A. Sovereign immunity and its history
It is hard to sue the government. The government has lots of immunity protection from being sued. It is based on the legal doctrine known as “sovereign immunity” where the underlying principle is “the King can do no wrong” derived from early anglo-saxon law, meaning the King cannot be sued. It is in someways somewhat ironic that the U.S. adopted this doctrine. If you read the Declaration of Independence, the colonies declared that the King did do wrong, to the point that it required succession from the British Empire.
However, there are some reasons to keep the doctrine in the United States. If the government was always susceptible to suit the government may waste most of its resources in legal fees combating legal suits, the resources which are taxpayer funds. It may also be a means to try and coerce a government official to do or not do certain actions in fear of suit from someone with a different political ideology and would turn the court-room into a political battlefield.
On the other hand, as for as injuries to individuals, there is the theory “where there is a wrong there is a remedy.” Meaning, that if someone is injured, they should be made whole for those injuries. The doctrine of sovereign immunity bumps directly into this principle and bars many individuals from possible suits against the government. However, the government understand this to an extent. As a result, there are exceptions to the inability to sue the government. This applies to both federal and state workers under the exceptions for state and federal law for their own immunity.
B. Claims against the government
There are many types of torts like defamation, intentional actions and torts that are generally barred and there is no remedy. What makes these extremely difficult as well is if you are a government employee for either the state or federal government. This limits your ability for injuries you may have sustained in the workplace. Again, this is with exceptions.
For example, issues made by federal statute are still actionable.
This includes discrimination and retaliation claims based on a protected class such as race, religion, gender and disability. One must file an action if they work with the state labor commission within 180 days. Federal workers have more strict standards and have to file a complaint with their EEO officer within 30 days with exceptions. A government employee can also sue in violation of one’s Family Medical Leave rights and their ability to take time off work up to 12 weeks depending on the size of the company, the amount of time worked their and the amount of hours worked there.
For example, if an individual was terminated for taking time off work to take care of a loved one and or themselves that would most likely be a violation of the act. Government employees are also still protected under whistleblower protections. As a whistleblower you must report any government abuse to the right authority to have proper protections. If you are terminated or retaliated against you would still have a claim. However, again, if you report it to UOSH you may have to do so within 30 do in order for them to conduct an investigation.
Also, as government employees, they must first “exhaust their administrative remedies” before running to the courthouse. Meaning that if there is an administrative division that is supposed to review the claim prior they must first go that route prior. This makes it tricky for government employees because they may have some claims that may require to be filed in court based on a statute of limitations but may also have to wait to file other pending claims afterwards and so they may not be able to rush to the courthouse with all of their claims at once.
Also, employees may find redress under a 1983 claim with the state, generally if it is with a county or city government. However, the individual has to show under these claims that the actor deprived the individual of a constitutionally protected right. This could include free speech if you were terminated or adversely affected or disciplined for your freedom of expression. However, it has to be speech that is a matter of public concern and it could not be protected if it was work-related speech.
Also, as to defamation, even though you may not be able to sue the government for defamation, there is a similar claim under 1983 where if someone accuses you of something at work and you are terminated for it, they still have to jump through the hoops and give your process, meaning the right to a hearing before the termination and right to appeal after the termination. If not, it would be a violation of your rights to due process to clear your good-name. This is based on the principle that courts have found that government employees have a property and or liberty interest in their employment.
So termination without due process, would be a deprivation of an employer’s property and liberty without due process under the 14th Amendment. This also means that government employees can only be terminated for cause which also requires a process which generally includes a verbal warning, written warnings and the chance to dispute any written disciplinary actions. If you are terminated without that process and or are terminated for no reason as a government employee you could also have a wrongful termination claim in violation of due process.
C. Stricter requirements and hoops for actions against the government
On top of the hoops a government employee has to jump through, they also have to cut through other immunizes as it relates to who the specific suit is against. Again, there are protections to make sure suits are political. As a result, generally speaking, if an employee has a discretionary function in decision-making you are suing, you will have to prove a higher standard that the actions were intentional and not just a mistake or made by negligence under qualified and the individual knew they were knowingly violating your rights that are clearly established.
There are also exceptions to a few torts or civil common law claims against the government as employees but there are strict requirements. If they are not under a federal statute and are common-law claims you must give the government notice of suit before filing a claim against them. Recently, in McGraw v. University of Utah, the Utah Court of Appeals had the issue brought to them on whether or not a former employee properly jumped through the hoops before bringing a claim against the University under a whistleblower claim.
The employee gave notice to the University’s General Counsel in February and another to the Attorney’s General’s authorized agent in April. The employee filed suit two weeks later. However, one has to wait 60 days before initiating suit. The Utah Court of appeals claimed that even though immunity was waived, it still required a notice to the government.
The Utah Court of appeals found that the employee’s first notice of claim was ineffective. The Utah Court of appeals then found that the failure to wait 60 days to file suit violated the statute. The employee also argued that the complaint was not served until June of that year and was 60 days after. The court disagreed and noted that the filing of the complaint was when action was instituted. As a result, the employee’s case was dismissed under the strict requirements of sovereign immunity.
A federal employee also must give the federal government a notice of claim and wait for the government to reply to the claims before they initiate action or until after six months with no response.
Your best option is to reach out to our Utah employment and civil rights law firm and attorney to discuss your options and know your limitations and requirements if you have a valid action given all of the hoops and loopholes a government employee must jump through for redress.