Sovereign Immunity

In early American history, the courts supported the traditional view that the United States could not be sued without congressional authorization (CHISHOLM V. GEORGIA, 2 U.S. [2 Dall.] 419, 478, 1 L. Ed. 440 [1793]; Cohens v. Virginia, 19 U.S. [6 Wheat.] 264, 412, 5 L. Ed. 257 [1821]). This IMMUNITY applied to suits filed by states as well as individuals (Kansas v. United States, 204 U.S. 331, 27 S. Ct. 388, 51 L. Ed. 510 [1906]). Thus, for many years, those who had contract and TORT claims against the government had no legal recourse except through the difficult, inconvenient, and often tardy means of convincing Congress to pass a special bill awarding compensation to the injured party on a case by case basis.

The federal government first began to waive its sovereign immunity in areas of law other than torts. In 1855 Congress established the U.S. Court of Claims, a special court created to hear cases against the United States involving contracts based upon the Constitution, federal statutes, and federal regulations. In 1887 Congress passed the TUCKER ACT (28 U.S.C.A. §§ 1346 (a) (2), 1491) to authorize federal district courts to hear contractual claims not exceeding $10,000 against the United States. Other SPECIAL COURTS were later created for particular types of nontort claims against the federal government. The U.S. Board of General Appraisers was created in 1890 and was replaced in 1926 by the U.S. Customs Court, and the U.S. Court of Customs Appeals was created in 1909 and then replaced in 1926 by the U.S. Court of Customs and Patent Appeals. These courts handled complaints about duties levied on imports. The Board of Tax Appeals, created in 1924 to handle internal revenue complaints, was replaced in 1942 by the Tax Court of the United States.

Not until 1946, however, did Congress address the issue of liability for torts committed by the government's agencies, officers, or employees. Until 1946 civil servants could be individually liable for torts, but they were protected by sovereign immunity from liability for tortious acts committed while carrying out their official duties. But the courts were not always consistent in making that distinction.

Finally, in 1946 Congress passed the Tort Claims Act (28 U.S.C.A. §§ 1346(b), 2671–2678), which authorized U.S. district courts to hold the United States liable for torts committed by its agencies, officers, and employees just as the courts would hold individual defendants liable under similar circumstances. This general waiver of immunity had a number of exceptions, however, including the torts of BATTERY, FALSE IMPRISONMENT, false arrest, MALICIOUS PROSECUTION, ABUSE OF PROCESS, LIBEL, slander, MISREPRESENTATION, deceit, interference with contractual rights, tort in the fiscal operations of the Treasury, tort in the regulation of the monetary system, and tort in combatant activities of the armed forces in wartime.

By 1953 the U.S. Supreme Court had drawn distinctions under the Tort Claims Act between tortious acts committed by the government at the planning or policy-making stage and those committed at the operational level. In Dalehite v. United States, 346 U.S. 15, 73 S. Ct. 956, 97 L. Ed. 1427 (1953), the Supreme Court held that the Tort Claims Act did not waive sovereign immunity as to tortious acts committed at the planning stage; immunity applied only to torts committed at the operational stage.

Congress also waived sovereign immunity in cases seeking injunctive or other nonmonetary relief against the United States in a 1976 amendment to the Administrative Procedure Act (5 U.S.C.A. §§ 702–703).