This essay was authored by ACUS Public Member Jonathan Siegel. It is the third part of a series, ACUS and the APA: Celebrating 75 Years of the Administrative Procedure Act, in which members of the ACUS community reflect on the agency’s connection to the foundational statute of federal administrative law. 

The views expressed in this essay are those of the author and do not necessarily represent the views of ACUS or the federal government.

The Administrative Procedure Act (APA) has remained remarkably stable since its passage almost 75 years ago. As Chris Walker has noted, Congress has amended the APA only 16 times. Only nine of the amendments were really substantial, and grouping those together by topic, Walker counts only five genuinely significant changes to the APA: “FOIA (1966), the Privacy Act (1974), the Government in the Sunshine Act (1976), the waiver of sovereign immunity (1976), and, to a lesser extent, the renaming of administrative law judges (1978).” As Justice Scalia observed when he was a law professor, the APA is “not lightly to be supplanted or embellished.”

All the more reason, therefore, for ACUS to be proud that one of the significant amendments to the APA resulted from an ACUS recommendation. Recommendation 69-1, Statutory Reform of the Sovereign Immunity Doctrine, which led to the 1976 amendment to 5 U.S.C. § 702, is among ACUS’s greatest achievements.  

Ever since the founding of the nation, sovereign immunity has posed an important obstacle to justice. Sovereign immunity means that “The United States cannot be sued in their courts without their consent[, and in] granting such consent, Congress has an absolute discretion to specify the cases and contingencies in which the liability of the government is submitted to the courts for judicial determination.”

As a result, persons wrongfully injured by the United States may be left without redress.  Congress began to loosen sovereign immunity with regard to claims for breach of contract as early as 1855, but it insisted on full immunity for tort claims until passage of the Federal Tort Claims Act in 1946, and even today, exceptions to the FTCA can leave those tortuously injured by federal employees remediless. Sovereign immunity has blocked remedies even for those who were not seeking money damages, but who simply wanted courts to compel government officers to cease unlawful behavior and to act lawfully.  

Courts were always aware that sovereign immunity could frustrate justice, and they have long sought mechanisms for achieving justice notwithstanding it. Indeed, there has always been a curious duality to the doctrine of sovereign immunity. For as long as it has existed, there have been judicially developed mechanisms for avoiding it. 

The main immunity-avoidance mechanism was a device known as the officer suit. Parties injured by government wrongdoing could not sue the federal government, but they could sue one of the government’s officers. An officer of the sovereign, courts would say, was distinct from the sovereign itself and did not share in the sovereign’s immunity from suit. A party injured by government wrongdoing could often get relief by suing a government officer instead of the government itself.

Could this simple device really get around sovereign immunity? Yes. Indeed, in the famous case of Marbury v. Madison (which is of course better known for other reasons), the Court relied on the officer suit practice in English law. Quoting Blackstone, the Court noted that “injuries to the rights of property can scarcely be committed by the Crown without the intervention of its officers, for whom, the law, in matters of right, entertains no respect or delicacy, but furnishes various methods of detecting the errors and misconduct of those agents by whom the King has been deceived and induced to do a temporary injustice.”

In innumerable cases, parties injured by wrongful government action obtained relief by suing government officers. Possibly the most prominent example was United States v. Lee. That case concerned the “Arlington estate” of Mary Lee, wife of Confederate General Robert E. Lee, which was wrongfully seized by the United States during the Civil War for supposed nonpayment of taxes, sold at a tax sale to the United States, and turned into Arlington National Cemetery. Mary Lee’s son, heir to the estate, could not sue the United States for return of the land, because of sovereign immunity. Instead, he brought an ordinary action of ejectment against the federal officers who were in charge of the land. Those officers argued that they had no personal interest in the land and that the suit was really a suit against the United States that should be barred by sovereign immunity. The Supreme Court, however, permitted the suit to go forward against the officers, noting that “[n]o man in this country is so high that he is above the law. . . . All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it.”  

If officer suits successfully evaded sovereign immunity, what was the problem? The difficulty was that officer suits, although serving an important purpose, were based on fiction. The defendants in Lee were right: that suit really was, in its essence, a suit against the federal government. To get around sovereign immunity, the Supreme Court pretended that the suit was merely a personal suit against the defendant officers, but no one was fooled. The Court was employing a “legal fiction”—a statement that everyone knew was false, but which the Court pretended was true because doing so allowed the Court to reach the desired result.

Fictions, however useful they may be, entail dangers of their own. As long as a court using the officer suit fiction remembered that it was a fiction, it could reach correct results. But sometimes courts would fall into the trap of believing their own fictions. Courts that believed that officer suits were justified because they really were just personal suits against officers got things wrong.

For example, what should happen if during the pendency of an officer suit the defendant officer died or resigned from office? It might seem natural to allow the suit to continue against the defendant’s successor in office, but if one believes the fiction that the suit is a personal suit against the defendant as an individual, then there is no connection between the initial defendant and the successor officer. Accordingly, in such a suit, the Supreme Court held that when the defendant officer leaves office, the suit abates. The ruling made sense in terms of the fiction, but frustrated the purpose of the fiction, which was to obtain justice for the wrongly injured plaintiff.

Similarly, in some cases a plaintiff injured by wrongful government action would bring an officer suit against a local federal official in a convenient local venue. The Supreme Court, again forgetting that the official defendant was a mere fictional stand-in for the real defendant (the federal government), would sometimes hold that the relevant national official was a necessary defendant, which might require the plaintiff to sue in inconveniently far-off Washington, DC. Again, this made sense in terms of the fiction that the suit really only a personal suit against the officer, but it failed to let the fiction serve its purpose.

Over time, the fictional nature of officer suits caused them to become encrusted with a bewildering set of rules that sometimes allowed courts to do justice to parties injured by wrongful government action, but at other times prevented courts from giving relief, even though there was no meaningful distinction between the different kinds of cases. The system needed reform.  

ACUS took on this issue, and ACUS Recommendation 69-1 was the result. Consultant Roger Cramton wrote a report airing the difficulties caused by the officer suit fiction. Based on the report, ACUS recommended that Congress amend 5 U.S.C. § 702 to waive sovereign immunity in cases in which a plaintiff sued the United States for other than money damages. Such a waiver would end the need for officer suits and allow plaintiffs to sue the United States itself. 

The report emphasized that no barrier to suit other than sovereign immunity would be affected. A plaintiff bringing suit would still need to have standing, the controversy would need to be ripe, the plaintiff would need to have exhausted administrative remedies, and so on. The recommendation simply proposed that no one be kicked out of court on the ground that under the obscure rules applying to officer suits, the plaintiff’s suit was one deemed to be “really” a suit against the government, when, as everyone knew, all officer suits were really suits against the government.

By a happy coincidence, not long after the recommendation was made, former ACUS Chairman Antonin Scalia (who later, of course, became Justice Scalia) became the head of the Office of Legal Counsel at the Department of Justice. In that capacity, he wrote to Senator Edward Kennedy. Scalia noted that the officer suit fiction had produced “a mass of confusion.” He lamented “the failure of the criteria for sovereign immunity, as they have been expressed in a long and bewildering series of Supreme Court decisions, to bear any necessary relationship to the real factors which should determine when the Government requires special protection.” He supported enactment of a bill based on the ACUS recommendation.”

Congress did amend 5 U.S.C. § 702 in accordance with ACUS’s recommendation. The amendment waived sovereign immunity for actions seeking relief other than money damages. The happy result is that officer suits are no longer needed against federal officers. Plaintiffs can simply sue the United States itself in these cases, and they do not have to worry about whether their case is one in which the officer suit fiction allows relief, or one in which an officer suit would fail because of some obscure, technical rule having no relation to any real reason why relief should or should not be permitted.  

Recommendation 69-1 showed ACUS at its best. ACUS called attention to a technical obstacle that blocked many actions against the federal government while serving no real purpose. The reform championed by ACUS removed this technical obstacle while retaining appropriate protection for the government.  

Today, the APA is the subject of many reform proposals, but it remains resistant to change. ACUS can be proud that its proposal for amending the APA is among the very small number that have succeeded.

Jonathan R. Siegel is a Public Member of ACUS the F. Elwood & Eleanor Davis Research Professor of Law at George Washington University Law School. He served as the Director of Research and Policy at ACUS from 2010 to 2011.


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