#11399 - Sovereign Immunity - Modern American Remedies 4th Ed. Laycock

Sovereigns: The Federal Government and Individual State Governments. Local governments are NOT sovereigns – none of this applies to them (but they get was amounts to immunity from respondeat superior liability)

Walk-Through of the Doctrine (Majority says all of this is implicit in constitutional structure and actually completely independent of the 11^th amendment [Hans v. Louisiana]. Everyone agrees that Court is way beyond the text of the 11^th Amendment)

2 Cases About What Congress Can Do:

• Seminole Tribe (1996): Says Congress cannot authorize damages suits against states in federal court under its Article I powers (but likely a bankruptcy exception and Spending Clause exception) (i.e. Congress cannot change it because these principles are implied in the Constitution)

• Fitzpatrick (1978): Says that Congress can change this in legislation to enforce the FOURTEENTH amendment. Fourteenth Amendment says legislature can force compliance through “appropriate legislation”, and court here says “appropriate legislation” can include enforcement legislation (authorizing action against states). This trumps sovereign immunity. Must do so with clear statement in statutory test (The Clear Statement Rule: state waivers of immunity, congressional waivers of federal immunity, and congressional overrides of state immunity all must be expressed in a clear statement in statutory text that excludes any other possible interpretation) (i.e. except to enforce the fourteenth amendment) [can authorize retrospective relief this wa

Creates 3 Types of Suits:

1. Suits against the sovereign: suits against the state. If sovereign is named as defendant, or if suit seeks money from treasury, the suit is barred unless (1) state consents (sometimes Congress conditions federal money on waiver) or (2) Congress validly overrides immunity (Fitzpatrick, etc)

   1. Complying with an injunction is still going to end up costing money out of the treasury, but this is still OK (for suing officials – can’t name state as defendant)m

2. Suits against officer in their official capacity: (This is the Ex Parte Young Suits): This is how constitutional litigation is conducted: you sue the state officer in his official capacity and get an injunction for him to follow the law in the future (Ex parte Young, Edelman)[when official leaves office, injunction is binding on subsequent official – he is substituted as a defendant – FRCP 25(d))

   1. Limits on Official Capacity Suits:

      1. No money damages as compensation for past wrongs (Edelman)

         1. Once issued by a court, an injunction may be enforced (i.e. if state still does not comply, court can enforce it, potentially with money damages) [Frew v. Hawkins]

      2. No recovery of property in sovereign’s possession

      3. No specific performance of the sovereign’s contracts: Only the state is party to the contract, its officers are not. So plaintiff cannot prove an obligation without admitting that she is suing the state

      4. Not available in federal court to enforce state law: Young can only be used to enforce federal rights. Makes sense, because we do not need to force states to enforce their own law – that is up to them.

      5. Fourteenth Amendment When it acts to enforce the Fourteenth Amendment, Congress can override state sovereign immunity and authorize retrospective relief against the states (but cannot do so under the Commerce Clause or other article 1 powers – difference here is 14^th amendment says “congress may enforce this amendment by proper legislation”) [Fitzpatrick v. Bitzer]

      6. Preemption: When Congress has provided a detailed statutory remedy that provides LESS relief than the Young suit against a federal official, the statutory remedy preempts the Young remedy.

3. Suits against the officer in his PESONAL capacity: Suits for damages, really against officer in which he will have to pay out of his own pocket. State may have to indemnify him but that is irrelevant.

Governments fear damages for past more than injunctions to comply in the future – damages are expensive

This applies to most Federal, State and Local Officials. Judges, Legislators, Prosecutors and the President are ABSOLUTELY IMMUNE in their personal capacities.

Personal Capacity Suits: Concerns stuff officers did in their official capacity, but liability is against the person and his assets, not the government

• Suits against officers in their personal capacity provides incentive to comply with the law without waiting to be sued (and only enjoined for the future, making all non-compliance up to the first suit a freebee)

  • However, government usually indemnifies officials in these proceedings, so liability does ultimately fall on the government.

Reasons We Have Sovereign Immunity/Normally Don’t like to Allow Personal Suits:

1. Court is worried that damages w/o immunity would change the way officials conduct their jobs, and not necessarily in a good way (potentially deter officials from the vigorous conduct of their duties)

   1. Plus, it makes sense that their liability in a personal capacity would be limited because the incentives are out of whack – the benefits of the official acting in his capacity go to the government or the public, but because of sovereign immunity (can’t sue government, have to go after individuals) he is personally liable for the harm his behavior creates. Seems like we have to limit this liability in some way.

Collateral / Sequencing Issue: Should we decide if there is a constitutional violation first and then if there is, ask if there is immunity? Or should we look at, assuming that there is a constitutional violation, whether the defendant is immune?

• If we decide the immunity first and never get to the merits, the law will never be clearly settled and officers will remain immune for repeated conduct

  • But, if we allow the constitutional issue to be decide first, we may be deciding something that is unnecessary/advisory

    • Supreme Court goes both ways. Sometimes they do merits first, sometimes immunity. Impossible to figure out what factors are controlling the exercise of discretion to what to look at first. Lower courts now have discretion to go in either order.

Statutory waivers of immunity permit these claims. They are mostly about torts and breaches of contract – thus mostly state-law claims

Why would a sovereign ever waive its immunity?

• The unpopularity in a political context of sovereign immunity in ordinary torts and contract breaches, and the burden of handling all of them with private bills, has led to broad waivers at federal level and in most states, often with many limits and restrictions.

• Government litigates these cases ferociously, they seek to expand every exception. If there is an argument that a claim is excluded, they will make it.