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When Can the Government be Sued - Under the "Sovereign Immunity Doctrine"?

Most everyone has heard of the “sovereign immunity doctrine” or SID.  Simply put, SID means no person or entity can sue the government without its consent!  SID  is born from the English common law maxim “rex non potest peccare” meaning “the king can do no wrong” and dates back to the Roman empire. Of course this ancient Anglo-Roman maxim violates the most basic tenet of American jurisprudence, namely “no one, not even the government is above the law”!  So basic is this tenet, it is embodied in Article VI of the US Constitution providing that the Constitution and all laws made pursuant thereto are supreme and prevail over government claims of SID. Yet all courts, including the US Supreme Court, have consistently barred claims against the government under SID, unless consented to, despite having no rational, other than history, for doing so. 

Any waiver of SID by the US government must be authorized by Congress. But Congress has waived SID under very limited circumstances. One example is the Administrative Procedure Act which waives SID with respect to challenging rules issued by federal agencies. Another example is the Federal Tort Claims Act which waives SID for torts committed by federal employees. A third example, the Tucker Act waives SID for claims based upon contracts, claims seeking the return of money paid to the government, and claiming of entitlement seeking payment from the government. A fourth example is the Freedom of Information Act or FOIA waives SID for claims seeking the release of public records by the federal government. A final example are the Clean Water or Clean Air Acts which waive SID for actions seeking to enforce environmental regulations. Aside from these statutory exceptions (there are several others), the US government is immune from lawsuits, under the common law doctrine of SID, without regard to Article VI of the Constitution.

There is no uniformity as to the waiver of SID amongst the fifty States. Generally States have broader discretion to waive SID than does the federal government. States can waive SID through state constitution, state statute, delegation of authority to a state official, or by acceptance of federal funds through a federal program. The 11th amendment to the US Constitution further prohibits suits against a State by citizens of another State or by any foreign country or its citizens. While most States have adopted State Statutes waiving SID under circumstances similar to the Federal Statutes outlined above, such adoptions are not universal.  

In addition to the immunity afforded to governments under SID, State and Federal governments also impose strict notice requirements upon all claimants, known as ante-litem statutes, or ALS.   Many ALS impose strict time limits upon written notice, in order to both preserve the claim, and as a condition precedent to filing a lawsuit. Any failure to comply with the ALS may result in a waiver of the claim before it is even filed, without regard as to whether the lawsuit is filed within the SID. For example, every claimant under the Federal Tort Claims Act, must serve a written notice upon the federal agency causing the harm, no less than 6 months prior to suing the federal government. The notice must be sent to the responsible agency, and provide details of the injury, negligent act or omission, and state the exact amount of damages sought. Any lawsuit against the federal government, will be dismissed if notice was given to the wrong agency, is filed prior to expiration of the 6 month period, or seeks amounts different than contained in the notice. Most every State has adopted similar notice requirements imposing additional hurdles under the ALS over and above SID with respect to lawsuits against the government. If you intend to file a claim against the government, be forever mindful of both the ALS and SID.


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