Feds still legally immune
- By Carl Peckinpaugh
- Apr 17, 2000
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.