What Does it Take to Waive Sovereign Immunity

Orff v. United States

In 1963 the United States agreed to a contract to deliver water to farmers in California. One provision of the contract, called §390uu, was a "waiver of sovereign immunity." The United States reneged on a part of the water delivery contract in order to protect the habitat of some threatened species, prompting cases alleging violations of the Due Process and Takings clauses. The question in this case is whether the farmers bringing the case may do so by §390uu's concession, stating

"Consent is given to join the United States as a necessary party defendant in any suit to adjudicate, confirm, validate, or decree the contractual rights of a contracting entity and the United States regarding any contract executed pursuant to Federal reclamation law."

The farmers claim that they are a "contracting entity" as "intended third party beneficiaries." First, the Court notes that §390uu permits the joining of the United States in such a case. The Court then describes the history of the term "necessary party," a class that was previously titled "Persons to be Joined if Feasible." The Court finally notes that in cases where sovereign immunity has been waived the discussion in the contract has been phrased in terms of granting jurisdiction, and bringing claims against the United States. This, combined with the "principle that a waiver of sovereign immunity must be strictly construed in favor of the sovereign" leads to a unanimous decision holding that the United States is saved from prosecution by sovereign immunity.