Do I need permission to sue the government?

Many times in my life, I’ve heard that no one can file a lawsuit against the federal government, unless they receive permission first. (Exactly how to receive permission is something I’ve never bothered to ask.) Is this true, or merely an urban legend?

BONUS TRIVIA QUESTION (possibly UL): Every law passed by the government deals with restricting what the people can do. Only once in the history of the United States has the government passed a law restricting what the GOVERNMENT can do. What is it? (Answer is here.)

Can’t answer the question about the extent to which the US has immunity in its own courts, as I am not a US lawyer, but no doubt this is basic stuff for US lawyers so you’ll get an answer quickly enough.

As to the bonus trivia point, the basic principle is that individuals can do anything which is not forbidden, while the US government can do nothing unless permitted. On the whole these are sound princples, but they do have the result that laws regulating the behaviour of individuals tend to be in the form “you may not do this”, while laws regulating the behavour of the government tend to be in the form “the government may do this”. But the notion that the Bill of Rights is the only legislation which explicitly restricts the power of goverment to act is nonsense. Look at the fourteenth amendment, for example, which restricts the power of state governments.

The U.S. Government as a whole is huge, many of it’s departments and sub-departments have lawsuits brought against them everyday. The only limitations that I can find say you must use the federal court system, you cannot use state courts, individuals that work for the federal government are immune from civil suits, and only U.S. citizens or U.S. registered organizations and businesses can file suit. Favorite federal organizations to sue include the Dept. of Education, each branch of the military service, and for some reason, the National Park Service. You can go to any federal courthouse and obtain an information packet on suing in federal court.

The federal government is protected by sovereign immunity. It may not be sued unless it permits itself to be sued.

You don’t have to “ask for permission” - but the circumstances under which the government waives its immunity and consents to be sued are already outlined by law. So, in a sense, that is the “permission” sought.

  • Rick

When I was growing up in the 1930’s the only way to get redress for damage by government actions was to have a friendly member of congress introduce a private bill that allowed you to bring a suit.

I think that now there are methods established by law to proceed against government agencies through an administrative process set up by each agency. I believe this is true for claims up to a certain amount and for damages caused by things like automobile accidents.

Generally speaking you CANNOT sue the government, state or federal, unless the government “consents.” Yes, believe it or not, the governments does occasionally “consent”–typically by enacting legislation that authorizes a particular type of suit under particular circumstances; other times a state might consent because it concludes that the suit raises an important (if not necessarily meritorious) claim that, for public policy reasons, needs to be resolved by the courts.

An interesting and developing areas of the law concerns the extent to which the US Congress can authorize individuals to sue state governments in federal court. Once upon a time (not too long ago) it was thought that there were few if any practical limitations on Congress’ power to do this; more recently, however, that authority has been severely circumscribed by US Supreme Court decisions interpreting the 11th Amendment. Under current law, it appears that Congress cannot authorize federal suits against states except to the extent that such suits are deemed to provide for legitimate enforcement of the protections guaranteeed under the 14th Amendment, and the test the Court uses to test the validity of those enforcement efforts is rather strict.

Also, it was once thought that the immunity protections afforded the states (from suits in federal court) did not apply to any suit brought nominally against a state official (rather than the state itself or one of its agencies) or against a state or a state official for equitable (typically, injunctive or non-monetary) relief, rather than for damages (which, if awarded would need to be paid out of the state treasury). To some extent these distinctions are still being drawn by the courts, but neither suing an official (rather than the state) nor suing for injunctive relief (rather than damages) will necessarily avoid an 11th Amendment bar.

The federal government has set up a Court of Claims for tort actions against the federal government, and actions against the federal government are limited to the provisions governing this Court. As historically a government could not be sued, only to the extent that it has waived this sovereign immunity can you sue it.

OTOH, there are a myriad of agencies of the federal government, such as IRS, SSA, Labor, etc. If you disagree with any action taken by an adminstrative agency, you have to “exhaust your adminstrative remedies” before you can take any court action. For example, if you file for Social Security benefits and are denied, you have to follow the procedures set forth in the Social Security Act, which is to request reconsideration, request a hearing before an administrative law judge, and then request the Appeals Council to reverse the ALJ. If you are denied at the final step, then and only then can you bring the case to court, but this time you don’t take it to the Claims Court since this is not a tort action, but an action under an Act of Congress creating an adminstrative agency. You have to bring it before a federal court (the District Court) and then you can appeal, eventually, to SCOTUS, if they agree to accept your case by * certiorari.

As has been noted above, the government has consented to certain types of suit by the passage of laws such as the Tort Claims Act. This law acts as the appropriate consent for all claims that fall within its terms – you don’t need a letter from the President saying you can sue, all you need is to ask for a type of relief allowed in the Act.

Off the top of my head, the reasons governments waive immunity are threefold. First, governments sometimes actually think it’s the right thing to do to allow themselves to be sued. Second, even if the government disagrees, if the political will is such that a certain suit should be allowed, then there might a new law passed (whether public or private) to appease the electorate. Finally, in the commercial setting, no one would ever sell goods to or perform services for a government that hadn’t waived immunity, because the contractor could never be sure he’d get paid.

Even though the governments in this country do have immunity, you can sometimes get around that with an “Ex part Young” suit. (They’re called that because that was the name of the first one.) Young allows you not to sue for damages (money) but for an injunction, and you’re not suing the government, but rather the officer. You’re suing to stop the gov’t, or more precisely, one of its officers, from doing something that will injure you. Since the government is intangible, it can only act through its officers, so if the Court orders an officer not to do a given thing, it won’t be done. (The injunction applies to the officer in his official capacity, so the gov’t can’t solve the problem just by replacing him.) That’s why you’ll often see suits against the gov’t styled “Plaintiff v. Ashcroft” or “Plaintiff v. Babbitt”; technically, it’s the officer who is being sued.

BTW, as unfortunately no one has said yet, if this question is motivated by something happening in your life and not mere intellectual curiosity, the first thing you should do is to get a lawyer. As noted, there are several ways in which the government has already consented to suit that an attorney can research for you. OTOH, there are many administrative requirements you might be subject to, and failing to adhere to them as barbitu8 has noted may cause you to forfeit your claim. I personally have nothing near the factual or legal knowledge to offer effective assistance in this area.

–Cliffy, Esq.

To all the intelligent replies so far, I would add the following:

I believe that a Constitutional claim needs no government permission at all.

For example, if the government builds a facility on your land without permission, you would be entitled to bring suit for compensation no matter what the legislature has said.

I suppose you could say that the Constitution gives you permission in such instances, but it’s really a question of semantics.

A friend of mine, who used to work at the US Embassy, told me that his colleagues at another embassy somewhere sued the State department in an attempt to get their correct wages. Apparently all US citizens had got their proper raises each year, but people employed locally hadn’t. The result of it all was that they were told that you cannot sue the government and they had to pay whatever money the State department had paid for legal advice.

When he eventualt got sacked (when Clinton needed the money elsewhere and cut down on the embassies) he estimated that USA owned him some eight or nine thousand dollars that he never got.

You cannot sue the government except insofar as it has allowed you to sue it.