William & Mary Law Review


Gregory C. Sisk


With the enduring doctrine of federal sovereign immunity, it is too late in the day to suggest that the United States should be treated as an ordinary party in the federal courts. Yet as the Supreme Court has become more comfortable with the increasingly common encounter with a statutory waiver of immunity, the rigidity of interpretive approach has eased. An early jaundiced judicial attitude has resolved into a greater respect for the legislative promise of relief to those harmed by their government. After sketching the history of statutory waivers over the past century-and-a-half and examining Supreme Court decisions across the decades, this Article maintains that a coherent and principled jurisprudence of federal sovereign immunity has been gradually emerging. The Court now reserves absolute jurisdictional analysis for verifying the existence of a statutory waiver for a general class of claims, while judiciously employing strict construction to preclude judicial implication of new causes of actions or remedies. By contrast, the Court is more inclined to use ordinary modes of statutory construction when examining other standards, limitations, or exceptions in statutory waivers, even presuming that procedural rules apply in government cases in the same manner as in private litigation. Unfortunately, a recent Supreme Court decision resurrected an old line of cases that translated a statute of limitations for certain claims against the United States into a jurisdictional rule. This Article suggests that the negative effect of this decision on the course of the law, although not negligible, is limited by the decision's reliance on stare decisis. This Article concludes that the Court should speak more purposively to its interpretive approach in the future if the renewed drift in its federal sovereign immunity jurisprudence is to be arrested.