November 22, 2010
Legal Department
Infobleg - Suing Government Contractors?
I need to beg my legal readers for some information. I've been arguing with some guy in another blog's comments that if the airport passenger checkpoints were operated by private security firms instead of a government agency, we'd have a better chance of suing the screeners when they do something wrong.
My argument is based on the fact that the TSA's employees benefit from the government's sovereign immunity. As I understand it, the Federal Tort Claims Act allows us to sue the government or its employees, but with some very strict limitations that don't apply to private parties. Basically, the government and its employees are immune from a lot of lawsuits.
My opponent refuses to believe that government employees have "magic blanket immunity." I think he may be a moron (or more likely, a troll) but having read up a little on the TSA's Screening Partnership Program, I'm starting to think he might have a point of sorts. It seems there's something called the "government contractor defense" which apparently extends some immunities to those doing government work on contract instead of as employees. Also, there's the SAFETY Act which affects libility for qualified anti-terrorism technology.
This is all way, way, way, way over my head. Does anybody out there (a) know how this stuff really works and (b) feel like answering a legal question for free?
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I apologize, because I can't offer anything but my anecdotal story- we had a relative have a stroke in prison, there were clear signs of negligence from the guards and medical staff. CMS is the company contracting health care in MO prisons. The relative ended up dying. Numerous malpractice legal firms shied away because of the 'govt component'. An expert witness (neurologist) rated the case as 'strong'. a firm familiar with this kind of litigation estimated it would take 8 years to see it through to completion. Because the case would be on contingency (who can afford to pay for this?!!), everyone backed away
I'm not seeing much benefit to having private companies execute govt orders...
Sorry for your loss, and thanks for sharing this story. When I was trying to figure this out for myself, I started looking into how lawsuits work against private contractors and prisons. The case of private medical contractors working in prisons was one of the examples of immunity extending to the contractor, as you have apparently found out.
It may be a waste of time for a non-lawyer like me to try to figure this out, but one distinction I could make between prisons and the TSA is that imprisonment is inherently a government function whereas airport passenger screening is not. But that could reflect my political bias (or my knowledge that it used to be a private function).
Another possible difference is that lawsuits against medical personnel are for malpractice or negligence or something like that, whereas people might sue TSA screeners for damages caused by criminal acts such as fondling passengers more than authorized by the screening rules. I don't know how qualified immunity works in situations like that.
Like I said, I really am hoping for an answer from someone who knows.
I'll keep poking around and post if you find something- if the TSA gropers are liable, I would think litigation would be a crippling weapon to use on them.
This issue gets more complex the more I look at it!
good luck...
The government contractor defense applies to contractors who are making products for the government who build their products to spec and who warned the government of any potential hazards, but not (as far as I can tell) to contractors providing services. Hercules Inc. v. U.S. 516 U.S. 417 (1996).
I agree, I would prefer to use private but at least the TSA is ordered to complete a Criminal Background Screening