Double immunity.

• Author: Tang, Aaron
• Position: Introduction through I. Double immunity, p. 279-304

INTRODUCTION I. DOUBLE IMMUNITY A. The First Layer of Sovereign Immunity: Immunity from Suit 1. Origins of the first layer of sovereign immunity a. Origins of federal immunity from suit b. Origins of state immunity from suit 2. Applying the first layer." a jurisdictional defense subject to waiver by clear statement B. The Second Layer of Sovereign Immunity: Immunity from Monetary Judgment 1. The Court's early approach to monetary claims against a sovereign 2. The Court's new double immunity approach to monetary claims against a sovereign in Nordic Village, Lane, and Sossamon 3. Other applications of double immunity II. THE UNCERTAIN ORIGINS OF THE SECOND LAYER OF SOVEREIGN IMMUNITY A. Constitutional Underpinnings for the Second Layer of Immunity? B. Common Law Underpinnings for the Second Layer of Immunity? C. Double Immunity: A Judge-Made Rule 1. The requirement of express statutory authorization for atypical monetary awards 2. The strict construction rule for interpreting the scope of a waiver III. THE ADVERSE IMPACTS OF SOVEREIGN DOUBLE IMMUNITY A. Policy Arguments in Support of Double Immunity B. Policy Arguments Against Double Immunity 1. Harm to private plaintiffs 2. Harm to legislative supremacy 3. Harm to the sovereign itself IV. A BETTER RULE: REVERSING THE PRESUMPTION IN THE SECOND LAYER OF IMMUNITY CONCLUSION 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.

--Justice Benjamin Cardozo (1)

INTRODUCTION

When followers of the Supreme Court discuss the most prominent cases of the 2010 Term, the Court's relatively obscure decision in Sossamon v. Texas is rarely mentioned. (2) At first glance, the omission is perhaps for good reason. The case involved an unexceptional (albeit serious) factual scenario: a prisoner who claimed that the state had prevented him from worshipping in a state prison chapel in violation of a federal statute, the Religious Land Use and Institutionalized Persons Act (RLUIPA). (3) The actual legal question presented in Sossamon was, moreover, a narrow matter of statutory interpretation: "[W]hether the States, by accepting federal funds, consent to waive their sovereign immunity to suits for money damages under [RLUIPA]." (4) And the answer may have seemed straightforward based on the text of the law alone, since the statute expressly provides that "[a] person may assert a violation of [RLUIPA] ... in a judicial proceeding and obtain appropriate relief against a government." (5)

So what, then, was the fuss all about? In the aftermath of a series of controversial Rehnquist Court decisions limiting Congress's power to abrogate state sovereign immunity using its Commerce Clause and other various Article I powers, (6) the fuss might have concerned whether Congress has the power to circumvent those limits by purchasing a waiver of the very state immunity that it could not abrogate. (7) Many had reacted to the Rehnquist-era decisions limiting congressional power to abrogate state immunity with alarm--Justice Stevens, for example, famously complained that sovereign immunity had become "a mindless dragon that indiscriminately chews gaping holes in federal statutes." (8) Allowing Congress to end-run those limits through its use of the Spending Clause power, then, would seem no small thing. But the Court in Sossamon found little difficulty on that point, confirming that a Spending Clause-induced waiver of state sovereign immunity is indeed permissible. (9)

The entire case turned instead on a particular rule: the requirement that, in order to sue a sovereign defendant for monetary damages, a private plaintiff must demonstrate not only that the sovereign has waived its immunity from suit by consenting to the action in the first instance, but also that the sovereign has unequivocally waived its immunity from a damages remedy in that suit. (10) As the Court put it in Sossamon, "[t]he waiver of sovereign immunity must extend unambiguously to ... monetary claims." (11) Applying this rule, the Court held in Sossamon that even though the states, by accepting federal funding under RLUIPA, had plainly waived their immunity from suits in general, the statute's authorization of "appropriate relief" was insufficiently clear to permit claims for monetary damages. (12)

It turns out that this rule--which I call the doctrine of "double immunity"--is of a mysterious pedigree. The Supreme Court cited two cases for the proposition in Sossamon: Lane v. Pena (13) and United States v. Nordic Village. (14) But neither of those cases identifies a clear source for the rule. (15) And in fact, the Court's longstanding approach prior to cases like Lane and Nordic Village was to permit suits for money damages against a sovereign defendant so long as the defendant consented to be sued in general, irrespective of whether the waiver specifically mentioned monetary damages. (16)

Yet if the path that led to the double immunity rule is unclear, the aftermath of the rule has been anything but: the federal courts have applied it across a wide variety of contexts to insulate sovereign defendants from costly private litigation, even though those defendants have given their ex ante consent to be sued. (17) In this sense, the Court's decision in Sossamon is important not just because of the outcome of the case--state prisons can violate statutorily protected religious liberties without having to pay damages--but because it reflects the Court's growing solicitude for insulating culpable and consenting sovereign actors from liability. What is more, this solicitude has been fully embraced in the lower federal courts. In one case, a federal district court held that even though the State of Wisconsin was liable for $225,000 in monetary damages to a blind vendor's business, and even though Wisconsin had consented to be sued for its wrongful actions, the double immunity rule nevertheless shielded the state from having to pay the vendor a single dollar. (18)

Despite this result and others like it, the academy has yet to call attention to or analyze the development of the double immunity rule. This Article seeks to fill that gap by exploring the rule's origins, contours, and justifications. Part I begins with an examination of double immunity as it was created in Nordic Village and Lane, the two cases cited for the rule in Sossamon. I start with a brief overview of the first layer of immunity, the historically rooted precept that a court may not exercise jurisdiction over a state (19) or federal (20) defendant unless the sovereign in question has waived its immunity by consenting to the suit. (21) Although this first layer of sovereign immunity is a settled norm that has been the topic of thorough attention in both its federal and state incarnations, (22) scant scrutiny has been paid to the second layer of immunity conferred in Nordic Village and Lane, which treats a sovereign as immune from monetary relief absent clear authorization of such a remedy--even if the sovereign has already consented to the suit. (23) The bulk of Part I is spent discussing this second layer of immunity and how it came into existence. Part I includes several examples of how federal courts have applied the double immunity rule across a variety of contexts to shelter even culpable federal and state defendants from monetary remedies.

After witnessing the broad impact of the double immunity rule, I explore the possible justifications for the rule in Part II. This is admittedly a difficult task, as the Court has never articulated a clear rationale for why the rule should exist. In the end, I argue that neither the Constitution nor the common law supports the notion that sovereign immunity should create an initial immunity from suit and, even once that immunity has been waived, a separate immunity from ordinary monetary remedies. Part II then suggests the actual origin of the double immunity doctrine: it is a mistaken extension of a line of cases properly denying plaintiffs monetary relief against a sovereign defendant where such relief is not traditionally available in ordinary private litigation either--for instance, attorneys' fees, reimbursement for costs, or other atypical monetary judgments.

If, as I argue, there is no sound common law, constitutional, or other doctrinal grounding for the double immunity rule, Part III explains why courts are ill advised to apply it as a policy matter. To begin with, by offering federal and state defendants double immunity, courts enable the improvident outcome whereby plaintiffs who have unquestionably been granted the right to sue a sovereign defendant by the sovereign itself might prevail on the merits of their claims and yet still go without an appropriate remedy. Second, the judge-made rule frustrates the intent of the legislatures who have unequivocally consented to suit in the first place: it would be odd indeed to assume that lawmakers intend to create a right to suit but not a corresponding remedy, yet this is precisely what the double immunity rule presumes. Finally, the rule may not even achieve its ostensible goal of protecting sovereign dignity, since its practical impact is to make injunctive relief the default remedy--a form of relief that may well be more intrusive than damages. (24)

I conclude the Article by suggesting an alternative to the double immunity rule, which I believe the courts would do better to apply when considering what remedies ought to be available against a sovereign that has already waived its immunity from suit. Under my proposed rule, a plaintiff would be entitled to recover the same monetary remedies against a sovereign defendant that has waived its immunity from suit as would be available against an ordinary private defendant in similar circumstances, with the notable exception that a sovereign should be able to declare by clear...