Nonstatutory Judicial Review of Federal Agency Action: A New Approach to Sovereign Immunity

In deciding whether to review administrative agency action, an astute court seeks to maintain a delicate balance between over-interference with administration of legislatively created programs and denial of plaintiff's rights. This balancing process historically has been hindered by federal courts treating the doctrine of sovereign immunity as a jurisdictional bar to unconsented suits against the United States Government. Regardless of the validity of a plaintiff's grievance and in spite of the relative infrequency of such suits, the courts adhering to this traditional approach mechanically dismiss such actions solely because they seek relief against the sovereign. A few federal courts have avoided the doctrine's preclusive effect by treating the review provisions of the Administrative Procedure Act (APA) as an implied consent to suit by the government where the Act is applicable. The basic premise of this approach—the "waiver" theory— is that enactment of the APA with its broad review provisions is necessarily inconsistent with retention of the common law doctrine of sovereign immunity as a bar to review. Thus, the argument runs, Congress impliedly "waived" sovereign immunity by consenting to suit. Littell v. Morton, a recent decision by the Court of Appeals for the Fourth Circuit, takes a new tack. The opinion concedes the general applicability of sovereign immunity considerations in unconsented suits against the government, but refuses to give the doctrine preclusive jurisdictional effect or to adopt the waiver theory. Instead, the court treats sovereign immunity as a relativistic concept which should not force dismissal unless its underlying policy justifications are strong. Employed as a balancing concept, immunity no longer enjoys its powerful position as a threshold jurisdictional roadblock. Rather, the threshold consideration is whether the APA review provisions allow judicial intervention under the circumstances. On this score, the Fourth Circuit finds the availability of review under the APA virtually universal.