With the enduring doctrine of federal sovereign immunity, it is too late in the day to suggest that the United States should be treated as an ordinary party in the federal courts. Yet as the Supreme Court has become more comfortable with the increasingly common encounter with a statutory waiver of immunity, the rigidity of interpretive approach has eased. An early jaundiced judicial attitude has resolved into a greater respect for the legislative promise of relief to those harmed by their government. After sketching the history of statutory waivers over the past century-and-a-half and examining Supreme Court decisions across the decades, this Article maintains that a coherent and principled jurisprudence of federal sovereign immunity has been gradually emerging. The Court now reserves absolute jurisdictional analysis for verifying the existence of a statutory waiver for a general class of claims, while judiciously employing strict construction to preclude judicial implication of new causes of actions or remedies. By contrast, the Court is more inclined to use ordinary modes of statutory construction when examining other standards, limitations, or exceptions in statutory waivers, even presuming that procedural rules apply in government cases in the same manner as in private litigation. Unfortunately, a recent Supreme Court decision resurrected an old line of cases that translated a statute of limitations for certain claims against the United States into a jurisdictional rule. This Article suggests that the negative effect of this decision on the course of the law, although not negligible, is limited by the decision's reliance on stare decisis. This Article concludes that the Court should speak more purposively to its interpretive approach in the future if the renewed drift in its federal sovereign immunity jurisprudence is to be arrested.
TABLE OF CONTENTS INTRODUCTION I. THE CONCEPT AND WAIVER OF FEDERAL SOVEREIGN IMMUNITY A. The Conceptual Grounding, Persistent Criticism, and Perseverance of the Doctrine of Federal Sovereign Immunity B. A History of Statutory Waivers of Sovereign Immunity 1. The Origin of Statutory Waivers: Contracts, Money, and the Court of Claims 2. The Decades of Slow Growth of Statutory Waivers: Admiralty and Tort 3. The Modern Acceleration of Statutory Waivers: From Employment Discrimination to Attorney's Fees 4. The Broad Tapestry of Statutory Authorizations for Suit Against the Federal Government II. ARRESTING THE DRIFT: TOWARD A COHERENT THEORY OF JUDICIAL CONSTRUCTION OF STATUTORY WAIVERS OF SOVEREIGN IMMUNITY A. The Importance of Sound Rules of Construction: Upholding the Promise of Statutory Waivers of Sovereign Immunity B. Sovereign Immunity and Jurisdiction: Preserving Jurisdictional Analysis in Its Place 1. Existence of Legislative Consent for a Class of Claims as a Jurisdictional Prerequisite 2. Early Decisions that Overextended Jurisdictional Analysis 3. Reserving Jurisdictional Inquiry for Core Matters, While Removing Other Standards, Limitations, Exceptions, and Procedural Rules from Jurisdictional Analysis C. Construction of a Waiver's Substantive Scope: Strict in Theory, Calibrated and Pragmatic in Practice 1. Strong Presumption Against Interpreting a Waiver To Allow a New Cause of Action or Remedy 2. Strictness of Construction Lessens with Greater Judicial Familiarity with a Statutory Waiver: The Evolution of the Tucker Act in the Supreme Court 3. The Fading of Strict Construction with Distance from the Core Substance of the Waiver of Immunity D. Applying Procedural Rules for Suits Against the Sovereign in the Same Manner as with Private Parties III. BEING SET BACK ADRIFT: THE FUTURE COURSE OF SOVEREIGN IMMUNITY JURISPRUDENCE AFTER JOHN R. SAND A. The Statute of Limitations for the Court of Federal Claims in Textual and Historical Context: Setting the Stage for John R. Sand B. The Supreme Court's Decision in John R. Sand C. Diagnosing the Injury of John R. Sand to Development of a Coherent Federal Sovereign Immunity Jurisprudence CONCLUSION INTRODUCTION
In its 2008 decision in John R. Sand & Gravel Co. v. United States, (1) the Supreme Court addressed a question that seemingly only a lawyer could love (or care about): whether the statute of limitations governing non-tort money claims against the federal government in the United States Court of Federal Claims is jurisdictional. In other words, is this an ordinary statute of limitations, that is, an affirmative defense and a procedural time constraint that may be waived or forfeited by the government? Or is this instead a special and absolute rule of subject matter jurisdiction, one that cannot be relinquished and indeed that must be raised by the court on its own motion, even if both the claimant and the government agree that the lawsuit was timely filed?
Resolving whether a statute of limitations on claims against the federal government is jurisdictional or waivable sounds like an esoteric legal inquisition. But this seemingly abstruse query implicates the broader and more fundamental question of how strictly or generously the courts should regard statutes enacted by Congress that yield the sovereign immunity of the United States and open the courthouse doors to claims by the governed against their government. Even after the government has waived its sovereign immunity for a particular category of claims, does the citizen who seeks judicial redress for a governmental wrong still have a steep hill to climb, with every word of text and every term of the statute being slanted against the claimant? (2) Should the courts regard suits against the sovereign as "suspect, even when allowed," pursuant to a parsimonious canon of strict construction? (3) Do the rules of construction for statutory waivers "load the dice for or against a particular result," (4) the upshot being that the government usually wins?
In recent decades, the Supreme Court has drifted toward a jurisprudential approach that, while carefully protecting governmental policymaking prerogatives when considering the nature and extent of liability by the government, upholds the statutory promise of an individual judicial remedy for official wrongdoing. An early jaundiced judicial attitude has resolved into a greater respect for the legislative pledge of relief to those harmed by their government. Under this coalescing interpretive regime, jurisdictional analysis is increasingly confined to the core questions of the existence and basic capacity of a consent to suit. (5) The traditional rule of strict construction in favor of the sovereign has become more attentively focused upon the general scope of the waiver in terms of the cause of action and remedy allowed against the government. (6) As the distance grows between a statutory standard or limitation and the core substance of the waiver, presumptions in favor of the government fade and statutory construction assumes an ordinary shape. (7) Indeed, the Court has adopted a rebuttable presumption that procedural rules, including statutes of limitation, are to be applied in the same manner as among private parties, with no special solicitude for the government. (8)
Under the Supreme Court's modern interpretive approach to statutory waivers of federal sovereign immunity, section 2501 of Title 28 of the United States Code (9)--the statute of limitations for money claims in the Court of Federal Claims at issue in John R. Sand--might have offered an easy case for a less rigid reading and for classification under the general rule that the time limitation should be applied in accordance with the same rules that govern private litigation. (10) The plain language of the statute suggests that the jurisdictional inquiry is to be completed separately before application of the time limitation: "Every claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues." (11) The legislative history when the predecessor statute was enacted in 1863 indicates that members of Congress expected this statute of limitations to apply to the government in the same manner as to private parties. (12) The contemporary legal understanding at the time of enactment was that a statute of limitations was a waivable defense. (13) Indeed, Congress had selected language from typical state statutes of limitations of the period, thus drafting [section] 2501 to be what the Supreme Court later called an "unexceptional" statute of limitations. (14)
In deciding the John R. Sand case, the Court disagreed with none of these points on the merits. Nonetheless, a majority held that the statute of limitations had jurisdictional force, requiring a court to "raise on its own the timeliness of a lawsuit filed in the Court of Federal Claims, despite the Government's waiver of the issue." (15) The Court's decision was premised squarely and exclusively on the principle of stare decisis. (16) The majority adhered to a nineteenth century line of cases from a very early stage in the Court's sovereign immunity jurisprudence that reflected a rigid jurisdictional disposition toward then-novel legislation affording a judicial remedy against the federal government. (17) The majority acknowledged that the Court's more recent decisions "represent a turn in the course of the law" and further admitted that the contrasting lines of case authority reinforced by its decision in John R. Sand may create an "anomaly" in the case law. (18) But the majority believed that the resulting conflict was not "critical" and did not produce "'unworkable' law" so as to justify overturning supposedly well-settled settled precedent. (19) Two justices dissented, agreeing both that the jurisdictional rule reaffirmed by the majority had been abandoned in prior decisions and that any ambiguity in the case law "ought to be resolved in favor of clarifying the law, rather than...