Principles of Federal Appropriations Law - US Government ...

d. Presumption against Waiver
of Sovereign Immunity
Chapter 2
The Legal Framework
phrasing. But in this case we are not looking for a plain
statement that judges are excluded. We will not read the
ADEA to cover state judges unless Congress has made it
clear that judges are included.”
501 U.S. at 467 (emphasis in original).
There is a strong presumption against waiver of the federal government’s
immunity from suit. The courts have repeatedly held that waivers of
sovereign immunity must be “unequivocally expressed.” E.g., United
States v. Nordic Village, Inc., 503 U.S. 30 (1992); Shoshone Indian Tribe of
the Wind River Reservation, Wyoming v. United States, 51 Fed. Cl. 60
(2001) and cases cited. Legislative history does not help for this purpose.
The relevant statutory language in Nordic Village was ambiguous and could
have been read, evidently with the support of the legislative history, to
impose monetary liability on the United States. The Court rejected such a
reading, applying instead the same approach as described above in its
federalism jurisprudence:
503 U.S. at 37.
“[L]egislative history has no bearing on the ambiguity point.
As in the Eleventh Amendment context, see Hoffman,
supra, … the ‘unequivocal expression’ of elimination of
sovereign immunity that we insist upon is an expression in
statutory text. If clarity does not exist there, it cannot be
supplied by a committee report.”
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