Jolly Old England: Should We Still be Looking to the Monarchy for our Modern Jurisprudence?

Michael Lowder

Often criticized, the doctrine of sovereign immunity generally prohibits private parties from filing lawsuits against the government.  The doctrine derives from the English monarchical belief that “the King can do no wrong.”[1] The English revered the king as sovereign, so much so that “no court c[ould] have jurisdiction over him[,] [f]or all jurisdiction implies superiority of power.”[2]

Despite its background in the monarchical British system,[3] the United States retained the doctrine in its new majoritarian democratic common law system.  The doctrine occasionally operates unjustly upon injured private parties; however, courts frequently uphold sovereign immunity because of the policy concerns purported to animate the doctrine.  The Tenth Circuit recently addressed a circuit split regarding sovereign immunity in Iowa Tribe of Kansas & Nebraska v. Salazar.[4] One approach to the divisive issue applies a rule that discourages manipulation of immunity and jurisdiction by the government, while the other staunchly adheres to the old English principle that the government is immune from suit.  The Tenth Circuit ultimately sided with the latter approach.

Iowa Tribe dealt with the government’s acquisition of land in trust for the benefit of the Wyandotte Tribe.[5] Various treaties and statutes require the federal government to purchase and hold in trust certain parcels of land for Native American tribal use. The Wyandottes, pursuant to one of these treaties, sought governmental acquisition of a parcel in downtown Kansas City, Kansas, for use as a gaming facility.[6] After the Department of Interior published notice of intent to acquire the parcel, the plaintiffs[7] filed suit under the Administrative Procedure Act.[8] They challenged the decision, contending that some of the funds to be used for the purchase were not authorized by statute.[9] The plaintiffs were concerned that their gaming agreement with the state of Kansas could be negatively affected by the opening of the Wyandotte facility.[10]

The APA waives the government’s sovereign immunity for parties “aggrieved by agency action”[11] to challenge pending agency action.[12] This waiver, however, does not apply to completed agency actions. Therefore, the plaintiffs also sought a temporary restraining order (TRO) to prevent the Secretary’s acquisition of the property (which would complete the agency action, destroying the APA immunity waiver).[13]

After governmental acquisition of the property, the plaintiffs’ only claim would rest upon the Quiet Title Act.[14] Although the QTA generally waives sovereign immunity for those challenging the government’s title to property, it does not do so in relation to “trust or restricted Indian lands.”[15] Thus, the QTA waiver would not apply, and the plaintiffs would remain without remedy. As a result, the TRO was granted, but was later dissolved by the Tenth Circuit because the Wyandottes alleged that they would “lose [their] right to acquire” the parcel pursuant to their contract.[16] In order to ensure that the plaintiffs were still able to challenge the decision, however, the Tenth Circuit carefully crafted its dissolution of the TRO imposing:

conditions which constitute the law of this case, that the respective rights of the parties to obtain judicial review of all issues which have been raised in the complaint below shall be preserved, including standing of all parties [and] jurisdiction.[17]

After some litigation, the original lawsuit was closed and the court required all new challenges to the acquisition to be brought in a new lawsuit.[18] Despite the conditions imposed on the dissolution of the TRO, subsequent challenges to the government’s decision to acquire the land were met by governmental assertions of sovereign immunity[19] that the district court and Tenth Circuit sustained. As a last resort, the plaintiffs sought to reopen their original lawsuit under Federal Rule of Civil Procedure 60(b)(6),[20] focusing on the TRO dissolution language intended to preserve review of all issues in the original lawsuit. The district court granted the motion to reopen but dismissed the lawsuit under the same sovereign immunity theory.[21] The plaintiffs appealed to the Tenth Circuit.

The issue for the Tenth Circuit was “whether [the court] retain[ed] jurisdiction over [the] plaintiffs’ challenge to the Secretary’s acquisition of the [tract] in trust on behalf of the Wyandotte Tribe.”[22] The court ultimately concluded that it did not have jurisdiction to hear the case. Despite the conditions imposed on the dissolution of the TRO, the property had been acquired.  Thus, the APA waiver (for challenges to pending agency action) no longer applied, and the QTA waiver was inapplicable because of the exception for Indian lands. Therefore, sovereign immunity applied and the court lacked jurisdiction.  

The court used the “continuous assessment” approach to jurisdiction and sovereign immunity discussed by the First Circuit in Maysonet-Robles v. Cabrero.[23] Under this approach, the court assesses its jurisdiction to hear the case at all times throughout litigation, and permits the government to modify sovereign immunity while a case based upon a preexisting waiver is pending against it. 

Maysonet-Robles dealt with the Puerto Rican legislature’s attempt to avoid jurisdiction by transferring all the assets of and eliminating a private (but governmentally-created) public housing corporation to the Puerto Rico Department of Housing.[24] This action was in response to the filing of a lawsuit against the private entity.[25] In holding that sovereign immunity applied (requiring dismissal of the lawsuit), the Maysonet-Robles court acknowledged that “it does not require a particularly jaundiced eye” to see that the intent of the Legislature was to remove jurisdiction from the court by invoking sovereign immunity.[26] The court, however, emphasized that waiver of sovereign immunity “is entirely within the [state’s] prerogative,” and it may remove the waiver “and apply those changes to torpedo even pending litigation.”[27]          

In choosing this approach, the Tenth Circuit rejected the “time-of-filing” rule adopted by the Second, Third, Fifth, and Ninth circuits.[28]  The leading opinion regarding the “time-of-filing” rule is Bank of Hemet v. United States.[29] There, the plaintiffs alleged that at the time of the filing of the lawsuit, the government owned a parcel of property to which the plaintiffs also asserted rights.[30] As a result, the QTA waived sovereign immunity and authorized the plaintiffs to file suit challenging the government’s title.[31] After the filing of the lawsuit, the government sold the property to a third party and asserted that the waiver of sovereign immunity in the QTA no longer applied.      

The Ninth Circuit refused to accept the government’s  position, finding that the QTA waived the government’s immunity to the Bank’s quiet title suit because the United States had title to the property at the filing of the lawsuit.[32] The Ninth Circuit adopted the “time-of-filing” rule in light of concerns about the “government . . . manipulat[ing] its position subsequent to the filing of the complaint so as to present a situation that falls between the cracks of applicable waiver statutes.”[33]          

This circuit split results from courts’ attempts to balance the strong governmental interest in maintaining sovereign immunity against competing concerns over fairness to allegedly injured parties.  The Tenth Circuit concluded that recent sovereign immunity jurisprudence and policy concerns regarding obligations to Native American tribes outweighed the plaintiffs’ fairness concerns, even though that conclusion ultimately deprived the plaintiffs of their “day in court.”           

As is reflected by Iowa Tribe, in spite of a broad waiver of sovereign immunity by Congress (the Federal Tort Claims Act)[34] and other narrower waivers of immunity (such as the QTA and the APA), sovereign immunity remains substantially intact in relation to suits against the government. Further, neither “near unanimous condemnation from commentators”[35] nor the Supreme Court’s inability to find particular constitutional grounding for the concept have shaken sovereign immunity from American jurisprudence.[36]          

Additionally, numerous Supreme Court justices have been critical of sovereign immunity, considering it “nothing but a judge-made rule” that is a “persistent threat to the impartial administration of justice.”[37] Indeed, the principle of “responsible government,” ever-present during the founding of the country seems irreconcilable with the monarchical notion of sovereign immunity.[38]           

Iowa Tribe is precisely the type of situation that concerned the Ninth Circuit in Bank of Hemet—governmental manipulation of waivers to avoid liability.  The government and the Wyandottes made an unfounded representation[39]—one that could possibly be termed a fraudulent misrepresentation—to the Tenth Circuit in seeking the dissolution of the original TRO.  Based upon this representation, the Tenth Circuit determined that “dissolution would best preserve the status quo,” but carefully crafted its dissolution order to ensure that the plaintiffs’ rights to review would remain intact.[40] By adopting the Maysonet-Robles rule, the Iowa Tribe court ignored the Supreme Court’s admonition “that if jurisdiction exists at the time an action is commenced, such jurisdiction may not be divested by subsequent events.”[41] This principle has been sustained “to prevent the manipulation of federal jurisdiction . . . and . . . constrain the use of strategic behavior by litigants,”[42] and “preclude subsequent agency action from divesting a court of jurisdiction . . .  once jurisdiction is established.”[43] The Iowa Tribe court ignores these major policy concerns that support the time-of-filing rule and upholds sovereign immunity, despite the fact that it unjustly deprives the plaintiffs of any method to seek review of their complaint. 


[1] Stanwood R. Duval, Sovereign Immunity, Anachronistic or Inherent: A Sword or a Shield?, 84 Tul. L. Rev. 1471, 1472 (2010) (quoting William Blackstone, Commentaries on the Laws of England 246 (Garland Publ’g 1978)).

[2] Id. at 1473.

[3] Langford v. United States, 101 U.S. 341, 343 (1879).

[4] 607 F.3d 1225 (10th Cir. 2010).

[5] “The spelling of the Tribe’s name has changed over the years.” Sac & Fox Nation of Mo. v. Norton, 240 F.3d 1250, 1254 n.3 (10th Cir. 2001).  The two variations are Wyandot and Wyandotte; this comment will use “Wyandotte” or “Tribe” for convenience.  Id. at 1254.   

[6] Id. at 1255-56.

[7] The plaintiffs consisted of Sac & Fox Nation of Missouri, Iowa Tribe of Kansas and Nebraska, Prairie Band of Potawatomi Indians, and Bill Graves (Governor of Kansas).

[8] Administrative Procedure Act (“APA”), 5 U.S.C. § 702 et. seq.  The APA authorizes a waiver of sovereign immunity when a plaintiff “suffer[s] a legal wrong because of agency action or [is] adversely affected or aggrieved by agency action.” Id.

[9] Sac & Fox Nation of Mo., 240 F.3d at 1256-57.

[10] Iowa Tribe, 607 F.3d at 1228.

[11] 5 U.S.C. § 702.

[12] Id.

[13] Iowa Tribe, 607 F.3d at 1230.

[14] Quiet Title Act (“QTA”), 28 U.S.C. § 2409a(a) (2006). The QTA provides the only mechanism for private parties to challenge the federal government’s title to land.  The QTA waives sovereign immunity to allow these types of challenges.

[15] Id.

[16] Iowa Tribe, 607 F.3d at 1228-29. Despite these allegations, the Tribe would not have actually lost its right to acquire the parcel pursuant to the purchase contract. See Governor of Kan. v. Kempthorne (“Kempthorne 10th”), 516 F.3d 833, 845 n.6 (10th Cir. 2008). This concern (about losing the right to acquire the parcel) “was apparently unfounded,” as is described in a “Notice of Supplemental Information” filed with the court just one day after the dissolution was granted. Id.

[17] Iowa Tribe, 607 F.3d at 1229 (emphasis added).

[18] Kempthorne 10th, 516 F.3d at 838.

[19] The government asserted that the plaintiffs’ claim could only be premised on the QTA (because the property acquisition had occurred, and the only way to challenge the government’s title to property is via the QTA). Since the QTA upheld sovereign immunity for Indian lands, the government was immune from suit in relation to this parcel.

[20] Fed. R. Civ. P. 60(b)(6).  Rule 60(b) allows a court, on motion, to “relieve a party . . . from a final judgment, order or proceeding for . . . any other reason that justifies relief.”  Id.

[21] Iowa Tribe, 607 F.3d at 1229; Sac & Fox Nation of Mo. v. Kempthorne, No. 96-4129-RDR, 2008 WL 4186890, at *9 (D. Kan. Sept. 10, 2008) (unpublished).

[22] Iowa Tribe, 607 F.3d at 1230 (emphasis in original). In other words, the question was whether the government should be permitted to manipulate its position, waiving or retaining sovereign immunity on its own whim.

[23] 323 F.3d 43 (1st Cir. 2003).

[24] Id. at 46.

[25] Id.

[26] Maysonet-Robles, 323 F.3d at 51.

[27] Id. at 52.

[28] Iowa Tribe, 607 F.3d at 1236-37, 1236 n.8.

[29] 643 F.2d 661 (9th Cir. 1981).

[30] Id. at 663. The property had multiple liens against it (including a lien held by the plaintiff, a bank, and a tax lien held the federal government).

[31] Id.

[32] Id. at 665.

[33] Id.

[34] 28 U.S.C. §§ 2671-2680 (2006).

[35] Harold J. Krent, Reconceptualizing Sovereign Immunity, 45 Vand. L. Rev. 1529, 1530 (1992).

[36] Duval, supra note 1, at 1479.

[37] United States v. Nordic Vill., Inc., 503 U.S. 30, 42-43 (1992) (Stevens, J., dissenting).

[38] George W. Pugh, Historical Approach to the Doctrine of Sovereign Immunity, 13 La. L. Rev. 476, 480 (1953).

[39] See supra, text accompanying note 16.

[40] Iowa Tribe, 607 F.3d at 1229.

[41] Freeport-McMoRan, Inc. v. K N Energy, Inc., 498 U.S. 426, 428 (1991).

[42] Wash. Int’l Ins. v. United States, 138 F. Supp. 2d 1314, 1325 (Ct. Int’l Trade 2001) (citing New Rock Asset Partners v. Preferred Entity Advancements, Inc., 101 F.3d 1492, 1503 (3d Cir. 1996)).

[43] Id.