Suits against Federal Employees for Constitutional Violations: A Search for Reasonableness

Abstract

The United States Supreme Court decided in 1971 that individual federal officials may be sued for alleged violations of citizens' constitutional rights. Before that, federal employees could not personally be sued for actions taken within the scope of their jobs. Now concern is growing that such litigation may be having significant unintended consequences. In addition, questions are being raised about the effectiveness of litigation which targets individual federal employees as the primary method of vindicating citizens' civil rights. Thousands of federal employees are involved in such litigation, and their personal financial resources are at risk, raising several issues of appropriateness of this avenue of redress. Policy makers in the executive branch and Congress, and increasingly, the courts themselves, are voicing perceptions of significant damage to the public service and to the ability and willingness of civil servants to incur the inevitable risks involved in the execution of public policy. To address these issues, several recent court decisions attempt to place boundaries on the exposure to litigation faced by individual employees. However, other decisions may serve to expand federal employee liability. The present situation is a marked transformation from the days of sovereign immunity, when government and its agents could do no wrong, and no remedy at law existed for damages suffered by individual citizens. Yet, if public employees are to be held formally accountable for the protection of citizens' constitutional rights, any system instituted to accomplish such purpose should also respect the rights of public employees. After all, in performing their duties, federal employees do not act as private parties but are responsible for fulfilling public purposes. The thesis of this paper is that this judicially created method for protecting citizens' rights has not resulted in the consequences intended, and that recent Supreme Court decisions are attempts to ameliorate the primary results of this approach, which were largely unintended by the court. The argument here is that an alternative framework is needed to guide both citizens and federal employees. One problem experienced in addressing these questions is that neither the courts nor Congress have had broad-based data to examine actual federal experience