Derivative Immunity: the Impact of Campbell-ewald Co. v. Gomez

• Publication year: 2022

50 Creighton L. Rev. 87. DERIVATIVE IMMUNITY: THE IMPACT OF CAMPBELL-EWALD CO. V. GOMEZ

DERIVATIVE IMMUNITY: THE IMPACT OF CAMPBELL-EWALD CO. V. GOMEZ

Jason Malone(fn*)

ABSTRACT

On January 20, 2016, the Supreme Court released its slip opinion in Campbell-Ewald Co. v. Gomez(fn1) addressing derivative immunity. This was the first time in seventy-six years that the Court expounded upon this common law doctrine. In fact, its very existence has been questioned since its controversial inception in Yearsley v. W.A. Ross Construction Co.(fn2) Subsequently, courts have languished in a state of confusion as to when a federal contractor providing a service can claim immunity. Courts have historically borrowed indiscriminately from among the different immunity doctrines in extending immunity to these private entities. This prior lack of any defined test or path of reasoning for extending immunity to these contractors has contributed to the false impression that the courts are extending immunity beyond its necessary limits.

This Article distinguishes between the different theories the courts have utilized in the past to extend immunity to third parties and explains the resulting common law test for qualified immunity that can be discerned from the Court's limited analysis in Campbell-Ewald Co.(fn3)

I. INTRODUCTION

As the complexity of society grows, so will the demands on government. Consequently, government must rely on private entities to perform certain governmental services. The prudent use of private entities can improve efficiency and decrease the costs involved in delivering services. However, issues arise concerning liability when individuals or businesses are harmed by these private entities.

Traditionally, government is sovereignly immune from liability unless such immunity is waived. Though it is the prerogative of Congress to statutorily waive its sovereign immunity, it is the courts that have actually determined the extent of a sovereign's actual liability. Private entities naturally seek to utilize such immunity to decrease their risk of liability arising from civil actions. The general rule is that these private entities that contract with the government cannot claim immunity from tort liability. However, this general rule has an ever-growing number of exceptions.

These exceptions depend upon the type of claim and the function the contractor performs. The focus of this Article is on the common law exception first introduced in Yearsley v. W.A. Ross Construction Co.(fn4) and recently examined in Campbell-Ewald Co. v. Gomez.(fn5) What has been referred to as Yearsley or derivative immunity concerns those situations where a federal contractor who was performing a service, can claim immunity from liability.(fn6) Although the United States Supreme Court has clarified what will be referred to in this Article as derivative immunity, many questions affecting the scope of this common law doctrine remain.

Courts have historically borrowed indiscriminately from among the different immunity doctrines in insulating a contractor from liability. The evolution of derivative immunity is no exception. For the seventy-six years that followed Yearsley, courts seem to have languished in a state of confusion and inconsistency in applying a common law immunity to service-providing contractors. This prior lack of any defined test or path of reasoning for extending immunity to this type of affiliated entity has contributed to the impression that the courts are extending immunity beyond its necessary limits.

This Article seeks to distinguish between and explain the different theories the courts have utilized to extend immunity to third parties as it relates to derivative immunity.(fn7) The future application of this renewed common law doctrine is best explained by systemically looking at the distinguishing characteristics in Campbell-Ewald Co.(fn8) It then becomes apparent that courts have recognized the importance of extending immunity in the past, but have done so by erratically drawing upon the reasoning from the other immunity doctrines. Derivative immunity is a means of extending immunity, but its application is still limited in light of Campbell-Ewald Co. However, as the need for private contractors grows, derivative immunity may play an ever-expanding role in accomplishing the interests of government.

The first part of this Article introduces the concept of sovereign immunity, the doctrine from which all other extensions of immunity are compared.(fn9) The second part discusses the multiple forms of official immunity.(fn10) The third part analyzes the role of the Federal Tort Claims Act(fn11) ("FTCA") and specifically the impact of Boyle v. United Technologies Corp.,(fn12) upon the extension of immunity to federal contractors regarding procurement contracts with the military.(fn13) The fourth part of this Article examines the common law doctrine of derivative immunity as a distinct defense to liability.(fn14) Here, the Article studies the principal cases that influenced the Court's decision in Campbell-Ewald Co. and the impact and ultimate scope of this influential holding.(fn15) The last part of the Article discusses the main philosophical themes associated with the recognition of derivative immunity.(fn16)

II. THE EVOLUTION OF IMMUNITY

The original form of immunity is sovereign immunity. Consequently, it is reasonable to assume all other iterations of immunity stem from or share traits with this foundational doctrine. Therefore, any discussion of derivative immunity must begin with a brief summary of sovereign immunity. At its core, sovereign immunity prevents a sovereign from being held liable in its own courts without the sovereign's consent. A sovereign enjoys absolute or unqualified immunity from liability. This doctrine has been a favorite target of academics over the years. Its very existence, supposedly given legitimacy by the passage of time, has even been called a mistake.(fn17) The exact origin of sovereign immunity remains an issue of debate.

The phrase sovereign immunity was not yet coined, but the concept existed in ancient Greece. The philosopher, Plato, discussed the concept of how the city benefited people in so many ways throughout their lives, and for that reason, the people should not be able to accuse the city of any wrongful acts.(fn18) A theory of gratitude as the basis of immunity has not been included in contemporary debate as to the foundations of sovereign immunity.

The exact origin of sovereign immunity in England is uncertain, but it likely began during the reign of Edward I, when the Crown had to consent to suit.(fn19) While the origins of the concept are up for debate, the first usage of the policy took place in England in Russell v. Men of Devon,(fn20) in 1788.(fn21) In this original usage, the underlying concept was that the King, or the sovereign, would not be held liable because then the King would have to judge his own case.(fn22)

By the time the Constitution was ratified, immunity of the English sovereign was well established.(fn23) Given the federalist form of government in the United States, sovereignty has been construed to be in the hands of the people, which is in turn imparted to govern-ment.(fn24) Therefore, the citizenry fundamentally determines sovereignty, which is quite different from the original concept of sovereignty. The usage in the United States is particularly interesting considering that the country was founded on the rejection of the British monarchy, as well as ideals of nobility.(fn25) However, the United States Supreme Court, under Chief Justice Marshall, demonstrated its support for the doctrine of federal sovereign immunity in 1821.(fn26) The Court later identified that its general acceptance and incorporation of the doctrine had occurred without discussion.(fn27) Interestingly, the underlying premise of immunity is contrary to the post revolutionary war sentiment regarding distrust for big government, and yet the concept of sovereign immunity was adopted with little debate. Since that time, sovereign immunity has consistently been scrutinized along with the expansion of immunity in general.

Regardless of the specific origin of sovereign immunity, its incorporation into the legal fabric of the United States today is undeniable. Sovereign immunity has been invoked broadly in five contexts: state, federal, government official, tribal, and foreign immunity.(fn28) Courts consistently utilize similar or symmetrical reasoning in addressing whether to extend immunity among these five instances.(fn29) Courts have often borrowed the reasoning used in one context only to apply such in a different context.(fn30) Given the focus of this article, attention is limited to those instances specifically related to the extension of immunity to private contractors who are providing services pursuant to an agreement with the federal government.

There are numerous qualifiers that can affect the extension of immunity to private parties. This article distinguishes between those directly related to the Court's holding in Campbell-Ewald Co. v. Gomez.(fn31) These include whether the federal contractor's agreement is to serve a military or non-military purpose, whether the contract was for procurement of a good or the performance of services, the type of immunity available, and the type of claim asserted.

In its simplest form, the defense of sovereign immunity exists when a private party...