ABSTRACT
In 2002, Michael Bitzer and I reviewed the status of the law regarding government contractors’ liability for constitutional wrongdoing, noting that a full understanding of such liability was critical to inform public managers’ decisions whether to privatize governmental functions. Since the publication of that legal note, the growth of “Leviathan by Proxy,” to use John DiIulio’s phrase, has continued. In many agencies at the federal level, this “shadow government” of private contractors now outnumbers employees in the civilian government workforce (DiIulio, 2014). At the state and local levels as well, outsourcing and privatization of government services has now become pervasive, typically deployed in an effort to generate greater efficiencies and perpetuated and sustained by an ideological preference for the private over the public sector (Bradbury & Waechter, 2009). Yet the rise of third-party government, supported as it is by the New
Public Management or Reinventing Government movements, comes at some cost with respect to the legal framework that protects citizens from arbitrary and unaccountable government action. Indeed, government actors and agencies are subject to certain legal and regulatory constraints that often do not apply to private actors and corporations, or apply only awkwardly or incompletely (Rosenbloom & Piotrowski, 2005; Benesh & Levi-Faur, 2012). For example, the key statute that determines federal agencies’ procedural obligations and mandates public participation in agency decision making, the Administrative Procedure Act, applies to “each authority of the Government of the United States” and thus does not directly regulate the activities of private entities acting on the government’s behalf through contract. Similarly, the federal Freedom of Information Act does not apply to records maintained by private entities and that are not under the government’s control.1 That private contractors are not always subject to such statutes is, of course, the point: greater efficiency may be obtained when the private sector implements governmental policy precisely because private entities are not subject to administrative law norms promoting transparency, accountability, and due process. Nor has this process of privatization and norm avoidance been much hampered through court oversight. The Supreme Court has not invalidated delegation of governmental authority to private
Similarly, the U.S. Constitution buffers citizens from abusive and arbitrary government rather than from private action.3 Thus when private entities and individuals act on behalf of the government, through contract or otherwise, and adversely affect the rights or property of citizens, those citizens may face an uphill battle in enforcing their constitutional rights against such private defendants. In the absence of a claim for damages arising from a constitutional violation, plaintiffs must rely on statutes or state common law for compensation for injuries caused by private parties acting for the government. As a corollary matter, it is also important to note that private contractors themselves face certain legal risks when working for the government, which they might not encounter as immunized government employees. Both sides of this legal coin-the rights of citizens regarding actions taken by private contractors, as well as the official immunity rights of private contractors working on behalf of the government-must be considered in connection with the choice to privatize government services. As noted in our 2002 piece, the Supreme Court has created a doctrinal
framework for evaluating whether private individuals or entities may be found liable for constitutional torts4 they are alleged to have committed. As we described in 2002, the Ku Klux Klan Act (42 U.S.C. Section 1983) applies in the state context to allow plaintiffs to sue defendants for compensatory damages and other forms of legal relief for injuries sustained by a defendant “acting under color of state law”5 in violation of the U.S. Constitution or federal law. This statute extends to private defendants who act while clothed with the authority of the state and whose activities thus may be fairly attributable to the state. According to the U.S. Supreme Court, a private defendant may be deemed to have acted under color of state law in several circumstances: where the private defendant has (1) assumed a traditional public function of the state (the public function test), (2) entered into a conspiracy or agreement with government employees to deprive plaintiffs of constitutional rights (the joint action test), (3) engaged in unlawful conduct that was coerced or significantly encouraged by the state (the state compulsion test), or (4) where the state has “so far insinuated itself into a position of interdependence with the [private party] that it was a joint participant in the challenged action” (the nexus test).6 Only in these instances may a private party’s actions be fairly attributable to the state for purposes of Section 1983’s “color of state law” requirement. Although these categories seem broad enough to capture many functions
and activities performed by private contractors, in fact the tests above present a fairly high threshold for plaintiffs. First, the “traditional public function test” has been held to apply only to activities that have been the exclusive reserve of the state, such as elections, eminent domain, the governance of a “company town,” jury selection, and, in some circumstances, the maintenance of prisons. Thus, for example, a private company providing
for related to public education at state expense.7 The joint action test requires some form of joint participation or conspiracy to commit actions with the goal of violating the plaintiff’s constitutional rights. The state compulsion test requires proof that the state’s regulation, actions, or custom coerced the defendant into violating the plaintiff’s rights. And the nexus test requires the insinuation of government into the activities of the private party sufficient to produce a “symbiotic” relationship between the private and public entities; a key factual inquiry under this test is whether the private entity acts independently of the state in its day-to-day affairs. The case law is clear, therefore, that neither the receipt of public funds,
the extensive state regulation of the defendant’s enterprise, nor the existence of a government contract, standing alone, expose a private defendant to liability under Section 1983. Furthermore, even if a suit against the individual employee under Section 1983 is successful, it may be impossible to reach the “deep pockets” of the individual’s corporate employer through a theory of “respondeat superior” (employer’s vicarious liability for an employee’s actions). Instead, the plaintiff must prove that the corporate employer created an official policy or custom that contributed to the constitutional violation. At least one commentator has argued that corporations such as Blackwater, a prominent defense contractor in Iraq, will not create policies to protect potential victims’ civil rights in the absence of respondeat superior liability (Frankel, 2009). In short, claims against a private defendant under Section 1983 for violation of constitutional rights face an uphill battle absent strong evidence that the state was responsible for the defendant’s actions through conspiracy, operational interdependence, or coercion, or because the state relinquished control over a governmental function that was traditionally exercised exclusively by the state. We also noted in 2002 that, although Section 1983 applies only to the
state context, suits for constitutional torts brought against private individuals “acting under color of federal law” are also possible under the “implied” cause of action (i.e. judicially rather than legislatively created) recognized in Bivens v. Six Unknown Federal Narcotics Agents (403 U.S. 388 [1971]).8 We also observed, however, that the Bivens action was a narrow one: (1) it applies only to individual employees rather than to their corporate employer,9 and (2) it has not been systematically extended beyond rights protected by the Fourth, Fifth and Eighth Amendments. Since 2002, the Supreme Court has continued to narrow the scope of Bivens. In Minneci v. Pollard (132 S. Ct. 617 [2012]), a federal prisoner (Pollard)
at a private prison sued prison employees for violations of his Eighth Amendment rights by depriving him of adequate medical care. His claim rested on what seemed to be firm legal grounds: in Carlson v. Green (446 U.S. 14 [1980]), the Court had authorized a Bivens claim for damages against a federal prison for violations of the Eighth Amendment. Nevertheless, the
a prison, and when suit under existing state tort law would be sufficient to compensate for the plaintiff’s injuries, no constitutional remedy existed under Bivens. Minecci is the most recent in a line of cases in which the Court denied Bivens’ claim because alternative remedies existed under state law that would compensate the victim of a constitutional tort. In context, then, the Minneci case represents a strong signal from the Court that claims against federal contractors for constitutional violations under the implied Bivens action may proceed only under narrow circumstances where no state law claim for damages provides an adequate remedy. Indeed, to the extent Minneci forces plaintiffs in federal prisons (and perhaps in other contexts) into suits for state tort damages and out of the realm of a constitutional claim, it constitutes the legal privatization of government service privatization. Claims against private contractors for constitutional violations thus face
serious obstacles: the state/federal action requirement, the limitation on respondeat superior, and, in the federal context, the Court’s contraction of suits available under Bivens. But what if a claim is properly brought against a private contractor under Section 1983 or Bivens for a constitutional violation? As we pointed out in 2002, under certain circumstances, private individuals may claim immunity from suit under legal theories developed to protect government employees from suit when certain qualifications are met (hence the term “qualified immunity”).10 Immunity for official acts is intended to “protect government’s ability to perform official acts” by helping officials avoid excessive timidity in the performance of those acts.11
