Aguilar v. United States

NOONAN, Circuit Judge,

dissenting:

The Federal Tort Claims Act waives the sovereign immunity of the United States declaring:

The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances_ 28 U.S.C. § 2674 .

A gap in the law exists if the tort complained of is performed by a federal agent carrying out a governmental function that no private individual could perform. The gap has been filled by judicial reasoning. Although no private analogue exists, the United States will be held liable for the wrongful acts of its agents committing torts that no private individual would possess the authority and opportunity to commit. United States v. Muniz, 374 U.S. 150 , 83 S.Ct. 1850 , 10 L.Ed.2d 805 (1963); Indian Towing Co. v. United States, 350 U.S. 61 , 76 S.Ct. 122 , 100 L.Ed. 48 (1955).

In the present case it is alleged that a federal police officer negligently directed the repair of the plaintiff’s truck. No private individual would have had authority to direct this repair. Nonetheless, the United States should not escape liability for the officer’s negligence. We look to the law of the state for the most relevant rule of tort. The approach taken by this court has been to ask “what liability state law attaches to similar activities undertaken by analogous entities subject to its jurisdiction.” Doggett v. United States, 875 F.2d 684, 689 (9th Cir.1989). Under Nevada law, the negligence of a police officer in the performing of his duty gives rise to liability. See Nevada v. Eaton, 101 Nev. 705 , 710 P.2d 1370, 1373 (1985). Consequently, the United States is liable here for all the damages caused if the negligence alleged took place.

The majority, however, has undertaken a gratuitous, irrelevant digression to determine that if a Nevada state entity were sued there would be a statutory cap on the state’s liability. The majority’s approach is gratuitous and irrelevant because the state statutory cap is part of the state’s preservation of limited state sovereign immunity. The state statute reads:

NRS § 41.031 Waiver of immunity from liability and action; actions; State of *1480 Nevada as defendant; service of process.

1. The State of Nevada hereby waives its immunity from liability and action and hereby consents to have its liability determined in accordance with the same rules of law as are applied to civil actions against natural persons and corporations, except as otherwise provided in NRS 41.-032 to 41.038 ...

NRS § 41.035 Limitation on award for damages in tort actions.

1. An award for damages in an action sounding in tort brought under NRS 41.-031 or against a present or former officer or employee of the state or any political subdivision, immune contractor or any state legislator arising out of an act or omission within the scope of his public duties or employment may not exceed the sum of $50,000, exclusive of interest computed from the date of judgment, to or for the benefit of any claimant. An award may not include any amount as exemplary or punitive damages.

Nevada case law indicates that the limit imposed in 41.035 is an integral part of the scheme to waive sovereign immunity rather than a simple limit on damages. In State v. Silva, 86 Nev. 911, 914 , 478 P.2d 591, 593 (1970), a case in which the limit on recovery was upheld against a constitutional challenge, the court explained the purpose of the act. It said:

Before the enactment of the statutory waiver of immunity, Nevada case law on the viability of the doctrine of sovereign immunity was uncertain and in flux. The trend was toward the judicial abolition of that doctrine. It is only fair to assume that the 1965 Legislature reacted to that trend, and elected to waive immunity within limits and impose a ceiling upon the recovery allowable to a claimant, rather than await further judicial action upon the subject. The apparent legislative thrust was to waive immunity and, correlatively, to strictly construe limitations upon that waiver, (citations omitted).

If Nevada had retained full sovereign immunity, the plaintiffs here would not be denied recovery. See United States v. Muniz, 374 U.S. at 164 , 83 S.Ct. at 1858 ; Indian Towing Co. v. United States, 350 U.S. at 65 , 76 S.Ct. at 124 . A fortiori, the plaintiff cannot be defeated by Nevada’s retention of partial sovereign immunity. The sovereign immunity of the state has no relevance to the liability of the United States. Wright v. United States, 719 F.2d 1032 (9th Cir.1983). A “finding of immunity for state employees under state law does not determine the scope of the United States’ liability under the FTCA.” Louie v. United States, 776 F.2d 819, 825 (9th Cir.1985). The attention of the majority has been deflected from this obvious point by the cases incorporating state limits on liability that applied across the board to private actions. Richards v. United States, 369 U.S. 1 , 82 S.Ct. 585 , 7 L.Ed.2d 492 (1962); Taylor v. United States, 821 F.2d 1428 (9th Cir.1987). These cases do not depend on state sovereign immunity. They have no relevance here.

The majority revives an issue that in its essentials was fought and decided over a quarter of a century ago: Is the operation of the Federal Tort Claims Act limited by the particular rule of municipal immunity of the state where the tort occurs? In Indian Towing Co. v. United States, 350 U.S. 61 , 76 S.Ct. 122 , 100 L.Ed. 48 (1955), four justices of the United States Supreme Court thought that under Louisiana law the United States would not have been liable for negligent maintenance of navigation lights and that holding the United States liable was “a complete surrender of sovereign immunity without regard to the law of municipal liability of the respective States.” Id. at 76 , 76 S.Ct. at 130 . The Court held otherwise, declaring that the Federal Tort Claims Act was “not self-defeating by covertly embedding the casuis-tries of municipal liability for torts.” Id. at 65 , 76 S.Ct. at 124-25 . The Court went on to warn: the Court should not “as a self-constituted guardian of the Treasury import immunity back into a statute designed to limit it.” Id. at 69 , 76 S.Ct. at 126 .

*1481 Indian Towing was controlling eight years later when the question was whether a federal prisoner could sue the United States for negligence. United States v. Muniz, 374 U.S. 150 , 83 S.Ct. 1850 , 10 L.Ed.2d 805 (1963). Writing for a unanimous Court, Chief Justice Warren stated: “Just as we refused to import the ‘casuistries of municipal liability for torts’ in Indian Towing, so we think it improper to limit suits by federal prisoners because of restrictive state rules of immunity.” Id. at 164 , 83 S.Ct. at 1859 . The Court also referred to the duty of care established for the Bureau of Prisons by federal law, but this reference was in the course of determining that the function of care was not discretionary; the reference was independent of the holding that state immunity of jailers was irrelevant. Id. at 164-65 , 83 S.Ct. at 1858-59 . The Court went on to warn: “The Federal Tort Claims Act provides much-needed relief to those suffering injury from the negligence of government employees. We should not, at the same time that the state courts are striving to mitigate the hardships caused by sovereign immunity, narrow the remedies provided by Congress.” Id. at 165-66 , 83 S.Ct. at 1859 . Is it possible that the majority here does not see that Nevada’s half-hearted waiver of sovereign immunity is not a “casuistry of municipal law"? Is it possible that the majority does not see that it is cutting back on the remedy Congress gave?

The Federal Tort Claims Act was intended to remove a pernicious doctrine: that the King could do no wrong, that the King did not have to account for the harm he did, that the King could with impunity violate the rights of his subjects. Vestiges of this cruel and arrogant doctrine remain, cloaked in solicitude for the public purse. It is astonishing that a federal court should — in conflict with its own precedents and those of the Supreme Court of the United States — decide to honor such a vestige of autocracy and incorporate it as a new immunity for negligent federal actors.

I respectfully dissent.