Also known as: the king can do no wrong · rex non potest peccare · sovereign immunity · crown immunity
Written by attorneys — see sources below.
A common-law principle that the sovereign cannot be sued without consent in its own courts. The doctrine evolved into the rule that governments and their officers enjoy immunity from private damages actions unless the sovereign has waived protection or Congress has validly abrogated it under the Fourteenth Amendment.
Khadija Khan, a state employee, sued her state employer in state court for unpaid overtime under the Fair Labor Standards Act. The state had not consented to the suit. The court dismissed the action because the state retained sovereign immunity from private federal claims in its own courts.
Kiara Kaur obtained a judgment against State B in her home state and then filed an enforcement action in State A courts seeking damages from State B itself. State B had not consented to suit in State A. The court held that State A lacked power to entertain the action against the nonconsenting sister state.
Kai Kwon, a citizen of State C, sued State C in federal court for breach of a software licensing contract and sought money damages from the state treasury. The state had never consented to such suits. The court dismissed the case for lack of jurisdiction under the Eleventh Amendment.
Karina Kovacs sued the state in federal court under a federal manufacturing safety statute enacted pursuant to the Commerce Clause that purported to abrogate state immunity. The state had not consented. The court dismissed the damages claim because Article I powers cannot remove Eleventh Amendment protection.
Kevin Kane, a former federal employee, sued the former President for damages arising from an allegedly unlawful discharge. The President had acted within the outer perimeter of official duties. The court held that absolute immunity attached to the office and barred the suit.
In January 1970 respondent A. Ernest Fitzgerald lost his job as a management analyst with the Department of the Air Force when his position was eliminated during a departmental reorganization and reduction in force. One year earlier, on November 13, 1968, Fitzgerald had testified before the Subcommittee on Economy in Government of the Joint Economic Committee that cost overruns on the C-5A transport plane could approximate $2 billion. Concerned that the dismissal might constitute retaliation for the congressional testimony, the subcommittee held public hearings. At a December 8, 1969 news conference President Richard Nixon promised to look into the matter and directed White House Chief of Staff H. R. Haldeman to arrange for Fitzgerald's reassignment to another administration position. An internal White House memorandum from aide Alexander Butterfield recommended that Fitzgerald "bleed, for a while at least" because of perceived disloyalty, and no further White House efforts to reemploy him occurred. Fitzgerald complained to the Civil Service Commission alleging unlawful retaliation. The Examiner held that Fitzgerald's dismissal had offended applicable civil service regulations based on a finding that the departmental reorganization was motivated by reasons purely personal to respondent. The Examiner recommended Fitzgerald's reappointment to his old position or to a job of comparable authority. The Commission explicitly found that the evidence did not support Fitzgerald's allegation of retaliation for his 1968 testimony. At a January 31, 1973 news conference President Nixon stated that he had approved Fitzgerald's dismissal. A day later the White House press office issued a retraction of the President's statement. In 1978 Fitzgerald filed a second amended complaint in the United States District Court for the District of Columbia naming Nixon as a defendant and alleging violations of the First Amendment and two federal statutes. The District Court denied Nixon's motion for summary judgment on absolute immunity grounds. The Court of Appeals for the District of Columbia Circuit dismissed the collateral appeal. Shortly after Nixon petitioned for certiorari the parties agreed that Nixon would pay Fitzgerald $142,000 immediately and an additional $28,000 if the Supreme Court ruled he was not entitled to absolute immunity.
View caseKendra Kowalski, a former congressional staff member, sued a member of Congress for damages alleging sex discrimination in employment. The member asserted immunity for legislative acts. The court determined that the claim could proceed because the conduct fell outside the sphere of protected legislative activity.
Otto E. Passman represented Louisiana's Fifth Congressional District in the United States House of Representatives. On February 1, 1974, he hired Shirley Davis as a deputy administrative assistant at an annual salary of $18,000, with an expected promotion to administrative assistant at $32,000 upon the retirement of the current assistant. Davis was not hired through the competitive service. Passman was defeated in the 1976 primary election, and his tenure in office ended January 3, 1977. On or about July 31, 1974, Passman terminated Davis's employment by letter. Although he stated that she was able, energetic, and a very hard worker, he concluded that it was essential that the understudy to his administrative assistant be a man. The letter offered continued pay through July 31 plus an extra month of vacation and noted that secretaries of her ability were in demand in Monroe, Louisiana. Davis filed suit against Passman in the United States District Court for the Western District of Louisiana. She alleged that the termination discriminated against her on the basis of sex in violation of the United States Constitution and the Fifth Amendment. She sought damages in the form of backpay along with equitable relief including reinstatement, promotion, and salary increase. She invoked jurisdiction under 28 U.S.C. § 1331(a) on the ground that the matter in controversy exceeded $10,000 and arose under the Constitution. Passman moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), contending among other things that the law afforded no private right of action for the claim. The district court granted the motion and dismissed the complaint, ruling that Davis had no private right of action. A panel of the Court of Appeals for the Fifth Circuit reversed that dismissal. The Fifth Circuit sitting en banc then reversed the panel. It held that no right of action may be implied from the Due Process Clause of the Fifth Amendment. It also held that the proposed damage remedy was not constitutionally compelled. The Supreme Court granted certiorari. Since Passman was no longer a Member of Congress by the time the case reached the Supreme Court, equitable relief such as reinstatement was unavailable.
View caseThe phrase traces to English common law and expressed the idea that the sovereign could not be sued in its own courts without consent. American courts adopted the principle as the foundation for state and federal sovereign immunity doctrines.
Yes. The principle underlies the Eleventh Amendment bar on private damages actions against nonconsenting states in federal court, as recognized in Hans v. Louisiana and later cases.
No. Article I powers such as the Commerce Clause or Indian Commerce Clause do not authorize Congress to abrogate state sovereign immunity in federal court. Only Section 5 of the Fourteenth Amendment supplies that authority.
Yes. States retain sovereign immunity from private federal claims brought in their own courts when Congress acts under Article I, unless the state has consented.
Yes. A state retains sovereign immunity from private damages actions in the courts of a sister state, and the Constitution does not permit one state to hale another into its courts without consent.
…activities that the President might perform, places the President above the law. It is a reversion to the old notion that the King can do no wrong. Until now, this concept had survived in this country only in the form of sovereign immunity. That doctrine forecloses suit against the Government itself and against Government officials,…