Government Immunity Issues: Can the King Do No Wrong?

To remedy a wrong, whether slight or outrageous, committed by the federal or a federal employee, a plaintiff must first surmount the hurdle of three distinct forms of immunity: sovereign, intergovernmental, and official. Sovereign immunity forbids suits against both the federal and federal employees in their official capacities. Intergovernmental immunity prohibits states from applying their laws to the federal and federal employees acting in their official capacities. Official immunity, on the other hand, protects the personal lives and fortunes of federal employees from civil and state criminal actions brought against them for actions taken within the scope of their duties. Since all three forms of immunity serve the core function of allowing the federal to operate without undue interference, this article will refer to the three types of immunity jointly as government immunity. The Department of Justice (DOJ) vigilantly protects the immunity of the United States and its employees, raising immunity issues even when the conduct in question may shock the conscience as it did when the intentionally administered experimental doses of LSD to servicemen, and when the intentionally exposed servicemen and the public to substantial amounts of radioactive pollutants. In the environmental context, the United States has aggressively asserted sovereign immunity to prevent pre-enforcement review of EPA actions in implementing Superfund and other environmental programs, thus leaving potentially responsible parties without an opportunity to dispute their liability for months or even years. The United States has also doggedly pursued intergovernmental immunity issues in the arena of federal facility environmental compliance contending that Congress has not waived immunity to civil penalties in any major environmental statutes, to ad hoc administrative cleanup orders under state hazardous waste statutes, or to a variety of fees levied by states under their environmental laws.