sovereign immunity

Sovereign immunity is a common law doctrine under which a sovereign (e.g., a federal or state government ) cannot be sued without its consent. Sovereign immunity in the United States was derived from the British common law, which was based on the idea that the King could do no wrong. In the United States, sovereign immunity typically applies to both the federal government and state government, but not to municipalities. Federal and state governments, however, have the ability to waive their sovereign immunity in whole or in part. The federal government did this when it passed the Federal Tort Claims Act , which waived federal immunity for numerous types of tort claims.

Various Considerations Related to Federal Immunity

Under the Feres Doctrine , those who are injured during their military service cannot sue the federal government.

Under the Westfall Act , federal employees cannot be sued for torts committed during the scope of their employment .

Citizens Suing Their Own State

When determining whether a citizen may sue a state actor (someone acting on behalf of the state), courts will typically use one of four tests:

  • Governmental versus proprietary function test (Was the actor functioning in a governmental fashion or a proprietary fashion?)
    • If the actor was performing a proprietary function ( i.e. acting for financial gain for itself or its citizens; doing something that is not historically a governmental function; doing something that can be performed by a private corporation/contractor), then the actor is subject to liability.
    • If the actor was performing a governmental function ( i.e. acting for the general public; doing something ordained by legislature; performing a historic government function), then the actor is not subject to liability.
  • Ministerial/operational versus discretionary functions/acts test (Was the actor performing a ministerial/operational task or a discretionary task?)
    • If the actor was performing a ministerial/operational action, then there is not immunity.
    • If the actor was performing a discretionary action, then there is immunity.
  • Planning versus implementation (Was the actor planning an action or implementing an action?)
    • If the actor's planning of policy results in harm, then there is immunity.
    • If the harm happens due to the government's implementation of the plan, then there is not immunity.
  • Non-justiciable versus justiciable
    • If the action is justiciable under regular tort principles, then there is no immunity. If the issue is not justiciable under regular tort principles, then there is immunity.

Citizens Suing Other States

In Chisholm v. Georgia , 2 U.S. 419 (1793) , the Supreme Court held that a citizen of one state has the ability to sue another state. However, this rule was later superseded by the Eleventh Amendment , which clarified that "[t]he 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." As a result, a citizen of one state can no longer sue another state.

Further Reading

For more on sovereign immunity, see this Stanford Law Review note and this Georgetown Law Review note .

[Last reviewed in October of 2024 by the Wex Definitions Team ]

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