Opposition Brief — County of Mariposa v. United States

Sapreme Oowrt, US.

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No. 86-1239 | APR & 1987

JOSEEH ESPANOL, UR,

Iu the Supreme Court of the United Shes

OCTOBER TERM, 1986

COUNTY OF MARIPOSA AND RODERIC B. SINCLAIR,

PETITIONERS

V.

UNITED STATES OF AMERICA

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES

IN OPPOSITION

CHARLES FRIED

Solicitor General

Department of Justice —

- Washington, D.C. 20530

(202) 633-2217

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TABLE OF AUTHORITIES

Page

Cases:

All Asbestos Cases, In re, 603 F. Supp.

Cs eee 6

All Maine Asbestos Litigation (PNS Cases),

In re, 772 F.2d 1023 (1st Cir. 1985),

cert. denied, No. 85-1253 (May 19, 1986) ...... 5

Colombo v. Johns-Manville Corp.,

GUl F. Supp. 1119 (6.D. Pa. 1904) ........... 6

General Electric v. United States,

603 F. Supp. 881 (D. Md. 1985), aff'd, No.

OG- Fee) C40 Car, ROME. TZ, FFG) occ cecaccses 6

Giannuzzi v. Doninger Metal Products,

Jos F.. oupp. 1900 CW.D. Pa. 1964) ........... 6

Griffin v. United States, 644 F.2d 846

A ae G hue ae cd bo veh 6 7SES 5

Indian Towing Co. v. United States,

es aes aie «6 a nig 6 04 0.0% 5

Insurance Company of North America v.

United States, 643 F. Supp. 465

RS RR nee ee 5

Lockheed Aircraft Corp. v. United States,

ae | ee rae 3, 4,7

Roelofs v. United States, 501 F.2d 87

(Sth Cir. 1974), cert. denied, 423 U.S. 830

ho LBS wapeid eA Sa, gen ena ne 5

Stewart v. United States, 716 F.2d 755

(10th Cir. 1982), cert. denied, 469 U.S. 1018

(BRR RGAE Die SPR (C7 APOE OCS ate ened eee re 5

II

Page

Statutes:

Federal Employees’ Compensation Act, 5 U.S.C.

S101 cf 9G. cnccc cvecncannaWheaeeeesapeeen |

5 U.S.C. SUNG ca nie vcbsteswdseacseene 6,7

Federal Tort Claims Act:

28 U.S.C. 1SOGERD ov niie sdceet bn teaceterues 2

28 U.S.C. BERR ics 5 i eee 2

Cal. Labor Code (West 1971):

8 HOO.) ciisisndvcdnane cde ieeseeens 4,8

TK eyererrer rr ee rer 2,3

Miscellaneous:

LR. Rep. 729, 8Ist Cong., Ist Sess.

(1949) . 6 ocnceceeuuens eens hee 6,7

Larson, Third-Party Action Over Against

Workers’ Compensation Employer, 1982

Duke L.5. 463 2.000200 teasinduseoenwsscssxs 6

S. Rep. 836, 81st Cong., Ist Sess.

(1949) .....ccncacsuwevesnek Ovewenees beens 6, 7

In the Supreme Court of the United States

OCTOBER TERM, 1986

No. 86-1239

COUNTY OF MARIPOSA AND RODERIC B. SINCLAIR,

PETITIONERS

V.

UNITED STATES OF AMERICA

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES

IN OPPOSITION

Petitioners seek contribution from the United States fora

portion of the tort damages they paid to the estates of three

federal employees who were killed in an automobile acci-

dent, even though petitioners could not obtain contribution

from a private employer under similar circumstances.

1. Three federal Secret Service agents died, while acting

within the scope of their employment, when their automo-

bile collided with an automobile driven by Deputy Sheriff

Sinclair of the County of Mariposa in California on March

5, 1983. The survivors of the Secret Service agents received

payments from the federal government under the Federal

Employees’ Compensation Act (FECA), 5 U.S.C. 8101 et

(1)

2

seq. They also sued petitioners—Sinclair and the County of

Mariposa—seeking damages for the wrongful deaths. Peti-

tioners then filed claims against the United States for con-

tribution and indemnity, contending that the collision was

in part caused by the negligence of the deceased driver and

the negligence of another federal employee driving a third

car that was not involved in the collision. The estates of the

deceased federal employees subsequently settled all claims

with petitioners for $4 million. Pet. App. B2.

Following the settlement, petitioners proceeded with

their third-party claim against the United States. Under the

Federal Tort Claims Act (FTCA), the federal government is

liable “under circumstances where the United States, if a

private person, would be liable to the claimant in accor-

dance with the law of the place where the act or omission

occurred” (28 U.S.C. 1346(b)), so that its liability is the

same as that of “a private individual under like circumstan-

ces” (28 U.S.C. 2674).! The district court did not dispute

that the United States should be analogized to a private

employer in California. Nor did the district court dispute

that, under applicable California law, Cal. Labor Code

§ 3864 (West 1971), employers that provide workers’ com>

'Section 1346(b) provides in pertinent part:

[T]he 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 * * * 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.

Section 2674 provides in pertinent part:

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 * * *.

3

pensation are immune from third-party actions.” The dis-

trict court ruled, however, that this court’s decision in

Lockheed Aircraft Corp. v. United States, 460 U.S. 190

(1983), where the Court held that FECA does not itself bar

third-party actions against the United States, precludes

analogizing the United States to a private employer in

California for purposes of determining whether third par-

ties may recover from the United States (Pet. App. D6). The

district court found petitioners 70% responsible for the

accident and the agents of the United States 30% responsi-

ble, and accordingly awarded petitioners $1.2 million (Pet.

App. C9).

2. The court of appeals reversed (Pet. App. BI-B9). The

court first found that the United States is analogous to an

employer that had complied with the California workers’

compensation law since it had made payments to the Secret

Service agents’ survivors under FECA. It noted that a

number of courts have held, after Lockheed, that “the Uni-

ted Statcs should be entitled to the same immunity from suit

enjoyed by a private employer covered by state workmen’s

compensation laws” (id. at B6). It therefore concluded that

the United States is entitled to the benefits of the exclusive

liability provision of Cal. Labor Code § 3864 (see note 2,

supra), which bars third-party claims as well as direct claims

(Pet. App. B6). This Court’s decision in Lockheed does not

compel a different result, the court concluded, explaining

that Lockheed “did not confer on third-party tortfeasors

California Labor Code § 3864 provides:

If an action as provided in this chapter prosecuted by the

employee, the employer, or both jointly against the third person

results in judgment against such third person, or settlement by

such third person, the employer shall have no liability to reim-

burse or hold such third person harmless on such judgment or

settlement in absence of a written agreement so to do executed

prior to the injury.

4

substantive rights against the United States. The case held

only that the FECA did not modify the Federal Tort Claims

Act so as to bar direci., third-party suits that the applicable

state law would otherwise allow. See 460 U.S. at 197-99 &

n.8.” Pet. App. BS.

The court of appeals also concluded that, even assuming

the United States is properly viewed as an out-of-state

employer complying with a foreign state’s workers’ com-

pensation laws rather than as a California employer, peti-

tioners nevertheless have no substantive right to contribu-

tion. California law provides that the remedies under the

laws of the foreign state are the exclusive remedies against

an out-of-state employer for any injury received by non-

resident employees working in California. Cal. Labor Code

§ 3600.5(b) (West 1971). While FECA, the relevant out-of-

state workers’ compensation !aw, does not bar a third party

Suit, it does not provide any substantive entitlement to bring

a third-party suit either, as this Court made clear in Lock-

heed. Given that petitioners had identified no substantive

basis for suit, the court held that their claim was barred. Pet.

App. B8.‘

3California Labor Code $ 3600.5(b) prevides in pertinent part:

Any employee who has been hired outside of this state and his

employer shall be exempted from the provisions of this division

while such employee is temporarily within this state doing work

for his employer if such employer has furnished workmen's com-

pensation insurance coverage under the workmen's compensation

insurance or similar laws of a state other than California, so as to

cover such employee’s employment while in this state * * *. The

benefits under the Workmen’s Compensation Insurance Act or

similar laws of such other state, or other remedies under such act

or such laws, shall be the exclusive remedy against such employer

for any injury, whether resulting in death or not, received by such

employee while working for such employer in this state.

‘The court of appeals noted (Pet. App. B9 n.2) that it was puzzled that

the district court attributed the negligence of the deceased federal driver

to the United States in determining that the United States was 30

5

3. The court of appeals’ decision is correct and is consist-

ent with the decisions of this Court and other federal courts.

Accordingly, further review is not warranted.

The court of appeals correctly concluded that the United

States is properly analogized to a private employer in Cali-

fornia that pays compensation pursuant California’s

workers’ compensation law, since the FTCA provides that

the United States is to be treated like a private employer and

the United States pays workers’ compensation under

FECA.® That is a perfectly straightforward analogy that a

number of courts have adopted. See Jn re All Maine

Asbestos Litigation (PNS Cases), 772 F.2d 1023, 1027 (Ist

Cir. 1985), cert. denied, No. 85-1253 (May 19, 1986); Ste-

wart v. United States, 716 F.2d 755, 763 (10th Cir. 1982),

cert. denied, 469 U.S. 1018 (1984); Griffin v. United States,

644 F.2d 846, 847 (10th Cir. 1981); Roelofs v. United

States, 501 F.2d 87,92 (Sth Cir. 1974), cert. denied, 423 U.S.

830 (1975); Insurance Company of North America v. Uni-

ted States, 643 F. Supp. 465, 467-468 (M.D. Ga. 1986);

perceni responsible for the collision, since petitioners had settled with

his estate and the parties to the settlement presumably took his negli-

gence into account in reaching their agreement. The court added that

petitioners could recover based on the negligence of another federal

driver who was not injured in the colission if the third-party suit were

not barred. Thus, had the court of appeals not reversed the: district

court, it presumably would have remanded for the district court to

determine the percentage of responsibility for the accident properly

attributable to the United States based only on the negligence of the

federal driver that was not killed in the collision.

‘There is no merit whatever to petitioners’ contention (Pet. 12-13)

that the United States is not analogous to a private employer in Califor-

nia because it does not actually participate in the California workers’

compensation program but instead pays workers’ compensation under

FECA. As the court of appeals noted in dismissing that argument, the

FTCA “refers not to private persons under ‘the sane circumstances,’

but to those under similar circumstances” (Pet. App. B6, quoting /Jndian

Towing Co. v. United States, 350 U.S. 61, 64 (1955)).

nls

6

General Electric v. United States, 603 F. Supp. 881, 884(D.

Md. 1985), aff'd per curiam, No. 86-2041 (4th Cir. Mar. 12,

1987); In re All Asbestos Cases, 603 F. Supp. 599, 607-608

(D. Haw. 1984); Colombo v. Johns-Manville Corp., 601

F. Supp. 1119, 1127-1128 (E.D. Pa. 1984); Giannuzzi_ v.

Doninger Metal Products, 585 F. Supp. 1306, 1309 (W.D.

Pa. 1984). Petitioners do not contend that any court has

held to the contrary.

Under the FTCA, the liability of the United States to

third parties depends on the law of the state where the tort

occurred. In the majority of states, compensation-paying

employers are immune from third-party actions (see Lar-

son, Third-Party Action Over Against Workers’ Compen-

sation Employer, 1982 Duke L.J. 483, 488-489). Since Cali-

fornia is one of those states, the United States is immune

fiom third-party suits there.®

*Under FECA’s exclusivity clause, 5 U.S.C. 8116(c), the United

States is never liable under the FTCA to employees to whom it pays

FECA benefits. Petitioners note that Congress stated in 1949, when it

added Section 8116(c) to FECA, that most states provided that

workers’ compensation remedies were the exclusive remedies employees

could obtain from their employers. S. Rep. 836, 8Ist Cong., Ist Sess. 23

(1949); H.R. Rep. 729, 8Ist Cong., Ist Sess. 14 (1949). Petitioners

therefore argue (Pet. 9) that Congress must have thought that bars to

suit enacted by state laws did not apply to the United States since.

otherwise, it would not have needed to enact Section 81 16(c). That is

incorrect. First, the reports accompanying the 1949 amendments both

Stated that state laws “in general” barred employees from seeking

recovery from employers in addition to workers’ compensation (S. Rep.

836, supra, at 23; H.R. Rep. 729, supra, at 14), implying that Congress

thought that some states allowed additional recoveries. Indeed. the

House Report stated that Congress did not intend “to give Government

employees, or rather some of them, the right to sue the United States, in

addition to or as an alternative to the right to workmen’s compensa-

tion” (H.R. Rep. 729, supra, at 15 (emphasis added)), suggesting that

Congress recognized that the laws of most states already barred tort

recoveries by federal employees who had received FECA benefits and

intended that rule to apply in all states. In addition, Section 81 16(c) was

hardly unnecessary even if Congress thought that no siate permitted

7

The conclusion that the United States is immune from

third-party claims in California and other states where

compensation-paying employers are immune is not con-

trary to this Court’s decision in Lockheed. As the court of

appeals explained (Pet. App. B5), the Court in Lockheed

did not hold that FECA provided a substantive basis for

bringing a third-party suit but only that it did not bar such

suits where they were permitted. The Court expressly noted

that the lower courts had concluded that “indemnity is

available to Lockheed against the United States” and that

the correctness of that conclusion was not before the Court

(460 U.S. at 197 n.8). Here, as the court of appeals stated

(Pet. App. B6), petitioners have failed to identify a substan-

tive basis for their third-party claim. There is, therefore, no

conflict between the decisions, as petitioners themselves

recognize by stating that “Lockheed did not expressly con-

sider the question presented here” (Pet. 7).

Nor is there any merit to petitioners’. argument (Pet.

13-15) that the United States is properly analogized to an

out-of-state employer under California law because the

Secret Service agents were in the state on a temporary

assignment and that the United States is not immune from

suit as an out-of-state employer. As an initial matter, this

argument depends on the peculiar facts of this case and does

not warrant the Court’s attention for that reason alone.

Moreover, as the court of appeals concluded, it is cléar that

the United States is more analogous to a national employer

doing business in California than it is to a private employer

doing business outside California that “happens to have

direct tort actions by employees against compensation-paying employ-

ers, since Congress enacted Section 8116(c) to bar suits by federal

employees against the United States under the Suits in Admiralty Act

and the Public Vessels Act, which are not governed by state law, as well

as to bar suits by federal employees against the United States under the

FTCA. S. Rep. 836, supra, at 23; H.R. Rep. 729, supra, at 14.

8

brought in a few employees for a temporary job in-state

(Pet. App. B8), since the United States in fact employs

many persons in California. Therefore, California’s out-of-

state employer rule is not applicable. Even if the United

States is analogized to an out-of-state employer, under

Labor Code $ 3600.5(b) the law of the employer’s “state”—

here federal law—provides “the exclusive remedy against

such employer for any injury” (ibid.), and it provides no

substantive basis for this suit, as the court of appeals also

noted (Pet. App. B8).

It is therefore respectfully submitted that the petition for

a writ of certiorari should be denied.

”

CHARLES FRIED

Solicitor General

APRIL 1987