Suing the Sovereign

The doctrine of sovereign immunity stems from the old precept that “the king can do no wrong.” It is under this doctrine that governments, the legal descendants of the kings, generally decide who can sue them and for what reason. This doctrine was the basis for the Supreme Court ruling this week that put an end to the legal efforts of American citizens seeking to be compensated for cancer-related death and illness allegedly caused by open-air U.S. atomic bomb tests in Nevada during 1951-62. All testing since then has been done underground.

While many at the time certainly agreed that ancient kings could do no wrong--members of the king’s court, for instance--few would concur that governments are perfect. As an appeals court judge in the nuclear-testing case put it: “It undoubtedly will come as a surprise to many that, 200 years after we threw out King George III, the rule that ‘the king can do no wrong’ still prevails at the federal level in all but the most trivial of matters.” Superficially, the ruling does not seem to come up to the level of fairness that is supposed to characterize the court system.

Initially the suing citizens won an award of $2.6 million in the federal district court, but the ruling was overturned by the federal Court of Appeals. On Monday the Supreme Court refused to hear the appeal of that decision. Thus upheld was the appellate court’s opinion that all aspects of the testing were conducted in accordance with discretionary decisions of the government and, under the Federal Tort Claims Act of 1946, were not subject to lawsuit and claims.

The 1946 law set out certain instances in which the federal government could be sued, but it imposed immunity when the harmful act occurred while the government was exercising a “discretionary function.” This immunity apparently could extend even to cases in which the government was negligent in carrying out that function, as the plaintiffs in the nuclear-testing case claimed.

Not fair? Perhaps not. But governments need to maintain some level of sovereign immunity or they would be sued all the time for every conceivable action, or inaction. The result would be chaos. This does not mean that the injured parties have no further recourse, however. They now can seek compensation from Congress, and Congress should seriously consider awarding damages. At the same time, Congress might consider a more precise definition of the term discretionary function and the extent to which it can be used to protect the government against legitimate legal claims.