Declaratory Nature Of Suit Does Not Create Sovereign Immunity Waiver; Case Can Proceed Against Individuals Only If They Acted Outside Their Statutory Powers

In our recent posting we discussed the fact that a declaratory judgment action does not confer independent federal jurisdiction on an international controversy. What effect does the federal Declaratory Judgment Act have on another important issue in international litigation: the existence of sovereign immunity? The District Court in Pollack v. Duff, Civil Action No. 10-cv-0866 (ABJ) (D.D.C. Aug. 2011), says none.

Plaintiff in the case brought claims under the U.S. Constitution claiming that the geographical restrictions on applicants for certain federal jobs violated the U.S. Constitutional right to travel. The Court holds that the declaratory nature of the suit did not act as a waiver of sovereign immunity defense (here applied to the U.S., but applicable to non-U.S. sovereigns as well).

Second, the plaintiff sought to plead around the sovereign immunities bar to suit by suing certain individuals — a strategy we have discussed at length in prior postings. The strategy did not work here. the Court recognized that suits against individuals could avoid a sovereign immunities bar, but the issue is not whether the plaintiff is seeking to vindicate a Constitutional right, and the issue is not whether the plaintiff invokes the Declaratory Judgment Act. Rather, the issue is whether there are...