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How Sovereign Immunity Works


6 Factor Analysis

Available for:

  ✓ Administrative Law Judges
  ✓ Federal Hearing Examiners
  ✓ Federal Officials
  ✓ Federal Prosecutors
  ✓ Government Officials
  ✓ Grand Jurors
  ✓ Immigration Judges
  ✓ Law Clerk
  ✓ Parole Board
  ✓ Police Officers
  ✓ Postmaster General
  ✓ President's Cabinet
  ✓ School Board Members
  ✓ State Court Judges
  ✓ State Governor (+ aides)
  ✓ State Officials
  ✓ State Prison Officials
  ✓ State Prosecutors
  ✓ Testifying Witnesses
  ✓ US President


3-Part Test

Available for:

  ✓ 'Official Capacity' Lawsuits
  ✓ State-Wide Agencies

I. Definitions

"right of exemption from a duty or penalty; benefit granted in exception to the general rule. Immunity from prosecution may be granted a witness to compel answers he or she might otherwise withhold because of the constitutional privilege to avoid self-incrimination."

II. Legal Citations

28 USC §1346 | United States as Defendant
"the district courts... 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..."
42 USC §1983 | Civil Action for Deprivation of Rights
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia."
42 USC §2000d-7 | Civil Rights Remedies Equalization
(a) General provision
(1) A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973 [29 U.S.C. 794], title IX of the Education Amendments of 1972 [20 U.S.C. 1681 et seq.], the Age Discrimination Act of 1975 [42 U.S.C. 6101 et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C. 2000d et seq.], or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.
Art I §6 US Constitution | Compensation
"[Congressmen] shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place."
11th Amendment US Constitution | Judicial Limits
"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."
Section 5 14th Amendment US Constitution | Citizenship Rights
"5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

III. Case Law

# Case Comments
1Adams v FranklinUSALMD | 2000 | Injured Prisoner ; Undisclosed Capacity; Supervisor Liability
2Cleavinger v SaxnerUSSC | 1985 | Absolute Immunity vs Qualified Immunity
3Davis v New YorkCA05 | 1999 | Prisoner, 2nd-Hand Smoke; Standing; Conclusory; Sovereign Immnty
4Edelman v JordanUSSC | 1974 | Federally-funded, Retroactive Pay; Sovereign Immunity (deep)
5Melton v AbstonCA11 | 2016 | Prisoner, Broken Arm; Sovereign Immunity for some, but not all
6Pennhurst v HaldermanUSSC | 1984 | Mental Facility; Sovereign Immunity; Pendent Jurisdiction

IV. Quick Commentary

  • Principle: To immunize the functions (not the persons) that the public rely
    "Here, as in other contexts, immunity is justified and defined by the functions it protects and serves, not by the person to whom it attaches.

    This Court has never undertaken to articulate a precise and general definition of the class of acts entitled to immunity. The decided cases, however, suggest an intelligible distinction between judicial acts and the administrative, legislative, or executive functions that judges may on occasion be assigned by law to perform."
  • Distinction: Excess of Jurisdiction vs Lack of Jurisdiction (ie, "complete absence of all jurisdiction")
    "A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject matter. Where there is clearly no jurisdiction over the subject matter any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible. But where jurisdiction over the subject matter is invested by law in the judge, or in the court which he holds, the manner and extent in which the jurisdiction shall be exercised are generally as much questions for his determination as any other questions involved in the case, although upon the correctness of his determination in these particulars the validity of his judgments may depend."
  • Test for Sovereign Immunity (ie, 11th Amendment US Constitution):
    1. whether the state waives its sovereign immunity;
    2. whether Congress abrogates that immunity under Section 5 of the 14th Amendment; or
    3. whether injunctive relief is being pursued;
      • whether the complaint alleges an ongoing violation of federal law;
      • whether the complaint seeks relief properly characterized as prospective; and
      • whether a declaratory decree was violated;

    • Important Exception:State Officials are NOT immune from constitutional violations
      "The Court has recognized an important exception to this general rule: a suit challenging the constitutionality of a state official's action is not one against the State. This was the holding in Ex parte Young, 209 U. S. 123 (1908), in which a federal court enjoined the Attorney General of the State of Minnesota from bringing suit to enforce a state statute that allegedly violated the Fourteenth Amendment. This Court held that the Eleventh Amendment did not prohibit issuance of this injunction. The theory of the case was that an unconstitutional enactment is "void," and therefore does not "impart to [the officer] any immunity from responsibility to the supreme authority of the United States." Id. at 209 U. S. 160. Since the State could not authorize the action, the officer was "stripped of his official or representative character and [was] subjected in his person to the consequences of his individual conduct." Ibid."
  • 5-Factor Test to Determine if Government Entity Qualifies as a 'State Agency':
    1. whether a money judgment would be satisfied out of state funds;
    2. whether the entity performs central governmental functions;
    3. whether the entity may sue or be sued;
    4. whether the entity has the power to take property in its own name or only the name of the state; and
    5. whether the entity has the corporate status of a state agency

  • Sovereign Immunity is not available to government officials who are sued in their Individual Capacity
    "Defendants Kirby and Johnson were each sued in their individual capacity. The individual defendants, however, do not enjoy immunity under the Eleventh Amendment. First, with regard to plaintiff's claim for monetary damages against the individual defendants, they are not immune because plaintiff sued them in their individual capacities. In Hafer v. Melo, the Supreme Court emphasized that a plaintiff may sue a state official in his individual capacity, even though his actions were undertaken in his official capacity. Hafer v. Melo, 502 U.S. 21, 25-26, 31 (1991) (holding in context of 42 U.S.C. § 1983 suit that officials sued in their individual capacities are "persons" under that statute). In contrast to suits against officials in their official capacity, for which any liability would issue from the state treasury, a suit against an official in his individual capacity seeks the personal liability of the official. Because liability would issue from the individual, not the state, the state is not the real party in interest, and the Eleventh Amendment does not bar the action. Id. at 25-26; accord, e.g., Alden v. Maine, 527 U.S. 706, 756 (1999) ("Even a suit for money damages may be prosecuted against a state officer in his individual capacity for unconstitutional or wrongful conduct fairly attributable to the officer himself, so long as the relief is sought not from the state treasury but from the officer personally."); see also Erwin Chermirinsky, Federal Jurisdiction 429 (4th ed. 2003) ("[I]f the suit is against an officer for money damages when the relief would come from the officer's own pocket, there is no Eleventh Amendment bar even though the conduct was part of the officer's official duties."); cf. Ernst v. Rising, 427 F.3d 351, 358 (6th Cir. 2006) ("The [states'] immunity also applies to actions against state officials sued in their official capacity for money damages." (emphasis added)). Because the individual defendants are only sued in their individual capacities, the court finds that they are not immune with regard to plaintiff's federal law claims for money damages."

IV. Additional Resources

  • The Federal Tort Claims Act waived sovereign immunity for the federal government (exceptions still exist, though)
    "In 1946, Congress adopted the FTCA which, subject to numerous exceptions, waives the sovereign immunity of the federal government for claims based on the negligence of its employees."

V. Bibliography


Congratulations! You're now booked up on how Sovereign Immunity works!

Please get the justice you deserve.


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