by Shaw, Bransford & Roth, P.C.
March 9, 2010
Should a supervisor sue a subordinate for defamation for false statements made by the subordinate? Last week, in FEDmanager's Case Law Update, we reported that the Fifth Circuit says such a lawsuit can be heard. But, is it a good idea for the supervisor? The Fifth's Circuit's decision itself points out some of the hurdles. First, the Justice Department has taken the strong position that the subordinate in that case had a right to disclose wrongdoing to the Office of Special Counsel. DoJ may yet ask the Supreme Court to look at this important issue and we may someday have a clearer idea of whether a supervisor can sue a subordinate.
Any lawsuit filed will be expensive and protracted, particularly when the alleged defamatory statement is made in the context of protected activity such as an EEO complaint, IG disclosure or information provided to OSC or to Congress.
And a very practical situation still exists. Many subordinates will be judgment proof. This means that after years of expensive and vigorous litigation any judgment, particularly a large judgment, will not be able to be collected because of the likely limited resources of the subordinate being sued.
The case law update is an interesting decision with a tantalizing result for federal managers. But, be careful and consult a knowledgeable lawyer before taking the very consequential step of suing a subordinate.
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