sovereign immunity

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The sovereign immunity means the government cannot be sued without its consent. 

Sovereign immunity was derived from British common law doctrine based on the idea that the King could do no wrong. In the United States, sovereign immunity typically applies to the federal government and state government, but not to municipalities. Federal and state governments, however, have the ability to waive their sovereign immunity. The federal government did this when it passed the Federal Tort Claims Act, which waived federal immunity for numerous types of torts 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: i.e. a state worker), courts will typically use one (1) of four (4) tests:

  1. Governmental v proprietary function test (Was the actor functioning in a governmental fashion or a proprietary fashion?)
    1. 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
    2. If the actor was performing a governmental function (i.e. acting for the general public; doing something ordained by legislature; performing a historic gov function), then the actor is not subject to liability
  2. 2) Ministerial/operational v. discretionary functions/acts test (Was the actor performing a ministerial/operational task or a discretionary task?) 
    1. If the actor is performing a ministerial/operational action, then there is not immunity. 
    2. If the actor is performing a discretionary action, then there is immunity.
  3. 3) Planning v implementation (Was the actor planning an action or implementing an action?)
    1. If the actor's planning of policy results in harm, then there is immunity
    2. If the harm happens due to the government's implementation of the plan, then there is not immunity  
  4. 4) Non-justiciable v. justiciable
    1. 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 found that a citizen of state A has the ability to sue state B. However, this rule was later superseded by the Eleventh Amendment, which states that "The 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 such, a citizen of State A can no longer sue State B. 

Further Reading

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

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