Public Health Law Map - Beta 5 - Medical and Public Health Law Site

allegedly defective product was a military discretionary decision.
In sum, Boyle established that state law which imposes liability on a military
manufacturer is pre-empted when (1) the US approved reasonable precise product
specifications, (2) the equipment conformed to those specifications, and (3) the
supplier warned the US of the known dangers of using the equipment.
An important issue is whether the defense applies only to contracts with the
military, or whether it can be used by other government contractors. The Supreme
Court has employed language hinting that it may apply to all contractors, but has
never spoke directly on the issue. See Hercules, Inc. v. U.S., 516 U.S. 417, 421
(1996) ("The Government contractor defense . . . shields contractors from tort
liability for products manufactured for the Government in accordance with
Government specifications, if the contractor warned the United States about any
hazards known to the contractor but not to the Government"). The lower federal
courts are split on the issue.
Courts that favor applying the defense to non-military contractors include the
Western District of Wisconsin, Western District of Kentucky, District Court of
Maryland, Southern District of Mississippi, District of South Carolina, and District
Court of New Jersey. These courts apply the Boyle analysis.
c) Bivens Actions against Private Actors
Bivens actions may be brought against private entities operating under color of
federal law in the same what that §1983 claims may be brought against persons
acting under color of state law. One court summarized the tests for acting under
color of federal law:
As already noted, Bivens applies to constitutional violations committed by
private parties only if they act "under color of federal law"; or, put another
way, only if the parties are "federal actors". The tests employed for
determining whether a private party acts under color of federal law are
similar to the tests employed for determining whether a private party acts
under color of state law. Nwanze v. Phillip Morris, Inc., 100 F. Supp. 2d 215,
220 (S.D.N.Y. 2000) (courts treat Bivens actions and § 1983 actions as
analogous for most purposes), aff'd, 2001 U.S. App. Lexis 7502, 2001 WL
409450 (2d. Cir. Apr. 23, 2001).
These tests include the "direct links" test, Lebron v. Nat'l Railroad Passenger
Corp., 513 U.S. 374, 397-400, 130 L. Ed. 2d 902, 115 S. Ct. 961 (1995) (a
direct link between private corporation and federal government establishes
that corporation acted under color of federal law); the public function test,
Rendell- Baker v. Kohn, 457 U.S. 830, 842, 73 L. Ed. 2d 418, 102 S. Ct.
2764 (1982) (a private party performing a function traditionally the
exclusive prerogative of the government is a government actor); the nexus
test, Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 42 L. Ed. 2d
477, 95 S. Ct. 449 (1974) (a private party is a state actor when there is a
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