Monetary Sanctions and Sovereign Immunity

From Alexander v FBI, 2008 U.S. Dist. LEXIS 27153 (D.D.C. April 3, 2008):

● “Sovereign immunity bars awards of attorneys' fees and costs against the government, except insofar as that immunity has been waived. Ruckelshaus v. Sierra Club, 463 U.S. 680, 685 (1983); Haase v. Sessions, 893 F.2d 370, 373 (D.C. Cir. 1990) ("Attorney's fees and costs may be awarded against the United States only when, under a particular statute, the government has waived its sovereign immunity."). See also United States v. Horn, 29 F.3d 754, 761 (1st Cir. 1994).”

● “To be effective, ‘[a] waiver of the Federal Government's sovereign immunity must be unequivocally expressed in statutory text.’” Lane v. Pena, 518 U.S. 187, 192 (1996). See also Dep't of the Army v. FLRA, 56 F.3d 273, 275 (D.C. Cir. 1995) (officers of the United States have no power to waive federal sovereign immunity absent express provision by Congress).”

● “Therefore, provisions authorizing sanctions generally ‘do[] not automatically waive sovereign immunity, and thus do[] not apply, without more, to fee awards against the government.’ In re Graham, 981 F.2d 1135, 1139-40 (10th Cir. 1992).”

● “[N]otwithstanding the broad powers conferred upon the courts by the contempt statute, 18 U.S.C. section 401, courts have held that it does not qualify as a waiver of sovereign immunity because it contains no explicit, unequivocal language allowing the government to be sued. Horn, 29 F.3d at 763; United States v. Waksberg, 881 F. Supp. 36, 40 (D.D.C. 1995) (Green J.), vacated on other grounds, 112 F.3d 1225 (D.C. Cir. 1997).”

● “Similarly the Tenth Circuit held in In re Graham that the sanctions provision of the bankruptcy statute does not permit the imposition of attorneys' fees against the government. 981 F.2d at 1139-40.”

● “[E]ven supposing Section 1927 could be read to ‘encompass[] awards against the party,’ which it cannot, there being no explicit, unequivocal language therein that authorizes awards of attorneys' fees against the government, ‘[section 1927] would still require some independent waiver of sovereign immunity in order to apply it to the United States.’”

● “Absent a waiver of sovereign immunity, [the court’s inherent power to sanction] does not encompass the authority to impose monetary sanctions against the government…. Thus, when it comes to monetary sanctions against the government, ‘the doctrine of sovereign immunity prevails over inherent judicial power.’ [Citations omitted.] Therefore, the Court cannot impose a monetary sanction against [the Executive Office of the President], or any other agency of the government, absent an express statutory waiver of sovereign immunity by Congress permitting it to do so.”

● “Of course, the Court has inherent authority to impose non-monetary sanctions against parties or their counsel for abuse of its processes.”

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