from REASON FOUNDATION:
Reviewing recent developments in government contractor immunity
By Alexander Volokh
An important question in contracting out is always how the contractors’ legal regime differs from the government’s. There are accountability mechanisms in the private sector, but they generally differ from the ones available in the public sector; similarly, the availability of money damages can sometimes change dramatically when a service is contracted out.
A previous post discussed contractors’ immunity in civil rights lawsuits for violations of constitutional rights: sometimes (as in the recent case of Filarsky v. Delia) they have the same “qualified immunity” as government employees, sometimes (as with private prison guards) they don’t. This post discusses a related issue: to what extent contractors can benefit from the government’s sovereign immunity in tort lawsuits. The answer here is similar: sometimes the government’s sovereign immunity is extended to the contractors, sometimes it isn’t. The classic case for immunity is Boyle v. United Technologies Corp. (1988); while such immunity might often make good policy sense, the legal theory used to get there is somewhat sloppy. Several recent cases involving military contractors, including a district court case from March 2013, are distinguishable from Boyle and tend to come out the other way, against immunity.