Is there an exception to the sovereign immunity doctrine in the context of an allegation that a government official engaged in ultra vires activities?

Although acknowledging that the district court would otherwise lack jurisdiction over count II because of sovereign immunity, appellants urge that their claim falls within the exception enunciated in State of Washington v. Udall, 417 F.2d 1310 (9th Cir. 1969). There this court indicated that under some circumstances sovereign immunity would not bar a suit claiming that Government officials had engaged in ultra vires acts, even though immunity had not otherwise been waived. Id. at 1316. Appellants claim that in allowing Luke activities, defendants-appellees have exceeded their statutory authority given a statute prohibiting the military from acquiring real property not owned by the United States unless properly authorized. 10 U.S.C. 2676. ⁵

State of Washington v. Udall is not applicable to the instant case. First, although appellants utilize the forms of ultra vires analysis, the essence of their complaint is not that appellees have acted in an ultra vires manner and this exceeding of authority has harmed them. Rather, appellants claim that the Luke activities whether ultra vires or not annoy them and harm property values. Thus, State of Washington v. Udall, concerned with affording persons a method of challenging ultra vires acts by Government officials, is not relevant here. See 417 F.2d at 1316-17.

Second, this court has noted an exception to the State of Washington v. Udall Exception to the sovereign immunity doctrine. In State of Washington v. Udall, the court wrote: