Chapter § 6.01 Introduction

• Jurisdiction: United States
• Publication year: 2020

§ 6.01 Introduction

The federal government is both omnipotent and omnipresent. With approximately 2.8 million civilian employees, the government is the nation’s largest employer.² For reference, Wal-Mart has about 2.2 million employees globally, with 1.5 million in the United States.³ The government’s total receipts amount to approximately $3.45 trillion and its expenditures $4.15 trillion.⁴ There isn’t a facet of our life that’s not influenced by the government. Given the government’s ubiquity—and authority—the potential for wrongdoing, whether perceived or real, is immense. Thus, there must be some recourse. In the seminal decision, Marbury v. Madison,⁵ Chief Justice Marshall observed that “[t]he government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy [against it] for the violation of a vested legal right.”⁶ Likewise, President Abraham Lincoln acknowledged that it is “as much the duty of Government to render prompt justice against itself, in favor of citizens, as it is to administer the same between private parties.”⁷ Yet, in the early years of the nation, “[n]o court exercised standing jurisdiction over claims against the U.S. government, whether for contract, tort or even the payment of ‘just compensation’ due on a taking of property under the Fifth Amendment.”⁸ Indeed, it has been settled since at least the mid-1800s that the United States is immune from suit unless it consents to be sued. This is known as “sovereign immunity.”⁹

Over the years, however, Congress has passed many statutes, of a general and specific nature, in which the United States consented to suit in federal court for money damages and injunctive relief. These statutes thus “waive” the government’s sovereign immunity. In United States v. Shaw, the Supreme Court remarked that “[a] sense of justice has brought a progressive relaxation by legislative enactments of the rigor of the immunity rule. As representative governments attempt to ameliorate inequalities as necessities permit, prerogatives of the government yield to the needs of the citizen.”¹⁰ Broadly speaking, this chapter examines certain statutes waiving the United States’ sovereign immunity the plaintiffs regularly rely on to seek redress against the government. In particular, the next section of the chapter covers suits against the government for money damages. It sets out the history of the...