5 Suits Against Federal Officers or Employees

Transcription

1 5 Suits Against Federal Officers or Employees 5.01 INTRODUCTION TO SUITS AGAINST FEDERAL OFFICERS OR EMPLOYEES Although the primary focus in this treatise is upon litigation claims against the federal government itself, the question of when federal officers individually are amenable to suit in their official capacity historically and theoretically has been intertwined with the subject of the liability of the government as a collective entity. Indeed, as we saw in Chapter 2, the concept of federal sovereign immunity in the United States evolved in tandem with rules governing suits against government officers. As developed at some length in that chapter, direct suits against named federal officers or employees played a prominent role in the development of the doctrine of federal sovereign immunity and at certain historical points was the primary means by which to obtain redress against the government in court. 1 However, as the doctrine of federal sovereign immunity matured into its present form, a suit against a federal officer acting within the scope of his or her delegated statutory authority was treated as effectively running against the sovereign United States itself, unless the claim were one that the government officer s conduct violated a constitutional standard. 2 Thus, the sovereign immunity of the federal government and the permissibility of non-statutory suits against federal officers became opposite sides of the same coin. Moreover, with the advent of the era of statutory waivers of sovereign immunity, governmental amenability to suit expanded and the need for alternative avenues against governmental agents subsided. 1 See supra 2.02(b). 2 See supra 2.02(b)(5). 353

2 354 Litigation With The Federal Government 5.01 Accordingly, in the modern era, suits framed against individual officers or employees play a much reduced role in this field of law. When a plaintiff seeks specific or equitable-type relief against the federal government, the expansion of the waiver of sovereign immunity in the Administrative Procedure Act 3 means that the availability of this relief no longer turns upon whether the suit is viewed as one levied against the officer or instead against the United States directly. When a plaintiff seeks recovery of money damages for common-law torts, Congress has granted statutory immunity to federal employees acting within the scope of employment, meaning that such actions instead will proceed with the United States substituted as the sole defendant to a suit under the Federal Tort Claims Act. 4 Still, even today, an injured party seeking certain types of relief for certain kinds of harms may be restricted to a remedy against a government officer. Importantly, a plaintiff suing for money damages against an individual federal officer for violation of constitutionally-protected rights has a potential cause of action directly under the Constitution as implied by the Supreme Court in Bivens v. Six Unknown Named Agents. 5 Indeed, the cause of action lies only against the individual officer and not against the federal government or its agencies as an entity. 6 However, even in this context, the remedy against an individual government officer often is more theoretical than real. The Supreme Court has been reluctant to extend this judiciallyimplied cause-of-action into new contexts, tending instead to find that the Bivens remedy has been displaced by alternative statutory schemes. 7 Together with the Court s invigoration of the defense of qualified immunity for government officers 8 these judicial developments mean that successful Bivens suits are few in number. The controversy concerning the proper role and recognition of officer suits continues today, as courts, legislators, and scholars continue to debate whether official wrongdoing, including infringement of constitutional rights, is best addressed and compensated by imposing personal liability upon individual officers or instead by holding the government directly responsible for the acts of its agents U.S.C See infra U.S.C See infra 5.06(c) U.S. 388 (1971). See infra 5.07(b). 6 See infra 5.07(f). 7 See infra 5.07(c). 8 See infra 5.07(d). 9 See infra 5.07(g).

3 5.02 Suits Against Federal Officers 355 In this chapter, we turn from a focus upon suits maintained directly against the sovereign United States, or one of its agencies or entities, to suits naming a federal government official or employee as defendant. We begin with suits that do not seek monetary relief from the government officer, but rather seek to compel the officer to do or not to do something, that is, relief of a specific or equitable nature. 10 Next, we examine suits for money damages against government officers, both those grounded in the common law 11 and those alleging constitutional violations. 12 PART A: SUITS FOR SPECIFIC OR EQUITABLE-TYPE RELIEF AGAINST FEDERAL OFFICERS 5.02 NON-STATUTORY SUITS AGAINST FEDERAL OFFICERS In Chapter 2, as part of a survey on the evolution of federal sovereign immunity, we examined non-statutory suits against government officers acting in their official capacities, that is, claims made against government officers based upon common-law causes of action rather than any statutory authorization for such litigation. 13 The Supreme Court in the 1882 decision of United States v. Lee, 14 in which the plaintiff landowner sought to eject a government officer who held the property for the United States, resorted to a legal fiction to allow relief to a citizen harmed by governmental action, without congressional authority and notwithstanding sovereign immunity. In that decision, the Court appeared willing to pretend that a suit for affirmative relief against a government agent was not the equivalent of an action against the government itself, regardless of the effect on governmental operations, and thus was not barred by sovereign immunity. However, in 1949, the Supreme Court abandoned that fiction in Larson v. Domestic & Foreign Commerce Corp., 15 in which a plaintiff similarly sought non-monetary relief, on that occasion in the form of a common-law claim for specific performance of a contract with a government agency, framed as a suit against the agency head. When the 10 See infra 5.02 to See infra See infra See supra 2.02(b) U.S. 196 (1882). See supra 2.02(b)(2) U.S. 682 (1949). See supra 2.02(b)(3) to (5).

4 356 Litigation With The Federal Government 5.03 relief sought in a lawsuit is directed against the federal government (that is, implicates governmental rights or duties or directly will affect government operations), the Court held that such an action must be recognized as one against the government itself, even if nominally framed as against an individual officer. And unless the government officer was acting beyond the general scope of statutory duties or in violation of constitutional standards, the constraints of sovereign immunity are fully applicable. Congress by legislation largely has superseded the ultra vires basis for non-statutory officer suits by providing remedies directly against the government itself, as discussed previously in Chapters 3 and 4. Actions against federal government officers, in their official capacity, to compel compliance with statutory and regulatory obligations also have received legislative approval, as discussed below. Accordingly, non-statutory or common-law suits against government officers for non-monetary or equitable-type relief largely have been superseded by legislative developments THE ADMINISTRATIVE PROCEDURE ACT As discussed in Chapter 4, the Administrative Procedure Act (APA) 16 authorizes claims for specific relief against the federal government. In 1976, Congress amended the APA to expressly waive the sovereign immunity of the government, thereby allowing suits stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority to proceed, whether framed as a suit against the officer or the federal government itself. 17 Accordingly, actions for judicial review of agency action, seeking such specific or equitable-type relief as an injunction to prevent or compel action by government officers, may be pursued under the APA. 18 However, as also discussed previously in Chapter 4, actions for money damages are expressly precluded under the APA U.S.C See supra Pub. L. No , 90 Stat (1976) (codified in 5 U.S.C. 702); see also 5 U.S.C. 703 (permitting action for judicial review to be brought against the United States, the agency by its official title, or the appropriate officer ). See supra 4.10(b) U.S.C. 702, Id See supra 4.11 to 4.13.

5 5.04 Suits Against Federal Officers MANDAMUS Mandamus has a long history as a remedy specifically designed to control or compel certain legal actions by government officers. 20 Indeed, the seminal Supreme Court decision of Marbury v. Madison 21 in 1803 with which constitutional law courses in law school traditionally have begun was framed as a suit by a judicial appointee for a writ of mandamus to the Secretary of State to deliver his commission of office. In that famous case, the Court established its power of judicial review by holding constitutionally invalid a federal statute that authorized the Supreme Court to issue a writ of mandamus as a matter of original, rather than appellate, jurisdiction. Mandamus relief in the District Courts is now expressly contemplated by statute. Section 1361 of Title 28 of the United States Code provides that [t]he district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff. 22 Although little used today, given the breadth of matters subject to judicial review under the Administrative Procedure Act, 23 mandamus survives for a narrow class of circumstances in which mandatory relief may be sought against a government officer. Mandamus is subject to strict standards and applies only in cases where the legal obligation of the government officer is unambiguous.as the Supreme Court recently reiterated in Cheney v. United States District Court, 24 mandamus is an extraordinary remedy that applies only when the government officer s duty is clear and nondiscretionary. The remedy may be refused on equitable grounds or in the public interest. 25 Mandamus relief is only available to compel a government officer to perform a duty if (1) the plaintiff s claim is clear and certain; (2) the duty of the officer is ministerial and is so plainly prescribed as to be free from doubt, and (3) no other adequate remedy is available For an interesting history of mandamus relief, see Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, (10th Cir. 2005) U.S. (1 Cranch.) 137 (1803) U.S.C See supra 4.10, S. Ct. 2576, 2584 (2004). 25 See United States ex. rel. Greathouse v. Dern, 289 U.S. 352, 359 (1933). 26 Consol. Edison Co. of New York, Inc. v.ashcroft, 286 F.3d 600, 605 (D.C. Cir.), cert. denied, 537 U.S (2002); Fallini v. Hodel, 783 F.2d 1343, 1345 (9th Cir. 1986).