A significant preliminary issue in any suit against governmental bodies is the application of sovereign immunity. Sovereign immunity, historically phrased as the king can do no wrong, early became a part of the U.S. legal system. Governments may only allow suits to proceed against themselves by some affirmative action (waiver) of sovereign immunity. The U.S. Supreme Court recently has once again addressed immunity in two decisions with Justice Alito writing the opinions.
In one recent case, a licensed pilot sued the Federal Aviation Administration, the U.S. Department of Transportation, and the Social Security Administration for mental and emotional distress for revealing his confidential medical information (FAA v. Cooper). The federal Privacy Act allows suits for "actual damages" if the government intentionally or willfully violates it.
In discussing giving up sovereign immunity (waiver) the Supreme Court majority noted that the Government is entitled to the most favorable interpretation of protection. Since "actual damages" in the Privacy Act is somewhat unclear, the Court understood the phrase to mean a "proven precuniary loss," not mental or emotional distress.
Justices Stotomayor, Ginsburg, and Breyer dissented finding a broader meaning of the phrase "actual damages," and stated that the narrow meaning was contrary to the purpose of the Privacy Act. Three Justices also dissented in a 2004 Privacy Act decision. Justices Stevens, Ginsburg, and Breyer dissented finding a broader meaning of the phrase "actual damages," and stated that the narrow meaning was contrary to the purpose of the Privacy Act. These three Justices also dissented in a 2004 Privacy Act decision. The majority opinion in 2004 interpreted "entitlement for recovery" to require damages beyond a willful or intentional violation being proven (Doe v. Chao).
A second recent unanimous Supreme Court decision granted absolute immunity from suit to a federal grand jury witness (Rehberg v. Paulk). The plaintiff alleged that an investigator for a district attorney's office had presented false testimony in violation of a federal civil rights statute (42 U.S.C. Sec. 1983). The Court explained that this immunity from suit was the same protection already granted trial witnesses. Furthermore judicial precedents, the need for witnesses not to fear retaliatory litigation, available perjury remedies, and secrecy considerations for grand jury witnesses favored this result.
Related but distinct from sovereign immunity is the "government contractor defense." This defense broadly prevents military equipment manufacturers from being sued when equipment is constructed to government specifications. It was famously applied in 1988 by the Supreme Court in litigation involving a Marine helicopter crash to end a suit brought against the manufacturer (Boyle v. United Technologies). There were four dissenting justices. In January, 2012, a three judge panel of the Federal Court of Appeals for the Fifth Circuit decided that the legal remedies for the heirs of civilian convoy drivers who were killed in Iraq were those remedies granted by the Defense Base Act and Longshore and Harbor Workers' Compensation Act (Fisher v. Halliburton). These statutes grant workers' compensation type awards. Federal law preempted state law tort claims of negligence and fraud against the Army contractors that the heirs had sued.
Consequently, the public policy question to consider is how broadly to extend immunity from suits? The general arguments in favor of immunity are that retaliatory or frivolous lawsuits will be time consuming and detract from official duties, individuals will be deterred from seeking careers in public service or exercising their best judgment for fear of litigation, and burdensome and lengthy suits will waste public resources. The general arguments against immunity are that injustices will not be remedied, immunity discourages due care, and individuals or entities are exempted by immunity from the standards that apply to the rest of society.
There are numerous additional forms of immunity from suit not discussed in this brief comment that are further subdivided into absolute and qualified.The general legal trend presently seems to expand immunity from suit based upon strict statutory interpretation of waiver provisions. Under this view statutory language is very precisely, and critics would say too narrowly, defined to prevent suits.
This piece has been altered since its original publication