The Supreme Court this week agreed to hear a case on the liability of employees of private companies that operate state and federal prisons, a case defense lawyers worry could open the floodgates for suits against other employees working under government contracts.
Federal law grants sovereign immunity to direct federal employees and the courts have also held that corporations under government contracts enjoy immunity as well. But now the Supreme Court has been asked to decide if individual employees working for private firms that are under a contract with the government also enjoy immunity.
Given the increase in privatization of government work that has taken place — more than 30 states have privatized prisons to some degree — private firms are watching the immunity case closely.
The case, Minneci v. Pollard, involves a claim by a California prisoner against guards employed by Florida-based Geo Group, Inc. (formerly Wackenhut Corrections Corp.), which had a contract to operate the Taft Correctional Institute in California.
Richard Lee Pollard claims that Margaret Minneci and six other guards and a physician abused him and violated his Eighth Amendment right against cruel and unusual punishment when they forced him to wear a special restraining jumpsuit and a device called a “black box” despite his having two broken elbows. He said the special restraints kept his broken arms in a painful position for more than six hours. Pollard claims the guards also refused to give him the splint ordered by his physician and would not assist him in daily bathing and eating that were difficult because of his broken arms. They also forced him to do manual labor that was painful, he alleges.
After a lower court dismissed Pollard’s suit, the Ninth Circuit Court in San Francisco allowed the suit, citing a 1971 Supreme Court ruling, Bivens v. Six Unknown Federal Narcotics Agents, in which a New York family was allowed to sue the federal agents for unreasonable search and seizure.
In the Bivens case, the court allowed the suit because, it said, the agents were acting under “color of federal law” and the plaintiff had no other remedy under either federal or state law for the constitutional rights violation. It was the first time the high court recognized an implied but limited private action for damages against federal officers accused of violating someone’s constitutional rights.
The current case, Minneci v. Pollard, raises question about whether a claim is blocked as long as there is any alternative state or federal remedy or if the remedy available to the plaintiff must be a Congressionally-crafted one.
The Ninth Circuit agreed to dismiss the corporation, Geo, from the suit. The current case tests whether the employees of a private corporation doing what is traditionally government work can themselves be sued or whether they enjoy sovereign immunity.
Defense lawyers argue that Pollard has a remedy, which they say is even better than a federal tort case, under California medical malpractice law and tort law, which imposes an affirmative duty upon jailers.
Defendants also claim that although under contract with the federal government, the GEO employees did not act under “color of federal law” because they were private actors without a direct relationship with the government. Although GEO contracted with the government, the GEO employees themselves had no contracts, nor had the government directly employed them, defendants have argued.
But the Ninth Circuit found that the guards at the Taft prison were indeed acting under “color of federal law” and that the availability of a state law remedy alone does not preclude a cause of action. This court said that only remedies crafted by Congress can have such a preclusive effect.
“If we were to allow state tort law to preclude a Bivens action for Pollard and similarly situated prisoners, the liability of federal officials for constitutional violations would no longer be governed by uniform rules. The substance, procedural requirements, and remedies of state tort law—especially with regard to causes of action for negligence and medical malpractice—vary widely from state to state,” the Ninth Circuit Court wrote.
The court also said it could not go along with reasoning that suggests that independent contractors are state actors when directly hired by the state, but that employees of an independent contractor are not state actors because they are not hired by the state.
The Defense Research Institute, which represents defense attorneys and corporate counsel, is concerned that the Ninth Circuit decision will reverberate beyond the private prison setting.
“If the Supreme Court lets this decision stand, plaintiffs could maintain Bivens actions even if state laws already provided them with redress,” said Diane Bratvold, vice chair of DRI’s Amicus Committee.
DRI has submitted an amicus curiae brief in which it argues that the Ninth Circuit’s decision overstepped the boundaries established by Supreme Court precedent and conflicts with decisions out of other circuits.
The DRI brief, authored by Raymond A. Cardoza and David J. deJesus of Reed Smith LLP in San Francisco, contends that the Ninth Circuit decision imposes liability on private actors that is in addition to their liability under state tort law, raising the specter of parallel liability based on different standards of conduct.
“The Ninth Circuit decision would unleash potential Bivens actions against all private corporations contracting with the government by characterizing those contractual practices as falling under the color of federal authority. Given the extent to which the government now contracts with private companies to carry out traditional government work, DRI members and their clients would face a significant increase of Bivens actions,” DRI said.