‘A dishonest game of jurisdictional bait and switch’

Odds are you did not know that the United States government can be sued only with its consent. That’s because a legal doctrine called sovereign immunity, a doctrine nowhere found in the Constitution of this great land, prohibits anyone from suing the government for money damages.

I somehow how doubt that the founders of this Republic had their fingers crossed when they signed the Constitution. The preamble of our charter begins with the majestic words “We the people.” It then speaks about our having created a republic to serve the goals of life, liberty and the pursuit of happiness.

Sovereign immunity has its origins in a different era. It is a medieval harlot, forever in love with the sound of an ancient, and undemocratic, legal maxim: “What pleases the prince has the force of law.”

I got a glimpse of this harlot this past week, as I stood in the well of a Washington, D.C., courtroom, urging a federal judge to let my client’s lawsuit against the Federal Communications Commission, the FCC, advance to the point where we can compel our government to answer questions under oath.

Congress permits us to sue the government for a limited variety of claims. The Tucker Act permits the government to be sued for claims of breach of contract. If you think the government broke a promise it made to you, you must file your claim in a specialized court, the Federal Court of Claims, located just around the corner from the White House.

Before you get yourself all wound up and think you are going to sue the government for its many failures, understand that the promises of which I speak are contractual promises. And what, pray tell, is a contract? Simply put, a contract is a promise the law will enforce; it takes a year of law school to work through all the legal doctrines distinguishing a contract from an unenforceable promise.

In my client’s case, the FCC made a promise in written form: It would permit my client use of broadband spectrum in California if my client paid a hefty licensure fee. Because the fee was so enormous, my client was permitted to pay it on an installment basis.

The contract the parties signed permitted my client to seek a modification of the installment payments if need be.

Then the FCC changed the rules regarding installment payments. It restricted the modification terms to require that a party be found in default if it missed two consecutive installment payments.

The FCC asked the client to sign off on this change, to sign a new contract. My client refused, and, when hard times struck, filed a modification request, insisting that the FCC honor the contract it had signed.

For years, the FCC balked. Five years after my client requested a modification, the FCC denied the request. It then sold the licenses out from under my client, giving them to another party. My client lost tens of millions of dollars. Outrageous, isn’t it? My client relied on FCC regulations and asked the FCC to reconsider. Two more years passed. In 2010, the agency told my client to pound sand.

So my client sough relief relying on the contract he signed with the agency. It contained what lawyers call a “choice of forum clause.” Plenty of commercial contracts have these: they require a party seeking to sue on the terms of a contract to go a specific court.

In this case, the FCC required my client to bring any lawsuits arising under the contract in the United States District Court for the District of Columbia. This is a court of general jurisdiction, a forum that hears criminal cases and a wide range of civil cases. But take note, this is not the Federal Court of Claims. You don’t shop for milk at an auto parts store.

Once my client filed suit in the generalized court the FCC contract required it to turn to, the FCC argued that the court lacked jurisdiction to hear the claim. Why? Because only the Federal Court of Claims is authorized by Congress to hear breach of contract actions against the federal government.

The District Court judge agreed with the FCC and dismissed the action. The federal appeals court agreed with the FCC. My client argued that the contract it had entered into with the FCC required the client to sue where it had.

Too bad, the courts said, in effect. The FCC doesn’t have the authority to waive sovereign immunity. Only Congress can do that. So sorry.

It was a dishonest game of jurisdictional bait and switch.

By the time my client realized that the FCC contract was not worth the paper it was written on as regards the choice of forum clause, years had passed. It hired another lawyer to bring an action in the right forum — the claims court.

The FCC then argued the suit was filed too late, well after the statute of limitations — a rule requiring legal actions to be brought with a certain period of time — had run. But we lost years relying on the FCC contract, my client said. Too bad, said the FCC.

When private parties do what the FCC has done in a case like this — require a party to sue in the wrong court and then claim that the delay caused by honoring the contract renders it too late to go to the right court — they can be held responsible, a statute of limitations can be tolled out of considerations of fairness.

But our Supreme Court has ruled that there is no such doctrine in sovereign immunity cases. Waivers of the immunity must be strictly construed. Equity — the law’s embrace of fairness when the forms of justice fail — is unavailing.

The government could not answer the judge’s question this week about why the FCC contract set my client up to fail by requiring it to do something impossible. “I don’t know,” the Justice Department lawyer said.

It was a jaw dropping moment.

But even more stunning was the lawyer’s final remarks to the judge, suggesting that no matter how unfair the government’s conduct, the law requires that my client’s suit be dismissed.

We await the judge’s ruling, my client ever hopeful that the government’s promises are not empty. It was chilling to see the emperor naked, arguing that it behave poorly with impunity.

Sovereign immunity be damned.