, 370 U.S. 530, 82 S.Ct. 1459 (U.S.App.D.C. 1962)
Hamilton's view, quoted in the Williams case, 289 U.S., at 576, 53 S.Ct. at 758, are not to the contrary. To be sure, Hamilton argued that ‘the contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretension to a compulsive force. They confer no right of action independent of the sovereign will.’ The Federalist, No. 81 (Wright ed. 1961), at 511. But that is because there was no surrender of sovereign immunity in the plan of the convention;FN32 so *564 that, for suits against the United States, it remained**1480 ‘inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent.’ Ibid. (Emphasis in original.) In this sense, and only in this sense, is Article III's extension of judicial competence over controversies to which the United States is a party ineffective to confer jurisdiction over suits to which it is a defendant. For ‘behind the words of the constitutional provisions are postulates which limit and control.’ Principality of Monaco v. Mississippi, 292 U.S. 313, 322, 54 S.Ct. 745, 748, 78 L.Ed. 1282. But once the consent is given, the postulate is satisfied, and there remains no barrier to justiciability. Cf. Cohens v. Virginia, 6 Wheat. 264, 383-385, 5 L.Ed. 257.
FN32. As there was, for example, in suits between States and by the United States against a State. Rhode Island v. Massachusetts, 12 Pet. 657, 720, 9 L.Ed. 1233; United States v. Texas, 143 U.S. 621, 639-646, 12 S.Ct. 488, 491-493, 36 L.Ed. 285.
[Glidden Co. v. Zdanok, 370 U.S. 530, 82 S.Ct. 1459 (U.S.App.D.C. 1962)]
28 U.S.C. Chapter 97: Jurisdictional Immunities of Foreign States
Foreign Sovereign Immunities Act-Department of State
Report
on the Foreign Sovereign Immunities Act -by American Bar Association
(ABA).
Dept. of Justice, Office of Legal Counsel, Opinion on Sovereign Immunity of Navy in Relation to EEOC
Mr. Chisholm and the Eleventh
Amendment-Supreme Court Historical Society
Federal Tort Claims Act, 28 U.S.C. §2671-2680-waives sovereign immunity in the case of acts or omissions of government employees
26 U.S.C. §7426(a)(1)-sovereign immunity waived by federal government in the case of wrongful levy
28 U.S.C. §1491: Tucker Act-sovereign immunity waived in the case of any express or implied contract with the United States. See United States v. Mitchell, 463 U.S. 206 (1983)
28 U.S.C. §1367-United States as defendant
Internal Revenue Manual (IRM), Section 5.17.5: Suits Against the United States
28 U.S.C. §2680-exceptions to the waiver of sovereign immunity under the Federal Tort Claims Act, 28 U.S.C. §2671-2680
- 28 U.S.C. §2680(c )-tax assessment exempted from waiver of sovereign immunity
- 28 U.S.C. §2680(k )-offenses in a foreign country excepted from waiver of sovereign immunity
Alien Tort Statute (ATS), 18 U.S.C. §1350-first appeared in Section 9 of the Judiciary Act of 1789. Provides that "the district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States."
- Wikipedia
- Alien Tort Claims Act: Global Policy Forum-background on ATS
- Justices Weigh Alien Tort Statute-National Law Journal
Headquarters doctrine-supersedes 28 U.S.C. §2680(k) exception to waiver of sovereign immunity for decisions and actions in the United States that cause injuries elsewhere. See:
- Sosa v. Alvarez-Machain, 542 U.S. 692 (2004)
- Sami v. United States, 617 F.2d 755, 761 (CADC 1979)
- Cominotto v. United States, 802 F.2d 1127, 1130 (CA9 1986)
Immunity and the Foreign Sovereign-important details on the application of the Foreign Sovereign Immunities Act of 1976
18 U.S.C. §1116(b)-defines "foreign official" and "foreign government"
TITLE 18 > PART I > CHAPTER 51 > § 1116
(a) Whoever kills or attempts to kill a foreign official, official guest, or internationally protected person shall be punished as provided under sections 1111, 1112, and 1113 of this title.
(b) For the purposes of this section:
[. . .]
(3) “Foreign official” means—
(A) a Chief of State or the political equivalent, President, Vice President, Prime Minister, Ambassador, Foreign Minister, or other officer of Cabinet rank or above of a foreign government or the chief executive officer of an international organization, or any person who has previously served in such capacity, and any member of his family, while in the United States; and
(B) any person of a foreign nationality who is duly notified to the United States as an officer or employee of a foreign government or international organization, and who is in the United States on official business, and any member of his family whose presence in the United States is in connection with the presence of such officer or employee.
Clinton v. Jones, No. 95-1853 (1997)
[Footnote 24]For that reason, the argument does not place any reliance on the English ancestry that informs our common law jurisprudence; he does not claim the prerogatives of the monarchs who asserted that "[t]he King can do no wrong." See 1 W. Blackstone, Commentaries *246. Although we have adopted the related doctrine of sovereign immunity, the common law fiction that "[t]he king . . . is not only incapable of doing wrong, but even of thinking wrong," ibid., was rejected at the birth of the Republic. See, e.g., Nevada v. Hall, 440 U.S. 410, 415 , and nn. 7-8 (1970); Langford v. United States, 101 U.S. 341, 342 -343 (1880).
Ellis v. United States, 206 U.S. 246, 27 S.Ct. 600 (1907)
"When a state enters into business relations, and makes contracts with private persons, it waives its sovereignty, and is to be treated as a private person, and subjected to the principles of law applicable as between individuals, save only in respect to its immunity from suit."
[Ellis v. United States, 206 U.S. 246; 27 S.Ct. 600 (1907)]
Berends v. Butz, 357 F.Supp. 143 (1973)
"The doctrine of sovereign immunity, raised by [government] defendants, is inapplicable since plaintiffs contend that the defendants' action were beyond the scope of their authority or they were acting unconstitutionally."
[Berends v. Butz, 357 F.Supp. 143 (1973)]
Panella v. United States, 216 F.2d. 622 (1954)
"The Government may not be sued without its consent."
"In construing language of Tort Claims Act, court should, on the one hand, give full scope to Government's relinquishment of its historic immunity from suit, and, on the other hand, avoid narrowing the provisions which set forth situations in which Congress has seen fit to retain that immunity."
"Traditionally, of course, the Government may not be sued without its consent, and the present Tort Claims Act represents "the culmination of a long effort to mitigate unjust consequences of sovereign immunity from suit". See Feres v. United States, 340 U.S. 135,at page 139, 71 S.Ct. 153, at page 156, 95 L.Ed. 152."
[Panella v. United States, 216 F.2d. 622 (1954)]
Schein v. United States, 352 F.Supp. 182 (1972)
"A suit nominally naming as a defendant an officer or agent of the United States Government will be held to be a suit against the United States itself, where the relief sought would interfere with the public administration. Land v. Dollar, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209 (1949), or where, by obtaining relief against an officer or agent of the Government, relief in effect would be obtained against the sovereign itself. [Cites omitted.] The sovereign United States cannot be sued without its consent. [Cites omitted.] This immunity applies also to officers and agents of the United States acting within the scope of their official functions. [Cites omitted.] And, the doctrine of sovereign immunity has clearly been extended to officials of the Internal Revenue Service."
[Schein v. United States, 352 F.Supp. 182 (1972)]
Quality Tooling, Inc. v. United States, 47 F.3d. 1569 (Fed.Cir. 1995)
"Provision of Tucker Act waiving government's sovereign immunity from breach-of-contract claims was not courtspecific, and waived government's immunity not just as to breach-of-contract claims asserted in Court of Federal Claims but in any federal court authorized by Congress to hear such claims. 28 U.S.C.A. §§1295(a)(3, 10), 1334(b)."
"United States may not be sued without its consent, and that consent is prerequisite for jurisdiction."
"Waiver of sovereign immunity is accomplished not by ritualistic formula; rather, intent to waive immunity and scope of waiver may be ascertained only by reference to underlying congressional policy."
[Quality Tooling, Inc. v. United States, 47 F.3d. 1569 (Fed.Cir. 1995)]
Pershing Division of Donaldson, Lufkin & Jenrette Securities Corp. v. United States, 22 F.3d. 741 (7th Cir. 1994)
"Supreme Court's decision in Armstrong v. U.S., in which Court ruled that government could not assert sovereign immunity as defense to suit for recovery under takings clause, did not provide basis for district court to exercise subject matter jurisdiction over embezzlement victim's claim to recover taxes paid by corporation on embezzled funds; decision did not question right of Congress to limit its waiver of immunity to suit to particular court, and Court of Federal Claims had exclusive jurisdiction over victim's claim."
[Pershing Division of Donaldson, Lufkin & Jenrette Securities Corp. v. United States, 22 F.3d. 741 (7th Cir. 1994)]
Arford v. United States, 934 F.2d. 229 (9th Cir. 1991)
"Taxpayer’s allegation in quiet title action against the United States that government did not assess taxes properly under statute defining method of assessment and requiring that taxpayer be furnished with copy of assessment record if he or she so requests, satisfied waiver of sovereign immunity requirement, to extent that taxpayers were challenging procedural lapses of assessment under statute."
"Transfer of taxpayer's Air Force retirement pay to the Internal Revenue Service (IRS) in satisfaction of unpaid tax assessments was a "levy," not a "set-off," and as such, transfer was subject to procedural requirements governing transfers by lien & levy."
[Arford v. United States, 934 F.2d. 229 (9th Cir. 1991)]
Alden v. Maine, 527 U.S. 706 (1999)
Petitioners contend that immunity from suit in federal court suffices to preserve the dignity of the States. Private suits against nonconsenting States, however, present "the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties," In re Ayers, supra, at 505; accord, Seminole Tribe, 517 U. S., at 58 , regardless of the forum. Not only must a State defend or default but also it must face the prospect of being thrust, by federal fiat and against its will, into the disfavored status of a debtor, subject to the power of private citizens to levy on its treasury or perhaps even government buildings or property which the State administers on the public's behalf.
In some ways, of course, a congressional power to authorize private suits against nonconsenting States in their own courts would be even more offensive to state sovereignty than a power to authorize the suits in a federal forum. Although the immunity of one sovereign in the courts of another has often depended in part on comity or agreement, the immunity of a sovereign in its own courts has always been understood to be within the sole control of the sovereign itself. See generally Hall, 440 U. S., at 414 -418. A power to press a State's own courts into federal service to coerce the other branches of the State, furthermore, is the power first to turn the State against itself and ultimately to commandeer the entire political machinery of the State against its will and at the behest of individuals. Cf. Coeur d'Alene Tribe, supra, at 276. Such plenary federal control of state governmental processes denigrates the separate sovereignty of the States.
It is unquestioned that the Federal Government retains its own immunity from suit not only in state tribunals but also in its own courts. In light of our constitutional system recognizing the essential sovereignty of the States, we are reluctant to conclude that the States are not entitled to a reciprocal privilege.
Underlying constitutional form are considerations of great substance. Private suits against nonconsenting States--especially suits for money damages--may threaten the financial integrity of the States. It is indisputable that, at the time of the founding, many of the States could have been forced into insolvency but for their immunity from private suits for money damages. Even today, an unlimited congressional power to authorize suits in state court to levy upon the treasuries of the States for compensatory damages, attorney's fees, and even punitive damages could create staggering burdens, giving Congress a power and a leverage over the States that is not contemplated by our constitutional design. The potential national power would pose a severe and notorious danger to the States and their resources.
A congressional power to strip the States of their immunity from private suits in their own courts would pose more subtle risks as well. "The principle of immunity from litigation assures the states and the nation from unanticipated intervention in the processes of government." Great Northern Life Ins. Co. v. Read, 322 U. S., at 53 . When the States' immunity from private suits is disregarded, "the course of their public policy and the administration of their public affairs" may become "subject to and controlled by the mandates of judicial tribunals without their consent, and in favor of individual interests." In re Ayers, supra, at 505. While the States have relinquished their immunity from suit in some special contexts--at least as a practical matter--see Part III, infra, this surrender carries with it substantial costs to the autonomy, the decisionmaking ability, and the sovereign capacity of the States.
A general federal power to authorize private suits for money damages would place unwarranted strain on the States' ability to govern in accordance with the will of their citizens. Today, as at the time of the founding, the allocation of scarce resources among competing needs and interests lies at the heart of the political process. While the judgment creditor of the State may have a legitimate claim for compensation, other important needs and worthwhile ends compete for access to the public fisc. Since all cannot be satisfied in full, it is inevitable that difficult decisions involving the most sensitive and political of judgments must be made. If the principle of representative government is to be preserved to the States, the balance between competing interests must be reached after deliberation by the political process established by the citizens of the State, not by judicial decree mandated by the Federal Government and invoked by the private citizen. "It needs no argument to show that the political power cannot be thus ousted of its jurisdiction and the judiciary set in its place." Louisiana v. Jumel, 107 U. S. 711, 727-728 (1883).
College Savings Bank v. Florida Prepaid Postsecondary Education Expense, 527 U.S. 666 (1999)
When a State engages in ordinary commercial ventures, it acts like a private person, outside the area of its "core" responsibilities, and in a way unlikely to prove essential to the fulfillment of a basic governmental obligation. A Congress that decides to regulate those state commercial activities rather than to exempt the State likely believes that an exemption, by treating the State differently from identically situated private persons, would threaten the objectives of a federal regulatory program aimed primarily at private conduct. Compare, e.g. , 12 U. S. C. §1841(b) (1994 ed., Supp. III) (exempting state companies from regulations covering federal bank holding companies); 15 U. S. C. §77c(a)(2) (exempting state-issued securities from federal securities laws); and 29 U. S. C §652(5) (exempting States from the definition of "employer[s]" subject to federal occupational safety and health laws), with 11 U. S. C. §106(a) (subjecting States to federal bankruptcy court judgments); 15 U. S. C. §1122(a) (subjecting States to suit for violation of Lanham Act); 17 U. S. C. §511(a) (subjecting States to suit for copyright infringement); 35 U. S. C. §271(h) (subjecting States to suit for patent infringement). And a Congress that includes the State not only within its substantive regulatory rules but also (expressly) within a related system of private remedies likely believes that a remedial exemption would similarly threaten that program. See Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, ante , at ___ ( Stevens , J., dissenting). It thereby avoids an enforcement gap which, when allied with the pressures of a competitive marketplace, could place the State's regulated private competitors at a significant disadvantage.
These considerations make Congress' need to possess the power to condition entry into the market upon a waiver of sovereign immunity (as "necessary and proper" to the exercise of its commerce power) unusually strong, for to deny Congress that power would deny Congress the power effectively to regulate private conduct. Cf. California v. Taylor , 353 U. S. 553, 566 (1957). At the same time they make a State's need to exercise sovereign immunity unusually weak, for the State is unlikely to have to supply what private firms already supply, nor may it fairly demand special treatment, even to protect the public purse, when it does so. Neither can one easily imagine what the Constitution's founders would have thought about the assertion of sovereign immunity in this special context. These considerations, differing in kind or degree from those that would support a general congressional "abrogation" power, indicate that Parden 's holding is sound, irrespective of this Court's decisions in Seminole Tribe of Fla. v. Florida, 517 U. S. 44 (1996), and Alden v. Maine, ante , p. ___.
[College Savings Bank v. Florida Prepaid Postsecondary Education Expense, 527 U.S. 666 (1999)]
Massachusetts v. United States, 435 U.S. 444 (1978)
That the existence of the States implies some restriction on the national taxing power was first decided in Collector v. Day, 11 wall. 113 (1871). There this Court held that the immunity that federal instrumentalities and employees then enjoyed from state taxation, see Dobbins v. Commissioners, 16 Pet. 435 (1842); McCulloch v. Maryland, 4 Wheat. 316 (1819), was to some extent reciprocal and that the salaries paid state judges were immune from a nondiscriminatory federal tax. This immunity of State and Federal Governments [435 U.S. 444, 455] from taxation by each other was expanded in decisions over the last third of the 19th century and the first third of this century, see, e. g., Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U.S. 218 (1928); Indian Motorcycle Co. v. United States, 283 U.S. 570 (1931) (sales from a private person to one sovereign may not be taxed by the other), but more recent decisions of this Court have confined the scope of the doctrine.
The immunity of the Federal Government from state taxation is bottomed on the Supremacy Clause, but the States' immunity from federal taxes was judicially implied from the States' role in the constitutional scheme. Collector v. Day, supra, emphasized that the States had been in existence as independent sovereigns when the Constitution was adopted, and that the Constitution presupposes and guarantees the continued existence of the States as governmental bodies performing traditional sovereign functions. 11 Wall., at 125-126. To implement this aspect of the constitutional plan, Collector v. Day concluded that it was imperative absolutely to prohibit any federal taxation that directly affected a traditional state function, quoting Mr. Chief Justice Marshall's aphorisms that "`the power of taxing . . . may be exercised so far as to destroy,'" id., at 123, quoting McCulloch v. Maryland, supra, at 427, and "`a right [to tax], in its nature, acknowledges no limits.'" 11 Wall., at 123, quoting Weston v. Charleston, 2 Pet. 449, 466 (1829). The Court has more recently remarked that these maxims refer primarily to two attributes of the taxing power. First, in imposing a tax to support the services a government provides to the public at large, a legislature need not consider the value of particular benefits to a taxpayer, but may assess the tax solely on the basis of taxpayers' ability to pay. Second (of perhaps greater concern in the present context), a tax is a powerful regulatory device; a legislature can discourage or eliminate a particular activity that is within its regulatory jurisdiction simply by imposing [435 U.S. 444, 456] a heavy tax on its exercise. See National Cable Television Assn. v. United States, 415 U.S. 336, 340 -341 (1974). Collector v. Day, like the earlier McCulloch v. Maryland, reflected the view that the awesomeness of the taxing power required a flat and absolute prohibition against a tax implicating an essential state function because the ability of the federal courts to determine whether particular revenue measures would or would not destroy such an essential function was to be doubted.
As the contours of the principle evolved in later decisions, "cogent reasons" were recognized for narrowly limiting the immunity of the States from federal imposts. See Helvering v. Gerhardt, 304 U.S. 405, 416 (1938). The first is that any immunity for the protection of state sovereignty is at the expense of the sovereign power of the National Government to tax. Therefore, when the scope of the States' constitutional immunity is enlarged beyond that necessary to protect the continued ability of the States to deliver traditional governmental services, the burden of the immunity is thrown upon the National Government without any corresponding promotion of the constitutionally protected values. See, id., at 416-417; Helvering v. Mountain Producers Corp., 303 U.S. 376, 384 -385 (1938); Willcuts v. Bunn, 282 U.S. 216, 225 (1931). The second, also recognized by Mr. Chief Justice Marshall in McCulloch v. Maryland, supra, at 435-436, is that the political process is uniquely adapted to accommodating the competing demands "for national revenue, on the one hand, and for reasonable scope for the independence of state action, on the other," Helvering v. Gerhardt, supra, at 416: The Congress, composed as it is of members chosen by state constituencies, constitutes an inherent check against the possibility of abusive taxing of the States by the National Government. 13 [435 U.S. 444, 457]
In tacit, and at times explicit, recognition of these considerations, decisions of the Court either have declined to enlarge the scope of state immunity or have in fact restricted its reach. Typical of this trend are decisions holding that the National Government may tax revenue-generating activities of the States that are of the same nature as those traditionally engaged in by private persons. See, e. g., New York v. United States, 326 U.S. 572 (1946) (tax on water bottled and sold by State upheld); Allen v. Regents, 304 U.S. 439 (1938) (tax on admissions to state athletic events approved notwithstanding use of proceeds for essential state functions); Helvering v. Powers, 293 U.S. 214 (1934) (tax on operations of railroad by State); Ohio v. Helvering, 292 U.S. 360 (1934) (tax on state liquor operation); South Carolina v. United States, 199 U.S. 437 (1905) (tax on state-run liquor business). It is true that some of the opinions speak of the state activity taxed as "proprietary" and thus not an immune essential governmental activity, but the opinions of the Members of the Court in New York v. United States, supra, the most recent decision, rejected the governmental-proprietary distinction as untenable. 14 Rather the majority 15 reasoned that a nondiscriminatory tax [435 U.S. 444, 458] may be applied to a state business activity where, as was the case there, the recognition of immunity would "accomplish a withdrawal from the taxing power of the nation a subject of taxation of a nature which has been traditionally within that power from the beginning. Its exercise . . . by a nondiscriminatory tax, does not curtail the business of the state government more than it does the like business of the citizen." 326 U.S., at 588 -589 (Stone, C. J., concurring).
Illustrative of decisions actually restricting the scope of the immunity is the line of cases that culminated in the overruling of Collector v. Day in Graves v. New York ex rel. O'Keefe, 306 U.S. 466 (1939). See, e. g., Helvering v. Gerhardt, supra; Helvering v. Mountain Producers Corp., supra; Metcalf & Eddy v. Mitchell, 269 U.S. 514 (1926). Collector v. Day, of course, involved a nondiscriminatory tax that was imposed not directly on the State but rather on the salary earned by a judicial officer. Neither Collector v. Day itself nor its progeny or precursors made clear how such a taxing measure could be employed to preclude the States from performing essential functions. In any case, in the line of decisions that culminated in Graves v. New York ex rel. O'Keefe, supra, the Court demonstrated that an immunity for the salaries paid key state officials is not justifiable. Although key state officials are agents of the State, they are also citizens of the United States, so their income is a natural subject for income taxation. See Helvering v. Gerhardt, supra, at 420 and 422.
More significantly, because the taxes imposed were nondiscriminatory and thus also applicable to income earned by persons in private employment, the risk was virtually nonexistent that such revenue provisions could significantly impede a State's ability to hire able persons to perform its essential [435 U.S. 444, 459] functions. See Graves v. New York ex rel. O'Keefe, supra, at 484-485; Helvering v. Gerhardt, supra, at 420-421. The only advantage conceivably to be lost by denying the States such an immunity is that essential state functions might be obtained at a lesser cost because employees exempt from taxation might be willing to work for smaller salaries. See 304 U.S., at 420 -421. But that was regarded as an inadequate ground for sustaining the immunity and preventing the National Government from requiring these citizens to support its activities. See Graves v. New York ex rel. O'Keefe, supra, at 483 and cases cited in n. 3. The purpose of the implied constitutional restriction on the national taxing power is not to give an advantage to the States by enabling them to engage employees at a lower charge than those paid by private entities, see Helvering v. Gerhardt, supra, at 421-422, but rather is solely to protect the States from undue interference with their traditional governmental functions. While a tax on the salary paid key state officers may increase the cost of government, it will no more preclude the States from performing traditional functions than it will prevent private entities from performing their missions. See Graves v. New York ex rel. O'Keefe, supra, at 484-485; Helvering v. Gerhardt, supra, at 420-421.
These two lines of decisions illustrate the "practical construction" that the Court now gives the limitation the existence of the States constitutionally imposes on the national taxing power; "that limitation cannot be so varied or extended as seriously to impair either the taxing power of the government imposing the tax . . . or the appropriate exercise of the functions of the government affected by it." New York v. United States, 326 U.S., at 589 -590 (Stone, C. J., concurring) quoting Metcalf & Eddy v. Mitchell, supra, at 523-524. Where the subject of tax is a natural and traditional source of federal revenue and where it is inconceivable that such a revenue measure could ever operate to preclude traditional [435 U.S. 444, 460] state activities, the tax is valid. While the Court has by no means abandoned its doubts concerning its ability to make particularized assessments of the impact of revenue measures on essential state operations, compare New York v. United States, supra, at 581 (opinion of Frankfurter, J.) 16 with 326 U.S., at 590 (Stone, C. J., concurring), 17 it has recognized that some generic types of revenue measures could never seriously threaten the continued functioning of the States and hence are outside the scope of the implied tax immunity.
B
A nondiscriminatory taxing measure that operates to defray the cost of a federal program by recovering a fair approximation of each beneficiary's share of the cost is surely no more offensive to the constitutional scheme than is either a tax on the income earned by state employees or a tax on a State's sale of bottled water. 18 The National Government's interest in being compensated for its expenditures is only too apparent. More significantly perhaps, such revenue measures by their very nature cannot possess the attributes that led Mr. Chief Justice Marshall to proclaim that the power to tax is the power [435 U.S. 444, 461] to destroy. There is no danger that such measures will not be based on benefits conferred or that they will function as regulatory devices unduly burdening essential state activities. It is, of course, the case that a revenue provision that forces a State to pay its own way when performing an essential function will increase the cost of the state activity. But Graves v. New York ex rel. O'Keefe, and its precursors, see 306 U.S., at 483 and the cases cited in n. 3, teach that an economic burden on traditional state functions without more is not a sufficient basis for sustaining a claim of immunity. Indeed, since the Constitution explicitly requires States to bear similar economic burdens when engaged in essential operations, see U.S. Const., Amdts. 5, 14; Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) (State must pay just compensation when it "takes" private property for a public purpose); U.S. Const., Art. I, 10, cl. 1; United States Trust Co. v. New Jersey, 431 U.S. 1 (1977) (even when burdensome, a State often must comply with the obligations of its contracts), it cannot be seriously contended that federal exactions from the States of their fair share of the cost of specific benefits they receive from federal programs offend the constitutional scheme.
Our decisions in analogous context support this conclusion. We have repeatedly held that the Federal Government may impose appropriate conditions on the use of federal property or privileges and may require that state instrumentalities comply with conditions that are reasonably related to the federal interest in particular national projects or programs. See, e. g., Ivanhoe Irrigation Dist. v. McCracken, 357 U.S. 275, 294 -296 (1958); Oklahoma v. Civil Service Comm'n, 330 U.S. 127, 142 -144 (1947); United States v. San Francisco, 310 U.S. 16 (1940); cf. National League of Cities v. Usery, 426 U.S. 833, 853 (1976); Fry v. United States, 421 U.S. 542 (1975). A requirement that States, like all other users, pay a portion of the costs of the benefits they enjoy from federal programs is surely permissible since it is closely related to the [435 U.S. 444, 462] federal interest in recovering costs from those who benefit and since it effects no greater interference with state sovereignty than do the restrictions which this Court has approved.
A clearly analogous line of decisions is that interpreting provisions in the Constitution that also place limitations on the taxing power of government. See, e. g., U.S. Const., Art. I, 8, cl. 3 (restricting power of States to tax interstate commerce); 10, cl. 3 (prohibiting any state tax that operates "to impose a charge for the privilege of entering, trading in, or lying in a port." Clyde Mallory Lines v. Alabama ex rel. State Docks Comm'n, 296 U.S. 261, 265 -266 (1935)). These restrictions, like the implied state tax immunity, exist to protect constitutionally valued activity from the undue and perhaps destructive interference that could result from certain taxing measures. The restriction implicit in the Commerce Clause is designed to prohibit States from burdening the free flow of commerce, see generally Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977), whereas the prohibition against duties on the privilege of entering ports is intended specifically to guard against local hindrances to trade and commerce by vessels. See Packet Co. v. Keokuk, 95 U.S. 80, 85 (1877).
Our decisions implementing these constitutional provisions have consistently recognized that the interests protected by these Clauses are not offended by revenue measures that operate only to compensate a government for benefits supplied. See, e. g., Clyde Mallory Lines v. Alabama, supra (flat fee charged each vessel entering port upheld because charge operated to defray cost of harbor policing); Evansville-Vanderburgh Airport Authority v. Delta Airlines, Inc., 405 U.S. 707 (1972) ($1 head tax on explaining commercial air passengers upheld under the Commerce Clause because designed to recoup cost of airport facilities). A governmental body has an obvious interest in making those who specifically benefit from its services pay the cost and, provided that the charge is structured to compensate the government for the benefit conferred, there can be no danger of the kind of interference [435 U.S. 444, 463] with constitutionally valued activity that the Clauses were designed to prohibit.
C
Having established that taxes that operate as user fees may constitutionally be applied to the States, we turn to consider the Commonwealth's argument that 4491 should not be treated as a user fee because the amount of the tax is a flat annual fee and hence is not directly related to the degree of use of the airways. 19 This argument has been confronted and rejected in analogous contexts. Capitol Greyhound Lines v. Brice, 339 U.S. 542 (1950), is illustrative. There the Court rejected an attack under the Commerce Clause on an annual Maryland highway tax of "2% upon the fair market value of motor vehicles used in interstate commerce." The carrier argued that the correlation between the tax and use was not sufficiently precise to sustain the tax as a valid user charge. Noting that the tax "should be judged by its result, not its formula, and must stand unless proven to be unreasonable in amount for the privilege granted," id., at 545, the Court rejected the carrier's argument:
"Complete fairness would require that a state tax formula vary with every factor affecting appropriate compensation for road use. These factors, like those relevant in considering the constitutionality of other state taxes, are so countless that we must be content with `rough approximation rather than precision.' . . . Each additional factor adds to administrative burdens of [435 U.S. 444, 464] enforcement, which fall alike on taxpayers and government. We have recognized that such burdens may be sufficient to justify states in ignoring even such a key factor as mileage, although the result may be a tax which on its face appears to bear with unequal weight upon different carriers. . . . Upon this type of reasoning rests our general rule that taxes like that of Maryland here are valid unless the amount is shown to be in excess of fair compensation for the privilege of using state roads." Id., at 546-547. (Citations and footnotes omitted.)
See also Aero Mayflower Transit Co. v. Board of Railroad Comm'rs, 332 U.S. 495 (1947) (taxes of $10 and $15 per vehicle sustained against Commerce Clause challenges); Clyde Mallory Lines v. Alabama ex rel. State Docks Comm'n, supra (flat fee designed to defray cost of policing port upheld against claim it was constitutionally prohibited tax on privilege of entering harbor). This Court recently relied upon this reasoning to uphold a tax on commercial aviation activity. In Evansville-Vanderburgh Airport Authority v. Delta Airlines, Inc., supra, we sustained against claims based on the Commerce Clause and on the right to travel a $1 head tax on commercial airline passengers. We held that such taxes are valid so long as they (1) do not discriminate against interstate commerce, (2) are based upon some fair approximation of use, and (3) are not shown to be excessive in relation to the cost to the government of the benefits conferred. 405 U.S., at 716 -720.
The Commonwealth, of course, recognizes that flat fees, and even flat annual fees, have been held constitutionally permissible in these contexts. It urges, however, that such "rough approximations of cost," while appropriate compensatory measures in other settings, should not be permissible here. It maintains that the values protected by the doctrine of state tax immunity require that any user tax be closely calibrated [435 U.S. 444, 465] to the amount of any taxpayer's actual use, and it suggests that we - for purposes of the state tax immunity doctrine only - define user fees as charges for measurable amounts of use of government facilities.
We note first that it is doubtful that the National Government could recover the costs of its aviation activities from those direct beneficiaries without making at least some use of annual flat fees. In arguing that the Revenue Act provisions are not sufficiently user related, the Commonwealth places extensive reliance upon the DOT Study, prepared at the direction of Congress, 20 of the best way to recoup the costs of the federal aviation activities from its beneficiaries. While the report recognized that it would be generally possible, albeit costly in the case of general aviation, to tie the charges to specific measurable benefits received, see DOT Study 61, it indicated that certain costs imposed by general aviation could only be recovered through flat fees. Id., at 61 n. 2.
But even if it were feasible to recover all costs through charges for measurable amounts of use of Government facilities, we fail to see how such a requirement would appreciably advance the policies embodied in the doctrine of state tax immunity. Since a State has no constitutional complaint when it is required to pay the cost of benefits received, the Commonwealth's only legitimate fear is that the flat-fee requirement may result in the collection from it of more than its actual "fair share." We observe first that where the [435 U.S. 444, 466] charges imposed by the Federal Government apply to large numbers of private parties as well as to state activities, it is as likely as not that the user fee will result in exacting less money from the State than it would have to pay under a perfect user-fee system. More fundamentally, even when an annual flat fee results in some overcharges, the Common-wealth's solution would often increase the fiscal burden on the States. If the National Government were required more precisely to calibrate the amount of the fee to the extent of the actual use of the airways, administrative costs would increase and so would the amount of revenue needed to operate the system. The resulting increment in a State's actual fair share might well be greater than any overcharge resulting from the present fee system. But the complete answer to the Commonwealth's concern is that even if the flat fee does cost it somewhat more than it would have to pay under a perfect user-fee system, there is still no interference with the values protected by the implied constitutional tax immunity of the States. The possibility of a slight overcharge is no more offensive to the constitutional structure than is the increase in the cost of essential operations that results either from the fact that those who deal with the State may be required to pay nondiscriminatory taxes on the money they receive or from the fact a jury may award an eminent domain claimant an amount in excess of what would be "just compensation" in an ideal system of justice.
Whatever the present scope of the principle of state tax immunity, a State can have no constitutional objection to a revenue measure that satisfies the three-prong test of Evansville-Vanderburgh Airport Authority v. Delta Airlines, Inc. - substituting "state function" for "interstate commerce" in that test. So long as the charges do not discriminate against state functions, are based on a fair approximation of use of the system, and are structured to produce revenues that will not exceed the total cost to the Federal Government of the benefits [435 U.S. 444, 467] to be supplied, there can be no substantial basis for a claim that the National Government will be using its taxing powers to control, unduly interfere with, or destroy a State's ability to perform essential services. The requirement that total revenues not exceed expenditures places a natural ceiling on the total amount that such charges may generate and the further requirement that the measure be reasonable and nondiscriminatory precludes the adoption of a charge that will unduly burden state activities. 21
U.S. v. Lee, 106 U.S. 196 (1882)
The exemption of the United States from being impleaded without their consent is, as has often been affirmed by this court, as absolute as that of the crown of England or any other sovereign. In Cohens v. Virginia, 6 Wheat. 264, 411, Chief Justice MARSHALL said: 'The universally-received opinion is that [106 U.S. 196, 227] no suit can be commenced or prosecuted against the United States.' In Beers v. Arkansas, 20 How. 527, 529, Chief Justice TANEY said: 'It is an established principle of jurisprudence, in all civilized nations, that the sovereign cannot be sued in its own courts, or in any other, without its consent and permission; but it may, if it thinks proper, waive this privilege, and permit itself to be made a defendant in a suit by individuals, or by another state. And as this permission is altogether voluntary on the part of the sovereignty, it follows that it may prescribe the terms and conditions on which it consents to be sued, and the manner in which the suit shall be conducted, and may withdraw its consent whenever it may suppose that justice to the public requires it.' In the same spirit, Mr. Justice DAVIS, delivering the judgment of the court in Nichols v. U. S. 7 Wall. 122, 126, said: 'Every government has an inherent right to protect itself against suits, and if, in the liberality of legislation they are permitted, it is only on such terms and conditions as are prescribed by statute. The principle is fundamental, applies to every sovereign power, and, but for the protection which it affords, the government would be unable to perform the various duties for which it was created.' See, also, U. S. v. Clarke, 8 Pet. 436, 444; Cary v. Curtis, 3 How. 236, 245, 256; U. S. v. McLemore, 4 How. 286, 289; Hill v. U. S. 9 How. 386, 389; Recside v. Walker, 11 How. 272, 290; De Groot v. U. S. 5 Wall. 419, 431; U. S. v. Eckford, 6 Wall. 484, 488; The Siren, 7 Wall. 152, 154; The Davis, 10 Wall. 15, 20; U. S. v. O'Keefe, 11 Wall. 178; Case v. Terrell, 11 Wall. 199, 201; Carr v. U. S. 98 U.S. 433 , 437; U. S. v. Thompson, 98 U.S. 486 , 489; Railroad Co. v. Tennessee, 101 U.S. 337 ; Railroad Co. v. Alabama, 101 U.S. 832 .
Young v. I.R.S., 596 F.Supp. 141 (N.D.Ind. 09/25/1984)
The core of defendants' argument about the inability of plaintiff to sue the IRS is the doctrine of sovereign immunity. It is well settled that the United States is a sovereign and, as such, is immune from suit without its prior consent. United States v. Shaw, 309 U.S. 495, 500-01, 60 S.Ct. 659, 661, 84 L.Ed. 888 (1940); Hutchinson v. United States, 677 F.2d 1322, 1327 (9th Cir. 1982); Akers v. United States, 539 F. Supp. 831, 832 (D.Conn. 1982), aff'd, 718 F.2d 1084 (2d Cir. 1983). Absent consent to sue, dismissal of the action is required. Hutchinson, 677 F.2d at 1327. The United States has waived its immunity with respect to some causes of action in the Federal Tort Claims Act, 28 U.S.C. § 1346 and 2671-2680. However, the Act, in § 2680(c), specifically excluded "any claim arising in respect of the assessment of collection of any tax or customs duty. . . ." It is therefore clear that the United States has specifically reserved its immunity with respect to claims arising out of tax collection and assessment. Thus, to the extent that any part of plaintiff's complaint can be construed as a claim against the United States, it is barred by the doctrine of sovereign immunity. See Hutchinson; Seibert v. Baptist, 594 F.2d 423 (5th Cir. 1979), cert. denied, 446 U.S. 918, 100 S.Ct. 1851, 64 L.Ed.2d 271 (1980); White v. Commissioner, 537 F. Supp. 679, 684 (D.Colo. 1982).
Plaintiff has attempted to make clear that his claim is not against the United States, but rather against the IRS. That is of little help to plaintiff because courts have found that the actions of the IRS or its agents fall under the Federal Tort Claims Act exception for collection and assessment of taxes. See Morris v. United States, 521 F.2d 872, 874 (9th Cir. 1975); Spilman v. Crebo, 561 F. Supp. 652, 654-55 (D.Mont. 1982). It is therefore clear that the IRS is immune from suit for tax collection or assessment activities.
Plaintiff attempts to circumvent this conclusion by arguing that the IRS is "a private corporation" because it was not created by "any positive law" (i.e., statute of Congress) but rather by fiat of the Secretary of the Treasury. Apparently, this argument is based on the fact that in 1953 the Secretary of the Treasury renamed the Bureau of Internal Revenue as the Internal Revenue Service. However, it is clear that the Secretary of the Treasury has full authority to administer and enforce the Internal Revenue Code, 26 U.S.C. § 7801, and has the power to create an agency to administer and enforce the laws. See 26 U.S.C. § 7803(a). Pursuant to this legislative grant of authority, the Secretary of the Treasury created the IRS. 26 C.F.R. § 601.101. The end result is that the IRS is a creature of "positive law" because it was created through congressionally mandated power. By plaintiff's own "positive law" premise, then, the IRS is a validly created governmental agency and not a "private corporation." It enjoys the sovereign immunity of the United States, and thus is entitled to summary judgment in this cause of action.
[Young v. I.R.S., 596 F.Supp. 141 (N.D.Ind. 09/25/1984)]
United States v. Mississippi, 280 U.S. 128 (1965)
The State argues also that, even if Congress has authorized making the State a defendant here, as we hold it has, Congress had no constitutional power to do so. The Fifteenth Amendment, in plain, unambiguous language, provides that no "State" shall deny or abridge the right of citizens to vote because of their color. In authorizing the United States to make a State a defendant in a suit under § 1971, Congress was acting under its power, given in § 2 of the Fifteenth Amendment, to enforce that Amendment by appropriate legislation. The State's argument that Congress acted here beyond its constitutional power is based on a number of cases that have allowed private individuals to enjoin state officials from denying constitutional rights, while recognizing that, without its consent, a State could not be sued by private persons in such circumstances, because of the immunity given the State in the Eleventh Amendment. See, e.g., Ex parte Young, 209 U.S. 123. But none of these cases decided or even suggested that Congress could not authorize the United States to institute legal proceedings against States to protect constitutional rights of citizens. The Eleventh Amendment in terms forbids suits against States only when "commenced or prosecuted . . . by Citizens of another State, or by Citizens or Subjects of any Foreign State." While this has been read to bar a suit by a State's own citizen as well, Hans v. Louisiana, 134 U.S. 1, nothing in this or any other provision of the Constitution prevents or has ever been seriously supposed to prevent a State's being sued by the United States. The United States in the past has in many cases been allowed to file suits in this and other courts against States, see, e.g., United States v. Texas, 143 U.S. 621; United States v. California, 297 U.S. 175, with or without specific authorization from Congress, see United States v. California, 332 U.S. 19, 26-28. See also Parden v. Terminal R. Co., 377 U.S. 184. In light of this history, it seems rather surprising [380 U.S. 141] that the District Court entertained seriously the argument that the United States could not constitutionally sue a State. The reading of the Constitution urged by Mississippi is not supported by precedent, is not required by any language of the Constitution, and would, without justification in reason, diminish the power of courts to protect the people of this country against deprivation and destruction by States of their federally guaranteed rights. We hold that the State was properly made a defendant in this case.
Great Northern Ins. Co. v. Read, 322 U.S. 47, 51 (1944)
A state's freedom from litigation was established as a constitutional right through the Eleventh Amendment. The inherent nature of sovereignty prevents actions against a state by its own citizens without its consent. [491 U.S. 39] In Atascadero, 473 U.S. at 242, we identified this principle as an essential element of the constitutional checks and balances:
The "constitutionally mandated balance of power" between the States and the Federal Government was adopted by the Framers to ensure the protection of "our fundamental liberties." [Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 572 (Powell, J., dissenting)]. By guaranteeing the sovereign immunity of the States against suit in federal court, the Eleventh Amendment serves to maintain this balance.
Library of Congress v. Shaw, 478 U.S. 310 (1986)
In analyzing whether Congress has waived the immunity of the United States, we must construe waivers strictly in favor of the sovereign, see McMahon v. United States, 342 U. S. 25, 27 (1951), and not enlarge the waiver " `beyond what the language requires,' " Ruckelshaus v. Sierra Club, 463 U. S. 680, 685-686 (1983), quoting Eastern Transportation Co. v. United States, 272 U. S. 675, 686 (1927). The no-interest rule provides an added gloss of strictness upon these usual rules.
"[T]here can be no consent by implication or by use of ambiguous language. Nor can an intent on the part of the framers of a statute or contract to permit the recovery of interest suffice where the intent is not translated into affirmative statutory or contractual terms. The consent necessary to waive the traditional immunity must be express, and it must be strictly construed." United States v. N. Y. Rayon Importing Co., 329 U. S., at 659.
Loeffler v. Frank, 486 U.S. 549 (1988)
The question of statutory interpretation here presented, involving the interaction of the Postal Reorganization Act and Title VII, lends itself to straightforward resolution. Absent a waiver of sovereign immunity, the Federal Government is immune from suit. United States v. Sherwood, 312 U. S. 584, 586 (1941). Congress, however, has waived the sovereign immunity of certain federal entities from the times of their inception by including in the enabling legislation provisions that they may sue and be sued. In FHA v. Burr, 309 U. S. 242, 245 (1940), the Court explained:
"[S]uch waivers by Congress of governmental immunity. . . should be liberally construed. . . . Hence, when Congress establishes such an agency, authorizes it to engage in commercial and business transactions with the public, and permits it to `sue and be sued,' it cannot be lightly assumed that restrictions on that authority are to be implied. Rather if the general authority to `sue and be sued' is to be delimited by implied exceptions, it must be clearly shown that certain types of suits are not consistent with the statutory or constitutional scheme, that an implied restriction of the general authority is necessary to avoid grave interference with the performance of a governmental function, or that for other reasons it was plainly the purpose of Congress to use the `sue and be sued' clause in a narrow sense. In the absence of such showing, it must be presumed that when Congress 555*555 launched a governmental agency into the commercial world and endowed it with authority to `sue or be sued,' that agency is not less amenable to judicial process than a private enterprise under like circumstances would be." (Footnote omitted.)Accord, Franchise Tax Board of California v. USPS, 467 U. S. 512, 517-518 (1984); Reconstruction Finance Corporation v. J. G. Menihan Corp., 312 U. S. 81, 84-85 (1941); see also Keifer & Keifer v. Reconstruction Finance Corporation, 306 U. S. 381 (1939). Encompassed within this liberal-construction rule is the principle "that the words `sue and be sued' normally include the natural and appropriate incidents of legal proceedings." J. G. Menihan Corp., 312 U. S., at 85.
In accord with this approach, this Court has recognized that authorization of suits against federal entities engaged in commercial activities may amount to a waiver of sovereign immunity from awards of interest when such awards are an incident of suit. For example, in Standard Oil Co. v. United States, 267 U. S. 76 (1925), the Court reviewed a suit brought under § 5 of the Act of September 2, 1914, ch. 293, 38 Stat. 711, on insurance claims issued by the Bureau of War Risk Insurance. The Court concluded: "When the United States went into the insurance business, issued policies in familiar form and provided that in case of disagreement it might be sued, it must be assumed to have accepted the ordinary incidents of suits in such business." 267 U. S., at 79. Accordingly, interest was allowed. Ibid. See also National Home for Disabled Volunteer Soldiers v. Parrish, 229 U. S. 494 (1913) (interest allowed against eleemosynary agency that Congress had authorized "to sue and be sued"). Cf. Library of Congress v. Shaw, 478 U. S., at 317, n. 5.
When Congress created the Postal Service in 1970, it empowered the Service "to sue and be sued in its official name." 556*556 39 U. S. C. § 401(1). This sue-and-be-sued clause was a part of Congress' general design that the Postal Service "be run more like a business than had its predecessor, the Post Office Department." Franchise Tax Board of California v. USPS, 467 U. S., at 520. In Franchise Tax Board, this Court examined, in the context of an order issued by a state administrative agency, the extent to which Congress had waived the sovereign immunity of the Postal Service. After noting that "Congress has `launched [the Postal Service] into the commercial world,' " ibid., the Court held that the sue-and-be-sued clause must be liberally construed and that the Postal Service's liability must be presumed to be the same as that of any other business. Because the order to the Postal Service to withhold employees' wages had precisely the same effect on the Service's ability to operate efficiently as did such orders on other employers subject to the state statute that had been invoked, and because the burden of complying with the order would not impair the Service's ability to perform its functions, the Court concluded that there was no basis for overcoming the presumption that immunity from the state order had been waived. See id., at 520, and n. 14.
Our unanimous view of the Postal Service expressed in Franchise Tax Board is controlling here. By launching "the Postal Service into the commercial world," and including a sue-and-be-sued clause in its charter, Congress has cast off the Service's "cloak of sovereignty" and given it the "status of a private commercial enterprise." Shaw, 478 U. S., at 317, n. 5. It follows that Congress is presumed to have waived any otherwise existing immunity of the Postal Service from interest awards.
None of the exceptions to the liberal-construction rule that guides our interpretation of the waiver of the Postal Service's immunity operates to overcome this presumption. Subjecting the Service to interest awards would not be inconsistent 557*557 with the Postal Reorganization Act, 39 U. S. C. § 101 et seq., the statutory scheme that created the Postal Service, nor would it pose a threat of "grave interference" with the Service's operation. FHA v. Burr, 309 U. S., at 245. Finally, we find nothing in the statute or its legislative history to suggest that "it was plainly the purpose of Congress to use the `sue and be sued' clause in a narrow sense," ibid., with regard to interest awards. To the contrary, since Congress expressly included several narrow and specific limitations on the operation of the sue-and-be-sued clause, see 39 U. S. C. § 409,[4] none of which is applicable here, the natural inference is that it did not intend other limitations to be implied.
Accordingly, we conclude that, at the Postal Service's inception, Congress waived its immunity from interest awards, authorizing recovery of interest from the Postal Service to the extent that interest is recoverable against a private party as a normal incident of suit.
[Loeffler v. Frank, 486 U.S. 549 (1988)]
Melo v. United States, 505 F.2d 1026 (8th Cir. 11/07/1974)
"It is settled that the United States, as sovereign, is immune from suit unless it has consented to be sued. United States v. Sherwood, 312 U.S. 584, 586, 61 S. Ct. 767, 85 L. Ed. 1058 (1941); Iowa Public Service Company v. Iowa State Commerce Comm., 407 F.2d 916, 920 (8th Cir.), cert. denied, 396 U.S. 826, 90 S. Ct. 71, 24 L. Ed. 2d 77 (1969); Simons v. Vinson, 394 F.2d 732 (5th Cir.), cert. denied, 393 U.S. 968, 89 S. Ct. 398, 21 L. Ed. 2d 379 (1968). A corollary to the immunity doctrine is the rule that the United States may define the conditions under which actions are permitted against it. Honda v. Clark, 386 U.S. 484, 501, 87 S. Ct. 1188, 18 L. Ed. 2d 244 (1967); Battaglia v. United States, 303 F.2d 683, 685 (2d Cir. 1962); Kuhnert v. United States, 127 F.2d 824 (8th Cir. 1942)."
[Melo v. United States, 505 F.2d 1026 (8th Cir. 11/07/1974)]
Ngiraingas v. Sanchez, 495 U.S. 182 (1990)
We have recognized the concept of sovereign immunity
on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.
Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907). Our understanding of common law sovereign immunity does not protect against liability under the laws of a superior governmental authority. See Owen v. City of Independence, 445 U.S. 622, 647-648 and n. 30 (1980). In addition, while the concept of immunity may afford a sovereign protection from suit "in its own courts without its consent, . . . it affords no support for a claim of immunity in another sovereign's courts." Nevada v. Hall, 440 U.S. 410, 416 (1979). These principles lead ineluctably to the conclusion that, although a Territory may retain common law sovereign immunity against claims raised in its own courts under its own local laws, see Puerto Rico v. Shell Co. (P.R.), 302 U.S. 253, 262, 264 (1937); Porto Rico v. Rosaly, 227 U.S. 270, 273-274 (1913); Kawananakoa, 205 U.S. at 353-354, a Territory, particularly an unincorporated Territory such as Guam that is not destined for Statehood, see Rosaly, supra, 227 U.S. at 274, can have no immunity against a claim like the one here -- a suit in federal court based on federal law.{11}
The Court in Will reasoned that Congress would not have abrogated state sovereign immunity, exemplified by the Eleventh Amendment, without a clearer statement of its intent to do so; today, the Court finds that a Territory lacking such sovereign immunity, either under the common law or by congressional grace, is not a "person" either. These conclusions are in tension. To the extent that our decision in Will [495 U.S. 206] reasoned that States are not "persons" within the meaning of § 1983 because Congress presumably would not have abrogated state sovereign immunity without a clear statement of its intent to do so, the opposite presumption should control this case: because Congress has such plenary legal authority over a territory's affairs, and because a territory can assert no immunity against the laws of Congress (except insofar as Congress itself grants immunity), we ought to presume that Territories are "persons" for purposes of § 1983.
I would hold that both Territories and territorial officers acting in their official capacities are "persons" within the meaning of § 1983, and that Guam has no sovereign immunity from suits in federal court under federal law. I therefore respectfully dissent.
[Ngiraingas v. Sanchez, 495 U.S. 182 (1990), Brennan, Dissenting]
Parden v. Terminal R. Co., 377 U.S. 184 (1964)
Respondents contend that Congress is without power, in view of the immunity doctrine, thus to subject a State to suit. We disagree. Congress enacted the FELA in the exercise of its constitutional power to regulate [377 U.S. 191] interstate commerce. Second Employers' Liability Cases, 223 U.S. 1. While a State's immunity from suit by a citizen without its consent has been said to be rooted in "the inherent nature of sovereignty," Great Northern Life Ins. Co. v. Read, supra, 322 U.S. 47, 51,{9} the States surrendered a portion of their sovereignty when they granted Congress the power to regulate commerce.
This power, like all others vested in congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the constitution. . . . If, as has always been understood, the sovereignty of congress, though limited to specified objects is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the constitution of the United States.
Gibbons v. Ogden, 9 Wheat. 1, 196-197. Thus, as the Court said in United States v. California, supra, 297 U.S. at 184-185, a State's operation of a railroad in interstate commerce
must be in subordination to the power to regulate interstate commerce, which has been granted specifically to the national government. The sovereign power of the states is necessarily diminished to the extent of the grants of power to the federal government in the Constitution. . . . [T]here is no such limitation upon the plenary power to regulate commerce [as there is upon the federal power to tax [377 U.S. 192] state instrumentalities]. The state can no more deny the power if its exercise has been authorized by Congress than can an individual.
By empowering Congress to regulate commerce, then, the States necessarily surrendered any portion of their sovereignty that would stand in the way of such regulation. Since imposition of the FELA right of action upon interstate railroads is within the congressional regulatory power, it must follow that application of the Act to such a railroad cannot be precluded by sovereign immunity.{10}
Recognition of the congressional power to render a State suable under the FELA does not mean that the immunity doctrine, as embodied in the Eleventh Amendment with respect to citizens of other States and as extended to the State's own citizens by the Hans case, is here being overridden. It remains the law that a State may not be sued by an individual without its consent. Our conclusion is simply that Alabama, when it began operation of an interstate railroad approximately 20 years after enactment of the FELA, necessarily consented to such suit as was authorized by that Act. By adopting and ratifying the Commerce Clause, the States empowered Congress to create such a right of action against interstate railroads; by enacting the FELA in the exercise of this power, Congress conditioned the right to operate a railroad in interstate commerce upon amenability to suit in federal court as provided by the Act; by thereafter operating a railroad in interstate commerce, Alabama must be taken to have accepted that condition and thus to have consented to suit.
[B]y engaging in interstate commerce by rail, [the State] has subjected itself to the commerce power, and is liable for a violation of the . . . Act, as are other [377 U.S. 193] carriers. . . .
United States v. California, supra, 297 U.S. at 185; California v. Taylor, supra, 353 U.S. at 568. We thus agree that
[T]he State is liable upon the theory that, by engaging in interstate commerce by rail, it has subjected itself to the commerce power of the federal government.
* * * *
It would be a strange situation indeed if the state could be held subject to the [Federal Safety Appliance Act] and liable for a violation thereof, and yet could not be sued without its express consent. The state, by engaging in interstate commerce, and thereby subjecting itself to the act, must be held to have waived any right it may have had arising out of the general rule that a sovereign state may not be sued without its consent.
Maurice v. State, supra, 43 Cal.App.2d at 275, 277, 110 P.2d at 710-711. Accord, Higginbotham v. Public Belt R. Comm'n, supra, 192 La. 525, 550-551, 188 So. 395, 403; Mathewes v. Port Utilities Comm'n, supra.{11} [377 U.S. 194]
Respondents deny that Alabama's operation of the railroad constituted consent to suit. They argue that it had no such effect under state law, and that the State did not intend to waive its immunity or know that such a waiver would result. Reliance is placed on the Alabama Constitution of 1901, Art. I, Section 14 of which provides that "the State of Alabama shall never be made a defendant in any court of law or equity"; on state cases holding that neither the legislature nor a state officer has the power to waive the State's immunity;{12} and on cases in this Court to the effect that whether a State has waived its immunity depends upon its intention and is a question of state law [377 U.S. 195] only. Chandler v. Dix, 194 U.S. 590; Palmer v. Ohio, 248 U.S. 32; Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 466 470. We think those cases are inapposite to the present situation, where the waiver is asserted to arise from the State's commission of an act to which Congress, in the exercise of its constitutional power to regulate commerce, has attached the condition of amenability to suit. More pertinent to such a situation is our decision in Petty v. Tennessee-Missouri Bridge Comm'n, supra. That was a suit against a bi-state authority created with the consent of Congress pursuant to the Compact Clause of the Constitution. We assumed arguendo that the suit must be considered as being against the States themselves, but held nevertheless that, by the terms of the compact and of a proviso that Congress had attached in approving it,{13} the States had waived any immunity they might otherwise have had. In reaching this conclusion, we rejected arguments, like the one made here, based on the proposition that neither [377 U.S. 196] of the States, under its own law, would have considered the language in the compact to constitute a waiver of its immunity. The question of waiver was, we held, one of federal law. It is true that this holding was based on the inclusion of the language in an interstate compact sanctioned by Congress under the Constitution. But such compacts do not present the only instance in which the question whether a State has waived its immunity is one of federal law. This must be true whenever the waiver is asserted to arise from an act done by the State within the realm of congressional regulation; for the congressional power to condition such an act upon amenability to suit would be meaningless if the State, on the basis of its own law or intention, could conclusively deny the waiver and shake off the condition. The broad principle of the Petty case is thus applicable here: where a State's consent to suit is alleged to arise from an act not wholly within its own sphere of authority, but within a sphere -- whether it be interstate compacts or interstate commerce -- subject to the constitutional power of the Federal Government, the question whether the State's act constitutes the alleged consent is one of federal law. Here, as in Petty, the States by venturing into the congressional realm "assume the conditions that Congress under the Constitution attached." 359 U.S. at 281-282.
Our conclusion that this suit may be maintained is in accord with the common sense of this Nation's federalism. A State's immunity from suit by an individual without its consent has been fully recognized by the Eleventh Amendment and by subsequent decisions of this Court. But when a State leaves the sphere that is exclusively its own and enters into activities subject to congressional regulation, it subjects itself to that regulation as fully as if it were a private person or corporation. Cf. South Carolina v. United States, 199 U.S. 437, 463; New York v. [377 U.S. 197] United States, 326 U.S. 572. It would surprise our citizens, we think, to learn that petitioners, who in terms of the language and purposes of the FELA are on precisely the same footing as other railroad workers,{14} must be denied the benefit of the Act simply because the railroad for which they work happens to be owned and operated by a State, rather than a private corporation. It would be even more surprising to learn that the FELA does make the Terminal Railway "liable" to petitioners, but, unfortunately, provides no means by which that liability may be enforced. Moreover, such a result would bear the seeds of a substantial impediment to the efficient working of our federalism. States have entered and are entering numerous forms of activity which, if carried on by a private person or corporation, would be subject to federal regulation. See South Carolina v. United States, supra, 199 U.S. at 454-455. In a significant and [377 U.S. 198] increasing number of instances, such regulation takes the form of authorization of lawsuits by private parties. To preclude this form of regulation in all cases of state activity would remove an important weapon from the congressional arsenal with respect to a substantial volume of regulable conduct. Where, as here, Congress, by the terms and purposes of its enactment, has given no indication that it desires to be thus hindered in the exercise of its constitutional power, we see nothing in the Constitution to obstruct its will.
United States v. Mitchell, 463 U.S. 206 (1983)
For decades this Court consistently interpreted the Tucker Act as having provided the consent of the United States to be sued eo nomine for the classes of claims described in the Act. See, e. g., Schillinger v. United States, 155 U.S. 163, 166 -167 (1894); Belknap v. Schild, 161 U.S. 10, 17 (1896); Dooley v. United States, 182 U.S. 222, 227 -228 (1901); Reid v. United States, 211 U.S. 529, 538 (1909); United States v. Sherwood, 312 U.S. 584, 590 (1941); Dalehite v. United States, 346 U.S. 15, 25 , n. 10 (1953); Soriano v. United States, 352 U.S. 270, 273 (1957). In at least two recent decisions this Court explicitly stated that the Tucker Act effects a waiver of sovereign immunity. Army & Air Force Exchange Service v. Sheehan, 456 U.S. 728, 734 (1982); Hatzlachh Supply Co. v. United States, 444 U.S. 460, 466 (1980) (per curiam). These decisions confirm the unambiguous thrust of the history of the Act.
The existence of a waiver is readily apparent in claims founded upon "any express or implied contract with the United States." 28 U.S.C. 1491. The Court of Claims' jurisdiction over contract claims against the Government has long been recognized, and Government liability in contract is viewed as perhaps "the widest and most unequivocal waiver of federal immunity from suit." Developments in the Law - Remedies Against the United States and Its Officials, 70 Harv. L. Rev. 827, 876 (1957). See also 14 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure 3656, p. 202 (1976). The source of consent for such suits unmistakably lies in the Tucker Act. Otherwise, it is doubtful that any consent would exist, for no contracting officer or other official is empowered to consent to suit against the United [463 U.S. 206, 216] States. 14 The same is true for claims founded upon executive regulations. Indeed, the Act makes absolutely no distinction between claims founded upon contracts and claims founded upon other specified sources of law.
In United States v. Testan, 424 U.S. 392, 398 , 400 (1976), and in United States v. Mitchell, 445 U.S., at 538 , this Court employed language suggesting that the Tucker Act does not effect a waiver of sovereign immunity. Such language was not necessary to the decision in either case. See infra, at 217-218. Without in any way questioning the result in either case, we conclude that this isolated language should be disregarded. If a claim falls within the terms of the Tucker Act, the United States has presumptively consented to suit.
B
It nonetheless remains true that the Tucker Act "`does not create any substantive right enforceable against the United States for money damages.'" United States v. Mitchell, supra, at 538, quoting United States v. Testan, supra, at 398. A substantive right must be found in some other source of law, such as "the Constitution, or any Act of Congress, or any regulation of an executive department." 28 U.S.C. 1491. Not every claim invoking the Constitution, a federal statute, or a regulation is cognizable under the Tucker Act. The claim must be one for money damages against the United States, see United States v. King, 395 U.S. 1, 2 -3 (1969), 15 and the claimant must demonstrate that the source of substantive [463 U.S. 206, 217] law he relies upon "`can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.'" United States v. Testan, supra, at 400, quoting Eastport S.S. Corp. v. United States, 178 Ct. Cl. 599, 607, 372 F.2d 1002, 1009 (1967). 16
For example, in United States v. Testan, supra, two Government attorneys contended that they were entitled to a higher salary grade under the Classification Act, 17 and to an award of backpay under the Back Pay Act 18 for the period during which they were classified at a lower grade. This Court concluded that neither the Classification Act nor the Back Pay Act could fairly be interpreted as requiring compensation for wrongful classifications. See 424 U.S., at 398 -407. Particularly in light of the "established rule that one is not entitled to the benefit of a position until he has been duly appointed to it," id., at 402, the Classification Act does not support a claim for money damages. While the Back Pay Act does provide a basis for money damages as a remedy "in carefully limited circumstances" such as wrongful reductions in grade, id., at 404, it does not apply to wrongful classifications. Id., at 405.
Similarly, in United States v. Mitchell, supra, this Court concluded that the General Allotment Act does not confer a right to recover money damages against the United States. While 5 of the Act provided that the United States would hold land "in trust" for Indian allottees, 25 U.S.C. 348, we held that the Act creates only a limited trust relationship. 445 U.S., at 542 . The trust language of the Act does not [463 U.S. 206, 218] impose any fiduciary management duties or render the United States answerable for breach thereof, but only prevents improvident alienation of the allotted lands and assures their immunity from state taxation. Id., at 544.
Thus, for claims against the United States "founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department," 28 U.S.C. 1491, a court must inquire whether the source of substantive law can fairly be interpreted as mandating compensation by the Federal Government for the damages sustained. In undertaking this inquiry, a court need not find a separate waiver of sovereign immunity in the substantive provision, just as a court need not find consent to suit in "any express or implied contract with the United States." Ibid. The Tucker Act itself provides the necessary consent.
Of course, in determining the general scope of the Tucker Act, this Court has not lightly inferred the United States' consent to suit. See United States v. King, supra, at 4-5 (Court of Claims lacks general authority to issue declaratory judgment); Soriano v. United States, 352 U.S., at 276 (nontolling of limitations beyond statutory provisions). For example, although the Tucker Act refers to claims founded upon any implied contract with the United States, we have held that the Act does not reach claims based on contracts implied in law, as opposed to those implied in fact. Merritt v. United States, 267 U.S. 338, 341 (1925).
In this case, however, there is simply no question that the Tucker Act provides the United States' consent to suit for claims founded upon statutes or regulations that create substantive rights to money damages. If a claim falls within this category, the existence of a waiver of sovereign immunity is clear. The question in this case is thus analytically distinct: whether the statutes or regulations at issue can be interpreted as requiring compensation. Because the Tucker Act supplies a waiver of immunity for claims of this nature, the separate statutes and regulations need not provide a [463 U.S. 206, 219] second waiver of sovereign immunity, nor need they be construed in the manner appropriate to waivers of sovereign immunity. See United States v. Emery, Bird, Thayer Realty Co., 237 U.S. 28, 32 (1915). "`The exemption of the sovereign from suit involves hardship enough where consent has been withheld. We are not to add to its rigor by refinement of construction where consent has been announced.'" United States v. Aetna Casualty & Surety Co., 338 U.S. 366, 383 (1949), quoting Anderson v. John L. Hayes Construction Co., 243 N. Y. 140, 147, 153 N. E. 28, 29-30 (1926) (Cardozo, J.). 19
[United States v. Mitchell, 463 U.S. 206 (1983)]