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Blagojevich v. Gates
May 23, 2007
ROD BLAGOJEVICH, GOVERNOR OF THE STATE OF ILLINOIS, PLAINTIFF,
ROBERT M. GATES, SECRETARY OF DEFENSE OF THE UNITED STATES OF AMERICA; ET AL., DEFENDANT.
The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge
The Plaintiff's Motion for Summary Judgment (d/e 63) and the Defendants' Motion to Dismiss (d/e 60) are currently pending before the Court. The Court has reviewed the Motions, Memoranda, and supporting material, and has determined that an issue exists regarding this Court's jurisdiction that the parties have not addressed.
Specifically, the parties have not addressed whether the sovereign immunity of the United States affects this Court's jurisdiction to hear this action. Plaintiff Governor Rod Blagojevich (Governor) states that he is not proceeding under the Administrative Procedure Act (APA). Plaintiff's Memorandum of Law in Response to Defendants' Motion to Dismiss and in Support of Plaintiff's Motion for Summary Judgment (d/e 64), at 16. Thus, presumably, the Governor does not invoke the waiver of sovereign immunity in the APA. 5 U.S.C. § 702. The Governor does not identify any other statute that he believes waives the United States' sovereign immunity.
The Amended Complaint alleges that the Governor is bringing this action pursuant to the authority in Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Amended Complaint (d/e 23), ¶ 1. It is unclear to the Court how Bivens applies to this case. The Defendants correctly point out that in Bivens, the Supreme Court authorized a private cause of action against federal officials who violate a plaintiff's constitutional rights, but the Governor does not allege that any of the individual Defendants committed any constitutional violations. Memorandum of Points and Authorities in Support of Defendants' Motion to Dismiss (d/e 61), at 18, n. 15. The Court, therefore, questions whether federal sovereign immunity affects this Court's jurisdiction to hear this action. The Court believes that supplemental memoranda would assist the Court in resolving this question.
THEREFORE, the Court directs Plaintiff Governor Rod Blagojevich to file a supplemental memorandum by June 15, 2007, addressing the issue of whether the sovereign immunity of the United States affects this Court's jurisdiction to hear this case. The Defendants are directed to file a supplemental response by July 10, 2007.
IT IS THEREFORE SO ORDERED.
JEANNE E. SCOTT UNITED STATES DISTRICT JUDGE
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