I See Your Immunity Doctrine And Raise You Another

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By Kimberly Strawbridge Robinson

A battle of immunity doctrines—tribal versus official immunity—played out at the U.S. Supreme Court Jan. 9 ( Lewis v. Clarke , U.S., No. 15-1500 , argued 1/9/17 ).

A Connecticut couple injured in an off-reservation car accident with a tribal employee wants to sue that employee in state court. The tribe’s sovereign immunity shouldn’t protect the employee from being sued, they argued.

The Connecticut Supreme Court bounced their suit. The couple could, and should, have sued the employee in tribal court, it said.

The U.S. Supreme Court, however, seemed to side with the couple.

That’s pushing tribal immunity “off the reservation,” Justice Stephen G. Breyer said.

Even if the U.S. Supreme Court sides with the couple on the tribal immunity question, the employee has another immunity trick up his sleeve: official immunity. That protects some government workers from being sued for actions taken in the course of their employment.

Confused Capacity

The Connecticut Supreme Court confused tribal sovereign immunity with official immunity when it tossed the couples’ suit from state court, Ann O’Connell, of the Department of Justice, arguing as a friend of the court in support of reversal, told the justices.

That court held that because the defendant was acting within the scope of his duties when the accident occurred, he was protected by tribal sovereign immunity.

The court incorrectly focused on the defendant’s capacity at the time of the car accident, O’Connell said.

Instead, the court should have looked at the defendant’s capacity at the time the couple brought their suit, she said.

Here, the couple sued the defendant in his “individual capacity"—meaning, against the defendant as a driver, not as an employee.

Because the defendant was sued in his individual capacity, tribal sovereign immunity isn’t even implicated here, Eric D. Miller, of Perkins Coie LLP, Seattle, representing the couple, told the justices.

Tribal Missiles?

But the plaintiffs are just trying to “plead around immunity,” the defendant’s attorney, Neal Kumar Katyal, of Hogan Lovells US LLP, Washington, said.

In practical terms, the real party in interest here is the tribe, not the defendant, Katyal said.

That’s because the tribe has voluntarily agreed to indemnify its employees, including the defendant here.

If every tribe did that, they’d all be immune from suit for just about anything, Breyer said. They’d be sending out these “missiles” onto state highways and there isn’t anything a person can do if one of them explodes, he said.


That already happens with state and federal employees though, Katyal said.

States and the federal governments typically prohibit individual-capacity suits against their employees, he said. Instead, they require that the plaintiffs sue the government.

But that happens because of a state or federal statute, Justice Anthony M. Kennedy said. The Supreme Court can’t fashion that kind of congressional remedy, he said.

Katyal suggested that the court could incorporate a similar rule for tribes.

The justices, though, seemed more likely to send the official immunity question back to the state court for it to decide in the first instance.

The state court conflated tribal and official immunity, Justice Sonia Sotomayor said. Let’s have them “unconflate” them, she said.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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