CITES BY TOPIC:  sovereign immunity

Black's Law Dictionary, Fifth Edition, p. 1252

Sovereign immunity. Doctrine precludes litigant from asserting an otherwise meritorious cause of action against a sovereign or a party with sovereign attributes unless sovereign consents to suit. Principe Compania Naviera, S. A. v. Board of Com'rs of Port of New Orleans, D.C.La., 333 F.Supp. 353, 355. Historically, the federal and state governments, and derivatively cities and towns, were immune from tort liability arising from activities which were governmental in nature. Most jurisdictions, however, have abandoned this doctrine in favor of permitting tort actions with certain limitations and restrictions. See Federal Tort Claims Act; Governmental immunity; Tort Claims Acts.

[Black's Law Dictionary, Fifth Edition, p. 1252]

Black's Law Dictionary, Fifth Edition, p. 626

Governmental immunity. The federal, state and local governments are not amenable to actions in tort except in cases in which they have consented to be sued. The federal government under the Federal Tort Claims Act has waived its immunity in certain cases "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S. C.A. $5 1346(b), 2674. Most states have also waived governmental immunity to various degrees at both the state and municipal government levels. See Federal Tort Claims Act.

[Black's Law Dictionary, Fifth Edition, p. 626]

Glidden Co. v. Zdanok, 370 U.S. 530, 82 S.Ct. 1459 (U.S.App.D.C. 1962)

Hamilton's view, quoted in the Williams case, 289 U.S., at 576, 53 S.Ct. at 758, are not to the contrary. To be sure, Hamilton argued that ‘the contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretension to a compulsive force. They confer no right of action independent of the sovereign will.’ The Federalist, No. 81 (Wright ed. 1961), at 511. But that is because there was no surrender of sovereign immunity in the plan of the convention;FN32 so *564 that, for suits against the United States, it remained**1480 ‘inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent.’ Ibid. (Emphasis in original.) In this sense, and only in this sense, is Article III's extension of judicial competence over controversies to which the United States is a party ineffective to confer jurisdiction over suits to which it is a defendant. For ‘behind the words of the constitutional provisions are postulates which limit and control.’ Principality of Monaco v. Mississippi, 292 U.S. 313, 322, 54 S.Ct. 745, 748, 78 L.Ed. 1282. But once the consent is given, the postulate is satisfied, and there remains no barrier to justiciability. Cf. Cohens v. Virginia, 6 Wheat. 264, 383-385, 5 L.Ed. 257.

FN32. As there was, for example, in suits between States and by the United States against a State. Rhode Island v. Massachusetts, 12 Pet. 657, 720, 9 L.Ed. 1233; United States v. Texas, 143 U.S. 621, 639-646, 12 S.Ct. 488, 491-493, 36 L.Ed. 285.

[Glidden Co. v. Zdanok, 370 U.S. 530, 82 S.Ct. 1459 (U.S.App.D.C. 1962)]

28 U.S.C. Chapter 97: Jurisdictional Immunities of Foreign States

Foreign Sovereign Immunities Act-Department of State

PDF  Report on the Foreign Sovereign Immunities Act -by American Bar Association (ABA).

PDF  Dept. of Justice, Office of Legal Counsel, Opinion on Sovereign Immunity of Navy in Relation to EEOC

PDF Mr. Chisholm and the Eleventh Amendment-Supreme Court Historical Society

Federal Tort Claims Act, 28 U.S.C. 2671-2680-waives sovereign immunity in the case of acts or omissions of government employees

26 U.S.C. 7426(a)(1)-sovereign immunity waived by federal government in the case of wrongful levy

28 U.S.C. 1491: Tucker Act-sovereign immunity waived in the case of any express or implied contract with the United States.  See United States v. Mitchell, 463 U.S. 206 (1983)

28 U.S.C. 1367-United States as defendant

Internal Revenue Manual (IRM), Section 5.17.5: Suits Against the United States

28 U.S.C. 2680-exceptions to the waiver of sovereign immunity under the Federal Tort Claims Act, 28 U.S.C. 2671-2680

  • 28 U.S.C. 2680(c )-tax assessment exempted from waiver of sovereign immunity
  • 28 U.S.C. 2680(k )-offenses in a foreign country excepted from waiver of sovereign immunity

Alien Tort Statute (ATS), 18 U.S.C. 1350-first appeared in Section 9 of the Judiciary Act of 1789.  Provides that "the district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States."

Headquarters doctrine-supersedes 28 U.S.C. 2680(k) exception to waiver of sovereign immunity for decisions and actions in the United States that cause injuries elsewhere.  See:

  • Sosa v. Alvarez-Machain, 542 U.S. 692 (2004)
  • Sami v. United States, 617 F.2d 755, 761 (CADC 1979)
  • Cominotto v. United States, 802 F.2d 1127, 1130 (CA9 1986)

Immunity and the Foreign Sovereign-important details on the application of the Foreign Sovereign Immunities Act of 1976

18 U.S.C. 1116(b)-defines "foreign official" and "foreign government"

TITLE 18 > PART I > CHAPTER 51 > 1116

1116. Murder or manslaughter of foreign officials, official guests, or internationally protected persons

(a) Whoever kills or attempts to kill a foreign official, official guest, or internationally protected person shall be punished as provided under sections 1111, 1112, and 1113 of this title.

(b) For the purposes of this section:

[. . .]

(3) “Foreign official” means—

(A) a Chief of State or the political equivalent, President, Vice President, Prime Minister, Ambassador, Foreign Minister, or other officer of Cabinet rank or above of a foreign government or the chief executive officer of an international organization, or any person who has previously served in such capacity, and any member of his family, while in the United States; and

(B) any person of a foreign nationality who is duly notified to the United States as an officer or employee of a foreign government or international organization, and who is in the United States on official business, and any member of his family whose presence in the United States is in connection with the presence of such officer or employee.

Clinton v. Jones, No. 95-1853 (1997)

[Footnote 24]For that reason, the argument does not place any reliance on the English ancestry that informs our common law jurisprudence; he does not claim the prerogatives of the monarchs who asserted that "[t]he King can do no wrong." See 1 W. Blackstone, Commentaries *246. Although we have adopted the related doctrine of sovereign immunity, the common law fiction that "[t]he king . . . is not only incapable of doing wrong, but even of thinking wrong," ibid., was rejected at the birth of the Republic. See, e.g., Nevada v. Hall, 440 U.S. 410, 415 , and nn. 7-8 (1970); Langford v. United States, 101 U.S. 341, 342 -343 (1880).

[Clinton v. Jones, No. 95-1853 (1997)]

Ellis v. United States, 206 U.S. 246, 27 S.Ct. 600 (1907)

"When a state enters into business relations, and makes contracts with private persons, it waives its sovereignty, and is to be treated as a private person, and subjected to the principles of law applicable as between individuals, save only in respect to its immunity from suit." 

[Ellis v. United States, 206 U.S. 246; 27 S.Ct. 600 (1907)]

Alden v. Maine, 527 U.S. 706 (1999)

Petitioners contend that immunity from suit in federal court suffices to preserve the dignity of the States. Private suits against nonconsenting States, however, present "the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties," In re Ayers, supra, at 505; accord, Seminole Tribe, 517 U. S., at 58 , regardless of the forum. Not only must a State defend or default but also it must face the prospect of being thrust, by federal fiat and against its will, into the disfavored status of a debtor, subject to the power of private citizens to levy on its treasury or perhaps even government buildings or property which the State administers on the public's behalf.

     In some ways, of course, a congressional power to authorize private suits against nonconsenting States in their own courts would be even more offensive to state sovereignty than a power to authorize the suits in a federal forum. Although the immunity of one sovereign in the courts of another has often depended in part on comity or agreement, the immunity of a sovereign in its own courts has always been understood to be within the sole control of the sovereign itself. See generally Hall, 440 U. S., at 414 -418. A power to press a State's own courts into federal service to coerce the other branches of the State, furthermore, is the power first to turn the State against itself and ultimately to commandeer the entire political machinery of the State against its will and at the behest of individuals. Cf.  Coeur d'Alene Tribe, supra, at 276. Such plenary federal control of state governmental processes denigrates the separate sovereignty of the States.

     It is unquestioned that the Federal Government retains its own immunity from suit not only in state tribunals but also in its own courts. In light of our constitutional system recognizing the essential sovereignty of the States, we are reluctant to conclude that the States are not entitled to a reciprocal privilege.

     Underlying constitutional form are considerations of great substance. Private suits against nonconsenting States--especially suits for money damages--may threaten the financial integrity of the States. It is indisputable that, at the time of the founding, many of the States could have been forced into insolvency but for their immunity from private suits for money damages. Even today, an unlimited congressional power to authorize suits in state court to levy upon the treasuries of the States for compensatory damages, attorney's fees, and even punitive damages could create staggering burdens, giving Congress a power and a leverage over the States that is not contemplated by our constitutional design. The potential national power would pose a severe and notorious danger to the States and their resources.

     A congressional power to strip the States of their immunity from private suits in their own courts would pose more subtle risks as well. "The principle of immunity from litigation assures the states and the nation from unanticipated intervention in the processes of government." Great Northern Life Ins. Co. v. Read, 322 U. S., at 53 . When the States' immunity from private suits is disregarded, "the course of their public policy and the administration of their public affairs" may become "subject to and controlled by the mandates of judicial tribunals without their consent, and in favor of individual interests." In re Ayers, supra, at 505. While the States have relinquished their immunity from suit in some special contexts--at least as a practical matter--see Part III, infra, this surrender carries with it substantial costs to the autonomy, the decisionmaking ability, and the sovereign capacity of the States.

 A general federal power to authorize private suits for money damages would place unwarranted strain on the States' ability to govern in accordance with the will of their citizens. Today, as at the time of the founding, the allocation of scarce resources among competing needs and interests lies at the heart of the political process. While the judgment creditor of the State may have a legitimate claim for compensation, other important needs and worthwhile ends compete for access to the public fisc. Since all cannot be satisfied in full, it is inevitable that difficult decisions involving the most sensitive and political of judgments must be made. If the principle of representative government is to be preserved to the States, the balance between competing interests must be reached after deliberation by the political process established by the citizens of the State, not by judicial decree mandated by the Federal Government and invoked by the private citizen. "It needs no argument to show that the political power cannot be thus ousted of its jurisdiction and the judiciary set in its place." Louisiana v. Jumel, 107 U. S. 711, 727-728 (1883).

[Alden v. Maine, 527 U.S. 706 (1999)]

College Savings Bank v. Florida Prepaid Postsecondary Education Expense, 527 U.S. 666 (1999)

When a State engages in ordinary commercial ventures, it acts like a private person, outside the area of its "core" responsibilities, and in a way unlikely to prove essential to the fulfillment of a basic governmental obligation. A Congress that decides to regulate those state commercial activities rather than to exempt the State likely believes that an exemption, by treating the State differently from identically situated private persons, would threaten the objectives of a federal regulatory program aimed primarily at private conduct. Compare, e.g. , 12 U. S. C. 1841(b) (1994 ed., Supp. III) (exempting state companies from regulations covering federal bank holding companies); 15 U. S. C. 77c(a)(2) (exempting state-issued securities from federal securities laws); and 29 U. S. C 652(5) (exempting States from the definition of "employer[s]" subject to federal occupational safety and health laws), with 11 U. S. C. 106(a) (subjecting States to federal bankruptcy court judgments); 15 U. S. C. 1122(a) (subjecting States to suit for violation of Lanham Act); 17 U. S. C. 511(a) (subjecting States to suit for copyright infringement); 35 U. S. C. 271(h) (subjecting States to suit for patent infringement). And a Congress that includes the State not only within its substantive regulatory rules but also (expressly) within a related system of private remedies likely believes that a remedial exemption would similarly threaten that program. See Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, ante , at ___ ( Stevens , J., dissenting). It thereby avoids an enforcement gap which, when allied with the pressures of a competitive marketplace, could place the State's regulated private competitors at a significant disadvantage.

     These considerations make Congress' need to possess the power to condition entry into the market upon a waiver of sovereign immunity (as "necessary and proper" to the exercise of its commerce power) unusually strong, for to deny Congress that power would deny Congress the power effectively to regulate private conduct. Cf. California v. Taylor , 353 U. S. 553, 566 (1957). At the same time they make a State's need to exercise sovereign immunity unusually weak, for the State is unlikely to have to supply what private firms already supply, nor may it fairly demand special treatment, even to protect the public purse, when it does so. Neither can one easily imagine what the Constitution's founders would have thought about the assertion of sovereign immunity in this special context. These considerations, differing in kind or degree from those that would support a general congressional "abrogation" power, indicate that Parden 's holding is sound, irrespective of this Court's decisions in Seminole Tribe of Fla. v. Florida, 517 U. S. 44 (1996), and Alden v. Maine, ante , p. ___.

[College Savings Bank v. Florida Prepaid Postsecondary Education Expense, 527 U.S. 666 (1999)]

Massachusetts v. United States, 435 U.S. 444 (1978)

That the existence of the States implies some restriction on the national taxing power was first decided in Collector v. Day, 11 wall. 113 (1871). There this Court held that the immunity that federal instrumentalities and employees then enjoyed from state taxation, see Dobbins v. Commissioners, 16 Pet. 435 (1842); McCulloch v. Maryland, 4 Wheat. 316 (1819), was to some extent reciprocal and that the salaries paid state judges were immune from a nondiscriminatory federal tax. This immunity of State and Federal Governments [435 U.S. 444, 455]   from taxation by each other was expanded in decisions over the last third of the 19th century and the first third of this century, see, e. g., Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U.S. 218 (1928); Indian Motorcycle Co. v. United States, 283 U.S. 570 (1931) (sales from a private person to one sovereign may not be taxed by the other), but more recent decisions of this Court have confined the scope of the doctrine.

The immunity of the Federal Government from state taxation is bottomed on the Supremacy Clause, but the States' immunity from federal taxes was judicially implied from the States' role in the constitutional scheme. Collector v. Day, supra, emphasized that the States had been in existence as independent sovereigns when the Constitution was adopted, and that the Constitution presupposes and guarantees the continued existence of the States as governmental bodies performing traditional sovereign functions. 11 Wall., at 125-126. To implement this aspect of the constitutional plan, Collector v. Day concluded that it was imperative absolutely to prohibit any federal taxation that directly affected a traditional state function, quoting Mr. Chief Justice Marshall's aphorisms that "`the power of taxing . . . may be exercised so far as to destroy,'" id., at 123, quoting McCulloch v. Maryland, supra, at 427, and "`a right [to tax], in its nature, acknowledges no limits.'" 11 Wall., at 123, quoting Weston v. Charleston, 2 Pet. 449, 466 (1829). The Court has more recently remarked that these maxims refer primarily to two attributes of the taxing power. First, in imposing a tax to support the services a government provides to the public at large, a legislature need not consider the value of particular benefits to a taxpayer, but may assess the tax solely on the basis of taxpayers' ability to pay. Second (of perhaps greater concern in the present context), a tax is a powerful regulatory device; a legislature can discourage or eliminate a particular activity that is within its regulatory jurisdiction simply by imposing [435 U.S. 444, 456]   a heavy tax on its exercise. See National Cable Television Assn. v. United States, 415 U.S. 336, 340 -341 (1974). Collector v. Day, like the earlier McCulloch v. Maryland, reflected the view that the awesomeness of the taxing power required a flat and absolute prohibition against a tax implicating an essential state function because the ability of the federal courts to determine whether particular revenue measures would or would not destroy such an essential function was to be doubted.

As the contours of the principle evolved in later decisions, "cogent reasons" were recognized for narrowly limiting the immunity of the States from federal imposts. See Helvering v. Gerhardt, 304 U.S. 405, 416 (1938). The first is that any immunity for the protection of state sovereignty is at the expense of the sovereign power of the National Government to tax. Therefore, when the scope of the States' constitutional immunity is enlarged beyond that necessary to protect the continued ability of the States to deliver traditional governmental services, the burden of the immunity is thrown upon the National Government without any corresponding promotion of the constitutionally protected values. See, id., at 416-417; Helvering v. Mountain Producers Corp., 303 U.S. 376, 384 -385 (1938); Willcuts v. Bunn, 282 U.S. 216, 225 (1931). The second, also recognized by Mr. Chief Justice Marshall in McCulloch v. Maryland, supra, at 435-436, is that the political process is uniquely adapted to accommodating the competing demands "for national revenue, on the one hand, and for reasonable scope for the independence of state action, on the other," Helvering v. Gerhardt, supra, at 416: The Congress, composed as it is of members chosen by state constituencies, constitutes an inherent check against the possibility of abusive taxing of the States by the National Government. 13   [435 U.S. 444, 457]  

In tacit, and at times explicit, recognition of these considerations, decisions of the Court either have declined to enlarge the scope of state immunity or have in fact restricted its reach. Typical of this trend are decisions holding that the National Government may tax revenue-generating activities of the States that are of the same nature as those traditionally engaged in by private persons. See, e. g., New York v. United States, 326 U.S. 572 (1946) (tax on water bottled and sold by State upheld); Allen v. Regents, 304 U.S. 439 (1938) (tax on admissions to state athletic events approved notwithstanding use of proceeds for essential state functions); Helvering v. Powers, 293 U.S. 214 (1934) (tax on operations of railroad by State); Ohio v. Helvering, 292 U.S. 360 (1934) (tax on state liquor operation); South Carolina v. United States, 199 U.S. 437 (1905) (tax on state-run liquor business). It is true that some of the opinions speak of the state activity taxed as "proprietary" and thus not an immune essential governmental activity, but the opinions of the Members of the Court in New York v. United States, supra, the most recent decision, rejected the governmental-proprietary distinction as untenable. 14 Rather the majority 15 reasoned that a nondiscriminatory tax [435 U.S. 444, 458]   may be applied to a state business activity where, as was the case there, the recognition of immunity would "accomplish a withdrawal from the taxing power of the nation a subject of taxation of a nature which has been traditionally within that power from the beginning. Its exercise . . . by a nondiscriminatory tax, does not curtail the business of the state government more than it does the like business of the citizen." 326 U.S., at 588 -589 (Stone, C. J., concurring).

Illustrative of decisions actually restricting the scope of the immunity is the line of cases that culminated in the overruling of Collector v. Day in Graves v. New York ex rel. O'Keefe, 306 U.S. 466 (1939). See, e. g., Helvering v. Gerhardt, supra; Helvering v. Mountain Producers Corp., supra; Metcalf & Eddy v. Mitchell, 269 U.S. 514 (1926). Collector v. Day, of course, involved a nondiscriminatory tax that was imposed not directly on the State but rather on the salary earned by a judicial officer. Neither Collector v. Day itself nor its progeny or precursors made clear how such a taxing measure could be employed to preclude the States from performing essential functions. In any case, in the line of decisions that culminated in Graves v. New York ex rel. O'Keefe, supra, the Court demonstrated that an immunity for the salaries paid key state officials is not justifiable. Although key state officials are agents of the State, they are also citizens of the United States, so their income is a natural subject for income taxation. See Helvering v. Gerhardt, supra, at 420 and 422.

More significantly, because the taxes imposed were nondiscriminatory and thus also applicable to income earned by persons in private employment, the risk was virtually nonexistent that such revenue provisions could significantly impede a State's ability to hire able persons to perform its essential [435 U.S. 444, 459]   functions. See Graves v. New York ex rel. O'Keefe, supra, at 484-485; Helvering v. Gerhardt, supra, at 420-421. The only advantage conceivably to be lost by denying the States such an immunity is that essential state functions might be obtained at a lesser cost because employees exempt from taxation might be willing to work for smaller salaries. See 304 U.S., at 420 -421. But that was regarded as an inadequate ground for sustaining the immunity and preventing the National Government from requiring these citizens to support its activities. See Graves v. New York ex rel. O'Keefe, supra, at 483 and cases cited in n. 3. The purpose of the implied constitutional restriction on the national taxing power is not to give an advantage to the States by enabling them to engage employees at a lower charge than those paid by private entities, see Helvering v. Gerhardt, supra, at 421-422, but rather is solely to protect the States from undue interference with their traditional governmental functions. While a tax on the salary paid key state officers may increase the cost of government, it will no more preclude the States from performing traditional functions than it will prevent private entities from performing their missions. See Graves v. New York ex rel. O'Keefe, supra, at 484-485; Helvering v. Gerhardt, supra, at 420-421.

These two lines of decisions illustrate the "practical construction" that the Court now gives the limitation the existence of the States constitutionally imposes on the national taxing power; "that limitation cannot be so varied or extended as seriously to impair either the taxing power of the government imposing the tax . . . or the appropriate exercise of the functions of the government affected by it." New York v. United States, 326 U.S., at 589 -590 (Stone, C. J., concurring) quoting Metcalf & Eddy v. Mitchell, supra, at 523-524. Where the subject of tax is a natural and traditional source of federal revenue and where it is inconceivable that such a revenue measure could ever operate to preclude traditional [435 U.S. 444, 460]   state activities, the tax is valid. While the Court has by no means abandoned its doubts concerning its ability to make particularized assessments of the impact of revenue measures on essential state operations, compare New York v. United States, supra, at 581 (opinion of Frankfurter, J.) 16 with 326 U.S., at 590 (Stone, C. J., concurring), 17 it has recognized that some generic types of revenue measures could never seriously threaten the continued functioning of the States and hence are outside the scope of the implied tax immunity.


A nondiscriminatory taxing measure that operates to defray the cost of a federal program by recovering a fair approximation of each beneficiary's share of the cost is surely no more offensive to the constitutional scheme than is either a tax on the income earned by state employees or a tax on a State's sale of bottled water. 18 The National Government's interest in being compensated for its expenditures is only too apparent. More significantly perhaps, such revenue measures by their very nature cannot possess the attributes that led Mr. Chief Justice Marshall to proclaim that the power to tax is the power [435 U.S. 444, 461]   to destroy. There is no danger that such measures will not be based on benefits conferred or that they will function as regulatory devices unduly burdening essential state activities. It is, of course, the case that a revenue provision that forces a State to pay its own way when performing an essential function will increase the cost of the state activity. But Graves v. New York ex rel. O'Keefe, and its precursors, see 306 U.S., at 483 and the cases cited in n. 3, teach that an economic burden on traditional state functions without more is not a sufficient basis for sustaining a claim of immunity. Indeed, since the Constitution explicitly requires States to bear similar economic burdens when engaged in essential operations, see U.S. Const., Amdts. 5, 14; Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) (State must pay just compensation when it "takes" private property for a public purpose); U.S. Const., Art. I, 10, cl. 1; United States Trust Co. v. New Jersey, 431 U.S. 1 (1977) (even when burdensome, a State often must comply with the obligations of its contracts), it cannot be seriously contended that federal exactions from the States of their fair share of the cost of specific benefits they receive from federal programs offend the constitutional scheme.

Our decisions in analogous context support this conclusion. We have repeatedly held that the Federal Government may impose appropriate conditions on the use of federal property or privileges and may require that state instrumentalities comply with conditions that are reasonably related to the federal interest in particular national projects or programs. See, e. g., Ivanhoe Irrigation Dist. v. McCracken, 357 U.S. 275, 294 -296 (1958); Oklahoma v. Civil Service Comm'n, 330 U.S. 127, 142 -144 (1947); United States v. San Francisco, 310 U.S. 16 (1940); cf. National League of Cities v. Usery, 426 U.S. 833, 853 (1976); Fry v. United States, 421 U.S. 542 (1975). A requirement that States, like all other users, pay a portion of the costs of the benefits they enjoy from federal programs is surely permissible since it is closely related to the [435 U.S. 444, 462]   federal interest in recovering costs from those who benefit and since it effects no greater interference with state sovereignty than do the restrictions which this Court has approved.

A clearly analogous line of decisions is that interpreting provisions in the Constitution that also place limitations on the taxing power of government. See, e. g., U.S. Const., Art. I, 8, cl. 3 (restricting power of States to tax interstate commerce); 10, cl. 3 (prohibiting any state tax that operates "to impose a charge for the privilege of entering, trading in, or lying in a port." Clyde Mallory Lines v. Alabama ex rel. State Docks Comm'n, 296 U.S. 261, 265 -266 (1935)). These restrictions, like the implied state tax immunity, exist to protect constitutionally valued activity from the undue and perhaps destructive interference that could result from certain taxing measures. The restriction implicit in the Commerce Clause is designed to prohibit States from burdening the free flow of commerce, see generally Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977), whereas the prohibition against duties on the privilege of entering ports is intended specifically to guard against local hindrances to trade and commerce by vessels. See Packet Co. v. Keokuk, 95 U.S. 80, 85 (1877).

Our decisions implementing these constitutional provisions have consistently recognized that the interests protected by these Clauses are not offended by revenue measures that operate only to compensate a government for benefits supplied. See, e. g., Clyde Mallory Lines v. Alabama, supra (flat fee charged each vessel entering port upheld because charge operated to defray cost of harbor policing); Evansville-Vanderburgh Airport Authority v. Delta Airlines, Inc., 405 U.S. 707 (1972) ($1 head tax on explaining commercial air passengers upheld under the Commerce Clause because designed to recoup cost of airport facilities). A governmental body has an obvious interest in making those who specifically benefit from its services pay the cost and, provided that the charge is structured to compensate the government for the benefit conferred, there can be no danger of the kind of interference [435 U.S. 444, 463]   with constitutionally valued activity that the Clauses were designed to prohibit.


Having established that taxes that operate as user fees may constitutionally be applied to the States, we turn to consider the Commonwealth's argument that 4491 should not be treated as a user fee because the amount of the tax is a flat annual fee and hence is not directly related to the degree of use of the airways. 19 This argument has been confronted and rejected in analogous contexts. Capitol Greyhound Lines v. Brice, 339 U.S. 542 (1950), is illustrative. There the Court rejected an attack under the Commerce Clause on an annual Maryland highway tax of "2% upon the fair market value of motor vehicles used in interstate commerce." The carrier argued that the correlation between the tax and use was not sufficiently precise to sustain the tax as a valid user charge. Noting that the tax "should be judged by its result, not its formula, and must stand unless proven to be unreasonable in amount for the privilege granted," id., at 545, the Court rejected the carrier's argument:

"Complete fairness would require that a state tax formula vary with every factor affecting appropriate compensation for road use. These factors, like those relevant in considering the constitutionality of other state taxes, are so countless that we must be content with `rough approximation rather than precision.' . . . Each additional factor adds to administrative burdens of [435 U.S. 444, 464]   enforcement, which fall alike on taxpayers and government. We have recognized that such burdens may be sufficient to justify states in ignoring even such a key factor as mileage, although the result may be a tax which on its face appears to bear with unequal weight upon different carriers. . . . Upon this type of reasoning rests our general rule that taxes like that of Maryland here are valid unless the amount is shown to be in excess of fair compensation for the privilege of using state roads." Id., at 546-547. (Citations and footnotes omitted.)

See also Aero Mayflower Transit Co. v. Board of Railroad Comm'rs, 332 U.S. 495 (1947) (taxes of $10 and $15 per vehicle sustained against Commerce Clause challenges); Clyde Mallory Lines v. Alabama ex rel. State Docks Comm'n, supra (flat fee designed to defray cost of policing port upheld against claim it was constitutionally prohibited tax on privilege of entering harbor). This Court recently relied upon this reasoning to uphold a tax on commercial aviation activity. In Evansville-Vanderburgh Airport Authority v. Delta Airlines, Inc., supra, we sustained against claims based on the Commerce Clause and on the right to travel a $1 head tax on commercial airline passengers. We held that such taxes are valid so long as they (1) do not discriminate against interstate commerce, (2) are based upon some fair approximation of use, and (3) are not shown to be excessive in relation to the cost to the government of the benefits conferred. 405 U.S., at 716 -720.

The Commonwealth, of course, recognizes that flat fees, and even flat annual fees, have been held constitutionally permissible in these contexts. It urges, however, that such "rough approximations of cost," while appropriate compensatory measures in other settings, should not be permissible here. It maintains that the values protected by the doctrine of state tax immunity require that any user tax be closely calibrated [435 U.S. 444, 465]   to the amount of any taxpayer's actual use, and it suggests that we - for purposes of the state tax immunity doctrine only - define user fees as charges for measurable amounts of use of government facilities.

We note first that it is doubtful that the National Government could recover the costs of its aviation activities from those direct beneficiaries without making at least some use of annual flat fees. In arguing that the Revenue Act provisions are not sufficiently user related, the Commonwealth places extensive reliance upon the DOT Study, prepared at the direction of Congress, 20 of the best way to recoup the costs of the federal aviation activities from its beneficiaries. While the report recognized that it would be generally possible, albeit costly in the case of general aviation, to tie the charges to specific measurable benefits received, see DOT Study 61, it indicated that certain costs imposed by general aviation could only be recovered through flat fees. Id., at 61 n. 2.

But even if it were feasible to recover all costs through charges for measurable amounts of use of Government facilities, we fail to see how such a requirement would appreciably advance the policies embodied in the doctrine of state tax immunity. Since a State has no constitutional complaint when it is required to pay the cost of benefits received, the Commonwealth's only legitimate fear is that the flat-fee requirement may result in the collection from it of more than its actual "fair share." We observe first that where the [435 U.S. 444, 466]   charges imposed by the Federal Government apply to large numbers of private parties as well as to state activities, it is as likely as not that the user fee will result in exacting less money from the State than it would have to pay under a perfect user-fee system. More fundamentally, even when an annual flat fee results in some overcharges, the Common-wealth's solution would often increase the fiscal burden on the States. If the National Government were required more precisely to calibrate the amount of the fee to the extent of the actual use of the airways, administrative costs would increase and so would the amount of revenue needed to operate the system. The resulting increment in a State's actual fair share might well be greater than any overcharge resulting from the present fee system. But the complete answer to the Commonwealth's concern is that even if the flat fee does cost it somewhat more than it would have to pay under a perfect user-fee system, there is still no interference with the values protected by the implied constitutional tax immunity of the States. The possibility of a slight overcharge is no more offensive to the constitutional structure than is the increase in the cost of essential operations that results either from the fact that those who deal with the State may be required to pay nondiscriminatory taxes on the money they receive or from the fact a jury may award an eminent domain claimant an amount in excess of what would be "just compensation" in an ideal system of justice.

Whatever the present scope of the principle of state tax immunity, a State can have no constitutional objection to a revenue measure that satisfies the three-prong test of Evansville-Vanderburgh Airport Authority v. Delta Airlines, Inc. - substituting "state function" for "interstate commerce" in that test. So long as the charges do not discriminate against state functions, are based on a fair approximation of use of the system, and are structured to produce revenues that will not exceed the total cost to the Federal Government of the benefits [435 U.S. 444, 467]   to be supplied, there can be no substantial basis for a claim that the National Government will be using its taxing powers to control, unduly interfere with, or destroy a State's ability to perform essential services. The requirement that total revenues not exceed expenditures places a natural ceiling on the total amount that such charges may generate and the further requirement that the measure be reasonable and nondiscriminatory precludes the adoption of a charge that will unduly burden state activities. 21  

[Massachusetts v. United States, 435 U.S. 444 (1978)]

U.S. v. Lee, 106 U.S. 196 (1882)

The exemption of the United States from being impleaded without their consent is, as has often been affirmed by this court, as absolute as that of the crown of England or any other sovereign. In Cohens v. Virginia, 6 Wheat. 264, 411, Chief Justice MARSHALL said: 'The universally-received opinion is that [106 U.S. 196, 227]   no suit can be commenced or prosecuted against the United States.' In Beers v. Arkansas, 20 How. 527, 529, Chief Justice TANEY said: 'It is an established principle of jurisprudence, in all civilized nations, that the sovereign cannot be sued in its own courts, or in any other, without its consent and permission; but it may, if it thinks proper, waive this privilege, and permit itself to be made a defendant in a suit by individuals, or by another state. And as this permission is altogether voluntary on the part of the sovereignty, it follows that it may prescribe the terms and conditions on which it consents to be sued, and the manner in which the suit shall be conducted, and may withdraw its consent whenever it may suppose that justice to the public requires it.' In the same spirit, Mr. Justice DAVIS, delivering the judgment of the court in Nichols v. U. S. 7 Wall. 122, 126, said: 'Every government has an inherent right to protect itself against suits, and if, in the liberality of legislation they are permitted, it is only on such terms and conditions as are prescribed by statute. The principle is fundamental, applies to every sovereign power, and, but for the protection which it affords, the government would be unable to perform the various duties for which it was created.' See, also, U. S. v. Clarke, 8 Pet. 436, 444; Cary v. Curtis, 3 How. 236, 245, 256; U. S. v. McLemore, 4 How. 286, 289; Hill v. U. S. 9 How. 386, 389; Recside v. Walker, 11 How. 272, 290; De Groot v. U. S. 5 Wall. 419, 431; U. S. v. Eckford, 6 Wall. 484, 488; The Siren, 7 Wall. 152, 154; The Davis, 10 Wall. 15, 20; U. S. v. O'Keefe, 11 Wall. 178; Case v. Terrell, 11 Wall. 199, 201; Carr v. U. S. 98 U.S. 433 , 437; U. S. v. Thompson, 98 U.S. 486 , 489; Railroad Co. v. Tennessee, 101 U.S. 337 ; Railroad Co. v. Alabama, 101 U.S. 832 .

[U.S. v. Lee, 106 U.S. 196 (1882)]

Young v. I.R.S., 596 F.Supp. 141 (N.D.Ind. 09/25/1984)

The core of defendants' argument about the inability of plaintiff to sue the IRS is the doctrine of sovereign immunity. It is well settled that the United States is a sovereign and, as such, is immune from suit without its prior consent. United States v. Shaw, 309 U.S. 495, 500-01, 60 S.Ct. 659, 661, 84 L.Ed. 888 (1940); Hutchinson v. United States, 677 F.2d 1322, 1327 (9th Cir. 1982); Akers v. United States, 539 F. Supp. 831, 832 (D.Conn. 1982), aff'd, 718 F.2d 1084 (2d Cir. 1983). Absent consent to sue, dismissal of the action is required. Hutchinson, 677 F.2d at 1327. The United States has waived its immunity with respect to some causes of action in the Federal Tort Claims Act, 28 U.S.C. 1346 and 2671-2680. However, the Act, in 2680(c), specifically excluded "any claim arising in respect of the assessment of collection of any tax or customs duty. . . ." It is therefore clear that the United States has specifically reserved its immunity with respect to claims arising out of tax collection and assessment. Thus, to the extent that any part of plaintiff's complaint can be construed as a claim against the United States, it is barred by the doctrine of sovereign immunity. See Hutchinson; Seibert v. Baptist, 594 F.2d 423 (5th Cir. 1979), cert. denied, 446 U.S. 918, 100 S.Ct. 1851, 64 L.Ed.2d 271 (1980); White v. Commissioner, 537 F. Supp. 679, 684 (D.Colo. 1982).

Plaintiff has attempted to make clear that his claim is not against the United States, but rather against the IRS. That is of little help to plaintiff because courts have found that the actions of the IRS or its agents fall under the Federal Tort Claims Act exception for collection and assessment of taxes. See Morris v. United States, 521 F.2d 872, 874 (9th Cir. 1975); Spilman v. Crebo, 561 F. Supp. 652, 654-55 (D.Mont. 1982). It is therefore clear that the IRS is immune from suit for tax collection or assessment activities.

Plaintiff attempts to circumvent this conclusion by arguing that the IRS is "a private corporation" because it was not created by "any positive law" (i.e., statute of Congress) but rather by fiat of the Secretary of the Treasury. Apparently, this argument is based on the fact that in 1953 the Secretary of the Treasury renamed the Bureau of Internal Revenue as the Internal Revenue Service. However, it is clear that the Secretary of the Treasury has full authority to administer and enforce the Internal Revenue Code, 26 U.S.C. 7801, and has the power to create an agency to administer and enforce the laws. See 26 U.S.C. 7803(a). Pursuant to this legislative grant of authority, the Secretary of the Treasury created the IRS. 26 C.F.R. 601.101. The end result is that the IRS is a creature of "positive law" because it was created through congressionally mandated power. By plaintiff's own "positive law" premise, then, the IRS is a validly created governmental agency and not a "private corporation." It enjoys the sovereign immunity of the United States, and thus is entitled to summary judgment in this cause of action.

[Young v. I.R.S., 596 F.Supp. 141 (N.D.Ind. 09/25/1984)]

United States v. Mississippi, 280 U.S. 128 (1965)

The State argues also that, even if Congress has authorized making the State a defendant here, as we hold it has, Congress had no constitutional power to do so. The Fifteenth Amendment, in plain, unambiguous language, provides that no "State" shall deny or abridge the right of citizens to vote because of their color. In authorizing the United States to make a State a defendant in a suit under 1971, Congress was acting under its power, given in 2 of the Fifteenth Amendment, to enforce that Amendment by appropriate legislation. The State's argument that Congress acted here beyond its constitutional power is based on a number of cases that have allowed private individuals to enjoin state officials from denying constitutional rights, while recognizing that, without its consent, a State could not be sued by private persons in such circumstances, because of the immunity given the State in the Eleventh Amendment. See, e.g., Ex parte Young, 209 U.S. 123. But none of these cases decided or even suggested that Congress could not authorize the United States to institute legal proceedings against States to protect constitutional rights of citizens. The Eleventh Amendment in terms forbids suits against States only when "commenced or prosecuted . . . by Citizens of another State, or by Citizens or Subjects of any Foreign State." While this has been read to bar a suit by a State's own citizen as well, Hans v. Louisiana, 134 U.S. 1, nothing in this or any other provision of the Constitution prevents or has ever been seriously supposed to prevent a State's being sued by the United States. The United States in the past has in many cases been allowed to file suits in this and other courts against States, see, e.g., United States v. Texas, 143 U.S. 621; United States v. California, 297 U.S. 175, with or without specific authorization from Congress, see United States v. California, 332 U.S. 19, 26-28. See also Parden v. Terminal R. Co., 377 U.S. 184. In light of this history, it seems rather surprising [380 U.S. 141] that the District Court entertained seriously the argument that the United States could not constitutionally sue a State. The reading of the Constitution urged by Mississippi is not supported by precedent, is not required by any language of the Constitution, and would, without justification in reason, diminish the power of courts to protect the people of this country against deprivation and destruction by States of their federally guaranteed rights. We hold that the State was properly made a defendant in this case.

[United States v. Mississippi, 280 U.S. 128 (1965)]

Great Northern Ins. Co. v. Read, 322 U.S. 47, 51 (1944)

A state's freedom from litigation was established as a constitutional right through the Eleventh Amendment. The inherent nature of sovereignty prevents actions against a state by its own citizens without its consent. [491 U.S. 39] In Atascadero, 473 U.S. at 242, we identified this principle as an essential element of the constitutional checks and balances:

The "constitutionally mandated balance of power" between the States and the Federal Government was adopted by the Framers to ensure the protection of "our fundamental liberties." [Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 572 (Powell, J., dissenting)]. By guaranteeing the sovereign immunity of the States against suit in federal court, the Eleventh Amendment serves to maintain this balance.

[Great Northern Ins. Co. v. Read, 322 U.S. 47, 51 (1944)

Library of Congress v. Shaw, 478 U.S. 310 (1986)

In analyzing whether Congress has waived the immunity of the United States, we must construe waivers strictly in favor of the sovereign, see McMahon v. United States, 342 U. S. 25, 27 (1951), and not enlarge the waiver " `beyond what the language requires,' " Ruckelshaus v. Sierra Club, 463 U. S. 680, 685-686 (1983), quoting Eastern Transportation Co. v. United States, 272 U. S. 675, 686 (1927). The no-interest rule provides an added gloss of strictness upon these usual rules.

"[T]here can be no consent by implication or by use of ambiguous language. Nor can an intent on the part of the framers of a statute or contract to permit the recovery of interest suffice where the intent is not translated into affirmative statutory or contractual terms. The consent necessary to waive the traditional immunity must be express, and it must be strictly construed." United States v. N. Y. Rayon Importing Co., 329 U. S., at 659.

[Library of Congress v. Shaw, 478 U.S. 310 (1986)]

Loeffler v. Frank, 486 U.S. 549 (1988)

The question of statutory interpretation here presented, involving the interaction of the Postal Reorganization Act and Title VII, lends itself to straightforward resolution. Absent a waiver of sovereign immunity, the Federal Government is immune from suit. United States v. Sherwood, 312 U. S. 584, 586 (1941). Congress, however, has waived the sovereign immunity of certain federal entities from the times of their inception by including in the enabling legislation provisions that they may sue and be sued. In FHA v. Burr, 309 U. S. 242, 245 (1940), the Court explained:

"[S]uch waivers by Congress of governmental immunity. . . should be liberally construed. . . . Hence, when Congress establishes such an agency, authorizes it to engage in commercial and business transactions with the public, and permits it to `sue and be sued,' it cannot be lightly assumed that restrictions on that authority are to be implied. Rather if the general authority to `sue and be sued' is to be delimited by implied exceptions, it must be clearly shown that certain types of suits are not consistent with the statutory or constitutional scheme, that an implied restriction of the general authority is necessary to avoid grave interference with the performance of a governmental function, or that for other reasons it was plainly the purpose of Congress to use the `sue and be sued' clause in a narrow sense. In the absence of such showing, it must be presumed that when Congress 555*555 launched a governmental agency into the commercial world and endowed it with authority to `sue or be sued,' that agency is not less amenable to judicial process than a private enterprise under like circumstances would be." (Footnote omitted.)

Accord, Franchise Tax Board of California v. USPS, 467 U. S. 512, 517-518 (1984); Reconstruction Finance Corporation v. J. G. Menihan Corp., 312 U. S. 81, 84-85 (1941); see also Keifer & Keifer v. Reconstruction Finance Corporation, 306 U. S. 381 (1939). Encompassed within this liberal-construction rule is the principle "that the words `sue and be sued' normally include the natural and appropriate incidents of legal proceedings." J. G. Menihan Corp., 312 U. S., at 85.

In accord with this approach, this Court has recognized that authorization of suits against federal entities engaged in commercial activities may amount to a waiver of sovereign immunity from awards of interest when such awards are an incident of suit. For example, in Standard Oil Co. v. United States, 267 U. S. 76 (1925), the Court reviewed a suit brought under 5 of the Act of September 2, 1914, ch. 293, 38 Stat. 711, on insurance claims issued by the Bureau of War Risk Insurance. The Court concluded: "When the United States went into the insurance business, issued policies in familiar form and provided that in case of disagreement it might be sued, it must be assumed to have accepted the ordinary incidents of suits in such business." 267 U. S., at 79. Accordingly, interest was allowed. Ibid. See also National Home for Disabled Volunteer Soldiers v. Parrish, 229 U. S. 494 (1913) (interest allowed against eleemosynary agency that Congress had authorized "to sue and be sued"). Cf. Library of Congress v. Shaw, 478 U. S., at 317, n. 5.

When Congress created the Postal Service in 1970, it empowered the Service "to sue and be sued in its official name." 556*556 39 U. S. C. 401(1). This sue-and-be-sued clause was a part of Congress' general design that the Postal Service "be run more like a business than had its predecessor, the Post Office Department." Franchise Tax Board of California v. USPS, 467 U. S., at 520. In Franchise Tax Board, this Court examined, in the context of an order issued by a state administrative agency, the extent to which Congress had waived the sovereign immunity of the Postal Service. After noting that "Congress has `launched [the Postal Service] into the commercial world,' " ibid., the Court held that the sue-and-be-sued clause must be liberally construed and that the Postal Service's liability must be presumed to be the same as that of any other business. Because the order to the Postal Service to withhold employees' wages had precisely the same effect on the Service's ability to operate efficiently as did such orders on other employers subject to the state statute that had been invoked, and because the burden of complying with the order would not impair the Service's ability to perform its functions, the Court concluded that there was no basis for overcoming the presumption that immunity from the state order had been waived. See id., at 520, and n. 14.

Our unanimous view of the Postal Service expressed in Franchise Tax Board is controlling here. By launching "the Postal Service into the commercial world," and including a sue-and-be-sued clause in its charter, Congress has cast off the Service's "cloak of sovereignty" and given it the "status of a private commercial enterprise." Shaw, 478 U. S., at 317, n. 5. It follows that Congress is presumed to have waived any otherwise existing immunity of the Postal Service from interest awards.

None of the exceptions to the liberal-construction rule that guides our interpretation of the waiver of the Postal Service's immunity operates to overcome this presumption. Subjecting the Service to interest awards would not be inconsistent 557*557 with the Postal Reorganization Act, 39 U. S. C. 101 et seq., the statutory scheme that created the Postal Service, nor would it pose a threat of "grave interference" with the Service's operation. FHA v. Burr, 309 U. S., at 245. Finally, we find nothing in the statute or its legislative history to suggest that "it was plainly the purpose of Congress to use the `sue and be sued' clause in a narrow sense," ibid., with regard to interest awards. To the contrary, since Congress expressly included several narrow and specific limitations on the operation of the sue-and-be-sued clause, see 39 U. S. C. 409,[4] none of which is applicable here, the natural inference is that it did not intend other limitations to be implied.

Accordingly, we conclude that, at the Postal Service's inception, Congress waived its immunity from interest awards, authorizing recovery of interest from the Postal Service to the extent that interest is recoverable against a private party as a normal incident of suit.

[Loeffler v. Frank, 486 U.S. 549 (1988)]


Melo v. United States, 505 F.2d 1026 (8th Cir. 11/07/1974)

"It is settled that the United States, as sovereign, is immune from suit unless it has consented to be sued. United States v. Sherwood, 312 U.S. 584, 586, 61 S. Ct. 767, 85 L. Ed. 1058 (1941); Iowa Public Service Company v. Iowa State Commerce Comm., 407 F.2d 916, 920 (8th Cir.), cert. denied, 396 U.S. 826, 90 S. Ct. 71, 24 L. Ed. 2d 77 (1969); Simons v. Vinson, 394 F.2d 732 (5th Cir.), cert. denied, 393 U.S. 968, 89 S. Ct. 398, 21 L. Ed. 2d 379 (1968). A corollary to the immunity doctrine is the rule that the United States may define the conditions under which actions are permitted against it. Honda v. Clark, 386 U.S. 484, 501, 87 S. Ct. 1188, 18 L. Ed. 2d 244 (1967); Battaglia v. United States, 303 F.2d 683, 685 (2d Cir. 1962); Kuhnert v. United States, 127 F.2d 824 (8th Cir. 1942)."

[Melo v. United States, 505 F.2d 1026 (8th Cir. 11/07/1974)]

Ngiraingas v. Sanchez, 495 U.S. 182 (1990)

We have recognized the concept of sovereign immunity

on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.

Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907). Our understanding of common law sovereign immunity does not protect against liability under the laws of a superior governmental authority. See Owen v. City of Independence, 445 U.S. 622, 647-648 and n. 30 (1980). In addition, while the concept of immunity may afford a sovereign protection from suit "in its own courts without its consent, . . . it affords no support for a claim of immunity in another sovereign's courts." Nevada v. Hall, 440 U.S. 410, 416 (1979). These principles lead ineluctably to the conclusion that, although a Territory may retain common law sovereign immunity against claims raised in its own courts under its own local laws, see Puerto Rico v. Shell Co. (P.R.), 302 U.S. 253, 262, 264 (1937); Porto Rico v. Rosaly, 227 U.S. 270, 273-274 (1913); Kawananakoa, 205 U.S. at 353-354, a Territory, particularly an unincorporated Territory such as Guam that is not destined for Statehood, see Rosaly, supra, 227 U.S. at 274, can have no immunity against a claim like the one here -- a suit in federal court based on federal law.{11}

The Court in Will reasoned that Congress would not have abrogated state sovereign immunity, exemplified by the Eleventh Amendment, without a clearer statement of its intent to do so; today, the Court finds that a Territory lacking such sovereign immunity, either under the common law or by congressional grace, is not a "person" either. These conclusions are in tension. To the extent that our decision in Will [495 U.S. 206] reasoned that States are not "persons" within the meaning of 1983 because Congress presumably would not have abrogated state sovereign immunity without a clear statement of its intent to do so, the opposite presumption should control this case: because Congress has such plenary legal authority over a territory's affairs, and because a territory can assert no immunity against the laws of Congress (except insofar as Congress itself grants immunity), we ought to presume that Territories are "persons" for purposes of 1983.

I would hold that both Territories and territorial officers acting in their official capacities are "persons" within the meaning of 1983, and that Guam has no sovereign immunity from suits in federal court under federal law. I therefore respectfully dissent.

[Ngiraingas v. Sanchez, 495 U.S. 182 (1990), Brennan, Dissenting]

Parden v. Terminal R. Co., 377 U.S. 184 (1964)

Respondents contend that Congress is without power, in view of the immunity doctrine, thus to subject a State to suit. We disagree. Congress enacted the FELA in the exercise of its constitutional power to regulate [377 U.S. 191] interstate commerce. Second Employers' Liability Cases, 223 U.S. 1. While a State's immunity from suit by a citizen without its consent has been said to be rooted in "the inherent nature of sovereignty," Great Northern Life Ins. Co. v. Read, supra, 322 U.S. 47, 51,{9} the States surrendered a portion of their sovereignty when they granted Congress the power to regulate commerce.

This power, like all others vested in congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the constitution. . . . If, as has always been understood, the sovereignty of congress, though limited to specified objects is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the constitution of the United States.

Gibbons v. Ogden, 9 Wheat. 1, 196-197. Thus, as the Court said in United States v. California, supra, 297 U.S. at 184-185, a State's operation of a railroad in interstate commerce

must be in subordination to the power to regulate interstate commerce, which has been granted specifically to the national government. The sovereign power of the states is necessarily diminished to the extent of the grants of power to the federal government in the Constitution. . . . [T]here is no such limitation upon the plenary power to regulate commerce [as there is upon the federal power to tax [377 U.S. 192] state instrumentalities]. The state can no more deny the power if its exercise has been authorized by Congress than can an individual.

By empowering Congress to regulate commerce, then, the States necessarily surrendered any portion of their sovereignty that would stand in the way of such regulation. Since imposition of the FELA right of action upon interstate railroads is within the congressional regulatory power, it must follow that application of the Act to such a railroad cannot be precluded by sovereign immunity.{10}

Recognition of the congressional power to render a State suable under the FELA does not mean that the immunity doctrine, as embodied in the Eleventh Amendment with respect to citizens of other States and as extended to the State's own citizens by the Hans case, is here being overridden. It remains the law that a State may not be sued by an individual without its consent. Our conclusion is simply that Alabama, when it began operation of an interstate railroad approximately 20 years after enactment of the FELA, necessarily consented to such suit as was authorized by that Act. By adopting and ratifying the Commerce Clause, the States empowered Congress to create such a right of action against interstate railroads; by enacting the FELA in the exercise of this power, Congress conditioned the right to operate a railroad in interstate commerce upon amenability to suit in federal court as provided by the Act; by thereafter operating a railroad in interstate commerce, Alabama must be taken to have accepted that condition and thus to have consented to suit.

[B]y engaging in interstate commerce by rail, [the State] has subjected itself to the commerce power, and is liable for a violation of the . . . Act, as are other [377 U.S. 193] carriers. . . .

United States v. California, supra, 297 U.S. at 185; California v. Taylor, supra, 353 U.S. at 568. We thus agree that

[T]he State is liable upon the theory that, by engaging in interstate commerce by rail, it has subjected itself to the commerce power of the federal government.

* * * *

It would be a strange situation indeed if the state could be held subject to the [Federal Safety Appliance Act] and liable for a violation thereof, and yet could not be sued without its express consent. The state, by engaging in interstate commerce, and thereby subjecting itself to the act, must be held to have waived any right it may have had arising out of the general rule that a sovereign state may not be sued without its consent.

Maurice v. State, supra, 43 Cal.App.2d at 275, 277, 110 P.2d at 710-711. Accord, Higginbotham v. Public Belt R. Comm'n, supra, 192 La. 525, 550-551, 188 So. 395, 403; Mathewes v. Port Utilities Comm'n, supra.{11} [377 U.S. 194]

Respondents deny that Alabama's operation of the railroad constituted consent to suit. They argue that it had no such effect under state law, and that the State did not intend to waive its immunity or know that such a waiver would result. Reliance is placed on the Alabama Constitution of 1901, Art. I, Section 14 of which provides that "the State of Alabama shall never be made a defendant in any court of law or equity"; on state cases holding that neither the legislature nor a state officer has the power to waive the State's immunity;{12} and on cases in this Court to the effect that whether a State has waived its immunity depends upon its intention and is a question of state law [377 U.S. 195] only. Chandler v. Dix, 194 U.S. 590; Palmer v. Ohio, 248 U.S. 32; Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 466 470. We think those cases are inapposite to the present situation, where the waiver is asserted to arise from the State's commission of an act to which Congress, in the exercise of its constitutional power to regulate commerce, has attached the condition of amenability to suit. More pertinent to such a situation is our decision in Petty v. Tennessee-Missouri Bridge Comm'n, supra. That was a suit against a bi-state authority created with the consent of Congress pursuant to the Compact Clause of the Constitution. We assumed arguendo that the suit must be considered as being against the States themselves, but held nevertheless that, by the terms of the compact and of a proviso that Congress had attached in approving it,{13} the States had waived any immunity they might otherwise have had. In reaching this conclusion, we rejected arguments, like the one made here, based on the proposition that neither [377 U.S. 196] of the States, under its own law, would have considered the language in the compact to constitute a waiver of its immunity. The question of waiver was, we held, one of federal law. It is true that this holding was based on the inclusion of the language in an interstate compact sanctioned by Congress under the Constitution. But such compacts do not present the only instance in which the question whether a State has waived its immunity is one of federal law. This must be true whenever the waiver is asserted to arise from an act done by the State within the realm of congressional regulation; for the congressional power to condition such an act upon amenability to suit would be meaningless if the State, on the basis of its own law or intention, could conclusively deny the waiver and shake off the condition. The broad principle of the Petty case is thus applicable here: where a State's consent to suit is alleged to arise from an act not wholly within its own sphere of authority, but within a sphere -- whether it be interstate compacts or interstate commerce -- subject to the constitutional power of the Federal Government, the question whether the State's act constitutes the alleged consent is one of federal law. Here, as in Petty, the States by venturing into the congressional realm "assume the conditions that Congress under the Constitution attached." 359 U.S. at 281-282.

Our conclusion that this suit may be maintained is in accord with the common sense of this Nation's federalism. A State's immunity from suit by an individual without its consent has been fully recognized by the Eleventh Amendment and by subsequent decisions of this Court. But when a State leaves the sphere that is exclusively its own and enters into activities subject to congressional regulation, it subjects itself to that regulation as fully as if it were a private person or corporation. Cf. South Carolina v. United States, 199 U.S. 437, 463; New York v. [377 U.S. 197] United States, 326 U.S. 572. It would surprise our citizens, we think, to learn that petitioners, who in terms of the language and purposes of the FELA are on precisely the same footing as other railroad workers,{14} must be denied the benefit of the Act simply because the railroad for which they work happens to be owned and operated by a State, rather than a private corporation. It would be even more surprising to learn that the FELA does make the Terminal Railway "liable" to petitioners, but, unfortunately, provides no means by which that liability may be enforced. Moreover, such a result would bear the seeds of a substantial impediment to the efficient working of our federalism. States have entered and are entering numerous forms of activity which, if carried on by a private person or corporation, would be subject to federal regulation. See South Carolina v. United States, supra, 199 U.S. at 454-455. In a significant and [377 U.S. 198] increasing number of instances, such regulation takes the form of authorization of lawsuits by private parties. To preclude this form of regulation in all cases of state activity would remove an important weapon from the congressional arsenal with respect to a substantial volume of regulable conduct. Where, as here, Congress, by the terms and purposes of its enactment, has given no indication that it desires to be thus hindered in the exercise of its constitutional power, we see nothing in the Constitution to obstruct its will.

[Parden v. Terminal R. Co., 377 U.S. 184 (1964)]

United States v. Mitchell, 463 U.S. 206 (1983)

For decades this Court consistently interpreted the Tucker Act as having provided the consent of the United States to be sued eo nomine for the classes of claims described in the Act. See, e. g., Schillinger v. United States, 155 U.S. 163, 166 -167 (1894); Belknap v. Schild, 161 U.S. 10, 17 (1896); Dooley v. United States, 182 U.S. 222, 227 -228 (1901); Reid v. United States, 211 U.S. 529, 538 (1909); United States v. Sherwood, 312 U.S. 584, 590 (1941); Dalehite v. United States, 346 U.S. 15, 25 , n. 10 (1953); Soriano v. United States, 352 U.S. 270, 273 (1957). In at least two recent decisions this Court explicitly stated that the Tucker Act effects a waiver of sovereign immunity. Army & Air Force Exchange Service v. Sheehan, 456 U.S. 728, 734 (1982); Hatzlachh Supply Co. v. United States, 444 U.S. 460, 466 (1980) (per curiam). These decisions confirm the unambiguous thrust of the history of the Act.

The existence of a waiver is readily apparent in claims founded upon "any express or implied contract with the United States." 28 U.S.C. 1491. The Court of Claims' jurisdiction over contract claims against the Government has long been recognized, and Government liability in contract is viewed as perhaps "the widest and most unequivocal waiver of federal immunity from suit." Developments in the Law - Remedies Against the United States and Its Officials, 70 Harv. L. Rev. 827, 876 (1957). See also 14 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure 3656, p. 202 (1976). The source of consent for such suits unmistakably lies in the Tucker Act. Otherwise, it is doubtful that any consent would exist, for no contracting officer or other official is empowered to consent to suit against the United [463 U.S. 206, 216]   States. 14 The same is true for claims founded upon executive regulations. Indeed, the Act makes absolutely no distinction between claims founded upon contracts and claims founded upon other specified sources of law.

In United States v. Testan, 424 U.S. 392, 398 , 400 (1976), and in United States v. Mitchell, 445 U.S., at 538 , this Court employed language suggesting that the Tucker Act does not effect a waiver of sovereign immunity. Such language was not necessary to the decision in either case. See infra, at 217-218. Without in any way questioning the result in either case, we conclude that this isolated language should be disregarded. If a claim falls within the terms of the Tucker Act, the United States has presumptively consented to suit.


It nonetheless remains true that the Tucker Act "`does not create any substantive right enforceable against the United States for money damages.'" United States v. Mitchell, supra, at 538, quoting United States v. Testan, supra, at 398. A substantive right must be found in some other source of law, such as "the Constitution, or any Act of Congress, or any regulation of an executive department." 28 U.S.C. 1491. Not every claim invoking the Constitution, a federal statute, or a regulation is cognizable under the Tucker Act. The claim must be one for money damages against the United States, see United States v. King, 395 U.S. 1, 2 -3 (1969), 15 and the claimant must demonstrate that the source of substantive [463 U.S. 206, 217]   law he relies upon "`can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.'" United States v. Testan, supra, at 400, quoting Eastport S.S. Corp. v. United States, 178 Ct. Cl. 599, 607, 372 F.2d 1002, 1009 (1967). 16  

For example, in United States v. Testan, supra, two Government attorneys contended that they were entitled to a higher salary grade under the Classification Act, 17 and to an award of backpay under the Back Pay Act 18 for the period during which they were classified at a lower grade. This Court concluded that neither the Classification Act nor the Back Pay Act could fairly be interpreted as requiring compensation for wrongful classifications. See 424 U.S., at 398 -407. Particularly in light of the "established rule that one is not entitled to the benefit of a position until he has been duly appointed to it," id., at 402, the Classification Act does not support a claim for money damages. While the Back Pay Act does provide a basis for money damages as a remedy "in carefully limited circumstances" such as wrongful reductions in grade, id., at 404, it does not apply to wrongful classifications. Id., at 405.

Similarly, in United States v. Mitchell, supra, this Court concluded that the General Allotment Act does not confer a right to recover money damages against the United States. While 5 of the Act provided that the United States would hold land "in trust" for Indian allottees, 25 U.S.C. 348, we held that the Act creates only a limited trust relationship. 445 U.S., at 542 . The trust language of the Act does not [463 U.S. 206, 218]   impose any fiduciary management duties or render the United States answerable for breach thereof, but only prevents improvident alienation of the allotted lands and assures their immunity from state taxation. Id., at 544.

Thus, for claims against the United States "founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department," 28 U.S.C. 1491, a court must inquire whether the source of substantive law can fairly be interpreted as mandating compensation by the Federal Government for the damages sustained. In undertaking this inquiry, a court need not find a separate waiver of sovereign immunity in the substantive provision, just as a court need not find consent to suit in "any express or implied contract with the United States." Ibid. The Tucker Act itself provides the necessary consent.

Of course, in determining the general scope of the Tucker Act, this Court has not lightly inferred the United States' consent to suit. See United States v. King, supra, at 4-5 (Court of Claims lacks general authority to issue declaratory judgment); Soriano v. United States, 352 U.S., at 276 (nontolling of limitations beyond statutory provisions). For example, although the Tucker Act refers to claims founded upon any implied contract with the United States, we have held that the Act does not reach claims based on contracts implied in law, as opposed to those implied in fact. Merritt v. United States, 267 U.S. 338, 341 (1925).

In this case, however, there is simply no question that the Tucker Act provides the United States' consent to suit for claims founded upon statutes or regulations that create substantive rights to money damages. If a claim falls within this category, the existence of a waiver of sovereign immunity is clear. The question in this case is thus analytically distinct: whether the statutes or regulations at issue can be interpreted as requiring compensation. Because the Tucker Act supplies a waiver of immunity for claims of this nature, the separate statutes and regulations need not provide a [463 U.S. 206, 219]   second waiver of sovereign immunity, nor need they be construed in the manner appropriate to waivers of sovereign immunity. See United States v. Emery, Bird, Thayer Realty Co., 237 U.S. 28, 32 (1915). "`The exemption of the sovereign from suit involves hardship enough where consent has been withheld. We are not to add to its rigor by refinement of construction where consent has been announced.'" United States v. Aetna Casualty & Surety Co., 338 U.S. 366, 383 (1949), quoting Anderson v. John L. Hayes Construction Co., 243 N. Y. 140, 147, 153 N. E. 28, 29-30 (1926) (Cardozo, J.). 19  

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