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Thompson Coburn returns to the U.S. Supreme Court on state sovereign immunity

September 10, 2015

Warren Dean

Warren Dean

In 2002, Thompson Coburn Partner Warren Dean, who chairs the firm’s Supreme Court Practice Group, argued and won a major constitutional case in the Supreme Court on behalf of the South Carolina State Ports Authority. In Fed. Mar. Comm’n v. S.C. State Ports Authority, 535 U.S. 743, the court held that the sovereign immunity of the states (and state entities), as confirmed in the 11th Amendment, applies to private suits before federal administrative tribunals. His argument addressed the roles of the administrative state and sovereign immunity, both federal and state, in the constitutional design.

Recently, former Solicitor General of the United States Paul Clement, on behalf of California’s Franchise Tax Board, filed a petition for certiorari, Franchise Tax Board of California v. Hyatt, asking the court to overrule a 1979 sovereign immunity decision, Nevada v. Hall. In Hall, the court had held that 11th Amendment state sovereign immunity does not preclude a private suit against a state filed in the courts of another state. Because of the similarity of the issues, the court’s decision in Fed. Mar. Comm’n v. S.C. State Ports Authority figures prominently in the resolution of the question whether Hall should be overruled. The court granted certiorari on that question.

Warren, with support from Partners Jon Benner and Katie Kraft, filed an amicus brief in Hyatt on behalf of the South Carolina State Ports Authority in support of reversal of Hall, emphasizing the importance of sovereign immunity to the government’s investment in infrastructure, like ports. The brief completes the line of analysis reflected in his 2002 argument. The amicus brief can be found here.