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Necessity for Waiver of Sovereign Immunity in Judicial Review of Administrative Decisions

The United States is a sovereign and, as such, is immune from suit unless it has expressly waived such immunity and consented to be sued. Such waiver cannot be implied, but must be unequivocally expressed.[i]  Even though the plaintiff names the head of a federal agency as a nominal defendant in the suit, sovereign immunity is determined not by the party named as the defendant but by the issues presented and the effect of the judgment.[ii]

Section 702 of the Administrative Procedures Act (APA), 5 U.S.C.S. § 702, provides a general waiver of sovereign immunity where an individual seeks review of “agency action.”  However, the waiver does not apply where any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.  Moreover, waiver of sovereign immunity is not limited to the technical definition of “agency action”; instead, it extends to all official misconduct by the agency.[iii]

The Administrative Procedure Act has the effect of waiving sovereign immunity in actions for review of agency action involving a federal question in instances where non monetary reliefs are sought.  The Act: (1) provides for the removal of the sovereign immunity defense as a bar to judicial review of federal administrative action otherwise subject to judicial review; and (2) permits a plaintiff to name the United States, the agency, or the appropriate officer as a defendant.  If no special statutory review proceeding is applicable, the action for judicial review may be brought against the United States, the agency by its official title, or the appropriate officer.  In cases where money damages are requested, however, sovereign immunity remains a bar to the assertion of federal question jurisdiction.  Waiver of immunity also does not apply to actions to quiet title, challenging the merits of an underlying tax assessment.

[i] Bilger v. United States, 2001 U.S. Dist. LEXIS 3236 (E.D. Cal. 2001)

[ii] New Mexico v. Regan, 745 F.2d 1318 (10th Cir. N.M. 1984)

[iii] Scheuneman v. United States, 2007 U.S. Dist. LEXIS 93666 (C.D. Ill. 2007)

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