Sovereign immunity falls into two categories: Absolute immunity applies to acts that, if subject to challenge, would significantly affect the operation of government, such as would occur if a legislator could be sued for core legislative acts, and is also typically extended to statements made on the floor of the legislature.
In Advanced Software Design v. Federal Reserve Bank of St. Louis,[12] the Federal Circuit expanded the interpretation of this protection to extend to private companies doing work not as contractors, but in which the government participates even indirectly.
[13] It provides that persons suffering a legal wrong because of an agency action are entitled to judicial review.
In Hans v. Louisiana, the Supreme Court of the United States held that the Eleventh Amendment re-affirms that states possess sovereign immunity and are therefore immune from being sued in federal court without their consent.
Rather, as the Constitution's structure, and its history, and the authoritative interpretations by this Court make clear, the States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today (either literally or by virtue of their admission into the Union upon an equal footing with the other States) except as altered by the plan of the Convention or certain constitutional Amendments.Writing for the court in Alden, Justice Anthony Kennedy argued that in view of this, and given the limited nature of congressional power delegated by the original unamended Constitution, the court could not "conclude that the specific Article I powers delegated to Congress necessarily include, by virtue of the Necessary and Proper Clause or otherwise, the incidental authority to subject the States to private suits as a means of achieving objectives otherwise within the scope of the enumerated powers."
[15] In Torres v. Texas Department of Public Safety (2022), the Court ruled 5–4 that Texas was not immune from a lawsuit filed by a returning veteran under the Uniformed Services Employment and Re-employment Rights Act of 1994, which was passed to ensure enlisted personnel would be able to return to their same job or one of similar pay and placement.
Texas had argued that they could not be sued under a federal law due to state sovereign immunity, but the majority found that in matters related to the nation's defense, states had given up their sovereign immunity as part of joining the union.
These laws allow plaintiffs to bring lawsuits against the state and/or its subordinate entities, but often impose various procedural prerequisites or require plaintiffs to pursue their claims in a court that specializes in hearing claims against the state government.
In the 1961 Muskopf v. Corning Hospital District decision, the California Supreme Court decided that "total governmental immunity […] does not exist" and would no longer protect the state and other public entities from civil liability for their torts.
It also establishes specific procedures for service of process and attachment of property for proceedings against a Foreign State.
The FSIA provides the exclusive basis and means to bring a lawsuit against a foreign sovereign in the United States.
There are exceptions to the doctrine of sovereign immunity derived from the Eleventh Amendment: If the state or local government entities receive federal funding for whatever purpose, they cannot claim sovereign immunity if they are sued in federal court for discrimination.
The 2001 Supreme Court decision of Board of Trustees of the University of Alabama v. Garrett seems to nullify this; however, numerous appellate court cases, such as Doe v. Nebraska in the 8th Circuit[23] and Thomas v. University of Houston of the 5th Circuit[24] have held that, as long as the state entity receives federal funding, then the sovereign immunity for discrimination cases is not abrogated, but voluntarily waived.
If a state entity wanted its sovereign immunity back, all they have to do in these circuits is stop receiving federal funding.
[26] In C & L Enterprises, Inc. v. Citizen Band, Potawatomi Indian Tribe of Oklahoma, 532 U.S. 411 (2001), the Supreme Court held that sovereigns are not immune under the Federal Arbitration Act.
Congress, if it so chooses, may grant lower federal courts concurrent jurisdiction over cases between states.
The "stripping doctrine" permits a state official who used his or her position to act illegally to be sued in his or her individual capacity.
When a claimant uses this exception, the state cannot be included in the suit; instead, the name of the individual defendant is listed.
Pennhurst State School and Hospital v. Halderman (465 U.S.) ("the authority-stripping theory of Young is a fiction that has been narrowly construed"); Idaho v. Coeur d'Alene Tribe of Idaho ("Young rests on a fictional distinction between the official and the State").
The Young doctrine was narrowed by the court in Edelman v. Jordan, which held that relief under Young can only be for prospective, rather than retrospective, relief; the court reasoned that the Eleventh Amendment's protection of state sovereignty requires the state's coffers to be shielded from suit.
This limitation of the Young doctrine "focused attention on the need to abrogate sovereign immunity, which led to the decision two years later in Fitzpatrick."
In the absence of this waiver of sovereign immunity, injured parties would generally have been left without an effective remedy.
[29] Under the abrogation doctrine, while Congress cannot use its Article I powers to subject states to lawsuits in either federal courts, Seminole Tribe v. Florida, or a fortiori its own courts, Alden, supra, it can abrogate a state's sovereign immunity pursuant to the powers granted to it by §5 of the Fourteenth Amendment, and thus subject them to lawsuits.
However: The Court has found that somewhat different rules may apply to Congressional efforts to subject the states to suit in the domain of federal bankruptcy law.
In reaching this conclusion, he acknowledged that the Court's decision in Seminole Tribe and succeeding cases had assumed that those holdings would apply to the Bankruptcy Clause, but stated that the Court was convinced by "[c]areful study and reflection" that "that assumption was erroneous".
The Court then crystallized the current rule: when Congressional legislation regulates matters that implicate "a core aspect of the administration of bankrupt estates", sovereign immunity is no longer available to the States if the statute subjects them to private suits.
By way of the Tucker Act, certain claims of monetary damages against the United States are exempt from sovereign immunity.