Government Screw-Ups Given Immunity Because The Attorney General Says So

Supreme Court Upholds Legal Immunity For Federal Employees

This is a case where a federal employee acted outside of his assigned duties to make comments about the performance of an employee of a federal contractor and actively advocated for the dismissal of that contractor's employee. If this was an ordinary civil matter, there are numerous precedents for supporting the initial suit that sought redress and punitive measures against the person advocating for the dismissal of a vendor's employee. But our laws and precedents allow our government, and employees acting in good faith with their office and assigned duties a great deal of sovereign immunity. However, the Supreme Court had set forth a precedent not too long ago, under the Rhenquist Court, that indicated that federal, state, county and municipal employees (and in some cases the agencies for which they worked) could be sued for negligence and deliberate acts that fell outside of their expertise, duties and/or authority of office.

This case upholds the notion of a certain amount of immunity, but then undermines the previous precedent and the notion that negligence can be proven. While I agree with the overall outcome of this case because I do not think the original plaintiff had a genuine case, I think SCOTUS has dealt a silent but deadly brain fart in the overall decision. The basis of that brain fart is detailed in the part of the decision that allows the US Attorney General to certify that the employee accused of wrongdoing was doing their job when the incident in question occurred.

The Attorney General does not have to provide evidence that the employee was in fact in compliance and accordance with the job description, or was within their authority, or was in keeping with established rules of conduct, regulations or past precedents of performance. All the Attorney General has to do is issue a letter or memo that states that the employee accused of wrongdoing was within the scope of their duties and conditions of employment for the federal government. This standard essentially grants the Attorney General the power of granting not only immunity, but also a de facto pardon. It places all employees of government in the position of being immune from being held accountable for negligence, exceeding the bounds of authority, or committing an intentional tort by putting the federal government--which has even greater immunity under the principle of sovereign immunity--as long as they are buddies, cronies or at least friendly with the powers-that-be... or at least the current Attorney General.

This undermines the First Amendment right to seek redress of grievances and tilts the scales overwhelmingly in favor of the government, no matter what action(s) is taken, and no matter how wrongful or unjust that action(s) might be.

Even the dissenting opinions in this case did not address the First Amendment issues or the just cause of the plaintiff in such cases.

The Supreme Court has rejected a challenge to federal employees' immunity from on-the-job lawsuits.

In a 7-2 decision last week, the high court ruled that the government can insert itself as the defendant in lawsuits against federal workers who claim innocence, even if the alleged act was not part of the accused employee's job description.

"It would make scant sense to read the [law] as leaving an employee charged with an intentional tort to fend for himself when he denies wrongdoing," Justice Ruth Ginsburg said in the majority opinion for Osborn v. Haley. Justices Antonin Scalia and Clarence Thomas dissented.

In the case, government contractor Pat Osborn sued a Forest Service employee for allegedly convincing her employer, the Land Between the Lakes Association Inc., to fire her. Osborn claimed the employee, Barry Haley, did this after she confronted him for not hiring her for an open contracting officer position with the Forest Service.

A federal court in Kentucky, where the case originated, found that if Haley did get Osborn fired, that act was not in his job description, making him responsible for his own defense. The government appealed and won in the 6th District Court of Appeals, which covers Kentucky and several other states. The Supreme Court decision affirmed the appeals court's ruling.

Under the 1988 Westfall Act, federal employees are immune from lawsuits as long as the Attorney General certifies that they were doing their job when the incident in question occurred. The government can then substitute itself as the defendant.

Now the court has affirmed that the Attorney General can certify an act as job-related simply by denying that the incident ever occurred. The justices also affirmed that in such circumstances the cases should be heard in federal court, rather than at the state level. The government's involvement requires federal jurisdiction.

Justice Stephen Breyer sided with Ginsburg's opinion because of issues such as federal jurisdiction, but he disagreed that an innocence claim should be grounds for immunity.

"Consider, for example, an aggravated sexual assault...on Coney Island where the government employee, say a Yellowstone Park forest ranger, if present on Coney Island must have been there on a frolic of his own," Breyer said.

Scalia's dissenting opinion focused on the court's jurisdiction in this case, not on the ability of the government to step in on behalf of its employees.