Petition — Shippers Dispatch, Inc. v. United States

Supreme Court, U. &,

EILLED

NOV BS 19%

| MICRAEL ROSAK, J2?_CLERR

Supreme Court of the United States

October Term, 1978

SHIPPERS DISPATCH, INC.,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit

RICHARD T. REMINGER

REMINGER & REMINGER Co., L.P.A.

300 Leader Building

Cleveland, Ohio 44114

(216) 687-1311

Attorney for Petitioner

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5647

OO ere es

TABLE OF CONTENTS

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I. This Case Presents an Important Question

Concerning the Pleading Requirements Nec-

essary to Invoke Federal Jurisdiction Under

the Federal Tort Claims Act, 28 U.S.C. §§ 1346

CRD SII seiineassvvchnsinrchualnaataanaaeaancaanne 5

II. There Is a Pressing Need for This Court to

Determine the Scope of the Immunity Af-

forded “Discretionary Functions” Under 28

Se Sh SD titi sinncicnninslccaacaenibdabmeass 6

III. This Case Raises Issues of Constitutional

Scope in That the Inadequate Standards for

Driver Qualifications Imposed Upon Shippers

Dispatch, Inc. Are Totally Arbitrary and Re-

sult in a Deprivation of Property Without

Adequate Compensation 20.................ccccccceceeeeeeeeee 9

APPENDIX:

Judgment Entry of the Court of Appeals for the

Ea eee De ie SN Ee as SE Al

Opinion of the Court of Appeals for -he Sixth Cir-

IIE sssstiaisis sic tensacliotb dates occedaiuisamdatenannaincaieidestiadaamat canis A3

Judgment of the United States District Court ........ A6

i

Memorandum and Order of the United States Dis-

ELE ESAS Teng cae Se pe OI Fa

Tg RRS LENG ORS AME Ag SUR DO REEPC A

TABLE OF AUTHORITIES

Cases

Boston Edison Co. v. Great Lakes Dredge & Dock Co.,

Re Be LEE GE, FID cersecssactnsnnsennspeseerecsenensnseinove

Conley v. Gibson, 355 U.S. 42 (1957) ..............ccecccessesseees

Dalehite v. United States, 346 U.S. 15 (1952) 000000...

Dishman v. United States, 93 F, Supp. 567 (D. Md.

NN AI ROR RT Os OU Ret AE BL Le Oo SOF OIYP PONCE

Downs v. United States, 522 F.2d 990 (6th Cir. 1975)

Indian Towing v. United States, 350 U.S. 61 (1955) ....

Jennings v. United States, 178 F. Supp. 516 (D. Md.

BUND .s.cocindisincsgiieciesdetealengiiabecbitie dneadedanaininniitdeniphadebansiaaanaiont

Laird v. Nelms, 496 U.S. 797 (1971) ............. ee idsskes

Maryland Casualty Co. v. Fredricks, 142 Ohio St. 605

ICTR OPER TM eee te eee Mee eT

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922)

Ruffino v. United States, 126 F. Supp. 132 (S.D. N.Y.

ES Spare Ce EE GN MP BO

Santa v. United States, 252 F. Supp. 615 (D. P.R. 1966)

Sisley v. United States, 202 F. Supp. 273 (D. Alas. 1962)

United Airlines v. Weiner, 335 F.2d 379 (9th Cir. 1964)

United States v. Trucking Employers, Inc., U. S. Dis-

trict Court for District of Columbia, Civil Action

I SN cscs cat tetra ee

United States v. Yellow Cab Co., 340 U.S. 543 (1951)

III

Statutes and Rules

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Supreme Court of the United States

October Term, 1978

SHIPPERS DISPATCH, INC.,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit

Petitioner, Shippers Dispatch, Inc., respectfully prays

that a Writ of Certiorari issue to review the judgment of

the United States Court of Appeals for the Sixth Circuit

entered in this proceeding on August 17, 1978.

OPINIONS BELOW

The Memorandum and Order issued by the District

Court for the Northern District of Ohio on October 28,

1976 and the Opinion of the United States Court of Appeals

for the Sixth Circuit decided and filed August 17, 1978 ap-

pear in the Appendix attached hereto.

bo

JURISDICTION

The judgment of the Court of Appeals for the Sixth

Circuit was entered on August 17, 1978. No Petition for

Rehearing was filed. This Petition for Certiorari was filed

within ninety (90) days of the date judgment was en-

tered. This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

QUESTIONS PRESENTED

(1) Whether the wrongful and negligent formulation

of standards for qualifications of truck drivers that causes

increased risk and hazard to the users of the nation’s

highways and which directly caused damage to the Peti-

tioner is actionable within the waiver of sovereign im-

munity contained in the Federal Tort Claims Act, 28 U.S.C.

$$ 1346(b), 2671-80?

(2) Whether a claim that the United States was the

active wrongdoer in causing an injury for which Petitioner

is alleged to be liable states a claim for indemnity for

which the United States “shall be liable” under the provi-

sion 28 U.S.C. § 2675?

(3) Whether the ‘discretionary function” immunity

for tort liability contained in the Federal Tort Claims Act,

28 U.S.C. § 2680(a), allows government agents and agencies

to arrogantly disregard the public interest by formulating

standards for qualification of truck drivers without due

care for the safety of the traveling public?

(4) Whether by requiring Shippers Dispatch, Inc.

to assume financial responsibility for unqualified individ-

uals hire? as truck drivers, the United States government

has confiscated Shippers Dispatch, Inc.’s property without

adequate compensation?

STATUTES INVOLVED

The pertinent statutory sections are 28 U.S.C. § 1346

(b), 28 U.S.C. § 2675 and 28 U.S.C. § 2680(a). They are

reproduced in the Appendix attached hereto.

STATEMENT OF THE CASE

Shippers Dispatch, Inc.’s (hereafter Shippers) claim

against the United States was filed as a Third Party ac-

tion. The original lawsuit was filed in the Common Pleas

Court of Lorain County, Ohio on November 12, 1975 by

Monica Malone against Shippers for personal injuries

and wrongful death resulting from a collision on Sep-

tember 3, 1975, in Carlisle Township, Lorain County,

Ohio, involving the Malone vehicle and a tractor-trailer

unit driven by Willie Hall and owned by Shippers. Ship-

pers removed the case to the United States District Court

for the Northern District of Ohio in order to assert its

claim for indemnity under the Federal Tort Claims Act,

28 U.S.C. §§ 2675, et seq.

Prior to the collision of September 3, 1975, Shippers

was compelled to hire Willie Hall pursuant to a consent

decree entered in the case United States v. Trucking Em-

ployers, Inc., et al., in the United States District Court for

the District of Columbia, Civil Action No, 74-453. Pur-

suant to the decree in that case, Shippers was compelled

to lower its hiring standards for truck drivers. The re-

duced standards were significantly less stringent than the

standards previously used by Shippers. These standards

were established by employees of the United States Gov-

ernment within the scope of their duties as employees.

By its Third-Party Complaint, Shippers has alleged

that these imposed hiring standards were totally inade-

quate to protect the public from incompetent truck driv-

ers. As a result, the failure of the United States Govern-

ment employees to honor their duty of due care in formu-

lating the standards placed Willie Hall on the road. It is

alleged by Shippers that this action constitutes the pri-

mary active wrongdoing responsible for the accident of

September 3, 1975. Shippers thereby invoked the juris-

diction of the District Court pursuant to 28 U.S.C. § 1346

(b) in its Third-Party Complaint against the United States.

In response to the Third-Party Complaint, the United

States filed a Motion to Dismiss for lack of subject matter

jurisdiction or, alternatively, for failure to state a claim

upon which relief may be granted. The District Court by

its Memorandum and Order of October 28, 1978, dis-

missed for want of jurisdiction and expressly declined to

rule on the legal sufficiency of the claim of Shippers, The

determination was certified as final and pursuant to Fed-

eral Rule of Civil Procedure 54(b), the District Court

expressly determined there was no just reason for delay

in entering final judgment in favor of the United States.

Appeal was taken to the United States Court of Ap-

peals for the Sixth Circuit where the decision of the District

Court was affirmed. The Court of Appeals grounded its

decision on the failure of the Third-Party Complaint to

allege wrongful conduct, and specifically relied upon Rule

12(b) (6) of the Federal Rules of Civil Procedure in af-

firming the District Court.

REASONS FOR REVIEW

I. THIS CASE PRESENTS AN IMPORTANT QUES-

TION CONCERNING THE PLEADING RE-

QUIREMENTS NECESSARY TO INVOKE FED.

ERAL JURISDICTION UNDER THE FEDERAL

TORT CLAIMS ACT, 28 U.S.C. §§ 1346(b), 2671-80

In substance, both the District Court and the Court

of Appeals for the Sixth Circuit have dismissed Shippers’

Third-Party Complaint for failure to use the word “neg-

ligence” in that pleading. Such a narrow reading of the

requirements necessary to invoke jurisdiction under the

Federal Tort Claims Act is in direct conflict with this

Court’s determination that “notice pleading”, or the allega-

tion of facts sufficient to apprise an opponent of the claim

presented is all that is required under the Federal Rules

of Civil Procedure. See: Conley v. Gibson, 355 U.S. 42

(1957). Shippers has alleged that, as a result of its “pas-

sive and secondary” position vis-a-vis the “active and

primary position of the United States Government in re-

gard to a wrony jointly perpetrated upon Monica Malone,

et al., a right of indemnity has arisen under Ohio law.

This active versus passive distinction is a concept that is

applied in Ohio between joint-tortfeasors. See: Mary-

land Casualty Co. v. Fredricks, 142 Ohio St. 605 (1944).

The allegations contained in the Third-Party Complaint

have clearly apprised the United States that Shippers’

seeks to impose tort liability on the United States. Under

the direct language of 28 U.S.C. §§ 1346(b), 2674, if a right

of indemnity for tort liability is granted by state law the

claim is actionable under the Federal Tort Claims Act.

United States v. Yellow Cab Co., 340 U.S. 543 (1951).

The Court of Appeals’ reliance upon Laird v. Nelms,

406 U.S. 797 (1971) to support its affirmance of the District

Court’s Order of Dismissal is totally misplaced. Laird

was a case where the claimant sought to impose liability

upon the United States for the operation of supersonic

military aircraft under the theory that the operation of

such aircraft was an ultra-hazardous activity for which the

Government was strictly liable in tort. Shippers does not

allege any such strict liability theory herein. Shippers’

only contention is that it is entitled to indemnity because,

between Shippers and the United States Government, the

more active and primary wrong perpetrated upon the

Plaintiffs was that committed by agents of the Government.

II. THERE IS A PRESSING NEED FOR THIS

COURT TO DETERMINE THE SCOPE OF THE

IMMUNITY AFFORDED “DISCRETIONARY

FUNCTIONS” UNDER 28 U.S.C. § 2680(a)

It has been over sixteen years since this Court by a

4-3 majority enunciated the interpretation of “discretionary

function” contained in Dalehite v. United States, 346 U.S.

15, (1952). In that time, the intrusion of governmental

activity into the private sector has increased to the point

where almost no activity can be undertaken without the

direct participation of government agents or agencies.

Under subsequent interpretations of the dicta in the Dale-

hite decision, most if not all such participation is im-

munized from liability if it is carried out without due care.

This case raises in stark terms the question of governmental

accountability to the fundamental rules that govern human

conduct. The effect of the present interpretation is to

allow irresponsible decisions that affect the welfare of

each and every citizen to be formulated with increasing

arrogance and impunity. The actual source of injury and

suffering is untouched by legal process because the wrong-

doers are clothed with an immunity that eliminates the

need for government employees to exercise due care in

the performance of their duties.

Under the position adopted by the government in this

case it is possible to envision the promulgation of standards

for other occupations that would have disastrous effects on

the public. For instance, under the position of absolute

immunity espoused, regulations for qualification as an air-

line pilot could be reduced to an absurdly low level. Hun-

dreds of people could be killed or maimed and the govern-

ment would argue that their discretion immunizes the de-

cision. Such a position is an arrogant disregard of the pub-

lic safety under the guise of ‘discretion’.

. This obviously troubling position has caused a great

deal of confusion as the United States Circuit Courts of

Appeal attempt to apply the language of Dalehite. What

has developed is a distinction based upon the type of con-

duct for which liability in tort is sought to be imposed.

Immunity is now conferred only when “planning level” de-

cisions are the conduct alleged as negligent. See: United

Airlines v. Weiner, 335 F.2d 379 (9th Cir. 1964). “Opera-

tional level” decisions are required to be made with due

care. See: Downs v. United States, 522 F.2d 990 (6th

Cir. 1975). The “planning-operational” distinction has not

been applied with any consistency by the Courts of Appeal.

Compare: Boston Edison Co. v. Great Lakes Dredge and

Dock Co., 423 F.2d 891 (1st Cir. 1970) and Downs v. United

States, supra. There is also conflict in the cases involving

alleged negligent construction of a government project.

Compare: Sisley v. United States, 202 F. Supp. 273 (D.

Alas. 1962) with Jennings v. United States, 178 F. Supp.

516 (D. Md. 1959).

8

Shippers respectfully urges that this Court apply the

principle utilized by the lower Federal Courts in cases

where suit is brought by patients of Veteran’s Administra-

tio hospitals when malpractice is claimed, See; Dishman

v, United States, 93 F. Supp. 567 (D. Md, 1950); Ruffino v.

United States, 126 F. Supp. 182 (S.D. N.Y. 1954) and

Santa v, United States, 252 F. Supp. 615 (D. P.R. 1966).

As authority these cases rely upon Indian Towing v. United

States, 350 U.S. 61 (1955). In these cases the trial courts

have determined that the “discretionary function” occurs

at the time the government physicians opt to admit and

treat the patients involved, Once this discretion is exer-

cised the treatment must be carried out with due care,

This case is analogous in that Shippers readily admits in

arguendo that in filing suit against Shippers and other

trucking employers the government exercised its discretion

to rectify the alleged Title VII violations. However, this

did not give the government freedom to disregard the pub-

lic safety by failing to exercise due care in the formulation

of hiring standards imposed upon Shippers and other truck-

ing employers, The remedy drafted and imposed by the

government attorneys is similar to a course of treatment

administered by a government physician and no logical

reason exists to distinguish between these professions in

applying 28 U.S.C, § 2680(a).

This inconsistency of interpretation by the lower Fed-

eral Courts is particularly troubling when the context of

the instant case is examined. The determination of

whether the “discretionary function” immunity exists in

this case has been treated by the District Court for the

Northern District of Ohio and the Court of Appeals for the

Sixth Circuit as a jurisdictional issue of mixed law and

fact. By considering the “discretionary function” at a

point in the procedure where the facts are virtually un-

9

known because discovery has not begun, Shippers has been

effectively precluded from showing that a “discretionary

function” was not involved in the conduct alleged to be

wrongful, In the instant case, Shippers has been dismissed

for failure to state a claim for relief when no evidence

whatsoever has been received concerning the conduct

Shippers contends is negligent. At this point, Shippers

has been effectively precluded from obtaining information

concerning the identity of the drafters of the lax hiring

standards, as well as their positions within the Federal

Government. Shippers respectfully contends that without

such information it is impossible to determine whether

the formulation of the inadequate standards for drivers

eventually imposed upon the public was immunized by 28

U.S.C. § 2680(a).

Ill, THIS CASE RAISES ISSUES OF CONSTITU.

TIONAL SCOPE IN THAT THE INADEQUATE

STANDARDS FOR DRIVER QUALIFICATIONS

IMPOSED UPON SHIPPERS DISPATCH, INC,

ARE TOTALLY ARBITRARY AND RESULT IN

A DEPRIVATION OF PROPERTY WITHOUT

ADEQUATE COMPENSATION

The primary effect of the consent decree entered in

United States v. Trucking Employers, Inc., et al., United

States District Court for District of Columbia, Civil Action

No, 74-453 was to establish a quota for minority drivers of

33-1/3% of the work force of over-the-road drivers em-

ployed by Shippers and the other Defendants in that case.

To achieve this arbitrary quota the attorneys for the United

States imposed hiring criterion upon Shippers and other

employers of the trucking industry, The criterion imposed

provided that an employer could no longer reject an appli-

cant for having no driving experience or no high school

10

diploma or its equivalent, nor could the employer inquire

as to an individual’s arrest record. Shippers previously

maintained standards which required high school educa-

tional equivalency, driving experience and honesty from

applicants for employment.

It is Shippers’ position that these reduced standards

increased the number of accidents and also increased the

severity of these accidents thereby causing the assets of

Shippers to be reduced in order to pay claims which it

would have otherwise not have had to pay.

Shippers respectfully submits that while the end the

Government sought to provide equa? opportunity of em-

pioyment of minorities in the trucking industry is laudable,

the means employed immediately required Shippers to ex-

pend large sums to train the under-qualified applicants and

to pay for increased liability. Such a regulation is tanta-

mount to a taking and must be compensated. Pennsylvania

Coal Co, v, Mahon, 260 U.S. 393 (1922).

For these reasons, Shippers respectfully requests that

a Writ of Certiorari issue to review the judgment entered

August 17, 1978, by the United States Court of Appeals for

the Sixth Circuit.

Respectfully submitted,

RICHARD T, REMINGER

Attorney for Petitioner

Of Counsel:

REMINGER & REMINGER Co., L.P.A.

300 Leader Building

Cleveland, Ohio 44114

(216) 687-1311

Al

APPENDIX

JUDGMENT ENTRY OF THE COURT OF APPEALS

FOR THE SIXTH CIRCUIT

(Filed August 17, 1978)

No, 77-3005

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MONICA MALONE, et al.,

Plaintiffs,

SHIPPERS DISPATCH, INC.,

Defendant-Third Party Plaintiff-Appel!ant,

Vv.

UNITED STATES OF AMERICA,

Third Party Defendant-Appellee.

Before: Epwarbs, Kerrn and Merritt, Circuit Judges.

JUDGMENT

APPEAL from the United States Jistrict Court for

the Northern District of Ohio.

THIS CAUSE came on to be heard on the record from

the United States District Court for the Northern District

of Ohio, and was argued by counsel.

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment

A2

of the said District Court in this cause be and the same

is hereby affirmed.

It is further ordered that Defendant-Appellee recover

from Plaintiff-Appellant the costs on appeal, as itemized

below, and that execution therefor issue out of said District

Court if Necessary.

Entered by Order of the Court.

John P. Hehman, Clerk

By /s/ GRACE KELLER

Chief Deputy Clerk

Issued as Mandate: September 8, 1978

A3

OPINION OF THE COURT OF APPEALS

FOR THE SIXTH CIRCUIT

(Dated August 17, 1978)

No. 77-3005

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MONICA MALONE, et al.,

Plaintiff,

SHIPPERS DISPATCH, INC.,

Defendant-Third Party Plaintiff-Appellant,

Vv.

UNITED STATES OF AMERICA,

Third Party Defendant-Appellee.

On APPEAL From the United States District Court for

the Northern District of Ohio.

Before: Epwarbs, KE1TH and Merritt, Circuit Judges.

Merritt, Circuit Judge. The appellant, Shippers Dis-

patch, Inc., a truck line (herein called “Shippers” ), appeals

from a judgment of District Judge Manos in the Northern

District of Ohio dismissing Shippers’ third party defendant

complaint against the United States under the Federal

Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80. The

District Court dismissed the third party complaint for lack

of subject matter jurisdiction. We affirm the judgment

of the District Court. We hold that the complaint fails

A4

to state a cause of action for relief under Rule 12(b) (6),

Federal Rules of Civil Procedure.

Plaintiffs filed a damage suit in state court in Ohio

seeking compensation for wrongful death and personal in-

juries against Shippers resulting from a collision involving

their car and a truck owned by Shippers and driven by

Shippers’ employee, Willie Hall. Shippers removed the

action to the United States District Court for the Northern

District of Ohio on the basis of diversity of citizenship.

On January 13, 1976, the “Joint Answer of Defendants

and Third Party Complaint of Shippers Dispatch, Inc.”

was filed naming the United States as the third party

defendant and alleging that Shippers was compelled to

hire the truck driver, Willie Hall, pursuant to a judicial

decree in an equal employment civil rights case in the

District of Columbia against a number of truck lines in

which Shippers was one of the defendants. Shippers claim

that it was entitled to full indemnification from the United

States because “the legal position of Shippers Dispatch,

Inc. is but passive, secondary and involuntary to the active,

primary and mandatory position of third party defendant,

United States of America.” As a result of the equal em-

ployment civil rights case filed by the government, Ship-

pers entered into a consent decree which, according to

the complaint, “established mandatory provisions for the

qualification for drivers to be hired . . . wherein a mini-

mum of 33-1/3% .. . were to be of specific minority

in origin [black and hispanic] and that such qualifica-

tions . . . were less than qualifications and standards”

which Shippers had previously adopted, “all of which has

resulted in increased accident exposure upon the high-

ways.” Shippers further alleged in the third party com-

plaint that “pursuant to the aforesaid judicial [consent]

decree ... it was compelled to hire one Willie Hall,

A5

a defendant herein . . . whose qualifications as an over-

the-road driver did not meet the [prior] standards of

Shippers . . . and that subsequently thereto one Willie

Hall was involved in the aforesaid accident.”

Thus, according to the complaint, Shippers established

an affirmative action program for drivers to be hired and

adopted goals or ratios for hiring pursuant to an agree-

ment with the EEOC contained in a consent decree nego-

tiated with lawyers for the EEOC and the Department

of Justice. Shippers hired the black truck driver involved

in the accident under the affirmative action program, and

now sues the government under the Federal Tort Claims

Act for indemnity on the theory that it would not have

hired the black truck driver if the consent decree had

not required it to “lower its standards,”

The complaint must be dismissed for failure to state

a cause of action. The complaint does not allege any

negligent or wrongful conduct on the part of the United

States as required by the Federal Tort Claims Act as

interpreted by the Supreme Court in Laird v. Nelms, 406

U.S. 797, 799 (1971), and cases cited there. In addition,

the action of the government in instituting and pursuing

a civil rights action against Shippers and in negotiating

and reducing to judgment a consent decree falls within

the discretionary function exception to the waiver of sov-

ereign immunity in the Federal Tort Claims Act, 28 U.S.C.

$ 2680(a). See Dalchite v. United States, 346 U.S. 15

(1952); and the discussion of United States v. Faneca,

332 F.2d 872 (5th Cir. 1964) contained in Downs v, United

States, 522 F.2d 990, 997 (6th Cir. 1975).

Accordingly, the judgment of the District Court dis-

missing the third party complaint filed by Shippers Dis-

patch, Inc. against the United States is hereby affirmed.

A6

JUDGMENT OF THE UNITED STATES

DISTRICT COURT

(Filed October 28, 1976)

No, C75-1084

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

MONICA MALONE, et al.,

Plaintiffs,

VS.

WILLIE HALL and SHIPPERS DISPATCH, INC.,

Defendants.

JUDGMENT

The Court having rendered its decision herein granting

the motion of third-party defendant to dismiss the third-

party complaint of Shippers Dispatch, Inc.,

IT IS, THEREFORE, ORDERED that the United States

of America is dismissed as defendant to the third-party

complaint of Shippers Dispatch, there being no just reason

to delay entry of such dismissal pursuant to Fed. R. Civ.

P, 54(b).

IT IS FURTHER ORDERED that the claims of plain-

tiffs Malone against defendants Willie Hall and Shippers

Dispatch, Inc. be tried separately from the claims in the

third-party complaint of Shippers Dispatch, Inc.

This judgment incorporates the Memorandum and

Order filed in this case today.

/s/ Joun M. MANnos

United States District Judge

AZT

MEMORANDUM AND ORDER OF THE

UNITED STATES DISTRICT COURT

(Filed October 28, 1978)

Case No, C75-1084

IN THE UNITED STATES DISTRICT COURT

For THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

MONICA MALONE, et al.,

Plaintiffs,

Vv.

WILLIE HALL,

Defendant,

and

SHIPPERS DISPATCH, INC.,

Defendant and Third-Party Plaintiff,

Vv.

UNITED STATES OF AMERICA,

Third-Party Defendant.

MEMORANDUM AND ORDER

MANOs, J.

This is a diversity action in which plaintiff seeks com-

pensatory damages for the wrongful death of plaintiffs’

decedent, Lawrence Malone, and for personal injuries to

plaintiffs Monica and Carol Malone, arising out of an auto-

mobile accident with defendant Hall on September 3, 1975,

in Lorain County, Ohio. Defendant Shippers Dispatch,

Inc. [Shippers] seeks indemnification from the United

States as a third-party defendant, asserting that it was

A8

compelled to hire defendant Hall, whose qualifications did

not meet Shippers’ prior standards, in order to comply

with the affirmative action mandates of a consent order,

in a suit instituted by the Attorney General on behalf

of the United States, to which Shippers was a party.’ Ju-

risdiction is purportedly invoked pursuant to the Federal

Tort Claims Act, 28 U.S.C, §§1346(b), 2675,

Third-party defendant United States moves to dismiss

the third-party complaint for lack of subject matter juris-

diction and failure to state a claim upon which relief

can be granted, pursuant to Rules 12(b) (1) and (6),

respectively, Further, the United States seeks a protective

order, pursuant to Rule 26(c), Fed, R, Civ, P,, with respect

to the answer of interrogatories propounded by Shippers,

pending a ruling on the aforesaid motion to dismiss,

In light of the restrictions imposed by the sovereign

immunity doctrine on litigation against the United States,

it is imperative that Shippers, in order to confer jurisdic-

tion herein, must strictly adhere to the specific mandates

of the jurisdictional statute upon which it relies, See,

United States v, Sherwood, 312 U.S, 584, 490 (1940),

In support of the asserted lack of subject matter juris-

diction, the United States maintains that Shippers has

failed to allege any of the required jurisdictional elements

of §1346(b), which provides in pertinent part:

“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,

1. See, United States of America v, Trucking Employers,

Case No. 74-453 (D.C,, March 20, 1970),

A9

accruing on and 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 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,”

Although sensitive to its obligation to construe the

pleading most favorably to Shippers, Scheuer v, Rhodes,

416 U.S, 232, 236 (1974); Conley v, Gibson, 355 U.S, 42,

45 (1957), the Court concludes that the motion to dismiss

is well-taken,

Shippers’ cause of action against the United States

is predicated upon the following allegations:

"(9) .. , that by reason of litigation initiated

against it wherein the United States of America and

Equal Employment Opportunity Commission were

Plaintiffs and Shippers Dispatch, Inc,, one of the de-

fendants, as set forth in United States District Court

for the District of Columbia, Civil Action Case No,

74-453, in their decree filed May 30, 1974, established

mandatory provisions for the qualification for drivers

to be hired subsequent to.said date, as well as ratios

relating thereto wherein a minimum of thirty-three

and one-third percent (33-1/3%) of said drivers hired

subsequent to the aforesaid date were to be of specified

minority in origin and that such qualifications and/or

standards, although possibly in excess of the minimum

standards as promulgated by the Department of Trans-

portation, were less than qualifications and standards

as adopted by the Third-Party Plaintiff herein, to wit:

SHIPPERS DISPATCH, INC.,, all of which has resulted

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in increased accident exposure upon the highways and

attendant costs thereof, all to the detriment of Third-

party Plaintiff, SHIPPERS DISPATCH, INC.

“(10) Third-Party Plaintiff further says that

pursuant to the aforesaid judicial decree of the Equal

Employment Opportunity Commission it was com-

pelled to hire one WILLIE HALL, a Defendant here-

in, on June 25, 1974, whose qualifications as an over-

the-road driver did not meet the standards of SHIP-

PERS DISPATCH, INC, and that subsequent thereto

one WILLIE HALL was involved in the aforesaid

accident occurring on or about September 3, 1975,

wherein one party claims damages for wrongful death

and two other parties for multiple and severe personal

injuries, claiming monetary damages in the aggregate

against SHIPPERS DISPATCH, INC, in the amount

of Two Million, Three Hundred, Fifty Thousand Dol-

lars ($2,350,000,00).”

Apparent from the foregoing is the patent insufficiency

of such allegations for invocation of jurisdiction pursuant

to the Federal Torts Claims Act, Shippers’ complaint does

not charge any Government employee, with a negligent

or wrongful act.

Shippers attempts to cure these data defects by stating

in its brief that “government representatives” were “negli-

gent in preparing and drafting pertinent portions of the

‘Partial Consent Decree’. . .*” The Court is foreclosed

from considering the sufficiency of such assertions relative

to §1346(b) inasmuch as they are included in counsel’s

legal memoranda, not a pleading, and thus are not part

2. See, Shippers’ Brief in Opposition to Motion to Dismiss

Third-Party Complaint, at 7,

All

of the record herein.* See, Sardo v. McGrath, 196 F.2d

20, 23 (D.C. 1952); United States v. Malkin, 317 F. Supp.

612, 614, fn. 6 (D.C. N.Y. 1970); Garcia v. United States,

108 F. Supp. 608, 615 (Ct. Cl. 1952); Brookins v. Chrysler

Corp., 381 F. Supp. 563, 566 (D.C. Mich. 1974).

Accordingly, the Court dismisses the third-party com-

plaint pursuant to Rule 12(b)(1), and the United States’

Rule 12(b) (6) and Rule 26 motions need not be considered,

See, Gibbs v, Buck, 307 U.S. 66, 71-72 (19389); MeNutt

v, General Motors Acceptance Corp,, 298 U.S, 178, 188-

89 (1936), Dorfman v, Chemical Bank, 56 F.R.D. 363,

364-65 (D.C, N.Y. 1972).

3. Even if this Court considered the factual material in

Shippers’ brief ‘well precee it atill would not satisfy the ree

uirements of 28 U.S.C, 81346(b), In its brief Shippers charges

the Government officials who drafted the Trucking Employer's

consent decree acted with “negligence,” See, Shippers’ Brief in

Opposition to Motion to Dismiss Third-Party Complaint, at 5,

Government officers who prepare litigation materials while en-

forcing the law are absolutely immune from suits seeking damage

awards against them, See, Imbler v, Pachtman, 96 S.Ct, 984,

991-02 oles Yaselli v, Golf 12 F.2d 396, 404-06 (2nd Cir,

1926); Gregoire v, Biddle, 177 F.2d 579, 581 (2nd Cir, 1949),

cert, den, 339 U.S, 949; Cooper v, O’Connor, 99 F.2d 135, 140-41

D.C. Cir, 1988); Anderson v, Rohrer, 3 F, Supp, 367, 368 (S.D.

la, 1933); Pearson v, Reed, 44 P.2d 592 ae App. 1935); An-

derson v, Manley, 43 F.2d 39 (Wash, 1935), Since the Govern-

ment officials who Shippers argues were negligent possess an

absolute immunity, there is no basis for Shippers to recover a

money award from the United States Government on a respondeat

superior theory absent a highly — statutory authorization

for such a sey 4 Compare, Bivens v, Six Unknown Named

Federal Agents, 403 U.S, 388, 412, 421-24 (1971) Ne er, Chief

Justice, concurring); Stone v, Powell, 96 S.Ct, 3052, 3055 (1976)

(Burger, Chief Justice, concurring), Furthermore, Shippers must

be barred by res judicata from asserting a claim against the Gov-

ernment because it acquiesced in the consent order which is

both an agreement and a final judgment, Also, assuming, purel

arguendo, that the United States Government is chargeable wit

negligence in drafting the terms of the ens J Employer's con-

sent decree Shippers must be guilty of contributory negligence

for agreeing to that assertedly, negligently drafted decree, Such

contributory negligence would bar their recovery,

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Pursuant to Fed. R. Civ. P. 54(b) the Court expressly

determines that there is no just reason to delay the entry

of a final judgment dismissing the Government and in-

structs the clerk to prepare a final judgment dismissing

Shipper’s third-party complaint against the United States

of America. Because of the Court’s Rule 54(b) determina-

tion, it orders plaintiff Malone’s claims against defendants

Hall and Shippers tried separately from the claims in

Shippers’ third-party complaint. See, Fed. R. Civ. P.

42(b).

IT IS SO ORDERED.

/s/ Joun M. MANos

U.S. District Judge

STATUTES INVOLVED

28 U.S.C. §1346

§ 1346. United States as defendant

(b) 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 and after January

1, 1945, for injury or loss of property, or personal injury

or death caused by the negligent or wrongful act or omis-

sion 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.

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28 U.S.C. §2674

§ 2674. Liability of United States

The United States shall be liable, respecting the provi-

sions 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 omission 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, mea-

sured by the pecuniary injuries resulting from such death

to the persons respectively, for whose benefit the action

was brought, in lieu thereof. June 25, 1948, c. 646, 62

Stat. 983,

28 U.S.C. §2680

§ 2680. Exceptions

The provisions of this chapter and section 1346(b)

of this title shall not apply to—

(a) Any claim based upon an act or omission

of an employee of the Government, exercising due

care, in the execution of a statute or regulation,

whether or not such statute or regulation be valid,

or based upon the exercise or performance or the

failure to exercise or perform a discretionary function

or duty on the part of a federal agency or an employee

of the Government, whether or not the discretion in-

volved be abused,