ArtIII.S2.C1.4.4.3 Immunity of the United States from Suit

Article III, Section 2, Clause 1:

The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Pursuant to the general rule that a sovereign cannot be sued in its own courts, the judicial power does not extend to suits against the United States unless Congress by statute consents to such suits. This rule first emanated in embryonic form in an obiter dictum by Chief Justice Jay in Chisholm v. Georgia, where he indicated that a suit would not lie against the United States because there is no power which the courts can call to their aid.1 In Cohens v. Virginia, 2 also in dictum, Chief Justice Marshall asserted, the universally received opinion is that no suit can be commenced or prosecuted against the United States. The issue was more directly in question in United States v. Clarke, 3 where Chief Justice Marshall stated that, as the United States is not suable of common right, the party who institutes such suit must bring his case within the authority of some act of Congress, or the court cannot exercise jurisdiction over it. He thereupon ruled that the act of May 26, 1830, for the final settlement of land claims in Florida condoned the suit. The doctrine of the exemption of the United States from suit was repeated in various subsequent cases, without discussion or examination. 4 Indeed, it was not until United States v. Lee5 that the Court examined the rule and the reasons for it, and limited its application accordingly.

Because suits against the United States can be maintained only by congressional consent, it follows that they can be brought only in the manner prescribed by Congress and subject to the restrictions imposed. 6 As only Congress may waive the immunity of the United States from liability, officers of the United States are powerless either to waive such immunity or to confer jurisdiction on a federal court. 7 Even when authorized, suits may be brought only in designated courts, 8 and this rule applies equally to suits by states against the United States. 9 Congress may also grant or withhold immunity from suit on behalf of government corporations. 10

Footnotes

  1.  2 U.S. (2 Dall.) 419, 478 (1793).
  2.  19 U.S. (6 Wheat.) 264, 412 (1821).
  3.  33 U.S. (8 Pet.) 436, 444 (1834).
  4.  United States v. McLemore, 45 U.S. (4 How.) 286 (1846); Hill v. United States, 50 U.S. (9 How.) 386, 389 (1850); De Groot v. United States, 72 U.S. (5 Wall.) 419, 431 (1867); United States v. Eckford, 73 U.S. (6 Wall.) 484, 488 (1868); The Siren, 74 U.S. (7 Wall.) 152, 154 (1869); Nichols v. United States, 74 U.S. (7 Wall.) 122, 126 (1869); The Davis, 77 U.S. (10 Wall.) 15, 20 (1870); Carr v. United States, 98 U.S. 433, 437-439 (1879). It is also clear that the Federal Government, in the absence of its consent, is not liable in tort for the negligence of its agents or employees. Gibbons v. United States, 75 U.S. (8 Wall.) 269, 275 (1869); Peabody v. United States, 231 U.S. 530, 539 (1913); Koekuk & Hamilton Bridge Co. v. United States, 260 U.S. 125, 127 (1922). The reason for such immunity, as stated by Justice Holmes in Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907), is that there can be no legal right as against the authority that makes the law on which the right depends. See also The Western Maid, 257 U.S. 419, 433 (1922). As the Housing Act does not purport to authorize suits against the United States as such, the question is whether the Authority – which is clearly an agency of the United States – partakes of this sovereign immunity. The answer must be sought in the intention of the Congress. Sloan Shipyards v. United States Fleet Corp., 258 U.S. 549, 570 (1922); Federal Land Bank v. Priddy, 295 U.S. 229, 231 (1935). This involves a consideration of the extent to which other government-owned corporations have been held liable for their wrongful acts. 39 Ops. Atty. Gen. 559, 562 (1938).
  5.  106 U.S. 196 (1882).
  6.  Lonergan v. United States, 303 U.S. 33 (1938). Waivers of immunity must be express. Library of Congress v. Shaw, 461 U.S. 273 (1983) (Civil Rights Act provision that the United States shall be liable for costs the same as a private person insufficient to waive immunity from awards of interest). The result in Shaw was overturned by a specific waiver. Civil Rights Act of 1991, Pub. L. No. 102-166, 106 Stat. 1079, § 113, amending 42 U.S.C. § 2000e–16. Immunity was waived, with limitations, for contracts and takings claims in the Tucker Act, 28 U.S.C. § 1346(a)(2). Immunity of the United States for the negligence of its employees was waived, again with limitations, in the Federal Tort Claims Act. 28 U.S.C. §§ 1346(b), 2671-2680. Other waivers of sovereign immunity include Pub. L. No. 94-574, § 1, 90 Stat. 2721 (1976), amending 5 U.S.C. § 702 (waiver for nonstatutory review in all cases save for suits for money damages); Pub. L. 87-748, § 1(a), 76 Stat. 744 (1962), 28 U.S.C. § 1361 (giving district courts jurisdiction of mandamus actions to compel an officer or employee of the United States to perform a duty owed to plaintiff); Westfall Act, 102 Stat. 4563, 28 U.S.C. § 2679(d) (torts of federal employees acting officially), and the Equal Access to Justice Act, 5 U.S.C. § 504, 28 U.S.C. § 2412 (making United States liable for awards of attorneys' fees in some instances when it loses an administrative proceeding or a lawsuit). See FDIC v. Meyer, 510 U.S. 471 (1994) (FSLIC's sue-and-be-sued clause waives sovereign immunity, but a Bivens implied cause of action for constitutional torts cannot be used directly against FSLIC).
  7.  United States v. New York Rayon Co., 329 U.S. 654 (1947).
  8.  United States v. Shaw, 309 U.S. 495 (1940). Any consent to be sued will not be held to embrace action in the federal courts unless the language giving consent is clear. Great Northern Life Ins. Co. v. Read, 322 U.S. 47 (1944).
  9.  Minnesota v. United States, 305 U.S. 382 (1939). The United States was held here to be an indispensable party defendant in a condemnation proceeding brought by a state to acquire a right of way over lands owned by the United States and held in trust for the public. See also Block v. North Dakota, 461 U.S. 273 (1983).
  10.  Brady v. Roosevelt S.S. Co., 317 U.S. 575 (1943).