"The U.S. government, like other sovereign entities, enjoys sovereign immunity from liability for its agents' tortious acts. Doe v. U.S., 838 F.2d 220 (7th Cir. 1988). Congress waived this immunity for a wide range of tort claims when it enacted the Federal Tort Claims Act. The FTCA permits a tort suit against the United States 'where injury to person or property is "caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment.' " While this waiver of sovereign immunity is broad, it is not without limit. Calderon v. U.S., 123 F.3d 947 (7th Cir. 1997) (explaining that 'many important classes of tort claims are excepted from the act's coverage'). For example, the government has not consented to be sued for the intentional torts of its employees and agents. 28 U.S.C. sec2680(h); Sheridan v. U.S., 487 U.S. 392, 108 S.Ct. 2449, 101 L.Ed.2d 352 (1988). The FTCA contains a jurisdictional limitation that specifies that its 'broad grant of jurisdiction "shall not apply to ... any claim arising out of assault, battery" or other specified intentional torts.' (28 U.S.C. sec2680(h))."
Tuesday, May 04, 2004
28 U.S.C. §[1346[b].
Subject to the provisions of chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
28 U.S.C. §[1346[b].
Subject to the provisions of chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
28 U.S.C. §[1346[b].
Copyright 2003 ALM Properties, Inc. All Rights Reserved.
National Law Journal
September 15, 2003
SECTION: DECISIONS; Vol. 26; No. 3; Pg. 12
LENGTH: 2542 words
HEADLINE: DECISIONS
BODY:
ATTORNEY FEES
Defendant, vindicated, can get fees as damages
The Federal Tort Claims Act [FTCA] allows for the recovery of attorney fees as damages for abuse of process and malicious prosecution if "the law of the place" where the tort occurred so provides, the U.S. Circuit Court for the District of Columbia said on Sept. 2. Tri-State Hospital Supply Corp. v. U.S., No. 02-5045.
The U.S. Department of Justice sued Tri-State, a company that imported surgical instruments from Pakistan, for allegedly falsifying customs forms. After the DOJ dropped its fraud claim, the jury returned a verdict in Tri-State's favor on the remaining negligence claim. Tri-State then sued the DOJ under the FTCA, alleging malicious prosecution and abuse of process and seeking $3.2 million in compensation for the attorney fees it spent defending itself. But ruling that it lacked subject-matter jurisdiction, a D.C. federal court dismissed the case.
Reversing, the circuit court noted that the FTCA grants exclusive jurisdiction to the district courts over civil actions against the U.S. seeking money damages for injury or loss of property under circumstances where the country, if it was a private person, would be liable to the claimant "in accordance with the law of the place where the act or omission occurred." It ruled that damages incurred in defending a suit later found to be malicious or abusive may be characterized as damages for "injury of loss of property."
Decisions - Federal Tort Claims Act (FTCA)
National Law Journal
September 15, 2003
SECTION: DECISIONS; Vol. 26; No. 3; Pg. 12
LENGTH: 2542 words
HEADLINE: DECISIONS
BODY:
ATTORNEY FEES
Defendant, vindicated, can get fees as damages
The Federal Tort Claims Act [FTCA] allows for the recovery of attorney fees as damages for abuse of process and malicious prosecution if "the law of the place" where the tort occurred so provides, the U.S. Circuit Court for the District of Columbia said on Sept. 2. Tri-State Hospital Supply Corp. v. U.S., No. 02-5045.
The U.S. Department of Justice sued Tri-State, a company that imported surgical instruments from Pakistan, for allegedly falsifying customs forms. After the DOJ dropped its fraud claim, the jury returned a verdict in Tri-State's favor on the remaining negligence claim. Tri-State then sued the DOJ under the FTCA, alleging malicious prosecution and abuse of process and seeking $3.2 million in compensation for the attorney fees it spent defending itself. But ruling that it lacked subject-matter jurisdiction, a D.C. federal court dismissed the case.
Reversing, the circuit court noted that the FTCA grants exclusive jurisdiction to the district courts over civil actions against the U.S. seeking money damages for injury or loss of property under circumstances where the country, if it was a private person, would be liable to the claimant "in accordance with the law of the place where the act or omission occurred." It ruled that damages incurred in defending a suit later found to be malicious or abusive may be characterized as damages for "injury of loss of property."
Decisions - Federal Tort Claims Act (FTCA)
In May 2003, the U.S. Supreme Court held that states are subject to private lawsuits under the Family and Medical Leave Act. The decision, in Nevada Dept. of Human Resources v. Hibbs, left many court watchers wondering if the justices had concluded that their long effort to rehabilitate 11th Amendment state sovereign immunity had gone far enough.
Copyright 2003 ALM Properties, Inc. All Rights Reserved.
New Jersey Law Journal
October 27, 2003
Copyright 2003 ALM Properties, Inc. All Rights Reserved.
New Jersey Law Journal
October 27, 2003
SECTION: POINTS OF VIEW; Pg. 74
LENGTH: 1863 words
HEADLINE: People v. State
The law should protect citizens' dignity, not states' immunity. Even the Supreme Court's Hibbs decision doesn't do that.
BYLINE: By Robert A. Levy
BODY:
What a difference a year makes. In an unbroken string of seven cases from 1996 through 2002, the Supreme Court expanded the doctrine of sovereign immunity, which bars most private lawsuits against state governments for damages without their consent. In May, however, the Court reversed course in Nevada Department of Human Resources v. Hibbs. Writing for a five-member majority, Chief Justice William Rehnquist held that the 14th Amendment sometimes does permit Congress to abrogate a state's sovereign immunity. That's the right result, but the chief justice used the wrong reasoning to get there.
The Court must not forget that personal liberty is the indispensable ingredient of the American experience. Otherwise, in its zeal to constrain overarching federal power, the Court might frustrate the responsibility of the national government under the 14th Amendment to secure individual rights.
For that reason, Hibbs is an important case and a welcome turn in the Court's view of sovereign immunity. Congress may now abrogate state immunity in enforcing the 14th Amendment if three conditions are met. First, Congress' intent to abrogate immunity must be unmistakably clear. Second, as laid out in City of Boerne v. Flores [1997], Congress must identify an extensive history of discrimination, weighty enough to justify prophylactic legislation. Third, the Court said in Hibbs, Boerne also requires that there be "congruence and proportionality" between the injury and the statutory remedy.
Three constitutional amendments are at the heart of the debate. The 10th Amendment restricts national powers by limiting them to functions enumerated in the Constitution. The 14th Amendment increases those powers by authorizing congressional intervention when states violate individual rights. And the 11th Amendment states in relevant part that "The Judicial power of the United States shall not . . . extend to any suit . . . against [a] State by Citizens of another State." Despite that crystalline text, until Hibbs, the Rehnquist Court had distended the 11th Amendment, using it to constrict the reach of federal power under the 14th.
No matter. The Court acknowledged but one exemption from its ballooning immunity doctrine: States would be vulnerable to private suits pursuant to federal laws that enforce the 14th Amendment. But then, in four cases from 1999 through 2001, the Court steadily chipped away at that exemption.
But if state dignity is the justification for sovereign immunity, what can explain the numerous exceptions that have been carved out? Municipalities, which are creations of the state, can be sued under the 11th Amendment. So can state officials in their personal capacity. A state itself can be sued, by the federal government or another state. And Hibbs confirms that a state can be sued by private individuals in certain enforcement actions under the 14th Amendment.
Until we have the good sense to repeal the 11th Amendment, state sovereign immunity must reach no further than the amendment's unambiguous text. In that respect, Justice Stevens comes closest to the mark in his Hibbs concurrence. He first concedes uncertainty about whether the FMLA "was truly needed to secure the guarantees of the 14th Amendment." Stevens did not have to resolve that question. Even without a 14th Amendment pedigree, observed Stevens, the FMLA fits comfortably under a commerce clause rubric that has been decades in the making. Notwithstanding Lopez and Morrison, the Rehnquist Court is not prepared to restore the commerce clause to its original purpose -- preventing states from impeding the free flow of interstate trade.
http://80-web.lexis-nexis.com.hokhmah.stmarys-ca.edu:2048/universe/document?_m=54aac404bd63ef58c5aeec5ca6bb490a&_docnum=7&wchp=dGLbVzb-zSkVA&_md5=49770467a4a5d09fbeae293668e25de8
LENGTH: 1863 words
HEADLINE: People v. State
The law should protect citizens' dignity, not states' immunity. Even the Supreme Court's Hibbs decision doesn't do that.
BYLINE: By Robert A. Levy
BODY:
What a difference a year makes. In an unbroken string of seven cases from 1996 through 2002, the Supreme Court expanded the doctrine of sovereign immunity, which bars most private lawsuits against state governments for damages without their consent. In May, however, the Court reversed course in Nevada Department of Human Resources v. Hibbs. Writing for a five-member majority, Chief Justice William Rehnquist held that the 14th Amendment sometimes does permit Congress to abrogate a state's sovereign immunity. That's the right result, but the chief justice used the wrong reasoning to get there.
The Court must not forget that personal liberty is the indispensable ingredient of the American experience. Otherwise, in its zeal to constrain overarching federal power, the Court might frustrate the responsibility of the national government under the 14th Amendment to secure individual rights.
For that reason, Hibbs is an important case and a welcome turn in the Court's view of sovereign immunity. Congress may now abrogate state immunity in enforcing the 14th Amendment if three conditions are met. First, Congress' intent to abrogate immunity must be unmistakably clear. Second, as laid out in City of Boerne v. Flores [1997], Congress must identify an extensive history of discrimination, weighty enough to justify prophylactic legislation. Third, the Court said in Hibbs, Boerne also requires that there be "congruence and proportionality" between the injury and the statutory remedy.
Three constitutional amendments are at the heart of the debate. The 10th Amendment restricts national powers by limiting them to functions enumerated in the Constitution. The 14th Amendment increases those powers by authorizing congressional intervention when states violate individual rights. And the 11th Amendment states in relevant part that "The Judicial power of the United States shall not . . . extend to any suit . . . against [a] State by Citizens of another State." Despite that crystalline text, until Hibbs, the Rehnquist Court had distended the 11th Amendment, using it to constrict the reach of federal power under the 14th.
No matter. The Court acknowledged but one exemption from its ballooning immunity doctrine: States would be vulnerable to private suits pursuant to federal laws that enforce the 14th Amendment. But then, in four cases from 1999 through 2001, the Court steadily chipped away at that exemption.
But if state dignity is the justification for sovereign immunity, what can explain the numerous exceptions that have been carved out? Municipalities, which are creations of the state, can be sued under the 11th Amendment. So can state officials in their personal capacity. A state itself can be sued, by the federal government or another state. And Hibbs confirms that a state can be sued by private individuals in certain enforcement actions under the 14th Amendment.
Until we have the good sense to repeal the 11th Amendment, state sovereign immunity must reach no further than the amendment's unambiguous text. In that respect, Justice Stevens comes closest to the mark in his Hibbs concurrence. He first concedes uncertainty about whether the FMLA "was truly needed to secure the guarantees of the 14th Amendment." Stevens did not have to resolve that question. Even without a 14th Amendment pedigree, observed Stevens, the FMLA fits comfortably under a commerce clause rubric that has been decades in the making. Notwithstanding Lopez and Morrison, the Rehnquist Court is not prepared to restore the commerce clause to its original purpose -- preventing states from impeding the free flow of interstate trade.
http://80-web.lexis-nexis.com.hokhmah.stmarys-ca.edu:2048/universe/document?_m=54aac404bd63ef58c5aeec5ca6bb490a&_docnum=7&wchp=dGLbVzb-zSkVA&_md5=49770467a4a5d09fbeae293668e25de8
FEDERAL TORT CLAIMS ACT - The FTCA provides a limited waiver of the federal government's sovereign immunity when its employees are negligent within the scope of their employment. Under the FTCA, the government can only be sued 'under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.' 28 U.S.C. S 1346(b). Thus, the FTCA does not apply to conduct that is uniquely governmental, that is, incapable of performance by a private individual.
28 U.S.C. S 2680(h) provides that the government is not liable when any of its agents commits the torts of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights. However, it also provides an exception. The government is liable if a law enforcement officer commits assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. The government is not liable if the claim against law enforcement officers is for libel, slander, misrepresentation, deceit, or interference with contract. Congress has not waived the government's sovereign immunity against all law enforcement acts or omissions.
Furthermore, the FTCA is limited by a number of exceptions pursuant to which the government is not subject to suit, even if a private employer could be liable under the same circumstances. These exceptions include the discretionary function exception, which bars a claim 'based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.' 28 U.S.C. S 2680(a).
In order to determine whether conduct falls within the discretionary function exception, the courts must apply a two-part test established in Berkovitz v. U.S., 486 U.S. 531, 536 ('88). See Kennewick Irrigation Dist. v. U.S., 880 F.2d 1018, 1025 (9th Cir.'89). First, the question must be asked whether the conduct involved 'an element of judgment or choice.' U.S. v. Gaubert, 499 U.S. 315, 322 ('91) (quotation omitted). This requirement is not satisfied if a 'federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.' Berkovitz, 486 U.S. at 536. Once the element of judgment is established, the next inquiry must be 'whether that judgment is of the kind that the discretionary function exception was designed to shield' in that it involves considerations of 'social, economic, and political policy.' Gaubert, 499 U.S. at 322-23.
Absent specific statutes or regulations, where the particular conduct is discretionary, the failure of the government properly to train its employees who engage in that conduct is also discretionary. See, e.g., Flynn v. U.S., 902 F.2d 1524 (10th Cir.'90) (failure of National Park Service to train its employees as to proper use of emergency equipment was discretionary).
The FTCA specifies that the liability of the U.S. is to be determined 'in accordance with the law of the place where the [allegedly tortious] act or omission occurred.' 28 U.S.C. S 1346(b). In an action under the FTCA, a court must apply the law the state courts would apply in the analogous tort action, including federal law. See Caban v. U.S., 728 F.2d 68, 72 (2d Cir.'84); see also Richards v. U.S., 369 U.S. 1, 11-13 ('62).
Under California law, a California court would apply federal law to determine whether an arrest by a federal officer was legally justified and hence privileged. See Trenouth v. U.S., 764 F.2d 1305, 1307 (9th Cir.'85) (applying federal law in an FTCA action for false imprisonment to determine legality of arrest by Department of Defense officers in California); cf. Gasho v. U.S., 39 F.3d 1420, 1427-32 (9th Cir.'94) (applying federal law in FTCA false imprisonment action against federal customs officials to determine if probable cause justified arrest in Arizona).
A plaintiff cannot bring an FTCA claim against the United States based solely on conduct that violates the Constitution because such conduct may violate only federal, and not state, law. See FDIC v. Meyer, 114 S.Ct. 996, 1001 ('94).
The substitution provision of the Federal Employees Liability Reform and Tort Compensation Act (FELRTCA) provides that '[u]pon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose . . . the United States shall be substituted as the party defendant.' 28 U.S.C. S 2679(d)(1). The purpose of this amendment to the Federal Tort Claims Act was to 'remove the potential personal liability of Federal employees for common law torts committed within the scope of their employment, and . . . instead provide that the exclusive remedy for such torts is through an action against the United States under the FTCA.' H.R. Rep. No. 700, 100th Cong., 2d Sess. 4 (1988)
Under the FTCA, the U.S. is subject to liability for the negligence of an independent contractor only if it can be shown that the government had authority to control the detailed physical performance of the contractor and exercised substantial supervision over its day-to-day activities. See U.S. v. Orleans, 425 U.S. 807, 814-15 ('76); Letnes v. U.S., 820 F.2d 1517, 1519 (9th Cir.'87).
http://www.lectlaw.com/def/f071.htm
28 U.S.C. S 2680(h) provides that the government is not liable when any of its agents commits the torts of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights. However, it also provides an exception. The government is liable if a law enforcement officer commits assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. The government is not liable if the claim against law enforcement officers is for libel, slander, misrepresentation, deceit, or interference with contract. Congress has not waived the government's sovereign immunity against all law enforcement acts or omissions.
Furthermore, the FTCA is limited by a number of exceptions pursuant to which the government is not subject to suit, even if a private employer could be liable under the same circumstances. These exceptions include the discretionary function exception, which bars a claim 'based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.' 28 U.S.C. S 2680(a).
In order to determine whether conduct falls within the discretionary function exception, the courts must apply a two-part test established in Berkovitz v. U.S., 486 U.S. 531, 536 ('88). See Kennewick Irrigation Dist. v. U.S., 880 F.2d 1018, 1025 (9th Cir.'89). First, the question must be asked whether the conduct involved 'an element of judgment or choice.' U.S. v. Gaubert, 499 U.S. 315, 322 ('91) (quotation omitted). This requirement is not satisfied if a 'federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.' Berkovitz, 486 U.S. at 536. Once the element of judgment is established, the next inquiry must be 'whether that judgment is of the kind that the discretionary function exception was designed to shield' in that it involves considerations of 'social, economic, and political policy.' Gaubert, 499 U.S. at 322-23.
Absent specific statutes or regulations, where the particular conduct is discretionary, the failure of the government properly to train its employees who engage in that conduct is also discretionary. See, e.g., Flynn v. U.S., 902 F.2d 1524 (10th Cir.'90) (failure of National Park Service to train its employees as to proper use of emergency equipment was discretionary).
The FTCA specifies that the liability of the U.S. is to be determined 'in accordance with the law of the place where the [allegedly tortious] act or omission occurred.' 28 U.S.C. S 1346(b). In an action under the FTCA, a court must apply the law the state courts would apply in the analogous tort action, including federal law. See Caban v. U.S., 728 F.2d 68, 72 (2d Cir.'84); see also Richards v. U.S., 369 U.S. 1, 11-13 ('62).
Under California law, a California court would apply federal law to determine whether an arrest by a federal officer was legally justified and hence privileged. See Trenouth v. U.S., 764 F.2d 1305, 1307 (9th Cir.'85) (applying federal law in an FTCA action for false imprisonment to determine legality of arrest by Department of Defense officers in California); cf. Gasho v. U.S., 39 F.3d 1420, 1427-32 (9th Cir.'94) (applying federal law in FTCA false imprisonment action against federal customs officials to determine if probable cause justified arrest in Arizona).
A plaintiff cannot bring an FTCA claim against the United States based solely on conduct that violates the Constitution because such conduct may violate only federal, and not state, law. See FDIC v. Meyer, 114 S.Ct. 996, 1001 ('94).
The substitution provision of the Federal Employees Liability Reform and Tort Compensation Act (FELRTCA) provides that '[u]pon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose . . . the United States shall be substituted as the party defendant.' 28 U.S.C. S 2679(d)(1). The purpose of this amendment to the Federal Tort Claims Act was to 'remove the potential personal liability of Federal employees for common law torts committed within the scope of their employment, and . . . instead provide that the exclusive remedy for such torts is through an action against the United States under the FTCA.' H.R. Rep. No. 700, 100th Cong., 2d Sess. 4 (1988)
Under the FTCA, the U.S. is subject to liability for the negligence of an independent contractor only if it can be shown that the government had authority to control the detailed physical performance of the contractor and exercised substantial supervision over its day-to-day activities. See U.S. v. Orleans, 425 U.S. 807, 814-15 ('76); Letnes v. U.S., 820 F.2d 1517, 1519 (9th Cir.'87).
http://www.lectlaw.com/def/f071.htm
Monday, May 03, 2004
governmental immunity
n. the doctrine from English common law that no governmental body can be sued unless it gives permission. This protection resulted in terrible injustices, since public hospitals, government drivers and other employees could be negligent with impunity (free) from judgment. The Federal Tort Claims Act and state waivers of immunity (with specific claims systems) have negated this rule, which stemmed from the days when kings set prerogatives.
See also: Federal Tort Claims Act immunity
Place this dictionary on your site
Law.com Dictionary
Federal Tort Claims Act
n. a statute (1948) which removed the power of the federal government to claim immunity from a lawsuit for damages due to negligent or intentional injury by a federal employee in the scope of his/her work for the government. It also established a set of regulations and format for making claims, giving jurisdiction to federal district courts.
Law.com Dictionary
Congressional Withdrawal of Immunity .--The Constitution delegates to Congress power to legislate to affect the States in some permissible ways. At least in some instances when Congress does so, it may subject the States themselves to suit at the initiation of individuals to implement the legislation. The clearest example arises from the Reconstruction Amendments, which are direct restrictions upon state powers and which expressly provide for congressional implementing legislation. 71 Thus, ''the Eleventh Amendment and the principle of state sovereignty which it embodies . . . are necessarily limited, by the enforcement provisions of Sec. 5 of the Fourteenth Amendment.'' 72 Dwelling on the fact that the Fourteenth Amendment was ratified after the Eleventh became part of the Constitution, the Court implied that earlier grants of legislative power to Congress in the body of the Constitution might not contain a similar power to authorize suits against the States.
FindLaw
It is true that none of these previous cases presented the question of the relationship between the Eleventh Amendment and the enforcement power granted to Congress under 5 of the Fourteenth Amendment. But we think that the Eleventh Amendment, and the principle of state sovereignty which it embodies, see Hans v. Louisiana, 134 U.S. 1 (1890), are necessarily limited by the enforcement provisions of 5 of the Fourteenth Amendment. In that section Congress is expressly granted authority to enforce "by appropriate legislation" the substantive provisions of the Fourteenth Amendment, which themselves embody significant limitations on state authority. When Congress acts pursuant to 5, not only is it exercising legislative authority that is plenary within the terms of the constitutional grant, it is exercising that authority under one section of a constitutional Amendment whose other sections by their own terms embody limitations on state authority. We think that Congress may, in determining what is "appropriate legislation" for the purpose of enforcing the provisions of the Fourteenth Amendment, provide for private suits against States or state officials which are constitutionally impermissible in other contexts. 11 See Edelman v. Jordan, 415 U.S. 651 (1974); Ford Motor Co. v. Department of Treasury, 323 U.S. 459 (1945).
It should be noted that, even if the Court reverses itself and holds that Congress lacks power to abrogate state immunity in federal courts under its commerce and other Article I powers, Congress is not barred by the Eleventh Amendment, nor apparently by any other constitutional provision, from providing authority for suits in state courts to implement federal statutory rights, thus doing away for those purposes with common law sovereign immunity of the states. 85
[Footnote 85] The point was noted and reserved in Employees of the Dep't of Public Health and Welfare v. Department of Public Health and Welfare, 411 U.S. 279, 287 (1973), while Justice Marshall argued that this was plainly the case. Id. at 298 (concurring). Suits under Sec. 1983, for example, may be brought in state courts, Maine v. Thiboutot, 448 U.S. 1 (1980), and state immunities are inapplicable. Id. at 9 n.7; Maher v. Gagne, 448 U.S. 122, 130 n.12 (1980). Inasmuch as state courts are ordinarily obligated to enforce federal law, cf. Testa v. Katt, 330 U.S. 386 (1960), state courts are presumably required to hear Sec. 1983 and other claims, but the Court has expressly reserved the issue. Martinez v. California, 444 U.S. 277, 283 n.7 (1980).
Tort Actions Against State Officials .--In Tindal v. Wesley, 130 the Court adopted the rule of United States v. Lee, 131 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. The immunity of a State from suit has long been held not to extend to actions against state officials for damages arising out of willful and negligent disregard of state laws. 132 The reach of the rule is evident in Scheuer v. Rhodes, 133 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 offi cials. 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. 134
Footnotes
[Footnote 130] 167 U.S. 204 (1897).
[Footnote 131] 106 U.S. 196 (1883).
[Footnote 132] Johnson v. Lankford, 245 U.S. 541 (1918); Martin v. Lankford, 245 U.S. 547 (1918).
[Footnote 133] 416 U.S. 232 (1974).
[Footnote 134] These suits, like suits against local officials and municipal corporations, are typically brought pursuant to 42 U.S.C. Sec. 1983 and typically involve all the decisions respecting liability and immunities thereunder. On the scope of immunity of federal officials, see supra, pp.748-51.
Sovereign immunity is a concept that dates back to medieval England (or at least that far back). Initially, the idea was that the King (or Queen) could do not wrong and therefore was not subject to being sued. Over time, the rule was relaxed, but it was still brought over to the United States. Very generally, you cannot sue the government (federal, state or local) unless it consents to being sued. Governments do typically consent to being sued for negligence, BUT when the negligence results from a discretionary act, the suit typically will not be permitted. A discretionary act is one in which someone has to think about it, weigh the pros and cons and then make a choice between two or more options. Whether to fill a given pothole and when is a classic discretionary act.
Lawyers.com
n. the doctrine from English common law that no governmental body can be sued unless it gives permission. This protection resulted in terrible injustices, since public hospitals, government drivers and other employees could be negligent with impunity (free) from judgment. The Federal Tort Claims Act and state waivers of immunity (with specific claims systems) have negated this rule, which stemmed from the days when kings set prerogatives.
See also: Federal Tort Claims Act immunity
Place this dictionary on your site
Law.com Dictionary
Federal Tort Claims Act
n. a statute (1948) which removed the power of the federal government to claim immunity from a lawsuit for damages due to negligent or intentional injury by a federal employee in the scope of his/her work for the government. It also established a set of regulations and format for making claims, giving jurisdiction to federal district courts.
Law.com Dictionary
Congressional Withdrawal of Immunity .--The Constitution delegates to Congress power to legislate to affect the States in some permissible ways. At least in some instances when Congress does so, it may subject the States themselves to suit at the initiation of individuals to implement the legislation. The clearest example arises from the Reconstruction Amendments, which are direct restrictions upon state powers and which expressly provide for congressional implementing legislation. 71 Thus, ''the Eleventh Amendment and the principle of state sovereignty which it embodies . . . are necessarily limited, by the enforcement provisions of Sec. 5 of the Fourteenth Amendment.'' 72 Dwelling on the fact that the Fourteenth Amendment was ratified after the Eleventh became part of the Constitution, the Court implied that earlier grants of legislative power to Congress in the body of the Constitution might not contain a similar power to authorize suits against the States.
FindLaw
It is true that none of these previous cases presented the question of the relationship between the Eleventh Amendment and the enforcement power granted to Congress under 5 of the Fourteenth Amendment. But we think that the Eleventh Amendment, and the principle of state sovereignty which it embodies, see Hans v. Louisiana, 134 U.S. 1 (1890), are necessarily limited by the enforcement provisions of 5 of the Fourteenth Amendment. In that section Congress is expressly granted authority to enforce "by appropriate legislation" the substantive provisions of the Fourteenth Amendment, which themselves embody significant limitations on state authority. When Congress acts pursuant to 5, not only is it exercising legislative authority that is plenary within the terms of the constitutional grant, it is exercising that authority under one section of a constitutional Amendment whose other sections by their own terms embody limitations on state authority. We think that Congress may, in determining what is "appropriate legislation" for the purpose of enforcing the provisions of the Fourteenth Amendment, provide for private suits against States or state officials which are constitutionally impermissible in other contexts. 11 See Edelman v. Jordan, 415 U.S. 651 (1974); Ford Motor Co. v. Department of Treasury, 323 U.S. 459 (1945).
It should be noted that, even if the Court reverses itself and holds that Congress lacks power to abrogate state immunity in federal courts under its commerce and other Article I powers, Congress is not barred by the Eleventh Amendment, nor apparently by any other constitutional provision, from providing authority for suits in state courts to implement federal statutory rights, thus doing away for those purposes with common law sovereign immunity of the states. 85
[Footnote 85] The point was noted and reserved in Employees of the Dep't of Public Health and Welfare v. Department of Public Health and Welfare, 411 U.S. 279, 287 (1973), while Justice Marshall argued that this was plainly the case. Id. at 298 (concurring). Suits under Sec. 1983, for example, may be brought in state courts, Maine v. Thiboutot, 448 U.S. 1 (1980), and state immunities are inapplicable. Id. at 9 n.7; Maher v. Gagne, 448 U.S. 122, 130 n.12 (1980). Inasmuch as state courts are ordinarily obligated to enforce federal law, cf. Testa v. Katt, 330 U.S. 386 (1960), state courts are presumably required to hear Sec. 1983 and other claims, but the Court has expressly reserved the issue. Martinez v. California, 444 U.S. 277, 283 n.7 (1980).
Tort Actions Against State Officials .--In Tindal v. Wesley, 130 the Court adopted the rule of United States v. Lee, 131 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. The immunity of a State from suit has long been held not to extend to actions against state officials for damages arising out of willful and negligent disregard of state laws. 132 The reach of the rule is evident in Scheuer v. Rhodes, 133 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 offi cials. 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. 134
Footnotes
[Footnote 130] 167 U.S. 204 (1897).
[Footnote 131] 106 U.S. 196 (1883).
[Footnote 132] Johnson v. Lankford, 245 U.S. 541 (1918); Martin v. Lankford, 245 U.S. 547 (1918).
[Footnote 133] 416 U.S. 232 (1974).
[Footnote 134] These suits, like suits against local officials and municipal corporations, are typically brought pursuant to 42 U.S.C. Sec. 1983 and typically involve all the decisions respecting liability and immunities thereunder. On the scope of immunity of federal officials, see supra, pp.748-51.
Sovereign immunity is a concept that dates back to medieval England (or at least that far back). Initially, the idea was that the King (or Queen) could do not wrong and therefore was not subject to being sued. Over time, the rule was relaxed, but it was still brought over to the United States. Very generally, you cannot sue the government (federal, state or local) unless it consents to being sued. Governments do typically consent to being sued for negligence, BUT when the negligence results from a discretionary act, the suit typically will not be permitted. A discretionary act is one in which someone has to think about it, weigh the pros and cons and then make a choice between two or more options. Whether to fill a given pothole and when is a classic discretionary act.
Lawyers.com
Sovereign Immunity
by Mike Taylor, Esq.
Sovereign immunity is a legal doctrine which, under some circumstances, protects the federal, state, and tribal governments within the United States from lawsuits which would cause those governments to pay out money, real estate, or goods from the governmental treasury. The basic idea behind sovereign immunity is that property held by the government (including assets in the public treasury) is in trust for all the citizens of that particular government. The public treasury and public property are, therefore, to be used for the benefit of all the citizens equally--not jut a few individuals (such as the people who file lawsuits). If, through lawsuit, a plaintiff can collect money from the government for some wrong the government has done him, the public treasury will be reduced for the benefit of that one person. There will then be less money to provide services to all the other citizens of the government. All the citizens will suffer because of the drain on the public treasury caused by a single citizen.
Courts have said that when someone claiming to have been injured by the government or its employees files suit for money damages against the government, and the government has not expressly waived its immunity, the court will not even consider the lawsuit. Instead, the court will dismiss the suit and instruct the injured person to seek payment for his injuries from the legislature or chief executive of the government. The government, say the courts, is immune from any lawsuit seeking money damages against it. Because the legislative body and the chief executive are the elected representatives of all the people, only they should decide where public money (and other property) belonging to all the people should be spent. This is not a decision for the courts.
Many state supreme courts over the last decade have limited or abolished the defense of sovereign immunity, by finding that the doctrine was court made, and declaring it to be unfair. Most state legislatures in the United Sates have given up or waived some portion of their sovereign immunity. Waiver of some immunity is commonly done for public policy reasons.
Legislatures usually waive immunity by passing laws allowing the courts and other judicial bodies to hear and decide certain kinds of cases in which someone injured by the government is suing for money damages. For example, most states have laws allowing citizens injured in automobile accidents involving state-owned vehicles to make claims against the state for money as compensation for injuries. At this stage in the political and financial development of tribal governments, a similar trend in tribal court holdings is not now apparent.
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From: Tax and Financing Incentives-A Tribal Perspective (1993)
Mike Taylor is the tribal attorney for the Colville Confederated Tribes
http://greatspirit.earth.com/taylor.html
by Mike Taylor, Esq.
Sovereign immunity is a legal doctrine which, under some circumstances, protects the federal, state, and tribal governments within the United States from lawsuits which would cause those governments to pay out money, real estate, or goods from the governmental treasury. The basic idea behind sovereign immunity is that property held by the government (including assets in the public treasury) is in trust for all the citizens of that particular government. The public treasury and public property are, therefore, to be used for the benefit of all the citizens equally--not jut a few individuals (such as the people who file lawsuits). If, through lawsuit, a plaintiff can collect money from the government for some wrong the government has done him, the public treasury will be reduced for the benefit of that one person. There will then be less money to provide services to all the other citizens of the government. All the citizens will suffer because of the drain on the public treasury caused by a single citizen.
Courts have said that when someone claiming to have been injured by the government or its employees files suit for money damages against the government, and the government has not expressly waived its immunity, the court will not even consider the lawsuit. Instead, the court will dismiss the suit and instruct the injured person to seek payment for his injuries from the legislature or chief executive of the government. The government, say the courts, is immune from any lawsuit seeking money damages against it. Because the legislative body and the chief executive are the elected representatives of all the people, only they should decide where public money (and other property) belonging to all the people should be spent. This is not a decision for the courts.
Many state supreme courts over the last decade have limited or abolished the defense of sovereign immunity, by finding that the doctrine was court made, and declaring it to be unfair. Most state legislatures in the United Sates have given up or waived some portion of their sovereign immunity. Waiver of some immunity is commonly done for public policy reasons.
Legislatures usually waive immunity by passing laws allowing the courts and other judicial bodies to hear and decide certain kinds of cases in which someone injured by the government is suing for money damages. For example, most states have laws allowing citizens injured in automobile accidents involving state-owned vehicles to make claims against the state for money as compensation for injuries. At this stage in the political and financial development of tribal governments, a similar trend in tribal court holdings is not now apparent.
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From: Tax and Financing Incentives-A Tribal Perspective (1993)
Mike Taylor is the tribal attorney for the Colville Confederated Tribes
http://greatspirit.earth.com/taylor.html
Sovereign Immunity
[17 Alaska Bar Rag No. 3 (Sep/Oct 1993)]
Sovereign immunity springs from the English common law concepts that (1) the "King can do no wrong" (from the days it was believed that kings ruled by divine right and that all rights flowed from the sovereign) and (2) that there can be no legal right as against the authority that makes the law on which the right depends. Despite widespread criticism by legal scholars the doctrine retains a substantial degree of viability in American law based on the second "prong."
Sovereign immunity at the Federal level is particularly indefensible since "We the People," who ordained and established these United States and created the Federal "sovereign," did not see fit to cloak "our sovereign" with immunity for its actions. However the doctrine has been judicially recognized these past 200 years, planted in dictum by Chief Justice Jay in Chisolm v. Georgia [2 Dall. (2 US) 419 (1793)], fertilized in dictum by Chief Justice Marshall in Cohens v. Virginia [6 Wheat. (19 US) 264 (1821)], and germinating in Clarke v. United States [8 Pet. (19 US) 436 (1834)]. There is no constitutional basis for sovereign immunity, it is purely and simply a judge-made legal anachronism.
Despite its pernicious nature and logically indefensible character, the purpose of this article is not to argue for abolition of the doctrine but, rather, to discuss its operation, scope and effect in the bankruptcy forum. Recent cases in the U.S. Supreme Court have driven home the fact that the doctrine continues to thrive in the bankruptcy context, particularly with respect to damages for violations of the automatic stay.
In dealing with the immunity of government and government officials, it must be recognized that we deal with three levels of government: federal, state and local. Each has separate rules and varying degrees of "protection."
Federal
As noted above, it is well settled in the law that, absent "consent," the Federal government, its departments and agencies are immune from suit. Sovereign immunity extends to Indian nations [United States v. United States Fidelity Co., 309 US 506 (1940)], government officials acting in their official capacity [United States v. Lee, 106 US 196 (1882)] and, to the extent that Congress has cloaked them with immunity, Federal corporations [Keifer & Keifer v. RFC, 306 US 381 (1939)].
The critical issue is "consent." "Consent to be sued" can be in a general sense, as with the Federal Torts Claim Act. Unfortunately, where violations of the automatic stay are concerned, the FTCA is of no help as the actions do not fit within even the broad scope of that statute. However, when a governmental unit formally invokes the jurisdiction of the bankruptcy court by filing a proof of claim, government exposure to counterclaim liability exists under 11 USC 106(a) [In re Pinkstaff, 974 F2d 113 (CA9 1992); see United States v. Nordic Village, 503 US --- [112 SCt 1011] (1992)]. Under Pinkstaff, the court applies a so-called "logical relationship" test. For purposes of 106(a), a logical relationship exists when the counterclaim arises from the same set of operative facts as the initial claim in that the same operative facts serve as the basis for both claims or the aggregate core of facts upon which the claim rests activates additional legal rights otherwise dormant in the defendant. In the context of 362, when the activities of the governmental unit in question relate to collection of the claim and the collection activity violates the automatic stay, the necessary nexus exists for a waiver of governmental immunity.
Even where the governmental unit has not filed a formal claim, use of a self-help remedy to collect on the claim by the governmental unit may constitute an "informal proof of claim" sufficient to trigger the waiver provisions of 106(a) [In re Town & Country Home Nursing Service, Inc., 963 F2d 1146 (CA9 1992)].
States
While a sovereign may reign supreme within its borders, sovereignty does not extend beyond its borders [Nevada v. Hall, 440 U.S. 411 (1978)]. Moreover, there being no constiutional basis for sovereign immunity, recognition of sovereign immunity is a forum other than the forum of the sovereign is based upon principles of comity [Id.] Accordingly, sovereign immunity does not per se bar actions against states in Federal courts except to the extent Federal law provides.
However, the Eleventh Amendment bars suit against states, state agencies and instrumentalities in Federal courts. Although the Eleventh Amendment specifically bars only suits against states by citizens of another state, the U.S. Supreme Court has interpreted it as barring suits by citizens of the same state. [Hans v. Louisiana, 134 US 1 (1890)]. Eleventh Amendment protection extends to State officials as well [Tindall v. Wesley, 167 US 204 (1897)], subject to an "excess of capacity" test [e.g., Pennoyer v. McConnaughy, 140 US 1 (1891); Truax v. Raich, 239 US 33 (1915)]. However, immunity of state executive personnel is a qualified immunity limited by a "facts and circumstances" test of reasonableness and good faith [Scheuer v. Rhodes, 416 US 232 (1974)].
As with sovereign immunity, Eleventh Amendment protection may be waived by consent of the State to be sued, such as by voluntary submission to suit [Clark v. Barnard, 108 US 436 (1883)] or by a general law specifically consenting to be sued in Federal courts [Gunter v. Atlantic Coast Line, 200 US 273 (1906)]. However, such consent must be clear and specific, and consent to be sued in its own courts does not imply a waiver of immunity in federal courts [Murray v. Wilson Distilling Co., 213 US 151 (1909)].
Prior to 1992 it was clear that Alaska had not consented to suit in federal courts under the Murray holding because AS 09.50.250 expressly limited suits against the State on contract, quasi-contract or tort to the Superior Court. However, AS 09.50.250 was amended by 1, ch. 119 SLA 1992, deleting the words "in the Superior Court." If the 1992 amendment is construed as authorizing actions against the State in any court of competent jurisdiction, then it may be held that Alaska has waived its Eleventh Amendment protection [cf. Hopkins v. Clemson College, 221 US 636 (1911) (dicta); but cf. Kennecott Copper Corp. v. State Tax Comm., 327 US 573 (1946)].
Absent a general waiver, there may be a specific waiver. To the extent that the actions of the State constitute a waiver of sovereign immunity [under Nordic Village -Pinkstaff-Town & Country], that same set of operative facts also constitutes a waiver of Eleventh Amendment protection [In re 995 Fifth Avenue Associates, LP, 963 F2d 503 (CA2 1992); see Hoffman v. Connecticut Dept. of Income Maintenance, 492 US 96 (1989)].
Political Subdivisions
Political subdivisions are creatures of the state, created by state law. As such, they are not truly "sovereigns." Thus, the generally accepted rule is that political subdivisions of a state do not enjoy sovereign immunity and are only cloaked with immunity to the extent that the state sees fit to cloak them with immunity. Alaska follows this rule: political subdivisions in Alaska do not possess "blanket" immunity from suit [City of Fairbanks v. Schaible, 375 P2d 201 (Alaska 1962)].
Partial immunity from suit at the local government level is provided in AS 09.65.070(d). The main protection is the "discretionary function" provision of AS 09.65.070(d)(2). In this connection, a sharp distinction is drawn between "planning" and "operational" decisions in evaluating the exercise of discretion under AS 09.65.070(d)(2) [see e.g. Gates v. City of Tenakee Springs, 822 P2d 455 (Alaska 1991); Urethane Specialties v. City of Valdez, 620 P2d 683 (Alaska 1980)]. "discretionary acts are those which require `personal deliberation, decisions and judgment. . . .'" [Integrated Resources Equity Corp. v. Fairbanks North Star Borough, 799 P2d 295 (Alaska 1987)]. In addition, Alaska does not insulate even discretionary acts where the act itself violates established law. Thus, it must be concluded that political subdivisions of the State are not immune to damage claims under 362.
Moreover, immunity from suit in federal courts under the Eleventh Amendment does not extend to Municipalities, counties and other political subdivisions of a state [Lincoln County v. Luning, 133 US 529 (1890); Chicot County Drainage Dist. v. Baxter State Bank, 308 US 371 (1940)].
Accordingly, municipalities, boroughs, and other political subdivisions that are not the functional equivalent of a state agency are subject to liability for transgressions of the automatic stay in the same manner and to the same extent as a private party.
Update: BRA 94 amended § 106 ostensibly waiving sovereign immunity and the 11th amendment protection of states in bankruptcy cases. However, the U.S. Supreme Court decision in Florida v. Seminole Tribes of Florida, ___ US ___, 116 SCt 1114, 134 LEd2d 252 (1996) raises a serious question regarding the power of Congress to override the 11th amendment proscription on suits against states in federal courts. [For an in-depth discussion of sovereign immunity and the 11th amendment, one should read this 71-page decision, particularly the dissent by Justice Stevens (not exactly recommended as a late evening exercise).
http://touchngo.com/lglcntr/usdc/bnkrptcy/briefs/bnk21.htm
[17 Alaska Bar Rag No. 3 (Sep/Oct 1993)]
Sovereign immunity springs from the English common law concepts that (1) the "King can do no wrong" (from the days it was believed that kings ruled by divine right and that all rights flowed from the sovereign) and (2) that there can be no legal right as against the authority that makes the law on which the right depends. Despite widespread criticism by legal scholars the doctrine retains a substantial degree of viability in American law based on the second "prong."
Sovereign immunity at the Federal level is particularly indefensible since "We the People," who ordained and established these United States and created the Federal "sovereign," did not see fit to cloak "our sovereign" with immunity for its actions. However the doctrine has been judicially recognized these past 200 years, planted in dictum by Chief Justice Jay in Chisolm v. Georgia [2 Dall. (2 US) 419 (1793)], fertilized in dictum by Chief Justice Marshall in Cohens v. Virginia [6 Wheat. (19 US) 264 (1821)], and germinating in Clarke v. United States [8 Pet. (19 US) 436 (1834)]. There is no constitutional basis for sovereign immunity, it is purely and simply a judge-made legal anachronism.
Despite its pernicious nature and logically indefensible character, the purpose of this article is not to argue for abolition of the doctrine but, rather, to discuss its operation, scope and effect in the bankruptcy forum. Recent cases in the U.S. Supreme Court have driven home the fact that the doctrine continues to thrive in the bankruptcy context, particularly with respect to damages for violations of the automatic stay.
In dealing with the immunity of government and government officials, it must be recognized that we deal with three levels of government: federal, state and local. Each has separate rules and varying degrees of "protection."
Federal
As noted above, it is well settled in the law that, absent "consent," the Federal government, its departments and agencies are immune from suit. Sovereign immunity extends to Indian nations [United States v. United States Fidelity Co., 309 US 506 (1940)], government officials acting in their official capacity [United States v. Lee, 106 US 196 (1882)] and, to the extent that Congress has cloaked them with immunity, Federal corporations [Keifer & Keifer v. RFC, 306 US 381 (1939)].
The critical issue is "consent." "Consent to be sued" can be in a general sense, as with the Federal Torts Claim Act. Unfortunately, where violations of the automatic stay are concerned, the FTCA is of no help as the actions do not fit within even the broad scope of that statute. However, when a governmental unit formally invokes the jurisdiction of the bankruptcy court by filing a proof of claim, government exposure to counterclaim liability exists under 11 USC 106(a) [In re Pinkstaff, 974 F2d 113 (CA9 1992); see United States v. Nordic Village, 503 US --- [112 SCt 1011] (1992)]. Under Pinkstaff, the court applies a so-called "logical relationship" test. For purposes of 106(a), a logical relationship exists when the counterclaim arises from the same set of operative facts as the initial claim in that the same operative facts serve as the basis for both claims or the aggregate core of facts upon which the claim rests activates additional legal rights otherwise dormant in the defendant. In the context of 362, when the activities of the governmental unit in question relate to collection of the claim and the collection activity violates the automatic stay, the necessary nexus exists for a waiver of governmental immunity.
Even where the governmental unit has not filed a formal claim, use of a self-help remedy to collect on the claim by the governmental unit may constitute an "informal proof of claim" sufficient to trigger the waiver provisions of 106(a) [In re Town & Country Home Nursing Service, Inc., 963 F2d 1146 (CA9 1992)].
States
While a sovereign may reign supreme within its borders, sovereignty does not extend beyond its borders [Nevada v. Hall, 440 U.S. 411 (1978)]. Moreover, there being no constiutional basis for sovereign immunity, recognition of sovereign immunity is a forum other than the forum of the sovereign is based upon principles of comity [Id.] Accordingly, sovereign immunity does not per se bar actions against states in Federal courts except to the extent Federal law provides.
However, the Eleventh Amendment bars suit against states, state agencies and instrumentalities in Federal courts. Although the Eleventh Amendment specifically bars only suits against states by citizens of another state, the U.S. Supreme Court has interpreted it as barring suits by citizens of the same state. [Hans v. Louisiana, 134 US 1 (1890)]. Eleventh Amendment protection extends to State officials as well [Tindall v. Wesley, 167 US 204 (1897)], subject to an "excess of capacity" test [e.g., Pennoyer v. McConnaughy, 140 US 1 (1891); Truax v. Raich, 239 US 33 (1915)]. However, immunity of state executive personnel is a qualified immunity limited by a "facts and circumstances" test of reasonableness and good faith [Scheuer v. Rhodes, 416 US 232 (1974)].
As with sovereign immunity, Eleventh Amendment protection may be waived by consent of the State to be sued, such as by voluntary submission to suit [Clark v. Barnard, 108 US 436 (1883)] or by a general law specifically consenting to be sued in Federal courts [Gunter v. Atlantic Coast Line, 200 US 273 (1906)]. However, such consent must be clear and specific, and consent to be sued in its own courts does not imply a waiver of immunity in federal courts [Murray v. Wilson Distilling Co., 213 US 151 (1909)].
Prior to 1992 it was clear that Alaska had not consented to suit in federal courts under the Murray holding because AS 09.50.250 expressly limited suits against the State on contract, quasi-contract or tort to the Superior Court. However, AS 09.50.250 was amended by 1, ch. 119 SLA 1992, deleting the words "in the Superior Court." If the 1992 amendment is construed as authorizing actions against the State in any court of competent jurisdiction, then it may be held that Alaska has waived its Eleventh Amendment protection [cf. Hopkins v. Clemson College, 221 US 636 (1911) (dicta); but cf. Kennecott Copper Corp. v. State Tax Comm., 327 US 573 (1946)].
Absent a general waiver, there may be a specific waiver. To the extent that the actions of the State constitute a waiver of sovereign immunity [under Nordic Village -Pinkstaff-Town & Country], that same set of operative facts also constitutes a waiver of Eleventh Amendment protection [In re 995 Fifth Avenue Associates, LP, 963 F2d 503 (CA2 1992); see Hoffman v. Connecticut Dept. of Income Maintenance, 492 US 96 (1989)].
Political Subdivisions
Political subdivisions are creatures of the state, created by state law. As such, they are not truly "sovereigns." Thus, the generally accepted rule is that political subdivisions of a state do not enjoy sovereign immunity and are only cloaked with immunity to the extent that the state sees fit to cloak them with immunity. Alaska follows this rule: political subdivisions in Alaska do not possess "blanket" immunity from suit [City of Fairbanks v. Schaible, 375 P2d 201 (Alaska 1962)].
Partial immunity from suit at the local government level is provided in AS 09.65.070(d). The main protection is the "discretionary function" provision of AS 09.65.070(d)(2). In this connection, a sharp distinction is drawn between "planning" and "operational" decisions in evaluating the exercise of discretion under AS 09.65.070(d)(2) [see e.g. Gates v. City of Tenakee Springs, 822 P2d 455 (Alaska 1991); Urethane Specialties v. City of Valdez, 620 P2d 683 (Alaska 1980)]. "discretionary acts are those which require `personal deliberation, decisions and judgment. . . .'" [Integrated Resources Equity Corp. v. Fairbanks North Star Borough, 799 P2d 295 (Alaska 1987)]. In addition, Alaska does not insulate even discretionary acts where the act itself violates established law. Thus, it must be concluded that political subdivisions of the State are not immune to damage claims under 362.
Moreover, immunity from suit in federal courts under the Eleventh Amendment does not extend to Municipalities, counties and other political subdivisions of a state [Lincoln County v. Luning, 133 US 529 (1890); Chicot County Drainage Dist. v. Baxter State Bank, 308 US 371 (1940)].
Accordingly, municipalities, boroughs, and other political subdivisions that are not the functional equivalent of a state agency are subject to liability for transgressions of the automatic stay in the same manner and to the same extent as a private party.
Update: BRA 94 amended § 106 ostensibly waiving sovereign immunity and the 11th amendment protection of states in bankruptcy cases. However, the U.S. Supreme Court decision in Florida v. Seminole Tribes of Florida, ___ US ___, 116 SCt 1114, 134 LEd2d 252 (1996) raises a serious question regarding the power of Congress to override the 11th amendment proscription on suits against states in federal courts. [For an in-depth discussion of sovereign immunity and the 11th amendment, one should read this 71-page decision, particularly the dissent by Justice Stevens (not exactly recommended as a late evening exercise).
http://touchngo.com/lglcntr/usdc/bnkrptcy/briefs/bnk21.htm
SOVEREIGN IMMUNITY - A doctrine precluding the institution of a suit against the sovereign [government] without its consent. Though commonly believed to be rooted in English law, it is actually rooted in the inherent nature of power and the ability of those who hold power to shield themselves.
In England it was predicated on the concept that "the sovereign can do no wrong", a concept developed and enforced by - guess who? However, since the American revolution explictedly rejected this interesting idea, the American rulers had to come up with another rationale to protect their power. One they came up with is that the "sovereign is exempt from suit [on the] practical ground that there can be no legal right against the authority that makes the law on which the right depends." 205 U.S. 349, 353.
"[S]tatutes waiving the sovereign immunity of the United States must be`construed strictly in favor of the sovereign." McMahon v. United States, 342 U.S. 25, 27 (1951).
11 U.S.C. S 106, "Waiver of Sovereign Immunity," provides:
(a) A governmental unit is deemed to have waived sovereign immunity with respect to any claim against such governmental unit that is property of the estate and that arose out of the same transaction or occurrence out of which such governmental unit's claim arose.
The interest served by federal sovereign immunity (the United States' freedom from paying damages without Congressional consent)
Federal sovereign immunity is readily distinguishable from the states' immunity under the Eleventh Amendment and foreign governments' immunity under the Foreign Sovereign Immunities Act. The latter two doctrines allow one sovereign entity the right to avoid, altogether, being subjected to litigation in another sovereign's courts. Pullman Constr., 23 F.3d at 1169. Similar sovereignty concerns are not implicated by the maintenance of suit against the United States in federal court. Federal sovereign immunity has had such broad exceptions carved out of it that, as Pullman Construction concluded, "Congress, on behalf of the United States, has surrendered any comparable right not to be a litigant in its own courts." Id. In the present day, federal sovereign immunity serves merely to channel litigation into the appropriate avenue for redress, ensuring that "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law." Pullman Constr. at 1168 (quoting Art. I, section 9, cl. 7).
Federal sovereign immunity is a defense to liability rather than a right to be free from trial.
The Supreme Court has ruled that in a case involving the government's sovereign immunity the statute in question must be strictly construed in favor of the sovereign and may not be enlarged beyond the waiver its language expressly requires. See United States v. Nordic Village, Inc., 503 U.S. 30, 33-35 (1992).
http://www.lectlaw.com/def2/s103.htm
In England it was predicated on the concept that "the sovereign can do no wrong", a concept developed and enforced by - guess who? However, since the American revolution explictedly rejected this interesting idea, the American rulers had to come up with another rationale to protect their power. One they came up with is that the "sovereign is exempt from suit [on the] practical ground that there can be no legal right against the authority that makes the law on which the right depends." 205 U.S. 349, 353.
"[S]tatutes waiving the sovereign immunity of the United States must be`construed strictly in favor of the sovereign." McMahon v. United States, 342 U.S. 25, 27 (1951).
11 U.S.C. S 106, "Waiver of Sovereign Immunity," provides:
(a) A governmental unit is deemed to have waived sovereign immunity with respect to any claim against such governmental unit that is property of the estate and that arose out of the same transaction or occurrence out of which such governmental unit's claim arose.
The interest served by federal sovereign immunity (the United States' freedom from paying damages without Congressional consent)
Federal sovereign immunity is readily distinguishable from the states' immunity under the Eleventh Amendment and foreign governments' immunity under the Foreign Sovereign Immunities Act. The latter two doctrines allow one sovereign entity the right to avoid, altogether, being subjected to litigation in another sovereign's courts. Pullman Constr., 23 F.3d at 1169. Similar sovereignty concerns are not implicated by the maintenance of suit against the United States in federal court. Federal sovereign immunity has had such broad exceptions carved out of it that, as Pullman Construction concluded, "Congress, on behalf of the United States, has surrendered any comparable right not to be a litigant in its own courts." Id. In the present day, federal sovereign immunity serves merely to channel litigation into the appropriate avenue for redress, ensuring that "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law." Pullman Constr. at 1168 (quoting Art. I, section 9, cl. 7).
Federal sovereign immunity is a defense to liability rather than a right to be free from trial.
The Supreme Court has ruled that in a case involving the government's sovereign immunity the statute in question must be strictly construed in favor of the sovereign and may not be enlarged beyond the waiver its language expressly requires. See United States v. Nordic Village, Inc., 503 U.S. 30, 33-35 (1992).
http://www.lectlaw.com/def2/s103.htm
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