pilot's father filed a diversity action
in the United States District Court
for the Eastern District of Virginia
against the manufacturer, a government
contractor that built the helicopter
for the government. In his action, the
plaintiff-father asserted state tort-law
claims for the death of his son. Holding
that the government contractor could
assert an immunity defense under the
FTCA, the United States Supreme Court
formulated a three-part test to evaluate
government contractor immunity from
negligence claims by third parties.
In that test, state law which imposes
liability for design defects in military
equipment is displaced when (a) the
United States approved reasonably
precise specifications; (b) the equipment
conformed to those specifications; and
(c) the supplier warned the United
States about dangers in the use of the
equipment known to the supplier but
not to the United States. Thus, in Boyle,
the Supreme Court extended a sort-of
derivative sovereign immunity once
reserved to the government to private
contractors because these contractors
perform "discretionary functions" which
are excepted from liability under the
FTCA. 28 U.S.C. § 2860.
The
the case In re Katrina Canal Breaches
Litig., 620 F.3d 455 (5th Cir. 2010), the
plaintiffs brought class and individual
tort actions against a government
contractor that provided engineering,
construction and management services
to the United States Army Corps of
Engineers in connection with work on
and near flood protection systems that
failed during Hurricane Katrina. The
plaintiffs argued that the government
contractor's negligent and improper
actions in fulfilling the contract were
from Hurricane Katrina. The district
court granted summary judgment for
the government contractor based on
government-contractor immunity.
Applying the Boyle analysis, the Fifth
Circuit reversed summary judgment,
finding that the specifications for the
work at issue were not "reasonably
precise" and thus the contractor was
not entitled to government-contractor
immunity. In its decision, the Fifth
Circuit concluded that the government
had provided only general instructions
regarding work-method, which "ensured
that [the government contractor] would
have significant discretion over the
method chosen. The exercise of that
discretion by [the government contractor]
is not protected by the [government
contractor immunity] doctrine."
Government contracted service
providers should take note as well,
although it is typically more difficult
to assert this defense. The issue of
federal tort immunity often comes up in
discrimination cases brought pursuant
to 42 U.S.C. § 1983. As a preliminary
matter, parties to such litigation should
be aware that there is no respondeat
superior for employers. For example, the
Seventh Circuit Court of Appeals has
held that a § 1983 claim will not support
a claim based on a respondeat superior
theory of liability. See e.g. Iskander v.
Village of Forest Park, 690 F.2d 126
(7th Cir. 1982); but see Shields v. Illinois
Dept. of Corrections, 746 F.3d 782 (7th
Cir. 2014) (questioning the logic of
Iskander but not overturning it).
Under federal law, for a private
corporation to be held directly liable in
a § 1983 case, a plaintiff must plead
and prove that the defendant-employer
had an "impermissible policy" or
"`constitutionally forbidden' rule"
that served as the "moving force"
or proximately caused the alleged
Iskander v. Village of Forest Park, 690
F.2d 126 (7th Cir. 1982). Thus, plaintiffs
must often look to individual employees
as the defendants in such claims.
Individual employees could attempt
to assert qualified immunity from suit
for constitutional violations as providers
of services pursuant to contract with an
agency of the federal government. This
could be raised in a motion to dismiss,
as an affirmative defense, or in a motion
for summary judgment. However, this
defense has some limitations.
The U.S. Supreme Court has
found that the employees of a private,
for-profit corporation (Corrections
Corporation of America) that managed
a state correctional center were not
immune from suit in a §1983 case.
Richardson v. McKnight, 521 U.S. 399
(1997). In reaching its conclusion,
the Court noted that the denial of
immunity was determined "narrowly,
in the context in which it arose. That
context is one in which a private firm,
systematically organized to assume
a major lengthy administrative task
(managing an institution) with limited
direct supervision by the government,
undertakes that task for profit and
potentially in competition with other
firms." Id.
If there is a government connection
to your suit, consider whether your
facts support a government contractor
defense. This will guide your discovery
and help you determine the appropriate
defendants. If you are negotiating
a contract that includes plans and
specifications or are developing policies
in connection with the execution of
a government contract, consider how
these might impact an invocation of the
government contractor defense, should
litigation arise.