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Bar News - July 21, 2006

Book Review: You Can’t Fight Uncle Sam – Or Can You?


A review of Litigation with the Federal Government by Gregory Sisk


If you’re looking for a piece of light reading to help you unwind after a long day in court, this daunting 632-page treatise by Professor Gregory Sisk probably won’t be your first choice (or in your top ten for that matter). However, if you want to go to bat against the government, this litigation bible will be invaluable to you.


The first chapter, The Federal Government as a Civil Litigant, provides background, sets the stage and prepares the attorney who intends to sue the biggest entity in this country. Sisk writes: “Because it is the quintessential repeat-player in federal litigation, and because its litigation strategy generally is coordinated by the US Department of Justice across the entire range of government cases, the federal government exerts a powerful influence on the federal courts and the development of legal doctrine.” (p. 1)


Sisk explains the role of the Attorney General’s Office and the Solicitor General. The Solicitor is the appellate attorney for the United States and exemplifies the idea that the United States “should speak with one voice.” The idea of “one voice” throughout governmental litigation has two sides. Every litigator who works for the government has a duty of loyalty to the current administration; however, he or she also brings his or her own values to the case. The government lawyer’s responsibility is to protect the public interest. But defining the public interest is often left to the individual interpretation of a particular government lawyer.


The government has resources that far outweigh the resources of most private attorneys. Yet, these resources aren’t always available to the government attorney, who often works alone.


Before suing the government, a private attorney must remember one thing: the general rule is that you can’t sue the government. The government has sovereign immunity. The only way to pierce this immunity is by finding a waiver. Waivers of immunity are created by statute. Before filing suit, an individual must find a statute that waives the government’s immunity to a particular claim. Then, he or she must follow the rules set down by that statute. Without a sovereign immunity waiver, there can be no case. Because this concept is so important, Sisk spends a significant amount of time describing specific statutory waivers.


The Federal Tort Claims Act (FTCA) is probably the most important and most inclusive waiver. Sisk provides background to the era before the act and the rationale for enacting it. Before the FTCA, the only way an individual could sue the government was to obtain a private bill. Sisk quotes the US Supreme Court when he writes: “[The FTCA] was the offspring of a feeling that the Government should assume the obligation to pay damages for the misfeasance of employees in carrying out its work. And the private bill was notoriously clumsy. Some simplified recovery procedure for the mass of claims was imperative. This Act was Congress’ solution, affording instead easy and simple access to the federal courts for torts within its scope.” Dalehite v. United States, 346 U.S. 12, 24-25 (1953) as quoted by Sisk at 103-104.  


After describing the background and the reason for the enactment of the FTCA, Sisk describes the process of using the Act. He discusses the prerequisites to a suit, including: the administrative claim requirement; nature, purpose, and timing of administrative claims; presenting the claim to the appropriate agency; proper notice, and statement of “sum-certain” damages. He also includes sections on commencing a lawsuit, and standards for imposing liability as well as other important considerations for practitioners. The book contains informative explanations of the other major sovereign immunity statutes.


The discussion of sovereign immunity is informative; however Sisk’s discussion of the flip side is fascinating. In two thirds of the cases involving the government, the government is the defendant. However, there are those cases in which the government is the plaintiff. While this may seem like a non-issue, it actually raises a lot of questions. The primary question is: “Does the United States have the authority to sue?” When Congress passes legislation allowing the government to sue, the answer is easy. But what about those cases in which there is no statutory authority? It becomes an interesting problem.


To begin, there must be a determination that the United States’ interests are at stake. There are two particular instances where the United States may seek judicial relief: First, the United States may sue to protect its own interests, i.e. as property owner, party to a contract, or employer. Second, the federal government may advocate for the public interest.


United States v. City of Philadelphia, 644 R.2d a80 (3rd Cir. 1980) is an example of an internal debate within one judicial circuit as to whether the federal government has the right to sue when there is no statutory authority authorizing them to do so. In that case the federal government alleged that the behavior and practices of the Philadelphia Police Department violated the Constitutional rights of its citizens. There were frequent episodes of brutality and illegal searches and seizures. The federal government sought an injunction against the city government and against city and police officials. The Third Circuit panel decided the government did not have the authority to seek relief. The Third Circuit panel thought allowing the United States to sue in parens patria on behalf of others was “improper judicial activism” and “aggrandizement of Executive power.” However, there was a lot of dissention among judges who were not part of that particular panel.


Since the Philadelphia case, and since the Rodney King beating, Congress has enacted the Violent Crime Control and Law Enforcement Act of 1994. This statute specifically allows the Attorney General to file civil suits requesting the type of relief the Third Circuit prohibited them from seeking. 


Although the size of this book makes it daunting, the way it is organized makes it very accessible. Sisk’s explanations are clear and the topics are divided into sections and sub-sections. It is filled with summaries of important and relevant federal cases in this field. This is a resource book that would prove helpful to any lawyer who is up to the challenge of filing a claim against the federal government. The only shortfall is that Sisk specifically chose not to cover material relevant to criminal and civil rights cases.


The next time you’re up to some light reading…you’re on your own. But if you want to sue the government, and you want to do it competently, this book can help you.


Dawn Worsley Caradonna is a solo practitioner at the Law Office of Dawn Worsley Caradonna in Nashua. She has been a member of the NH Bar since 1997.


Litigation with the Federal Government is published by University Casebook Series and costs $90 new.



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