Petition — General Dynamics Corp. v. United States

———

Supreme Court, U.&

€3-220 iS FILED

+—$<we-+8 1978

In the Supreme Court of the

United States

Ocroper Term, 1976

No.

GENERAL Dynamics CorPoRATION,

Petitioner,

vs.

Tue Unitep States or AMERICA,

Respondent.

Petition For a Writ of Certiorari

To the United States Court of Appeals

‘ For the Ninth Circuit

Cooper, WHITE & CooPER

R. Barry CHurTON

Nei L. SHaprro

44 Montgomery Street, Suite 3300

San Francisco, California 94104

Telephone: (415) 433-1900

Attorneys for Petitioner

General Dynamics Corporation

=—=— —

SORG PRINTING COMPANY OF CALIFORNIA, 346 FIRST STREET, SAN FRANCISCO 94105

$4258

Ee remem

SUBJECT INDEX

—_—

Opinions and Orders Below .

Jurisdiction .............

Question Presented ..

Statutes Involved ...........

Statement of the Case

Reasons for Granting the Writ...

.. S i RENEE ere r en

TABLE OF AUTHORITIES CITED

CasEs Pages

Atchison T. & S.F. Ry. Co. v. Lan Franco, 267 Cal.

App.2d 881, 886, 73 Cal.Rptr. 660 (1968). 17

Barr v. Brezina Construction Co., 464 F.2d 1141 (10th

Eee a IR LN ORS, 12, 13, 14

Certain Underwriters at Lloyd’s v. United States, 511

re Ce I I, CI etsccicininicntnihcetnditnsssaniiendibeinncosnsin 11, 14, 15

Cruz v. Beto, 405 U.S. 319, 322 (1972)... eee eee eeeeeee a

Department of Banking v. Pink, 317 U.S. 264, 266

(1942), reh. den. 318 U.S, 802 (1943) 00. 2

Dodd v. Spokane County, Washington, 393 F.2d 330,

Se a Mi iesctesisecenciesctbtnseaenettnmsstaagnlansacatiaat neat 4

Donham v. United States, ...... |» , No. 75-1516

nn NEE EN Ie 15

Feres v. United States, 340 U.S. 135 (1950)........ 9, 10, 11, 12,

13, 14, 15, 16

Hart v. Simons, 223 F.Supp. 109, 111 n.1 (E.D. Pa.

UTTED cciuenesiseaieaphincieitiaiaitinamsatatatataleaitaiiend cialis 9

Indian Towing Co. v. United States, 350 U.S. 61

SD | scsvnseunmninnnnensinigiads hecibhlhaiihaeigaeaatitiibianiilbitanaen 15

Travelers Ins. Co. v. United States, 493 F.2d 881 (3d

vn. UTTTIEE -csaineresensiibinephineteshenbaiebcaeiibeennamiiintatceacsinatiiaiaties 16, 17

Treadwell Construction Co. v. United States, 372 U.S.

SITET IIIT sesusicsstsciinshsmsimsasicttieasiebesliniacietea’ 7,9, 10, 11, 12, 13, 14

United Air Lines, Inc. v. Wiener, 335 F.2d 379 (9th

Cir.), cert. dismissed, 379 U.S. 951 (1963) ...... 6, 10, 13, 14

United States v. Healy, 376 U.S. 75, 77-80 (1964).......... 2

.

TaBLe or AuTHORITIES CITED iii

Pages

Walker Process Equip. v. Food Mach. Chem. Corp.,

382 U.S. 172, 174-75 (1965).............-.-c-cecscscceseeeensnensnseees +

Wallenius Bremen G.m.b.H. v. United States, 409 F.2d

994 (4th Cir.), cert. denied, 398 U.S. 958 (1969)........ 11,17

Wellington Transportation Co. v. United States, 481

F.2d 108 (6th Cir. 1973).................c2-c-cecscerercsessesessoee 11, 14, 15

Weyerhaeuser S.S. Co. v. United States, 372 U.S. 597

| eee 7, 8, 9, 10, 11, 12

10 U.S.C.:

§ 1021 et SOQ............----cececesscenseesnensstersnseenenosecsenteneneseoesseses

$1071 Ot G00. ...-.--0--c-ceeseseeeeessecacensvecensencerereesenenenecensenenenenes

OG OTE GD access ecececsnseseceevcesesnscsseneescvnnesennnscsnesesanennsseonne

28 U.S.C.:

GB UDGA( 1) .--nnceeneconerovesnevsevsesensensessnsesencensenenssnsaceuosusseosocwenees 2

|) |) ens 6

OT ccxcossnnssncteesnsnithninnsenninastscmnptinitesnensannensiniascenennmtesrneents 5

3

2

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§ DBTE, .....-c.ececceosneecsnsecesssereosesecsenensensssentecscessseesnssseeenensensenes

38 U.S.C.:

In the Supreme Court of the

United States

Octoser Term, 1976

No.

GeneraL Dynamics CorPoRATION,

Petitioner,

vs.

Tre Unrrep States or AMERICA,

Respondent.

Petition For a Writ of Certiorari

To the United States Court of Appeals

For the Ninth Circuit

The petitioner, General Dynamics Corporation (“Gen-

eral Dynamics”), defendant and third party plaintiff in

consolidated personal injury and wrongful death actions,

respectfully prays that a Writ of Certiorari issue to review

the judgment and opinion of the United States Court of

Appeals for the Ninth Cireuit (“Court of Appeals”) en-

tered in this proceeding on April 15, 1976.

OPINIONS AND ORDERS BELOW

The Order of the United States District Court for the

Northern District of California (“District Court”), grant-

ing the Motion of the United States of America (“USA”)

to dismiss the Third-Party Complaint of General Dynamics

2

against it for failure to state a claim upon which relief can

be granted is reported at 385 F.Supp. 890 (N.D.Cal. 1974),

and is reproduced herein as Appendix A. The opinion of

the Court of Appeals, as yet unreported, is reproduced

herein as Appendix B. The Order of the Court of Appeals

denying petitioner’s request for a rehearing in banc, entered

on May 26, 1976, is reproduced herein as Appendix C.

JURISDICTION

The judgment of the Court of Appeals was entered on

April 15, 1976. A timely Petition for Rehearing was denied

by the Court of Appeals on May 26, 1976. This Petition for

a Writ of Certiorari was filed within ninety days of that

date, and is therefore timely. Department of Banking v.

Pink, 317 U.S. 264, 266 (1942), reh. den. 318 U.S. 802 (1943) ;

United States v. Healy, 376 U.S. 75, 77-80 (1964). This

court’s jurisdiction is invoked under 28 U.S.C. § 1254(1).

QUESTION PRESENTED

Whether the United States of America may be held liable

to indemnify a third party for damages which the third

party pays to injured members of the United States Armed

Forces, or to the representatives or heirs of deceased mem-

bers of the United States Armed Forces, when those mem-

bers, representatives, or heirs may not recover directly

against the United States of America?

STATUTES INVOLVED

Two provisions of the United States Code are involved

in the subject action. The Federal Tort Claims Act, 28

U.S.C. § 2674, provides as follows:

“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 in-

3

dividual under like circumstances, but shall not be

liable for interest prior to judgment or for punitive

damages.

If, however, in any case wherein death was caused,

the law of the place where the act or omission com-

plained of occurred provides, or has been construed

to provide, for damages only punitive in nature, the

United States shal! be liable for actual or compensatory

damages, measured by the pecuniary injuries resulting

from such death to the persons respectively, for whose

benefit the action was brought in lieu thereof.”

The provisions of 28 U.S.C. § 1346(b) read as follows:

“Subject to the provisions of chapter 171 of this

title, the district courts, together with the United

States District Court for the District of the Canal

Zone, and the District Court of the Virgin Islands,

shall have exclusive jurisdiction of civil actions on

claims against the United States, for money damages,

accruing on or after January 1, 1945, for injury or

loss of property, or personal injury or death caused

by the negligent or wrongful act or omission of any

employee of the Government while acting within the

scope of his office or employment, under circum-

stances where the United States, if a private person,

would be liable to the claimant in accordance with the

law of the place where the act or omission occurred.”

STATEMENT OF THE CASE

The parties to this appeal, General Dynamics and the

USA, filed with the District Court an Agreed Statement of

Facts on Appeal (“Agreed Statement”), which became a

portion of the record before the Court of Appeals. In

addition, the Order of the District Court originally ap-

pealed from granted the USA’s Motion to dismiss General

Dynamics’ Third Party Complaint for failure to state a

claim upon which relief can be granted. Thus, this Court,

4

in considering or reviewing the grant of such a motion,

should treat all properly pled material aliegations of the

coinplaint as true. Crue v. Beto, 405 U.S. 319, 322 (1972);

Walker Process Equip. v. Food Mach. Chem. Corp., 382

U.S. 172, 174-75 (1965); Dodd v. Spokane County, Wash-

ington, 393 F.2d 330, 334 (9th Cir. 1968). For the conven-

ience of this Court, there follows a review of the facts con-

tained either in the Agreed Statement or in the properly

pled material allegations of the Third Party Complaint.

During the latter part of the 1940’s, General Dynamics

designed, developed, and manufactured a civilian aircraft,

designated as the Convair 240. The USA evidenced interest

in purchasing a version of the Convair 240 for use as a

military aircraft, and, pursuant to a contract with the

USA, General Dynamics supplied the United States Air

Force (“Air Force”) with a version of the Convair 240,

substantially similar to the civilian version, and bearing

the military designation of T-29. On or about June 6, 1954,

ene particular T-29, bearing registration No. 5822, was

delivered to the Air Force.

‘On delivery to the USA, the aforementioned aircraft

was inspected and fully and formally accepted by the USA

as conforming to its own specifications for use by the Air

Force. On and after June 6, 1954, and through the sixteen

year period immediately following such delivery, the USA

had complete and exclusive custody of and control of the

operation, inspection, repair, and maintenance of the sub-

ject aircraft.

On May 4, 1970, aircraft No, 5822 crashed shortly after

take-off from Hamilton Air Force Base in Marin County,

California. The aircraft, piloted by an Air Force officer,

carried a crew of four Air Force personnel, and had nine

Air Force personnel and one member of the United States

5

Army as passengers. All persons aboard the aircraft, with

the exception of one passenger, were killed in the crash.

All of the servicemen aboard the aircraft were on active

duty and their activities at the time of the accident were

incident to their military service.

In April of 1971, actions were filed against General

Dynamics by the representatives of the deceased crew

members and passengers, and by the sole surviving pas-

senger, seeking recovery under the theories of negligence

and strict liability. While said actions were originally filed

in the courts of the State of California, the actions were

removed by General Dynamics to the United States Dis-

trict Court for the Northern District of California, pursu-

ant to the provisions of 28 U.S.C. § 1332.

On February 8, 1973, General Dynamics, by leave of

Court, filed a Third Party Complaint against the USA.

Said Third Party Complaint was within the original juris-

diction of the United States District Court for the Northern

District of California pursuant to the provisions of 28

U.S.C. §1346(b). The Third Party Complaint alleged,

inter alia, that the USA was negligent, wanton and reckless

in the inspection, maintenance, repair, and operation of

the subject aircraft; specifically, the USA failed to manage,

inspect, service, repair, maintain and operate said aircraft

and its component parts in a proper and non-negligent

fashion, and failed to warn, instruct, advise, educate and

train the crew and occupants of the subject aircraft regard-

ing the aircraft and its component parts, and their safe

operation. Tt was further alleged that the acts and omis-

sions of the USA were the sole, active and primary cause

of the crash of the subject aircraft on May 4, 1970, the

death of plaintiffs’ decedents, and the injuries to the sole

surviving serviceman. Finally, it was alleged that the

6

crash of the subject aircraft was not proximately caused

by any act or omission, negligent or otherwise, in the

design, manufacture, maintenance, or sale of the subject

aircraft by General Dynamics.

The District Court initially denied the Motion of the

USA to dismiss the Third Party Complaint for failure to

state a claim upon which relief can be granted, by Order

filed June 6, 1973, but, upon reconsideration, granted the

Motion by Order filed December 2, 1974. It was the opinion

of the District Court, relying heavily on United Air Lines,

Inc. v. Wiener, 335 F.2d 379 (9th Cir.), cert. dismissed,

379 U.S. 951 (1964), that because the USA could not be

liable directly to the injured serviceman, or to the repre-

sentatives or heirs of the deceased servicemen, it could

not be liable indirectly by virtue of liability for indemnity

to a third party. After proper certification of the Order by

the District Court, General Dynamies petitioned the Court

of Appeals for leave to appeal pursuant to 28 U.S.C. § 1292

(b), and, on December 27, 1974, the Court of Appeals

granted such leave. It is the judgment of the Court of

Appeals, affirming the action of the District Court, which

is the subject of this Petition.

REASONS FOR GRANTING THE WRIT

The legal conclusion of the Court of Appeals in the

instant action perpetuates a clear and irreconcilable con-

flict between various United States Courts of Appeals on

the precise question discussed herein, and on the broader

question of which the subject question forms a logical part.

On the precise question, whether or not a third party who

pays damages to injured members, or to heirs or repre-

sentatives of deceased members, of the United States

Armed Forces (“military”) may seek indemnity against

the USA when those members, heirs or representatives

7

could not sue the USA directly, the Court of Appeals,

joined by the United States Court of Appeals for the

Eighth Cireuit (“Eighth Cireuit”), reached a conclusion

that is diametrically opposed to that reached on precisely

the same issue by the United States Courts of Appeals for

the Fifth (“Fifth Cireuit”), Sixth (“Sixth Cireuit”), and

Tenth (“Tenth Circuit”) Circuits. On the broader question,

whether a third party who pays damages to any federal

employee may seek indemnity against the USA, when the

federal employee is barred from direct suit against the

USA, the same conflict between the various Circuits re-

mains, with the United States Court of Appeals for the

Third Cireuit (“Third Circuit’) joining the Eighth and

Ninth Circuits, and the United States Court of Appeals for

the Fourth Cireuit (“Fourth Cirenit”) joining the Fifth,

Sixth, and Tenth Circuits. This conflict between the Cir-

cuits creates an inequitable situation in which the rights

of litigants seeking indemnity against the USA depend

entirely upon the fortuitous circumstances of geographical

location of the litigants or the occurrence giving rise to

suit, and, therefore, the rule of law of the Circuit in which

indemnity is sought.

This Court has never ruled on the precise question here

at issue, and petitioner respectfully suggests that such a

ruling should be made, to resolve the aforementioned con-

flict between the Cirenits. On the broader question, this

Court has not ruled since 1963, and the rulings of this

Court in 1963 have been the subject of disparate treatment

and interpretation by the different Circuits. Petitioner

urges that the rulings of this Court in Weyerhaeuser S.S. |

Co. v. United States, 372 U.S. 597 (1963) and Treadwell

Construction Co. v. United States, 372 U.S. 772 (1963)

support the position of petitioner, and that a Writ of

8

Certiorari should issue to allow this Court to remove the

present conflict between the Circuits, and bring those Cir-

cuits misconstruing this Court’s 1963 mandate into line.

If this Court is of the opinion that its decisions in the

aforementioned two cases do not govern the subject issue, a

Writ of Certiorari should issue to allow this Court to rule

on the subject issue, and create harmony and uniformity

between the Circuits on the question presented herein.

Petitioner respectfully suggests to this Court that its

two decisions in 1963 did establish a precedent that governs

the question raised herein, and that the judgment of the

Court of Appeals was in direct contravention to that

precedent, and should be overruled. In Weyerhaeuser, this

Court permitted a shipowner who had satisfied the claim

of an injured non-military federal employee to maintain a

suit against the USA, seeking tort or equitable indemnity,

despite the undisputed legal principal that the injured

federal employee was barred by provisions of the Federal

Employees Compensation Act (“FECA”) from maintaining

a suit directly against the USA, and despite the corollary

principal that the USA could not be liable directly in

damages to the injured federal employee. In allowing the

prosecution of an indemnity claim by the third-party ship-

owner, this Court said

“The purpose of §7(b), added in 1949, was to estab-

lish that, as between the Government on the one hand

and its employees and their representatives or de-

pendents on the other, the statutory remedy was to

be exclusive. There is no evidence whatever that Con-

gress was concerned with the rights of unrelated third

parties .. .” 372 U.S. at 601. (Emphasis added).

It was the opinion of this Court that the FECA, by express

provision, provided an exclusive remedy for injured em-

9 i

ployees, or for those standing in the shoes of injured

employees, against the USA, but that the same provision

was not intended to, nor did it, establish the exclusive

liability of the USA with regard to indemnity claims by un-

related third parties.

In Treadwell, this Court vacated a decision of the Third

Cireuit which held that the exclusive remedy provision of

the FECA barred recovery of contribution from the USA

when FECA compensation payments had been made by the

USA to an injured government employee. This Court re-

manded the matter for treatment in conformity with its

decision in Weyerhaeuser. After remand, the United States

District Court allowed a third-party claim against the USA,

notwithstanding the FECA provision, and the USA, after

appealing, dismissed its appeal. [See Hart v. Simons, 223

F.Supp. 109, 111 n.1 (E.D. Pa. 1963) ]. From the above two

decisions, it appears that this Court, as early as 1963, was of

the opinion that the bar against direct suit contained in the

FECA did not preclude a third party action in indemnity

against the USA, even in situations where the USA had paid

compensation urider the FECA to an injured employee, and

could not be sued by the injured employee directly.

The above decisions concerned indemnity or contribution

actions arising out of injuries to non-military governmental

employees covered by the FECA, which expressly bars

direct suit by the employees against the USA. Military per-

sonnel, not covered by the FECA, receive compensation

from the USA pursuant to several statutes [e.g. 10 U.S.C.

§ 1071 et seq., 10 U.S.C. § 1201 et seq., 10 U.S.C. §§ 1475-82,

and 38 U.S.C. § 101 et seq.], none of which by its terms bars

direct suit against the USA. However, this Court estab-

lished such a bar against direct suit by injured military

personnel against the USA in Feres v, United States, 340

10

U.S. 135 (1950), a decision in which the right of third parties

to seek indemnity against the USA was neither raised nor

resolved.

In the year following the decisions of this Court in Weyer-

haeuser and Treadwell, the Court of Appeals, in United Air

Lines, Inc. v. Wiener, supra, concluded that the aforemen-

tioned two opinions were of no precedental value or persua-

sive effect, and denied the right of a third party to prosecute

a claim for indemnity under circumstances similar to those

present in the instant appeal. After discussing the pro-

priety, or impropriety, of allowing the prosecution of claims

for tort or equitable indemnity against the USA by third

parties who paid damages to injured non-military govern-

mental employees, covered by the FECA, and after econ-

eluding that the FECA provisions by implication barred

such third party claims, the Court of Appeals, in cursory

fashion, discussed the same questions regarding military

personnel, disposed of those questions by total reliance on

Feres, and concluded that no indemnity action could lie

against the USA for damages paid to injured federal em-

ployees, whether military or non-military. The reasoning

of the Court of Appeals, required to reach the aforemen-

tioned conclusion, was extraordinarily simple: without

underlying direct liability on the part of the USA to the

injured employees (FECA or Feres), the USA could not

be liable indirectly for tort or equitable indemnity. In the

instant appeal, the Court of Appeals briefly reviewed its

decision in Wiener, following it without equivocation.

In asking the Court of Appeals to reexamine the position

it enunciated in Wiener, petitioner brought to the attention

of that Court a series of cases decided long after Wiener,

eases which reached a contrary conclusion. As this Court

can readily see from the opinion of the Court of Appeals,

only cursory attention was given by the Court of Appeals

a

11

to some of those opinions’, and others were ignored.’ It is

respectfully submitted to this Court that a careful analysis

of the more recent opinions of the United States Courts of

Appeals will lead to the inescapable conclusion that the

greater weight of authority supports the contentions of

petitioner, and casts serious doubt on the correctness of the

judgment petitioner requests this Court to review.

When the Court of Appeals issued its judgment in the

instant matter, it stood alone amongst Courts of Appeals

in concluding that the bar constructed by Feres against

direct suits by members of the military against the USA

similarly barred suits for tort or equitable indemnity, on

the part of third parties, against the USA. Three other

United States Courts of Appeals had previously held or

stated that the Feres doctrine did not bar such indemnity

claims, and that the potentional liability of the USA for

indemnity did not rest on any requirement of direct liability

on the part of the USA to the individual member of the

military who suffered injury.

In Wellington Transportation Co. v. United States, 481

F.2d 108 (6th Cir. 1973), a member of the United States

Coast Guard on active duty was injured while a Coast

Guard eutter was towing an automobile ferry free of ice.

The injured Coast Guardsman filed suit in state court

against the owner of the automobile ferry, seeking recovery

for his injuries. The owner of the ferry successfully de-

fended the suit and paid no damages to the injured Coast

1. Weyerhaeuser 8.8. Co. v. United States, supra; Treadwell

Construction Co. v. United States, supra; Wallenius Bremen

G.m.b.H. v. United States, 409 F.2d 994 (4th Cir.), cert. denied,

398 U.S. 958 (1969).

2. Wellington Transportation Co. v. United States, 481 F.2d

108 (6th Cir. 1973); Certain Underwriters at Lloyd’s v. United

States, 511 F.2d 159 (5th Cir. 1975).

12

Guardsman, but did incur $12,500 in attorneys’ fees and

defense costs. The ferry owner filed suit against the USA,

alleging that the accident causing the injury to the Coast

Guardsman was the result of the primary and active neg-

ligence of the USA, through its agents, and seeking equit-

able or tort indemnity.

The trial court found that the ferry owner was not neg-

ligent, but that the USA, through the crew of the Coast

Guard cutter, was negligent. However, the trial court ruled

that the ferry owner was without a remedy against the

USA because of its assumption that the Feres doctrine,

which barred direct suit on the part of the injured Coast

Guardsman against the USA, likewise barred the claim of

the ferry owner for tort indemnity against the USA. On

appeal, the Sixth Circuit reversed the holding of the trial

court:

“We do not read Feres v. United States, supra, as

presenting a bar to a third party’s claim against the

United States for indemnification of damages awarded

to an injured serviceman and attorneys fees and ex-

penses incident thereto. Rather, the Feres decision was

concerned only with an injured serviceman’s direct

remedy against the United States, and nothing in the

Court’s opinion suggests that the holding of that case

was intended to apply to a third party’s claim for in-

demnity against the United States.” 481 F.2d at 111.

The Sixth Circuit, finding support for its conclusion in this

Court’s opinions in Weyerhaeuser and Treadwell, allowed

the prosecution of a claim for indemnity under factual

circumstances virtually indistinguishable in principle from

those present in the instant action.

In Barr v. Brezina Construction Co., 464 F.2d 1141 (10th

Cir. 1972), the Tenth Circuit followed the holding of Weyer-

haeuser and Treadwell, and expressed an opinion directly

13

contrary to that expressed by the Court of Appeals in

Wiener on the question presented in this petition. In Barr,a

military plaintiff filed suit against a general contractor and

its subcontractor as a result of injuries suffered in a fall

down a stairway installed by the subcontractor in a build-

ing located on an Air Force base in Utah. Because the plans

for the stairway had been furnished by the USA, and be-

cause the contractor alleged that it had brought to the

attention of the USA the dangerous design of the stairway,

but had been forced by the USA to follow the unchanged

plans, the contractor sought tort or equitable indemnity

against the USA. The trial court dismissed the third paitv

complaint against the USA, concluding, as had the Court of

Appeals in Wiener, that indemnity was barred by Feres.

The Tenth Circuit reversed the trial court, holding that

an action based on the theory of tort indemnity could be

maintained against the USA, despite the Feres bar. First,

the Tenth Circuit expressed its understanding of the Feres

doctrine:

“The Feres doctrine limits a serviceman claimant

seeking recovery against the United States to his

remedy under the Military Claims Act. He cannot

pursue the United States under the Federal Tort

Claims Act 28 U.S.C. § 1346(b), because his remedy

against the United States under the Military Claims

Act is exclusive of all other remedies. But it does not

follow that a defendant-third-party plaintiff who has

been subjected to liability by a serviceman inherits,

so to speak, the limitations which apply to the service-

man, since his is an independent remedy based on dif-

ferent considerations.” 464 F.2d at 1143.

Next, the Tenth Circuit considered this Court’s decision in

Treadwell:

14

“We read this per curiam opinion as merely holding

that the exclusive remedy of the employee does not

prevent a third-party action.” 464 F.2d at 1143 n.5.

Finally, the Tenth Circuit denied indemnity in Barr, but

only because of the specific facts of the case, and the ap-

plicable state law. There ean be no question, however, that

the Tenth Circuit, in Barr, recognized the right of a third-

party plaintiff to pursue a tort indemnity claim against the

USA under the circumstances there present. While the

grant of indemnity was denied in Barr because of factual

considerations governed by the law of the State of Utah,

the holding concerning the right to seek indemnity is in no

way disturbed or weakened by this result.

In Certain Underwriters at Lloyd’s v. United States, 511

F.2d 159 (5th Cir. 1975), the Fifth Cireuit expressed its

disagreement with the conclusion reached by the Court of

Appeals in Wiener. Although the Court in Certain Under-

writers was considering a claim for contribution, and not a

claim for indemnity, it reviewed relevant authority on the

question of indemnity, which had been brought to its atten-

tion by one of the litigants. After reviewing that authority,

particularly Wellington and Barr, the Court stated that:

“We are in agreement with the expression in those

opinions that Feres itself does not bar a third party

suit against the United States for indemnity.” 511

F.2d at 163.

While the precise question here present was not decided

by the Fifth Circuit in Certain Underwriters, there can be

little doubt that the Court there expressed its strong agree-

ment with the conclusions reached on the question here

present by the courts in Wellington and Barr, and its

disagreement with the principles enunciated by the Court

of Appeals in Wiener, and, therefore, in the instant case

as well.

15

It should be brought to this Court’s attention that on

Junc 4, 1976, the Eighth Cireuit, in an opinion as yet

unpublished, aligned itself with the Court of Appeals, and

against the Fifth, Sixth, and Tenth Circuits, on the precise

question presented herein. Donham v. United States, ........

. , No. 75-1516 (8th Cir., June 4, 1976). In its

opinion, the Eighth Circuit discussed the relevant law at

length, before concluding that the rationale of the Feres

opinion bars a third-party claim for indemnity against the

USA. After recognizing that the Feres opinion does not,

in and of itself, bar such a claim, and after concluding that

all relevant precedents are factually different, poorly

reasoned, or non-persuasive’, the court concluded that the

rationale of the Feres opinion—the distinct relationship

of the USA to its military personnel, and the lack of a

civilian counterpart to that relationship-—created a bar

against the prosecution of claims for indemnity.

The Eighth Circuit opinion neglects the clear mandate

of this Court in Indian Towing Co. v. United States, 350

U.S. 61 (1955), that because a perfect parallel can rarely be

found in the civilian world to the relationship of the USA

and its employees or the general public, or to the activities

of the USA in its governmental capacity, a perfect parallel

is not necessary to the imposition of liability against the

USA under the Federal Tort Claims Act. If the USA,

38. For example, the Eighth Cireuit dismissed Wellington

Transportation Co. v. United States, supra, as inapplicable on the

ground that it was decided under federal maritime law. A careful

reading of Wellington, however, shows beyond doubt that the Sixth

Cireuit expressly considered maritime principles, rejected them as

inappropriate, and decided the ease by reference to principles of

basie negligence, a doctrine recognized in all jurisdictions, state

and federal. Furthermore, Wellington was criticized as decided

without reference to Certain Underwriters, despite the fact that

the Wellington decision predated that in Certain Underwriters by

two years.

16

through its employees, acted in a fashion which would

render a civilian, acting in a similar fashion, liable, the

USA may be held liable for its conduct, whether or not

there are in fact civilians who perform the same or similar

functions. In its reliance upon the purported rationale of

Feres—the military relationship—to deny the right to

prosecute indemnity claims, the Eighth Circuit stands

alone.

From the foregoing, it is readily apparent that the

greater weight of authority supports petitioner’s conten-

tion that the prosecution of an action seeking tort or

equitable indemnity against the USA should be allowed

regardless of the inability of the person physically injured

to bring suit directly against the USA, whether the bar

against direct suit is the result of statute, or of court deci-

sion. The 1963 opinions of this Court appear to support

the position of petitioner herein, a position unequivocally

endorsed by the opinions of the Fifth, Sixth and Tenth

Circuits. Against this weight of authority are the opinions

of the Eighth and Ninth Circuits, opinions which expressly

rely on a non-existent weight of authority in their favor,

and which, it is respectfully submitted, are in error and

should be overruled.

If one expands the inquiry regarding relevant case

authority to include the broader issue outlined above, the

alignment of United States Courts of Appeals in favor of

petitioner and against the Court of Appeals herein does

not change. In a case involving a non-military federal em-

ployee, covered under the FECA, the Third Cireuit held

that indemnity in favor of a third party who pays dam-

ages to that injured employee and against the USA is

barred by the provisions of the FECA itself. Travelers

Insurance Co. v. United States, 493 F.2d 881 (3d Cir. 1974).

17

The Court, in Travelers, reached its decision on the basis

of its conclusion that it was following the greater weight

of authority. A review of the authority relied upon by the

Court in Travelers, however, demonstrates beyond dispute

that the “weight of authority” relied upon was authority

governing claims for contribution, rather than claims for

indemnity. It is axiomatic that contribution and indemnity

are two separate doctrines, governed by two separate prin-

ciples, and available under entirely different circumstances.

In the former the parties are joint tortfeasors, said to be

in pari delicto, and damages are divided equally between

them, but in the latter, the parties are not in pari delicto,

and the damages are shifted so that the party primarily

responsible bears the full consequences of the occurrence.

Atchison T. € S.F. Ry. Co. v. Lan Franco, 267 Cal.App.2d

881, 886, 73 Cal. Rptr. 660 (1968).

Any impact of the Travelers opinion on the relevant

“weight of authority” is offset by the opinion of the

Fourth Circuit in Wallenius Bremen G.m.b.H. v. United

States, 409 F.2d 994 (4th Cir.), cert. denied, 398 U.S. 958

(1969). In that case, the Fourth Circuit was very careful

to delineate the clear distinction between contribution and

indemnity, a distinction underlined by the purposes of the

two different remedies, and by the functions of the two

different remedies. The court concluded that indemnity

should be available when the party against whom in-

demnity is sought owed a duty of his own to the injured

person, whether or not the prospective indemnitor could

also be held liable to the injured party:

“But we are unable to see why in addition to breach

of duty there must be indemnitor’s liability to the

injured party. If the purpose of indemnity is to re-

lieve the relatively innocent wrongdoer and shift the

burden to one whose conduct is more blameworthy, the

18

fact that the latter has a personal defense if sued by

the injured person would seem to be irrelevant.” 409

F.2d at 998.

The Court further expressed its opinion regarding the

availability of indemnity in the absence of underlying lia-

bility on the part of the prospective indemnitor in un-

equivocal language:

“As for the law of indemnity we think the better rule

is that which rests the right of indemnity upon viola-

tion of the duty of care to the injured person rather

than upon tort ‘liability’.” 409 F.2d at 998.

The addition of the foregoing two opinions to the above

analysis does nothing but perpetuate and strengthen the

split between the Circuits, leaving the greater weight of

authority on the side of petitioner rather than on the side

of the Court of Appeals.

Policy considerations, in addition to the greater weight

of the applicable case authority, support the contentions

of petitioner, rather than the conclusion of the Court of

Appeals in the challenged judgment. The instant action

presents the classic factual circumstances for the award of

tort indemnity. For purposes of this petition, the USA

owned and exclusively maintained, operated, inspected,

and repaired the subject aircraft for sixteen years prior to

the accident, and was actively and primarily negligent, as

well as wanton and reckless. General Dynamics was, by

comparison, at worst passively or secondarily negligent.

The concept of equitable or tort indemnity was spawned

by circumstances such as these and the inequities that

ean result in the absence of such indemnity.

A more erying need for the application of equitable or

tort indemnity can hardly be imagined. If the plaintiffs

in this action can prove that the subject aircraft had a

19

defect, however latent and insignificant, at the time it left

General Dynamics’ hands in 1954, and that the defect was

a proximate cause of the crash of the subject aircraft in

1970, General Dynamics may have to respond, by judg-

ment or settlement*, with millions of dollars in damages,

despite the fact that the USA may have been actively

negligent in its handling and use of the subject aircraft,

may have ignored all warnings, instructions, and recom-

mendations of General Dynamics regarding the handling

and operation of the aircraft, and may have, indeed, been

reckless and wanton in its treatment of the subject air-

craft. Equity requires, indeed demands, that General

Dynamics be allowed to seek relief from this great poten-

tial liability, by being granted the opportunity to prosecute

its claim and prove that the active negligence of the USA,

or the reckless and wanton conduct of the USA, was the

primary cause of the subject accident, and its resultant

injuries and deaths.

4. As a matter of fact, although not of record in the instant

appeal, General Dynamics has compromised the claims of all plain-

tiffs by responding, in settlement, with millions of dollars in

damages.

20

CONCLUSION

For the reasons stated above, a Writ of Certiorari should

issue to review the judgment and opinion of the United

States Court of Appeals for the Ninth Circuit, and the

judgment of that Court should be reversed.

Dated: AG 12 1976

Respectfully submitted,

Cooper, Waite & CoorEer

R. Barry CuurtTon

Nei L. SHapro

By R. Barry Cuurton

Attorneys for Petitioner

General Dynamics

Corporation

(Appendices Follow)

Appendix A

RECEIVED NOV 19 1974

Central District of California

Clerk, U.S. District Court

JAMES F. BROWNING, JR.

United States Attorney

RICHARD F. LOCKE

Assistant United States Attorney

450 Golden Gate Avenue

San Francisco, California 94102

Telephone: 415-556-6434

JOSEPH T. COOK

Trial Attorney, Aviation Unit

Torts Section, Civil Division

Department of Justice

Washington, D. C. 20530

Telephone : 202-739-3198

Attorneys for United States of America.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

Shelley L. Adams and Diana L.

Adams, Minors, by and

through their Guardian Ad

Litem, Toni L. Adams, and

Susan Adams Kitchen and

Toni L. Adams,

Plaintiff s,

vs.

General Dynamics Corporation,

et al.,

Defendant and Third-Party

Plaintiff ,

vs.

United States of America

Third-Party Defendant.

Civil Nos:

72-77-PMH

72-78-PMH

72-79-PMH

72-80-PMH

72-81-PMH

72-82-PMH

72-83-PMH

72-84-PMH

72-85-PMH

72-86-PMH

72-87-PMH

72-88-PMH

72-89-PMH

CONSOLIDATED

ORDER

2 Appendiz

On May 23, 1973, the third-party defendant UNITED

STATES OF AMERICA moved this Court to dismiss the

third-party complaint for lack of jurisdiction under the

Federal Tort Claims Act (FTCA; 28 U.S.C. 1346 and 2671

et seq.). On May 31, 1973, this Court denied said motion.

Subsequently, at the suggestion of the Court, the United

States of America moved for reconsideration of its motion.

The United States of America’s position is that this

Court has no jurisdiction over it because where servicemen

are involved, sovereign immunity has not been waived.

It is clear that a serviceman (or the survivors of a de-

ceased serviceman) cannot recover against the United

States for injuries suffered while performing duties inci-

dent to his service. Feres v. United States, 340 U.S. 135

(1950) ; Lee v. United States, 400 F.2d 558 (9th Cir., 1968)

cert den., 393 U.S. 1053 (1969). The Feres case was a judi-

cial determination that the FTCA had not waived sover-

eign immunity in serviceman cases, and through that the

District Court had no jurisdiction over the United States.

In this action the United States argues that since the

plaintiffs cannot recover directly against the government,

they should not be permitted to recover indirectly, by hav-

ing the recovery pass through the hands of defendant and

third-party plaintiff, General Dynamics Corporation. Au-

thority for this position abounds: United Air Lines v.

United States, 335 F.2d 379 (9th Cir., 1964) cert. dismissed,

379 U.S. 951 (1964); Wein Alaska Airlines v. United

States, 375 F.2d 736 (9th Cir., 1967) cert. den. 389 U.S.

940; Travelers Insurance Company v. United States, 493

F.2d 881 (3rd Cir., 1974) ; Di Girogio v. United States, 372

F. Supp. 1373 (E.D. N.Y., 1974), aff’d 2nd Cireuit, October

9, 1974.

Defendant and third-party plaintiff General Dynamies

relies upon Wallanius Breman G.M.B.I1. v. United States,

——-.

Appendix 3

409 F.2d 994 (4th Cir.) cert. den. 398 U.S. 958 (1969) and

Treadwell Construction Co. v. U.S., 372 U.S. 597 (1963).

Reliance on the Treadwell case is misplaced, because the

Supreme Court did not decide the question it had, but

merely vacated a lower court dismissal for reconsideration.

Such can be precedent only for the procedure of vacating

and reconsidering, and not for a substantive interpretation

of the law.

While in the Breman case the Fourth Cireuit did decide

the question of third-party recovery against the United

States contrary to the Ninth Circuit’s Weiner decision, it

mistakenly relied upon Weyerhacuser S.S. v. United States,

372 U.S. 597 (1963). Weyerhaeuser was an admiralty case,

and it turned upon the age-old traditional admiralty con-

cept of divided damages. Here we are dealing with a recent

statute (the FTCA was passed in 1946) and recent judicial

interpretation thereof.

It appears to this Court that the only decisions which

permit third-party recovery against the United States in

this situation commence their reasoning with Weyer-

haeuser. Because that reasoning is misapplied, and because

the Court finds the Ninth Circuit approach in Weiner to be

more correct, and clearly controlling, it is therefor,

ORDERED, that the earlier order of this Court dated

May 31, 1973, denying the United States’ Motion to Dismiss

the third-party complaint, be and hereby is, VACATED,

and it is further

ORDERED, that the United States Motion to Dismiss

the third-party complaint be and hereby is, GRANTED.

The Court hereby certifies that it is of the opinion that

such order involves a controlling question of law as to

which there is substantial ground for difference of opinion

and that an immediate appeal from the order may materi-

ally advance the ultimate termination of the litigation.

——Eernym_ tt =—aETr naam

4 Appendtz

The Court indicated on September 11, 1974, that it would

grant the motion but there was an indication that a cross-

claim had been filed by the United States. Upon which sug-

gestion the Court indicated it would defer the ruling for

ten days to determine whether the Government had filed

and would dismiss said claim. The Court also indicated it’s

desire for a proposed written order and would grant a

certification under Title 28, Section 1292(b), FRCP.

The files in this case are in San Francisco and the Court

and his clerk are in Los Angeles, which handicapped a

search for the cross-claims. The Court did not receive in-

formation from the United States until September 19, 1974,

that no cross-claim had been and probably would not be

filed. At which time the undersigned granted the within

order.

DATED: November 26, 1974.

Person M. Hatt

PIERSON M. HALL, JUDGE

United States District Court

Appendix B

FILED APR 15 1976

EMIL E. MELFT, JR.

Clerk, U.S. Court of Appeals

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Shelley L. Adams, et al.,

Plaintiffs,

vs.

General Dynamics Corporation, et al.,

Defendants.

No. 74-3484

General Dynamics Corporation, OPINION

Third-Party Plaintiff, Appellant,

vs.

The United States of America,

Third-Party Defendant-A ppellee.

On Appeal from the United States District Court

for the Northern District of California

Civil Nos. 72-77 PMH through 72-89 PMH (Consolidated)

Before WRIGHT and KILKENNY, Circuit Judges, and

CHRISTENSEN, District Judge*

CHRISTENSEN, District Judge.

Under circumstances comparable to those of the present

case, it was held in United Air Lines, Ine. v. Wiener, 335

F.2d 379 (9th Cir.), cert. dismissed sub nom, United Air

Lines v. United States, 379 U.S. 951 (1964), and reiterated

in Wien Alaska Airlines, Inc. v. United States, 375 F.2d

736 (9th Cir.), cert. denied, 389 U.S. 940 (1967), that not-

* Senior United States District Judge for the District of Utah,

sitting by designation.

6 Appendiz

withstanding differences in the character of the negligence

charged against the respective defendants there could be

no recovery of noncontractual indemnity against the United

States by its codefendants because of the absence of under-

lying liability of the United States to the plaintiffs in

those suits. Whether there are any significant distinctions

in application or whether the doctrine of Wiener should be

reexamined here is the burden of this appeal. Only because

of appellant’s earnest contention that intervening develop-

ments have thrown our prior decisions into question have

we taken another look. And we have concluded both that

Wiener is controlling and that there exists no justification

for initiating the en banc consideration that would be

essential under our rules for its being overruled.

The determinative facts have been stipulated for the

purposes of this appeal. General Dynamics Corporation,

third-party plaintiff in the court below and appellant here,

in approximately June, 1954, supplied to the United States

Air Force a military version of the Convair 240 civilian

aircraft which it theretofore had designed, developed and

manufactured. After June, 1954, and through the sixteen

year period immediately preceding the accident which gave

rise to this action, the United States had exclusive control

of the operation, inspection, repair, and maintenance of

this aircraft. On May 4, 1970, it crashed shortly after take-

off. It was then piloted by a United States Air Force officer,

carried a crew of four Air Force personnel, and had as

passengers nine Air Force personnel and one member of

the United States Army. All of these servicemen were on

active duty and their activities at the time of the accident

were incident to their military service. With the exception

of one passenger who was seriously injured, all were killed

in the crash.

ne eee Oo

Appendiz 7

Actions were filed’ against General Dynamics by the

representatives of the deceased crew members and passen-

gers and by the sole surviving passenger in keeping with

theories of negligence and strict liability. Thereafter, Gen-

eral Dynamics with leave of court filed a third-party com-

plaint against the United States of America.

The United States moved to dismiss the third-party

complaint. The district court initially denied the motion,

but upon reconsideration the third-party complaint on the

authority of Wiener was dismissed by order of November

26, 1974,? which also certified that the indemnity issue in-

volved a controlling question of law as to which there was

substantial ground for difference of opinion, and that an

immediate appeal could materially advance the ultimate

termination of the litigation. This court granted leave to

appeal pursuant to 28 U.S.C. § 1292(b).

An examination of the respective pleadings has rendered

clear that in addition to failure of the government to dis-

cover, correct or give warning of any faulty design or

manufacture (which could have constituted negligence on

the part of the government of the same kind or quality

charged by plaintiffs against General Dynamics), the third-

party complaint also charged the government with having

negligently, recklessly and wantonly operated the aircraft

and trained, instructed, and supervised its pilot and crew.

For the purposes of the government’s motion to dismiss,

we must take these allegations as true.* Thus within the

1. The actions were originally filed in California State courts,

but were removed to the United States District Court for the

Northern District of California and were there consolidated.

2. Adams v. General Dynamics Corporation, 385 F. Supp. 890

(N.D. Cal. 1974).

3. Cruz v. Beto, Corrections Director, 405 U.S. 319, 322 (1972) ;

Securities & Exchange Com’n. v. Insurance Securities, 254 F.2d

642, 644 (9th Cir.), cert. dented, 358 U.S. 823 (1958).

8 Appendiz

teachings of Wiener, if indemnity is not recoverable against

the government, it must be for a reason other than the

indemnitor and the indemnitee were in pari delicto* We

thus are confronted directly with Wiener’s holding that the

absence of any underlying liability of the plaintiffs to the

government is fatal to the claim for indemnity.®

4. United Air Lines, Inc. v. Wiener, supra, at 398-402. See also

Security Insurance Co. of New Haven v. Johnson, 276 F.2d 182

(10th Cir. 1960), quoted in Wiener at 401 as expressing the gen-

eral principles governing the problem arising in Nevada in the

absence of local decisions to the contrary. We find nothing in the

decisions of the courts of California, where the present cases arose,

at variance with these principles as approved in Wiener. See Great

American Insurance Co. v. Evans, 269 F. Supp. 151 (N.D. Cal.

1967) ; Green v. Los Angeles, 40 Cal. App. 3d, 115 Cal. Rptr. 685

(1974) ; San Mateo Union High School Dist. v. Yamas, 22 Cal.

App. 3d 185, 99 Cal. Rptr. 258 (1971); Atchison T. & S.F. Ry. v.

Lan Franco, 277 Cal. App. 2d 881, 73 Cal. Rptr. 660 (1968) ;

Herrero v. Atkinson, 227 Cal. App. 2d 69, 38 Cal. Rptr. 490

(1964) ; Cahill Brothers, Ine. v. Clementina Co., 208 Cal. App. 2d

367; 25 Cal. Rptr. 301 (1962); De La Forest v. Yandle, 171 Cal.

App. 2d 59, 340 P.2d 52 (1959); San Francisco Unified School

Dist. v. Cal. Bldg., Main Co., 162 Cal. App. 2d 434, 328 P.2d 785

(1958).

5. Barr v. Brezina Construction Co., 464 F.2d 1141 (10th Cir.

1972), cert. denied, 409 U.S. 1125 (1973), is cited by appellant as

supporting its position that indemnity is allowable under the cir-

cumstances of the present case. In that case, views were expressed

concerning this problem somewhat inconsistent with the holding in

Wiener and, indeed, inconsistent with the decision of the trial

judge there, who is a member of the present panel as well as the

author of Security Insurance Company of New Haven v. Johnson,

276 F.2d 182 (10th Cir. 1960), supra. Barr also involved the ruling

of the district court that indemnity should be denied for the addi-

tional reason that the negligence charged against the respective

parties, notwithstanding possible differences in degree, was essen-

tially of the same kind or quality, i.e., negligent design on the one

hand, and negligent construction pursuant to such design, on the

other. The judgment of the trial court was affirmed on the latter

basis. By further curious coincidence, another member of the pres-

ent panel was involved as visiting circuit judge in the Barr case.

These convuluted exposures with the problem have led to a revisi-

tation of Wiener from a variety of viewpoints none of which, as

already indicated, persuades us that it should be overruled.

Appendiz 9

Apart from reargument of matters thoroughly considered

in the earlier decisions of this court, appellant relies prin-

cipally upon the sequela of the order of remand in Treadwell

Construction Co. v. United States, 372 U.S. 772 (1963),°

6. The court in Wiener took note of the remand in Treadwell

but perceived nothing militating against its conclusion. The dis-

trict court on remand again concluded that the exclusive remedy

provision was not available as a defense to a third party action

against the United States. Drake v. Treadwell Constr. Co., Civil

No. 14517 (W.D. Pa. Order of May 24, 1963, and July 9, 1963).

The government again appealed but later moved for dismissal

upon recommendation of the Solictor General. The following com-

ment is pertinent: “The Court in Busey v. Washington, 225 F.

Supp. at 421, seemed to find some significance in the fact that the

Supreme Court in Drake v. Treadwell Constr. Co., 372 U.S. 772

(1963), did not reverse the court of appeals but merely vacated its

judgment and remanded. This distinction was obviously not so

clear to the Fourth Circuit which felt that the Supreme Court’s

remand in Treadwell indicated that ‘the court may have thought

that other types of obligations [than divided damages claims in

admiralty] were intended to be undisturbed by’ the FECA.

Wallenius Bremen G.m.b.H. v. United States, 409 F.2d 994, 997.

That the lower courts have been forced to prospect for substance

in actions of the Supreme Court of so little manifest significance

is certainly indicative of the unspoken realization on the part of

these courts that the Supreme Court has in fact left the issue

squarely undecided.” Note, Federal Law—Contribution and In-

demnity Under the Federal Employees’ Compensation Act, 6

TOLEDO L. REV. 272, 282, n. 42 (1974).

10 Appendiz

and a subsequent decision of the Fourth Circuit.’ However,

we are convinced that the validity of Wiener has not been

thrown into substantial question. On the contrary, the

increasing weight of authority, as well as the better reasons,

appear to support it.*

Accordingly, we affirm the judgment of the district court

which accepted Wiener as controlling.

7. Wallenius Bremen G.m.b.H. v. United States, 409 F.2d 994

(4th Cir. 1969) ; cert. denied, 398 U.S. 958 (1970), supra.

8. The more recent case of Travelers Insurance Co. v. United

States, 493 F.2d 881 (3d Cir. 1974), supra, expressly relies upon

Wiener. And the following appears to be a fair summary of the

present state of circuit authority generally: “The issue is whether

the exclusive remedy provision of the Federal Employee’s Com-

pensation Act bars the claim of a third party under the Federal

Tort Ciaims Act for indemnity or contribution against the Federal

Government for damages paid to an injured government employee.

Two 1963 decisions of the Supreme Court have given rise to what

one court calls ‘hopeless conflict’ among the lower federal courts.

At least four circuits have now held that recovery is precluded;

a 1969 Fourth Circuit decision holds otherwise. The issue has been

unresolved for ten years with at least one denial of certiorari since

the conflict arose, and it was the subject of a detailed Third Circuit

opinion in 1974.” (Citation omitted.) Report of Commission on

Revision of the Federal Court Appellate System, Appendix B, 67

F.R.D. 195, 283-4 (1975).

Appendix C

FILED

May 26, 1976

EMIL E. MELF'T, JR.

CLERK, U.S. COURT OF APPEALS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Shelley L. Adams, et al.,

Plaintiffs,

vs.

General Dynamics Corporation, et al.,

Defendants.

No. 74-3484

General Dynamics Corporation, ORDER

Third-Party Plaintiff, Appellant,

vs.

The United States of America,

Third-Party Defendant, Appellee.

Before: WRIGHT and KILKENNY, Circuit Judges, and

CHRISTENSEN, District Judge.

The panel as constituted in the above case has voted to

deny the petition for rehearing. Judges Wright and Kil-

kenny have voted to reject the en banc suggestion.

The full court has been advised of the suggestion for an

en banc hearing, and no judge of the court has requested

a vote on the suggestion for rehearing en banc. Fed. R.

App. P. 35(b).

The petition for rehearing is denied and the suggestion

for a rehearing en banc is rejected.

DATED: May 25, 1976.

Supreme Court, U. =

FILED

ot 22 was

No. 76-220 | 7

MICHAEL RODAK, JR., CLERK |

Iu the Supreme Court of the United States

OcTOBER TERM, 1976

GENERAL DYNAMICS CORPORATION, PETITIONER

; v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

RospertT H. Bork,

Solicitor General,

Rex E. Lee,

Assistant Attorney General,

WILLIAM KANTER,

THOMAS S. MARTIN,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

Inu the Supreme Court of the United States

OcTOBER TERM, 1976 =

No. 76-220

GENERAL DYNAMICS CORPORATION, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. B) is

reported at 535 F. 2d 489. The order of the district court

(Pet. App. A) is reported at 385 F. Supp. 890.

JURISDICTION

The judgment of the court of appeals was entered

on April 15, 1976, and a timely petition for rehearing

was denied on May 26, 1976 (Pet. Apps. B and C). The

petition for a writ of certiorari was filed on August 13,

1976. The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

QUESTION PRESENTED

Whether the United States is liable under the

Federal Tort Claims Act for third-party claims seeking

(1)

2

indemnity for damages paid to servicemen injured or

killed in activity incident to military service.

STATUTES INVOLVED

28 U.S.C. 1346(b) provides:

Subject to the provisions of chapter 171 of this

title, the district courts, together with the United

States District Court for the District of the Canal

Zone, and the District Court of the Virgin Islands,

shall have exclusive jurisdiction of civil actions on

claims against the United States, for money damages,

accruing on or after January |, 1945, for injury or loss

of property, or personal injury or death caused by the

negligent or wrongful act or omission of any employee

of the Government while acting within the scope

of his office or employment, under circumstances

where the United States, if a private person, would

be liable to the claimant in accordance with the

law of the place where the act or omission occurred.

28 U.S.C. 2674 provides:

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, but shall not

be liable for interest prior to judgment or for punitive

damages.

If, however, in any case wherein death was

caused, the law of the place where the act or omis-

sion complained of occurred provides, or has been

construed to provide, for damages only punitive in

nature, the United States shall be liable for actual or

compensatory damages, measured by the pecuniary

injuries resulting from such death to the persons

respectively, for whose benefit the action was brought

in lieu thereof.

ee ee

ee

3

STATEMENT

This case arose out of the crash of a United States

Air Force plane and the resulting deaths of active-duty

military personnel who at the time of the crash were

engaged in activities incident to military service. A

stipulation of facts filed with the district court shows

that during the latter part of the 1940’s, petitioner de-

signed, developed, and manufactured a civilian aircraft,

designated as the Convair 240. Pursuant to a contract with

the United States, petitioner supplied the United States

Air Force with a model of the Convair 240 for use as a

military aircraft. The aircraft was given the military

designation “T-29.” (Pet. 4.)

In 1954 petitioner delivered to the Air Force a T-29

bearing the registration number 5822. On May 4, 1970, air-

craft No. 5822 crashed shortly after takeoff from Hamilton

Air Force Base in Marin County, California. The aircraft,

piloted by an Air Force officer, carried a crew of four Air

Force personnel and an additional nine Air Force per-

sonnel and one member of the United States Army as

passengers. All persons aboard the aircraft, with the

exception of one passenger, were killed in the crash.

All of the servicemen were on active duty and their ac-

tivities at the time of the accident were incident to

their military service. (Pet. 4-5.)

In April 1971, actions were filed against petitioner

by the representatives of the deceased crewmembers

and passengers, and by the sole surviving passenger,

seeking recovery under theories of negligence and strict

liability. On February 8, 1973, petitioner, by leave of court,

filed a third-party complaint against the United States,

alleging that the United States had been negligent in

the inspection, maintenance, repair, and operation of

the aircraft, and seeking indemnity for any damages that

4

petitioner might be required to pay to the various plain-

tiffs. The United States moved to dismiss the third-party

complaint, contending that because it could not be liable

directly to plaintiffs for death or injury, it could not be held

liable for essentially the same damages by way of in-

demnity to a third party. The motion was granted by the

district court (Pet. App. A). On interlocutory appeal, the

court of appeals affirmed (Pet. App. B).

ARGUMENT

1. Petitioner contends (Pet. 6-16) that one who is

liable for damages on account of the injury or death of a

serviceman may seek indemnity against the United

States under 28 U.S.C. 1346(b) even though the United

States is not directly liable to the serviceman. The court

of appeals correctly rejected this contention. The court's

judgment affirming the dismissal of petitioner’s third-

party complaint is supported by two alternative ration-

ales: (a) that the Federal Tort Claims Act does not permit

suits for indemnity by third parties who are liable to

servicemen for injuries occurring while on active duty;

and (b) that common law principles preclude indemnity

under a tort theory in situations where, as here, the

indemnitor is not directly liable to the injured party.

a. Petitioner rests his claim against the United States

upon the Federal Tort Claims Act, 28 U.S.C. 1346(b) and

2674. But in Feres v. United States, 340 U.S. 135, the Court

determined that the Act, which provides that “{tJhe

United States shall be liable * * * in the same manner

and to the same extent as a private individual under like

circumstances * * * .” 28 U.S.C. 2674, does not permit

suits against the United States alleging liability in tort for

the injury or death or a serviceman engaged in his duty.

The Court pointed out that whereas the Act provides that

“the law of the place where the act or omission * * *

occurred” (ibid.) shall govern the United States’ liability

5

under the Act, the “relationship between the Government

and members of its armed forces is ‘distinctively federal

in character’ * * * ” (340 U.S. at 143). The Court there-

fore concluded that the Act did not create a “new cause

of action dependent on local law for service-connected

injuries or death due to negligence” (340 U.S. at 146).

Though Feres involved a claim brought directly against

the United States on behalf of a serviceman, the same

analysis is also appropriate in the context of tort indem-

nity claims. Imposition of liability for such claims, like

imposition of direct liability, would subject the relation-

ship between the United States and its military person-

nel to the idiosyncracies of state tort law, a result that

would be incompatible with the Court’s conclusion in

Feres that “the scope, nature, legal incidents and conse-

quences of the relation between persons in service and

the Government are fundamentally derived from fed-

eral sources and governed by federal authority” (340 U.S.

at 143-144). Moreover, tort indemnity would involve the

military in tort litigation disruptive of discipline and the

orderly conduct of military affairs. As the Court explained

in United States v. Brown, 348 U.S. 110, 112:

The peculiar and special relationship of the soldicr

to his superiors, the effects of the maintenance of

such suits on discipline, and the extreme results that

might obtain if suits under the Tort Claims Act were

allowed for negligent orders given or negligent

acts committed in the course of military duty, led

the [ Feres] Court to read that Act as excluding claims

of that character. !

'The imposition of indirect liability also would upset the balance

struck by Congress in the veterans’ compensation statutes between

public responsibility for injuries to servicemen and the enormous

potential liability arising from the dangers of military service. See

38 U.S.C. 301, et seq., 401, et seq., and 601, et seq.

6

b. Furthermore, common law principles preclude in-

demnity or contribution under a tort theory because

the United States is not directly liable for the injuries

incurred by plaintiffs. See United Air Lines, Inc. v. Wiener, .

335 F. 2d 379, 403 (C.A. 9), certiorari dismissed sub nom.

United Air Lines, Inc. v. United States, 379 U.S. 951 (and

cases therein cited); Maddux v. Cox, 382 F. 2d 119, 124

(C.A. 8); Newport Air Park, Inc. v. United States, 419 F.2d

342 (C.A. 1); Galimi v. Jetco, Inc., 514 F. 2d 949 (C.A. 2);

Travelers Insurance Co. v. United States, 493 F. 2d 881

(C.A. 3). As the Ninth Circuit explained in United Air Lines

v. Wiener, supra, 335 F. 2d at 403: “The courts have consis-

tently held that in the absence of an express or implied

contract of indemnity, or in the absence of the indemni-

tor’s liability to the injured party, there can be no recovery

for indemnity.”? Petitioner asserts no claim under an

express or implied contract of indemnity, and the United

States is not directly liable to the injured parties. Feres

v. United States, supra. Accordingly, even if the Federal

Tort Claims Act did permit an indemnity claim for service-

connected injuries, the substantive common law would pre-

clude recovery by petitioner (see Pet. App. B).

2. Contrary to petitioner’s contention (Pet. 7-9, 11-18),

the decision of the court of appeals does not conflict with

the decisions in other circuits. While the four circuits that

?This doctrine prevents the frustration of statutorily restricted

liability schemes by limiting the financial exposure of government

to the statutory liability to which it has acceded. See Cooper Steve-

doring Co., Inc. v. Kopke, Inc., 417 U.S. 106, 115; Slattery v. Marra

Bros., Inc., 186 F. 2d 134, 139(C.A. 2), certiorari denied, 341 U.S. 915;

Sheridan v. DiGiorgio, 372 F. Supp. 1373 (E.D. N.Y.), affirmed, 505

F. 2d 727(C.A. 2), certiorari denied, 420 U.S. 990; Busey v. Washington,

225 F. Supp. 416, 423 (D. D.C.). It also insures that, in a commercial

context, subsequent court action will not undermine the allocation

of risks explicit or implicit in the contractual undertaking.

a —?

7

have addressed the issue whether the United States is

liable under the Act for third-party claims seeking in-

demnity in a military context have not adopted harmoni-

ous rationales (see Donham v. United States, 536 F. 2d 765

(C.A. 8), petition for a writ of certiorari pending Sub nom.

Stencel Aero Engineering Corp. v. United States (No. 76-

321); United Air Lines v. Wiener, supra; Barr v. Brezina

Construction Co., 464 F. 2d 1141 (C.A. 10), certiorari de-

nied, 409 U.S. 1125; Certain Underwriters at Lloyd's v.

United States, 511 F. 2d 159 (C.A. 5)),3 each has pre-

cluded tort indemnity recovery against the United States.

In United Air Lines v. Weiner, supra, which was re-

affirmed by the court of appeals here (Pet. App. B), the

Ninth Circuit rejected a third-party claim for indemnity

arising from servicemen’s injur.es “for the reason that

the government is not liable under the Federal Tort Claims

Act for injuries to servicemen where injuries arose

out of or are in the course of, activity incident to service”

(335 F. 2d at 404). In Donham vy. United States, supra,

the Eighth Circuit rejected a similar third-party indemnity

claim on the ground that the rationale of Feres v. United

States, supra, compelled the conclusion that the United

States had not waived sovereign immunity from such

claims (536 F. 2d at 768-770).

Wellington Transportation Co. vy. United States, 481 F. 2d

108 (C.A. 6), also discussed by petitioner (Pet. 11-12), is inapposite.

The claim in Wellington was brought under the Public Vessels

Act, which, this Court has stated (Weyerhaeuser S.S. Co. v. United

States, 372 U.S. 597, 600), “was intended to impose on the United

States the same liability * * * as is imposed by admiralty law on the

private shipowner * * * .” The indemnity claim there was for at-

attorneys’ fees, and the Sixth Circuit held simply that Feres would not

bar the longstanding right to attorneys’ fees “that under federal

maritime law * * * are consistently awarded * * * ~ (481 F. 2d at

111). The court remanded the case for further findings con-

cerning the nature of appellant’s fault. Neither the Public Vessels

Act nor a longstanding right to indemnity is involved in this case,

and, thus, the decision in Wellington does not conflict with the

decision here.

8

In the other two cases, Barr v. Brezina, supra, and

Certain Underwriters at Lloyds v. United States, supra,

upon which petitioner principally relies, the courts of ap-

peals stated that the Feres holding did not itself prohibit

third-party indemnity claims against the United States.‘

However, the courts in both cases found that on the facts

before them, the common law or statutory requirements

for indemnity could not be met. Thus, no court of appeals

has held the United States liable for the kind of indemnity

that petitioner seeks here.

3. Nor is the decision below contrary to the cases in this

Court concerning injuries to non-military government

employees. In Weyerhaeuser S.S. Co. v. United States, 372

U.S. 597, a suit brought under the Public Vessels Act, this

Court held that the Federal Employees Compensation Act

(“FECA”) did not have the effect of eliminating an other-

wise existing third-party right of action. Unlike the pres-

ent case, Weyerhaeuser concerned no new tort remedy,

but rather “a rule of admiralty law which, for more than

100 years, has governed * * * the correlative rights and

duties of two shipowners whose vessels have been in-

volved in a collision in which both were at fault” (372

U.S. at 603). “{[T]Jhe single question [in Weyerhaeuser

was] whether the historic admiralty rule of divided

damages in mutual fault collisions has been qualified

* * * by the exclusive liability provision of the federal

compensation statute” (372 U.S. at 600).5 The principle

4At the same time, neither court gave explicit consideration to

whether the rationales underlying the decision in Feres are appli-

cable in a third-party context. Cf. Donham vy. United States, supra,

536 F. 2d at 772-773.

‘Treadwell Construction Co. v. United States, 372 U.S. 772, similar-

ly concerned the question whether the FECA abrogated third party

remedies against the United States that might otherwise have been

available to a joint tortfeasor. The Court, without deciding the issue,

9

established in Weyerhaeuser is that the FECA was not

intended to affect third party rights under settled doctrines

of admiralty law. That principle has no bearing on this

case, in which the question is not whether a statute by

implication extinguished liability for indemnity that

already existed but, conversely, whether a statute—the

Federal Tort Claims Act—creates a liability for indemnity

that did not exist before.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

RosBertT H. Bork,

Solicitor General.

Rex E. Leg,

Assistant Attorney General.

WILLIAM KANTER,

THOMAS S. MARTIN,

Attorneys.

OCTOBER 1976.

summarily vacated the court of appeals’ judgment in favor of the

United States and remanded the case for further consideration

in light of the intervening decision in Weyerhaeuser. See Donham

v. United States, supra, 536 F. 2d at 772, n. 9.

DOJ-1976-10