PLF challenges federal immunity from suit in Ninth Circuit

Recently the trial court in Duarte Nursery v Corps of Engineers dismissed our clients’ First Amendment retaliation claim against the government, on the ground that sovereign immunity shields the federal government from having to defend the claim. The legal doctrine is that the United States government is intrinsically immune from all suits against it, except those for which it has agreed to be sued. And, ruled the court, in this case the government has not waived its sovereign immunity, so it does not have to answer for retaliating against our clients’ exercise of their First Amendment rights.

This week we appealed this decision to the Ninth Circuit Court of Appeals, where we are optimistic that the trial judge’s dismissal will be reversed. We rely in this case on the waiver of sovereign immunity found in 5 U.S.C. Section 702, which the Ninth Circuit has held broadly waives the federal government’s immunity against constitutional claims such as Duarte Nursery’s retaliation suit.

We have also moved for a stay of further trial court proceedings pending the appeal, so that if the Ninth Circuit reverses the dismissal and restores Duarte’s retaliation claim, we can litigate that claim against the government at trial. Proof that the government’s Clean Water Act claim against Duarte Nursery was substantially motivated in retaliation will prevent the government from proceeding with their case, unless it can prove that it would have brought the suit regardless of our client’s First Amendment activities.

If you look at the picture below (from the government’s expert report in this case), you have to ask yourself what government agency would sue over plowing a field when the law clearly allows plowing without permission from the Corps of Engineers.

A plowed field, which is not regulated by the Clean Water Act. Nonetheless, the Justice Department wants a $2.8 million penalty.