Feds still legally immune

Every time a government employee makes a decision, there is a good possibility

that someone will be unhappy with the result. Often, the party who is disadvantaged

by the decision will seek redress from the government employee's agency.

Sometimes, however, the injured party will try to sue the government employee

directly. Whether a government employee can be sued personally for his or

her official acts is an important question for those employees and for those

who deal with them.

The seminal case in this area is Bivens v. Six Unknown Named Agents.

In that case, the U.S. Supreme Court recognized that citizens have the right

to bring suit against federal employees who deprive them of their constitu-tion-ally

guaranteed rights. This case was seen by many as providing a potential way

around the "sovereign immunity" enjoyed by federal agencies in some cases.

In subsequent cases, however, the Supreme Court narrowed considerably

the scope of potential Bivens cases. Most significantly, the court ruled

that a citizen could not pursue such cases if Congress had established a

statutory framework addressing the problem area. See Bush v. Lucas. The

limitation applies even when Congress has failed to include within that

framework a remedy for the specific harm at issue. See Schweiker v. Chilicky.

Government contractors have filed a significant number of Bivens cases against

contracting officers and other government officials. However, because Congress

has so tightly regulated the government contracting process, most of these

cases have been dismissed.

In Janicki Logging Co. v. United States, a government contractor whose

contract was cancelled for environmental reasons sued the contracting officer

who made the decision. The contractor argued that the cancellation was an

uncon-stitu-tional "taking" of its property interest in the contract, without

the benefit of due process.

However, the court determined that the existence of the Contract Disputes

Act for resolving contractor claims precluded any right to pursue a Bivens

action. A similar result was reached in Information Systems and Networks

Corp. v. Department of Health and Human Services, involving the termination

of a contract and the alleged blacklisting of the contractor.

In Young v. Southtrust Bank, the African-American owner of a company

that was terminated for default on a government services contract filed

a Bivens action against the contracting officer. The plaintiff argued that

the termination was the result of racial discrimination. However, the court

found no evidence to support the plaintiff's contention.

Based on those cases, unless there is an unexpected change in the law,

government contracting officials should not have to worry much about being

sued in their personal capacities.

—Peckinpaugh is corporate counsel for DynCorp, Reston, Va.


Bivens v. Six UnknownNamed Agents, 403 U.S. 388 (1971)

Bush v. Lucas, 462 U.S. 367 (1983)

Schweikerv. Chilicky, 487 U.S. 412 (1988)

Janicki Logging Co. v. United States,42 F.3d 561 (9th Cir. 1994)

Information Systems and Networks Corp. v. Departmentof Health and Human Services, 970 F. Supp. 1 (D.D.C. 1997)

Young v. SouthtrustBank, 51 F. Supp. 1274 (M.D. Ala. 1999).

See also Advanced Materials, Inc.v. Burgess, Civ. A. No. 94-2808 (E.D. La. January 23, 1995).

BY Carl Peckinpaugh
Apr. 17, 2000

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