46. Presumption Against Waiver of Sovereign Immunity. A statute does not waive sovereign immunity--and a federal statute does not eliminate state sovereign immunity--unless that disposition is unequivocally clear (p. 281). An important corollary to this presumption (and especially in the Millbrook case discussed below) is that such waivers of sovereign immunity should be strictly construed. Soriano v. United States, 352 U.S. 270, 276.
Sovereign immunity provides that the government (whether that be the federal, state, or local government) cannot be sued unless that immunity has been waived, or if the government consents.
Here's one example: in an earlier post, I discussed under what conditions might a lawsuit against the Washington Metropolitan Area Transit Authority (WMATA) succeed. That discussion hinged on Section 80 of the WMATA Compact, which reads in part:
80. Liability for Contracts and Torts
The Authority shall be liable for its contracts and for its torts and those of its Directors, officers, employees and agent committed in the conduct of any proprietary function, in accordance with the law of the applicable Signatory (including rules on conflict of laws), but shall not be liable for any torts occurring in the performance of a governmental function...This is a partial waiver of WMATA's sovereign immunity--and limited only to "proprietary" functions (see the original post for further discussion on what that is). Without this section, the presumption would be that WMATA does not waive its sovereign immunity. So the key here is that the waiver must be clear. Ambiguous is simply not enough.
The primary example of the federal government's (limited) waiver of sovereign immunity is the Federal Tort Claims Act (and is raised in the issue below, as we will see).
The Supreme Court will be presented with an opportunity to test this presumption in the case of Millbrook v. United States. Via SCOTUSblog, the issue is
[w]hether 28 U.S.C. §§ 1346(b) and 2680(h) [FTCA] waive the sovereign immunity of the United States for the intentional torts of prison guards when they are acting within the scope of their employment but are not exercising authority to "execute searches, to seize evidence, or to make arrests for violations of Federal law."28 U.S.C. § 1346(b)(1) provides, in part, that the federal government waives sovereign immunity:
...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 to the claimant in accordance with the law of the place where the act or omission occurred.28 U.S.C. § 2680(h) provides exceptions to the waiver, but also includes a proviso which is an exception to the exception:
Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights: Provided, That, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346 (b) of this title shall apply to any claim arising, on or after the date of the enactment of this proviso, out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. For the purpose of this subsection, “investigative or law enforcement officer” means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.The bold emphasis is mine, and is key to the outcome of this case. Is your head hurting yet? This is an Inception-quality statute right here. Let's recap:
- The federal government has sovereign immunity.
- § 1346(b)(1) waives that immunity for certain claims.
- § 2680(h) lists several exceptions to the waiver; in other words, for those exceptions sovereign immunity is restored.
- The proviso within § 2680(h) re-waives sovereign immunity for six of the eleven exceptions, provided that the acts or omissions in question are by investigative or law enforcement officers empowered to a) execute searches; b) seize evidence; or c) making arrests for violations of federal law.
Now, the facts of the case. Mr. Millbrook claims he was sexually assaulted by several prison guards. Whether or not those prison guards are "investigative or law enforcement officers" under the specific conditions as set forth in the proviso will ultimately determine whether or not his case is successful. In other words, the prison guards are most definitely investigative or law enforcement officers in general, but if the alleged assault did not take place while executing a search, seizing evidence, or making an arrest, then perhaps (if the Third Circuit was correct) the government's sovereign immunity remains intact. See Pooler v. United States, 787 F.2d 868, 872 (3d Cir.1986).
The Third Circuit affirmed the District Court for the government. Mr. Millbrook filed a pro se writ of certiorari, which the government opposed. Since then, the government switched positions and decided it wanted the case overturned, arguing that § 2680(h) is not limited by the three empowerment options (executing a search, seizing evidence, or making an arrest). As a result of the government's switch, the Court appointed Jeffrey Bucholtz, Washington, D. C. to defend the Third Circuit's ruling as amicus curiae.
In summary: does the proviso apply to (1) all "investigative or law enforcement officers" regardless of whether they are actually executing a search, seizing evidence, or making an arrest; or (2) is it necessary that the assault (or other tortious conduct) took place while executing a search, seizing evidence, or making an arrest. From a practical sense: in the first case, Mr. Millbrook's claim would go forward; in the second, it would not.
Unlike some of the other canons I've covered, this case has not yet been decided so there is no answer (yet). If I had to take a guess at the result of this case solely on the presumption against waiver of sovereign immunity (and especially in light of its corollary that waivers of sovereign immunity should be strictly construed), I would say the second option is more likely. That outcome would be odd, too; the government would win despite the fact that the government had argued against its original position. I guess it's safe to say the government will win, no matter what.
When the case is decided, I'll update this post with information from the opinion that is relevant to this presumption.
 The proviso itself is the subject of a canon (#21, p. 154) which states that "[a] proviso conditions the principle matter that it qualifies--almost always the matter immediately preceding." Here, it is common sense to read it that way.