Professor Paul Figley – “Defending Federal Sovereign Immunity”

Faculty Scholarship Highlight, October 2013

Although the sovereign immunity of the federal government from tort claims may seem like an arcane and technical topic, for Professor Paul Figley, associate director of American University Washington College of Law's Legal Rhetoric Program, it’s a field that is ripe for detailed academic exploration, especially from Figley’s perspective—one in which the much-maligned doctrine is better understood as a thoughtful reconciliation of an otherwise irreconcilable tension. With that in mind, Figley’s scholarship has focused on the Federal Tort Claims Act—one of the most important waivers of the federal government’s sovereign immunity—and the complex judicial doctrines that have arisen thereunder. As he wrote in 2011 in the University of St. Thomas Law Journal, “A swirl of competing interests results from the structure of the FTCA, the deep pocket it grants successful claimants, the complete immunity it provides some tortfeasors, and the methods Congress chose for paying settlements and judgments awarded under its auspices.”

To that end, Figley’s writings fill in important gap in the field, responding to critics of the FTCA who argue that it is too difficult for ordinary citizens to pursue tort claims against the federal government. As Figley explains, the FTCA is a limited waiver of the government’s immunity, reflecting Congress’s specific choices about the nature and scope of the liability that the government should incur in tort. Moreover, Figley argues, the FTCA has worked fairly well, allowing claims for run of the mill torts, but preserving sovereign immunity for those claims Congress has seen fit to exclude from the FTCA’s waiver.

In that regard, Figley’s writings have not just defended the FTCA’s express exceptions, but also judicial interpretations such as the Supreme Court’s Feres decision, and the administrative claim system the statute sets up. Figley’s scholarship, then, is an effort to raise the level of debate over these interests—and to show how there are compelling justifications for even those features of the recovery regime that have long-baffled outside commentators, and a lot for lawyers of all stripes to learn from the ways in which courts, Congress, and the Executive Branch have sought to strike the proper balance.