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Al Shimari v. Caci Premier Technology, Inc.

United States District Court, E.D. Virginia, Alexandria Division

March 22, 2019

SUHAIL NAJIM ABDULLAH AL SHIMARI, et al., Plaintiffs,
v.
CACI PREMIER TECHNOLOGY, INC., Defendant/Third-Party Plaintiff,
v.
UNITED STATES OF AMERICA, Third-Party Defendant.

          MEMORANDUM OPINION

          LEONIE M. BRINKEMA UNITED STATES DISTRICT JUDGE.

         Before the Court are third-party defendant the United States of America's ("United States") Motion to Dismiss [Dkt. No. 696] and Motion for Summary Judgment [Dkt. No. 1129], as well as defendant/third-party plaintiff CACI Premier Technology, Inc.'s ("CACI") Motion to Dismiss for Lack of Jurisdiction [Dkt. No. 1149]. For the reasons that follow, the United States' Motion to Dismiss will be granted as to Count 4 and denied in all other respects, CACI's Motion to Dismiss will be denied, the United States' Motion for Summary Judgment will be granted, and the Third-Party Complaint will be dismissed as to the United States.

         I. BACKGROUND

         This civil action arises out of the alleged torture; cruel, inhuman, or degrading treatment ("CIDT"); and war crimes inflicted on plaintiffs Suhail Najim Abdullah Al Shimari ("Al Shimari"), Asa'ad Hamza Hanfoosh Al-Zuba'e ("Al-Zuba'e"), Salah Hasan Nusaif Jasim Al- Ejaili ("Al-Ejaili"), and Taha Yaseen Arraq Rashid ("Rashid")[1] (collectively, "plaintiffs") by members of the United States military and CACI employees while plaintiffs were detained at the Abu Ghraib prison. The procedural and factual background of this civil action is described extensively in the Memorandum Opinion of February 21, 2018 [Dkt. No. 678] and will not be repeated in detail here. For the purposes of the present motions, it is sufficient to understand that plaintiffs, all of whom are Iraqi citizens who were detained at Abu Ghraib for a significant period of time, allege that they suffered severe mistreatment at the hands of military personnel and CACI employees. As summarized in the Memorandum Opinion:

Over the course of six weeks, Al-Ejaili was subjected to repeated stress positions, including at least one that made him vomit black liquid; sexually-related humiliation; disruptive sleeping patterns and long periods of being kept naked or without food or water; and multiple instances of being threatened with dogs. The approximately ten to twelve times he was interrogated involved systematic beatings, including to the head, and being doused with hot and cold liquids. Al-Zuba'e was subjected to sexual assault and threats of rape; being left in a cold shower until he was unable to stand; dog bites and repeated beatings, including with sticks and to the genitals; repeated stress positions, including at least one that lasted an entire day and resulted in his urinating and defecating on himself; and threats that his family would be brought to Abu Ghraib. Al Shimari was subjected to systematic beatings, including on his head and genitals, with a baton and rifle, and some where he was hit against the wall; multiple stress positions, including one where he was forced to kneel on sharp stones, causing lasting damage to his legs; being threatened with dogs; a cold shower similar to Al-Zuba'e's, being doused with water, and being kept in a dark cell and with loud music nearby; threats of being shot and having his wife brought to Abu Ghraib; electric shocks; being dragged around the prison by a rope tied around his neck; and having fingers inserted into his rectum.

Mem. Op. [Dkt. No. 678] 31-32. Plaintiffs allege that as a result of this treatment, they have suffered "severe and lasting physical and mental damage." Id. at 33. For example, Al Shimari, Al-Zuba'e, and Al-Ejaili each allege that they have "been diagnosed with post-traumatic stress disorder and major depressive disorder," and each "has submitted an expert report detailing how these mental illnesses have caused significant problems in [their] personal and professional lives" through the present day. Id. Each plaintiff also alleges that he continues to suffer from physical symptoms, including pain and scarring, attributable to this mistreatment. Id.

         The claims against CACI are brought under the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350, and were initially for engaging in, conspiring to engage in, and aiding and abetting torture; CIDT; and war crimes, all in violation of international law. On February 21, 2018, the Court granted in part and denied in part CACI's Motion to Dismiss and dismissed the direct liability counts against CACI. In so doing, the Court determined that plaintiffs' factual allegations describe conduct that represents "violations of international law norms that are specific, universal, and obligatory." Mem. Op. 28 (internal quotation marks and citation omitted); see also Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004).

         CACI has brought a Third-Party Complaint [Dkt. No. 665] against the United States of America and John Does 1-60.[2] According to the allegations in the Third-Party Complaint, the United States military oversaw interrogation operations at Abu Ghraib, including making decisions about which detainees would be interrogated and which "Tiger Teams," consisting of an interrogator (either a CACI employee or a military person) and a linguist, would be assigned to which detainees. Third-Party Compl. ¶ 18. In addition, all Tiger Teams reported to the military chain of command, which included various military noncommissioned officers in charge, the Officer in Charge of the Interrogation Control Element, and the Commanding Officer of the intelligence battalion deployed to Abu Ghraib. Id. ¶ 19. CACI alleges that the United States military "exercised direct and plenary control over all aspects of a detainee's experience at Abu Ghraib," control which included not only assigning teams to detainees but also establishing the Interrogation Rules of Engagement, approving interrogation plans for each detainee, reviewing interrogation reports prepared after each interrogation, and approving certain techniques that required authorization. Id. ¶ 20. The gravamen of CACI's allegations is that the United States military personnel, and not CACI personnel, were ultimately responsible for directing the interrogations of the plaintiffs and subjecting plaintiffs to mistreatment. Accordingly, CACI seeks to hold the government liable on a variety of theories.

         In Count 1, CACI seeks common law indemnification against the United States and the John Doe defendants and, in Count 2, exoneration for any judgment that might be entered against CACI for acts of mistreatment toward plaintiffs that the third-party defendants "inflicted, directed, authorized, or permitted." Id. ¶¶ 38, 45. In Count 3, CACI seeks contribution against the third-party defendants to the extent that plaintiffs seek to hold CACI liable on a respondeat superior theory based on CACI employees' entry into a conspiracy with or aiding and abetting the United States or the John Doe defendants. Lastly, in Count 4, CACI brings a breach of contract claim against the United States, in which it alleges that CACI's contract with the government to supply interrogators contained an implied duty of good faith and fair dealing that the government violated when it refused to produce discovery that could have allowed CACI to defend itself against plaintiffs' claims.

         The United States has filed a Motion to Dismiss [Dkt. No. 696], in which it argues that the Court lacks subject matter jurisdiction to consider the Third-Party Complaint because all of CACI's claims against it are barred by sovereign immunity. CACI has also filed a derivative Motion to Dismiss [Dkt. No. 1149], in which it argues that any sovereign immunity granted to the United States must apply equally to it due to its status as a government contractor. Because the Court had not ruled on the United States' Motion to Dismiss, the United States has also filed a Motion for Summary Judgment [Dkt. No. 1129], in which it argues that it is entitled to judgment as a matter of law because in 2007, CACI and the United States settled all claims arising out of the task orders pursuant to which CACI sent civilian interrogators to Abu Ghraib.

         II. UNITED STATES' MOTION TO DISMISS

         A. Standard of Review

         Under Fed.R.Civ.P. 12(b)(1), a civil action must be dismissed whenever the court lacks subject matter jurisdiction. The plaintiff has the burden of establishing subject matter jurisdiction. Demetres v. E.W. Constr., Inc., 776 F.3d 271, 272 (4th Cir. 2015). "Because jurisdictional limits define the very foundation of judicial authority, subject matter jurisdiction must, when questioned, be decided before any other matter." United States v. Wilson, 699 F.3d 789, 793 (4th Cir. 2012).

         B. Federal Tort Claims Act Waiver of Immunity

         CACI first contends that the Federal Tort Claims Act ("FTCA") has waived the government's immunity for the claims at issue in this case. In response, the government argues that the foreign country exception, 28 U.S.C. § 2680(k), operates to bar CACI's tort claims. The FTCA generally waives sovereign immunity and subjects the United States to liability for tort damages "caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." Id. § 1346(b)(1). Congress has provided a variety of exceptions to this waiver, including for "[a]ny claim arising in a foreign country." Id. § 2680(k).

         CACI argues that the foreign country exception does not apply to its claims because the area where plaintiffs' claims arose-Abu Ghraib-was a location "in which the sovereign government had been forcibly displaced by the United States military and its allies, occupied by United States military forces, and governed by a military occupation government." Third-Party PL CACI Premier Tech., Inc.'s Opp'n to the U.S.' Mot. to Dismiss [Dkt. No. 713] ("CACI MTD Opp'n") 17. This position relies primarily on United States v. Snelar, 338 U.S. 217 (1949), in which the Supreme Court held that an air base in Newfoundland that was held by the United States under a long-term lease was a "foreign country" for purposes of the FTCA. Id. at 218-19. Although the Court did not clearly define the phrase "foreign country" as used in that section, it relied primarily on considerations of sovereignty, stating: "We know of no more accurate phrase in common English usage than 'foreign country' to denote territory subject to the sovereignty of another nation. By the exclusion of 'claims arising in a foreign country,' the coverage of the [FTCA] was geared to the sovereignty of the United States." Id. at 219 (footnote omitted). Although this decision indicates that territory subject to another country's sovereignty is categorically within the limits of the foreign country exception, it does not explain how the FTCA treats territory that is subject to no-or overlapping or ambiguous-sovereign claims.

         That being said, more recent Fourth Circuit and Supreme Court decisions have made clear that land may be subject to the foreign country exception even if another country does not exercise sovereignty over it. For example, in Burna v. United States, 240 F.2d 720 (4th Cir. 1957), the Fourth Circuit applied Spelar to post-World War II Okinawa, which was subject to substantial governance by the United States pursuant to a treaty provision. Id. at 720-21. The plaintiff in that case argued that Spelar indicated that the FTCA exception only applied to territory under another country's control and that Okinawa was actually under the United States' control. See Id. at 721. The Fourth Circuit disagreed, concluding that Spelar had held that foreign sovereignty over a particular territory was sufficient, but not necessary, to trigger application of the foreign country exception. Id. at 721-22. In reaching that conclusion, the Fourth Circuit cited Congress's use of the words "foreign country" to connote a "sense of 'otherness, '" or to mean "a country which is not the United States or its possession or colony, -an alien country, -other than our own." Id. at 722-23 (internal quotation marks and citation omitted); see also id. at 722 (framing the inquiry in terms of whether "Okinawa has been incorporated into the United States"). Accordingly, it determined that Congress "did not have in mind the fine distinctions as to sovereignty of occupied and unoccupied countries which authorities on international law may have formulated" and that Okinawa-even when occupied by the United States-remained a "foreign country" for purposes of the FTCA. Id. at 722-23.

         This understanding of the FTCA is in accord with more recent Supreme Court precedent. In Smith v. United States, 507 U.S. 197 (1993), the Court held that Antarctica, which is a "sovereignless region," falls within the foreign country exception. Id. at 198. Although the Court relied on a variety of pieces of evidence in evaluating the status of Antarctica (and did not produce a decision clearly adopting a definition of "foreign country"), it did observe that "the commonsense meaning of the term ['country'] undermines petitioner's attempt to equate it with 'sovereign state'" because the first definition of "country" in the dictionary is "simply '[a] region or tract of land.'" Id. at 201 (second alteration in original) (quoting Webster's New International Dictionary 609 (2d ed. 1945)).

         When these decisions are read together, it becomes clear that Abu Ghraib is in a "foreign country" and remained as such during the time it was occupied by coalition forces. In many ways, its status mirrored post-World War II Okinawa's, as the United States and other coalition governments displaced the previous Iraqi sovereign. Abu Ghraib, like Okinawa, was never "incorporated into the United States" and, given the concept of "foreign country" embraced in Smith, the lack of an independent Iraqi sovereign does not bar the application of the foreign country exception. Accordingly, the FTCA does not waive sovereign immunity for the tort claims asserted in this civil action.

         C. Sovereign Immunity and Jus Cogens Violations

         CACI further argues that the government has waived sovereign immunity for violations of jus cogens norms-that is, those peremptory international law norms from which states may not derogate.[3] This question appears to be one of first impression, not just in this district or circuit but nationally.[4] Accordingly, before the question presented may be addressed, it is necessary to examine the history and development of sovereign immunity doctrine and jus cogens norms to contextualize the current dispute.

         1. Development of Sovereign Immunity Doctrine

         a. Historical Background and Incorporation into American Law

         The doctrine of sovereign immunity, which was recognized in English common law as early as the thirteenth century, appears to have its roots in England's feudal system, in which "each petty lord in England held or could hold his own court to settle the disputes of his vassals." David E. Engdahl, Immunity and Accountability for Positive Governmental Wrongs, 44 U. Colo. L. Rev. 1, 2 (1972). Although a lord's vassals were subject to the jurisdiction of his court, "as the court was the lord's own, it could hardly coerce him." Id. Indeed, the "trusted counsellors who constituted [a lord's] court" could "claim no power over him their lord without his consent." Id. That being said, each "petty lord ... was vassal in his turn, and subject to coercive suit in the court of his own lord." Id. In the organization of the feudal hierarchy, "[t]he king, who stood at the apex of the feudal pyramid" and was "not subject to suit in his own court," was wholly immune from suit because "there happened to be no higher lord's court in which he could be sued." Id. at 2-3; see also United States v. Lee, 106 U.S. 196, 206 (1882) (identifying "the absurdity of the King's sending a writ to himself to command the King to appear in the King's court" as a basis of sovereign immunity in England).

         With the rise of the nation-state, this "personal immunity of the king" transformed into "the immunity of the Crown." George W. Pugh, Historical Approach to the Doctrine of Sovereign Immunity, 13 La. L. Rev. 476, 478 (1953). Given the potential harshness of such a doctrine as attached to the Crown rather than the king, legal authorities developed procedures whereby victims could obtain redress for wrongs committed by the government without directly suing the Crown. For example, when a government agent committed a tort, "English courts permitted suit against the government official or employee who had actually committed the wrong complained of." Id. at 479-80. Indeed, in such situations, the doctrine of sovereign immunity, as embodied in the famous phrase "the king could do no wrong," ensured that the tort victim could obtain a judgment against the agent: theoretically, if "the king could do no wrong, it would be impossible for him to authorize a wrongful act, and therefore any wrongful command issued by him was to be considered as non-existent, and provided no defense for the dutiful" agent. Id. at 480.

         Similarly, English law developed the "petition of right," which allowed subjects to petition the king for the ability to sue the Crown in the king's courts-in effect, asking the king to waive sovereign immunity with respect to a specific legal dispute. See James E. Pfander, Sovereign Immunity and the Right to Petition: Toward a First Amendment Right to Pursue Judicial Claims Against the Government. 91 Nw. U. L. Rev. 899, 900-08 (1997). As with tort suits against government agents, the notion that "the king could do no wrong" worked to ensure the availability of a remedy for victims of wrongdoing because the "king, as the fountain of justice and equity, could not refuse to redress wrongs when petitioned to do so by his subjects." Louis L. Jaffe, Suits Against Governments and Officers: Sovereign Immunity. 77 Harv. L. Rev. 1, 3 (1963) (citation omitted); see also Engdahl, supra, at 3 (describing the "principle that the king could not rightfully refuse to grant a petition of right"). Moreover, because petitions of right and other "prerogative remedies" that allowed subjects to pursue a suit against the Crown "were invariably controlled by the King's justices rather than the King himself," the "rule of law, as opposed to royal whim, largely determined the availability of relief against the Crown." Pfander, supra, at 908. By the eighteenth century, such procedures were so ingrained in the common law that "[i]n the same paragraph in which William Blackstone proclaimed the immunity of the Crown, he also sketched the procedure on the 'petition of right.'" Id. at 901; see also Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) ("The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court."). As a result of these procedures for obtaining redress, although the formal immunity of the Crown was deeply rooted in the common law, by the eighteenth century, it operated primarily as merely a matter of formalism, with a variety of procedural work-arounds to ensure that victims could obtain redress for wrongs committed by the Crown's agents.[5]

         Given that sovereign immunity in England was rooted in the common law and linked to the personal immunity of the king, it is not surprising that "[a]t the time of the Constitution's adoption, the federal government's immunity from suit was a question-not a settled constitutional fact." Vicki C. Jackson, Suing the Federal Government: Sovereignty. Immunity. and Judicial Independence. 35 Geo. Wash. Int'l L. Rev. 521, 523 (2003). "The nature of the sovereignty created under the 1789 Constitution was something new and uncertain-it took the people and the institutions time to work out their relationships." Id. at 528. Mapping the old English doctrine of sovereign immunity onto this new system implicated many "[q]uestions of the form of government and of the nature of the sovereignties created" by the Constitution, including whether there was a sovereign in the new republic and, "[i]f so, where did that sovereignty reside under a system of separated powers" and "[w]hat were the roles of the national legislature, the executive, and the federal courts" in that sovereign system. Id. at 528-29. The answers to these questions were not immediately obvious and, indeed, the courts did not quickly adopt a theory of federal sovereign immunity. In fact, "[t]he first clear reference to the sovereign immunity of the United States in an opinion for the entire [Supreme] Court" did not appear until 1821, when the concept of federal sovereign immunity was discussed in dicta, and the first time sovereign immunity was invoked by the Supreme Court "as a basis to deny relief occurred in 1846. Id. at 523 n.5.

         Indeed, early discussions of federal sovereign immunity by the Supreme Court exhibit a sense that the doctrine may be incompatible with a republican form of government. For example, in Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), superseded by constitutional amendment. U.S. Const, amend XI, Chief Justice Jay wrote:

It will be sufficient to observe briefly, that the sovereignties in Europe, and particularly in England, exist on feudal principles. That system considers the Prince as the sovereign, and the people as his subjects; it regards his person as the object of allegiance, and excludes the idea of his being on an equal footing with a subject, either in a Court of Justice or elsewhere. That system contemplates him as being the fountain of honor and authority; and from his grace and grant derives all franchises, immunities and privileges; it is easy to perceive that such a sovereign could not be amenable to a Court of Justice, or subjected to judicial controul and actual constraint. It was of necessity, therefore, that suability became incompatible with such sovereignty. Besides, the Prince having all the Executive powers, the judgment of the Courts would, in fact, be only monitory, not mandatory to him, and a capacity to be advised, is a distinct thing from a capacity to be sued. The same feudal ideas run through all their jurisprudence, and constantly remind us of the distinction between the Prince and the subject. No. such ideas obtain here; at the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects ... and have none to govern but themselves; the citizens of America are equal as fellow citizens, and as joint tenants in the sovereignty.

Id. at 471-72 (opinion of Jay, C.J.) (emphasis omitted). Although the question was not directly presented in Chisholm. Chief Justice Jay argued that "fair reasoning" suggests that the Constitution permits "that the United States may be sued by any citizen, between whom and them there may be a controversy" by extending judicial power to "controversies to which the United States are a party." Id. at 478; see also Jackson, supra, at 532-33 (reading Justice Wilson's opinion in Chisholm to argue "that the absence of monarch, the role of a written constitution and the process of judicial review suggested that English approaches to sovereign immunity were inapposite to the suability of governments under the United States Constitution" (citing Chisholm. 2 U.S. (2 Dall.) at 453-66 (opinion of Wilson, J.))).

         Early American courts were not generally forced to confront the question whether the federal government enjoyed sovereign immunity because, as in England, "many judicial remedies for governmental wrongdoing were available" that did not involve direct suit against the government. Jackson, supra, at 523-24. For example, in the early days of the Republic, the usual remedy for torts committed by government officials was a damages suit directly against the official who committed the tort. Ann Woolhandler, Patterns of Official Immunity and Accountability. 37 Case W. Res. L. Rev. 396, 414-16 (1987); see also Ann Woolhandler, Old Property. New Property, and Sovereign Immunity. 75 Notre Dame L. Rev. 919, 922 (2000) ("Individual officers remained liable for their torts under general agency law, even if they were working for a disclosed principal-the state."). In addition, under the Judiciary Act of 1789, "all federal courts could issue writs of habeas corpus," which are inherently directed to government custodians but "have never been regarded as barred by sovereign immunity." Jackson, supra, at 524. Similarly, "the writ of mandamus and the injunction have been available in actions against individual government officials" to address ongoing legal violations. Id. at 525.

         Specifically with respect to torts committed by government agents, the Supreme Court confirmed as early as 1804 that, as in England, direct suits against government officers were not barred by sovereign immunity. In Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804), the Court held that a damages suit could proceed against a naval officer who directed the seizure of a ship sailing from France to St. Thomas. Id. at 176-77, 179. Although the seizure conformed to orders given by the Secretary of the Navy, it was unlawful under the relevant statute, which authorized seizures of ships sailing to, but not from, French ports. Id. at 177-78. The Court recognized the apparent unfairness of holding a military officer personally liable for following orders but nevertheless concluded that instructions from the executive "cannot change the nature of the transaction, or legalize an act which without those instructions would have been a plain trespass" and, accordingly, the naval captain "must be answerable in damages to the owner of this neutral vessel." Id. at 179.

         Although such suits were nominally brought against government officials rather than the government itself, in the early Republic there was a "practice of relatively routine, but not automatic, indemnification" by Congress where an official had been held liable in tort. James E. Pfander & Jonathan L. Hunt, Public Wrongs and Private Bills: Indemnification and Government Accountability in the Early Republic. 85 N.Y.U. L. Rev. 1862, 1868 (2010). "Following the imposition of liability on a government officer, Congress would decide whether to make good the officer's loss in the exercise of its legislative control of the appropriation process," thereby "preserving] the formal doctrine of sovereign immunity while assigning the ultimate loss associated with wrongful conduct to the government." Id. For example, after the Supreme Court's decision in Little. Captain Little, the naval officer found liable for the unlawful seizure of the ship, submitted a petition for indemnity to Congress, and Congress passed a bill indemnifying him. Id. at 1902. Indeed, between 1789 and 1860, there were at least "57 cases of officers petitioning for indemnification and 11 cases of suitors petitioning for the payment of a judgment against an officer" and, of these cases, over 60% of the petitioners received some form of relief, such as a private bill appropriating money directly to the officer or the victim. Id. at 1904-05.

         This two-part officer suit and indemnification system rendered sovereign immunity a formalism that barred suits directly against the government but did not bar recovery from the government, at least with respect to torts committed by government agents. Instead, the function of sovereign immunity was to divide responsibilities between the judiciary and the legislature: the judiciary determined, in a direct suit against the officer, whether the conduct was unlawful and, if so, the amount of damages; and in the case of unlawful conduct, Congress determined whether the circumstances were such that the government rather than the officer should ultimately bear the loss. See Id. at 1868.

         Even after the concept of federal sovereign immunity had worked its way into our legal system to become "a familiar doctrine of the common law," The Siren, 74 U.S. (7 Wall.) 152, 153-54 (1869), the idea that the concept should be construed, to the extent possible, as a procedural doctrine rather than a substantive bar to recovery led the Supreme Court to create work-arounds to allow recovery, as demonstrated by a pair of Reconstruction Era cases. In The Siren, the Court held that even though direct suits may not be instituted against the United States, "when the United States institute a suit, they waive their exemption so far as to allow a presentation by the defendant of set-offs, legal and equitable, to the extent of the demand made or property claimed, and when they proceed in rem, they open to consideration all claims and equities in regard to the property libelled." 74 U.S. (7 Wall.) at 154. In a similar vein, in The Davis, 77 U.S. (10 Wall.) 15 (1870), the Court held that sovereign immunity does not bar the enforcement of a lien against goods that are seized after the United States has contracted for their delivery but before they are in the possession of the government. Id. at 21-22. Although the seizure in question forced the United States "to the necessity of becoming claimant and actor in the court to assert [a] claim" to the goods, the Court determined that it technically did not infringe on the immunity of the federal government because the "marshal served his writ and obtained possession without interfering with that of any officer or agent of the government." Id. at 22.

         In both of these cases, the Supreme Court relied on formal understandings of the nature of immunity from suit to allow injured parties to maintain claims-either as offset or in rem claims-even though doing so subjected the government's conduct or property rights to judicial review. Moreover, in both cases, the Court invoked the historical remedies available against the Crown in England as a reason for narrowly construing any claim of immunity. In The Siren, the Court observed that "[i]n England, when the damage is inflicted by a vessel belonging to the crown," the "present practice" is to file a suit in rem and have the court direct "the registrar to write to the lords of the admiralty requesting an appearance on behalf of the crown-which is generally given." 74 U.S. (7 Wall.) at 155. Similarly, in The Davis, the Court observed that in situations where "it is made to appear that property of the government ought, injustice, to contribute to a general average, or to salvage" in maritime cases, the "usual course of proceeding" in England is "for the proper office of the government to consent in court that it may take jurisdiction of the matter." 77 U.S. (10 Wall.) at 20. Although these procedures, which were developed to "prevent [the] apprehension of gross injustice in such cases in England," id, could not be identically implemented in the United States given the government's structure, the Court attempted to prevent gross injustice by providing a procedural mechanism that allowed injured parties to obtain relief without directly suing the government.

         This formalistic approach to sovereign immunity was reinforced a decade later in United States v. Lee, 106 U.S. 196 (1882), which involved the question whether an ejectment action between private plaintiffs and federal officer defendants should be dismissed as barred by sovereign immunity when the United States asserted ownership of the land. Id. at 196-98. To help explain the limits of sovereign immunity, the Lee Court went through the justifications given in English common law for the immunity of the Crown, explaining how each justification did not serve to support the adoption of the doctrine into the quite different context of the American republican government. According to the Lee Court, "one reason given by the old judges was the absurdity of the King's sending a writ to himself to command the King to appear in the King's court," but "[n]o such reason exists in our government." Id. at 206. Another reason advanced by English authorities was that "the government is degraded by appearing as a defendant in the courts of its own creation," but the Lee Court rejected this reason "because [the government] is constantly appearing as a party in such courts, and submitting its rights as against the citizen to their judgment." Id. The Lee Court also observed that another reason given for sovereign immunity-"that it would be inconsistent with the very idea of supreme executive power, and would endanger the performance of the public duties of the sovereign, to subject him to repeated suits as a matter of right"-did not apply to the United States because "no person in this government exercises supreme executive power, or performs the public duties of a sovereign," and it is therefore "difficult to see on what solid foundation of principle the exemption from liability to suit rests." Id. (citation omitted).

         Indeed, the Lee Court explained that the differences between the English and American systems of government are such that English court decisions extending immunity in similar circumstances should be discounted in light of the uniquely American principle that no man is above the law:

[L]ittle weight can be given to the decisions of the English courts on this branch of the subject, for two reasons: - 1. In all cases where the title to property came into controversy between the crown and a subject, whether held in right of the person who was king or as representative of the nation, the petition of right presented a judicial remedy, - a remedy which this court, on full examination in a case which required it, held to be practical and efficient. There has been, therefore, no necessity for suing the officers or servants of the King who held possession of such property, when the issue could be made with the King himself as defendant.
2. Another reason of much greater weight is found in the vast difference in the essential character of the two governments as regards the source and the depositaries of power. Notwithstanding the progress which has been made since the days of the Stuarts in stripping the crown of its powers and prerogatives, it remains true to-day that the monarch is looked upon with too much reverence to be subjected to the demands of the law as ordinary persons are, and the king-loving nation would be shocked at the spectacle of their Queen being turned out of her pleasure-garden by a writ of ejectment against the gardener. The crown remains the fountain of honor, and the surroundings which give dignity and majesty to its possessor are cherished and enforced all the more strictly because of the loss of real power in the government.
It is not to be expected, therefore, that the courts will permit their process to disturb the possession of the crown by acting on its officers or agents. Under our system the people, who are there called subjects, are the sovereign. Their rights, whether collective or individual, are not bound to give way to a sentiment of loyalty to the person of monarch. The citizen here knows no person, however near to those in power, or however powerful himself, to whom he need yield the rights which the law secures to him when it is well administered. When he, in one of the courts of competent jurisdiction, has established his right to property, there is no reason why deference to any person, natural or artificial, not even the United States, should prevent him from using the means which the law gives him for the protection and enforcement of that right.

Id. at 208-09 (alterations in original); see also Langford v. United States, 101 U.S. 341, 342-43 (1879) (unanimously rejecting the "maxim of English constitutional law that the king can do no wrong" because it does not "have any place in our system of government," where "[w]e have no king" and where it is obvious that "wrong may be done by the governing power"). Accordingly, the Lee Court interpreted the doctrine of sovereign immunity formalistically, barring suit directly against the government but allowing the plaintiffs to proceed with their ejectment action against the government officers despite the federal government's claim of ownership to the land.

         As these cases, together with the earlier cases allowing for direct suit against government officials, demonstrate, sovereign immunity was incorporated into American common law in the nineteenth century primarily as a procedural mechanism regulating the ways in which injured parties could obtain relief rather than as a substantive bar to recovery in the ordinary case. Indeed, well into the twentieth century, "[f]or tortious or otherwise wrongful action by a government official, in violation of or not authorized by law, ... officer suits-for mandamus, for ejectment, or other common law ...


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