Opposition Brief — General Electric Co. v. United States

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FILED

No. 86-2015 AUG 21 987

JOSEPH F. seauiol. JR.

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In the Supreme Court of the Gnited States

OCTOBER TERM, 1987

GENERAL ELECTRIC CO., PETITIONER

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE RESPONDENTS

CHARLES FRIED

Solicitor General

RICHARD K. WILLARD

Assistant Attorney General

BARBARA L. HERWIG

KATHERINE S. GRUENHECK

Altorneys

Departmeni of Justice

Washington, D.C. 20530

(202) 633-2217

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QUESTIONS PRESENTED

1. Whether the United States is subject to liability

under the Federal Tort Claims Act in circumstances in

which the plaintiff’s claim, if asserted against a private

employer, would be barred by the Maryland workmen’s

compensation statute.

2. Whether the immunity recognized in Barr v.

Matteo, 360 U.S. 564 (1959), protects the individual re-

spondents — federal employees sued in their individual

capacities — from liability under state tort law for injuries

allegedly caused by their official acts.

(1)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

—

All Maine Asbestos Litigation, In re, 772 F.2d 1023 (ist

Cir. 1985), cert. denied, No. 85-1246 (May 19, 1986)...

American Radiator & Standard Sanitary Corp. v. Mark

Engineering Co. , 230 Md. 584, 187 A.2d 864 (1962) ...

Baltimore Transit Co. v. State, 183 Md. 674, 39 A.2d

eS Ske Ga bance essa nesses.

Barr v. Matteo, 360 U.S. 564 (1959) ...................

Griffin v. United States, 644 F.2d 846 (10th Cir. 1981)...

La Barge v. Mariposa County, 798 F.2d 364 (9th Cir.

1986), cert. denied, No. 86-1239 (Apr. 20, 1987) ......

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

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Mason v. Callas Contractors, Inc., 494 F. Supp. 782

ee ts pec b vss d's saneenses

Roelofs v. United States, 501 F.2d 87 (Sth Cir. 1074),

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Statutes:

Federal Employee’s Compensation Act, 5 U.S.C. (& Supp.

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Federal Tort Claims Act:

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Md. Ann. Code art. 101 (1985):

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(111)

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1987

No. 86-2015

GENERAL ELECTRIC CO., PETITIONER

Vv.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE RESPONDENTS

OPINIONS BELOW

[he opinion of the court of appeals (Pet. App. Al-A13)

is reported at 813 F.2d 1273. The opinion of the district

court on the motion to dismiss (Pet. App. Al6-A27) is

reported at 603 F. Supp. 88. The opinion of the district

court on the motion for summary judgment (Pet. App.

A28-A42) is unreported.

JURISDICTION

The judgment of the court of appeals (Pet. App. A44)

was entered on March 12, 1987. The petition for a writ of

certiorari was filed on June 9, 1987. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. On July 27, 1982, James Layman and Lloyd

Thompson, high voltage electricians employed by the Na-

tional Institutes of Health (NIH), were assigned to replace

(1)

burned out transistors in a transformer designed and

manufactured by petitioner. While Layman and Thomp-

son were working on the transformer, a short circuit

caused a surge of current that injured both men. Thomp-

son subsequently died from his injuries; Layman survived

but the injuries that he suffered were permanent. Because

both men had been injured in the course of their employ-

ment by the federal government, they became entitled to

benefits under the Federal Employees’ Compensation Act

(FECA), 5 U.S.C. (& Supp. IIT) 8101-8151. Pet. App. A2,

Al6.

Layman and his wife, together with Thompson’s surviv-

ing spouse, commenced a tort action against petitioner

alleging that petitioner had designed its transformer in a

defective manner. Petitioner settled that lawsuit and then

brought the present action seeking indemnity or contribu-

tion from the United States, pursuant to the Federal Tort

Claims Act, and from five NIH employees in their in-

dividual capacities, pursuant to state law. Petitioner

alleged that the United States and the _ individual

respondents, who are NIH supervisors and administra-

tors, failed to exercise due care with respect to the safety

of Layman and Thompson and that the injuries incurred

by the two men were a direct result of that negligence. Pet.

App. A3, Al7-Al8g.

The district court dismisSed petitioner’s claim against

the federal government (Pet. App. A1l6-A25). The court

observed that the United States is subject to liability under

the Federal Tort Claims Act for the negligence of its

employees “ ‘under circumstances where the United States,

if a private person, would be liable to the claimant in ac-

cordance with the law of the place where the act or omis-

sion occurred.’” Pet. App. A1l8, quoting 28 U.S.C.

1346(b). Under Maryland law, which applies in the present

case, an employer’s liability under the state workmen’s

compensation statute is exclusive; even if the employee

recovers damages from a third party, the employer is not

liable to the third party in contribution or indemnity. The

court stated (Pet. App. A24 (footnote omitted)) that

[ijn all practical ways, the law of Maryland envisions

that a private person who conforms to the Act by ob-

taining workmen’s compensation insurance to cover

his employees injured on the job shall be shielded

from common law liability to the employee and

liability to third parties on indemnity and contribu-

tion claims. In fact, private employers from outside

the state are provided with the shield of immunity, in

certain-circumstances, if the out-of-state workman’s

compensation scheme covers the non-resident

employee injured while on the job in Maryland.

The court concluded that the United States was similarly

immune from liability because it “stands in the shoes of

those private persons shielded by the Maryland

Workman’s Compensation Act from direct actions and

third party actions for contribution and indemnity” (id. at

A25).!

The district court subsequently granted the individual

respondents’ motion for summary judgment (Pet. App.

A28-A42). It stated that “[t]he immunity of a government

official from civil suits extends to the ‘outer perimeter’ of

his or her ‘line of duty.’” Jd. at A30 (quoting Barr v.

Matteo, 360 U.S. 564, 575 (1959)) (plurality opinion). The

court found that “the negligence alleged to have been com-

mitted occurred within the scope of [the individual

respondents’] government employment,” and that the in-

dividual respondents were therefore entitled to immunity

(Pet. App. A41).

The court declined to grant the individual respondents’ motion to

dismiss because the allegations of the complaint did not supply

enough information to ascertain the nature of the duties performed by

the individual respondents. See Pet. App. A25-A26.

2. The court of appeals unanimously affirmed the

district court’s determinations (Pet. App. Al-A13). With

respect to the government’s liability, the court of appeals

observed that the government had complied with the

Federal Employees’ Compensation Act, “the federal law

that provides workers’ compensation to _ federal

employees” just as “a private employer ‘in like circum-

stances’ would have complied with the Maryland Workers’

Compensation statute” (id. at AS). It further stated that

“fal. private employer that had contributed to the

Maryland Worker’s Compensation program would be en-

titled to invoke the exclusivity provision of that statute to

bar third-party claims for contribution and/or indemnity

like that advanced by” petitioner (ibid.). Because “a

*milarly situated private employer would be immune from

common law damage suits arising out of injuries negli-

gently inflicted on its employees,” the United States, which

complied with “the applicable worker’s compensation law,

FECA, is entitled to claim the same immunity” (id. at A6

(footnote omitted)). “To hold otherwise,” the court stated,

“would be to place the United States in a position less

favorable than that of any private employer under the

Maryland Statute” (id. at A6-A7).

The court of appeals also concluded that the district

court had properly held that the individual defendants

were entitled to immunity. The court of appeals stated that

“{w]here no constitutional tort is alleged, the defendant

[federal] official is absolutely immune from suits based on

common-law torts, provided that the alleged tort was an

action within the outer perimeter of the official’s line of

duty” (Pet. App. Al2). Because the actions challenged in

this case were within the individual respondents’ official

duties, those respondents were entitled to official immuni-

ty (ibid.).

ARGUMENT

1. Petitioner contends (Pet. 6-10) that the court of ap-

peals erred by concluding that the United States was not

subject to liability under the Federal Tort Claims Act. The

court of appeals’ decision with respect to this issue is cor-

rect and does not conflict with any decision of this Court

or another court of appeals. Further review by this Court

is not warranted.

The Tort Claims Act waives the sovereign immunity of

the United States with respect to actions seeking damages

for “personal injury or death caused by the negligent or

wrongful act or omission of any employee of the govern-

ment while acting within the scope of his office or employ-

ment, under circumstances where the United States, if a

private person, would be liable to the claimant” under the

law of the State where the act or omission occurred. 28

U.S.C. 1346(b); see also 28 U.S.C. 2674 (United States

“shall be liable * * * in the same manner and to the same

extent as a private individual under like circumstances”).

Under Maryland law, which is the relevant state law in this

case, an employee who receives benefits under the state

workmen’s compensation statute for an employment-

related injury may not sue his employer for damages

relating to the same injury. And, while the employee may

bring such a damage action against third parties, those

third parties are barred from seeking contribution or in-

demnity from the employer. Md. Ann. Code art. 101, § 15

(1985); see also Mason v. Callas Contractors, Inc., 494 F.

Supp. 782, 784 (D. Md. 1980), citing Baltimore Transit

Co. v. State, 183 Md. 674, 39 A.2d 858 (1944); American

Radiator & Standard Sanitary Corp. v. Mark Engineering

Co., 230 Md. 584, 187 A.2d 864 (1962). :

Petitioner asserts that the United States is not entitled to

invoke the protection of this provision because it is not an

employer covered by the Maryland statute. See Md. Ann.

Code. art. 101, § 21(c)(3) (1985) (exempting persons “for

whom a rule of liability for injury or death is provided by

the laws of the United States”). But the Tort Claims Act

provides that the government’s liability is determined by

analogizing its position to that of a private person under

“like circumstances.” Because a private employer who

pays workmen’s compensation benefits to an employee is

immune from liability in tort under Maryland iaw, the

government is entitled to the same immunity where it has

provided an employee with equivalent benefits. Pet. App.

A4-A7.? Thus, the other courts of appeals that have con-

sidered this question have concluded that where a third-

party claim seeks contribution or indemnity for damages

awarded to an injured employee who has received FECA

benefits, the federal government’s liability under the Tort

Claims Act is the same as that of a private employer under

the state workmen’s compensation statute, even though

the state statute does not by its terms encompass claims

against the United States. LaBarge v. Mariposa County,

798 F.2d 364, 369 (9th Cir. 1986), cert. denied, No.

86-1239 (Apr. 20, 1987); In re All Maine Asbestos Litiga-

tion, 772 F.2d 1023, 1028 (1st Cir. 1985), cert. denied, No.

85-1246 (May 19, 1986); cf. Griffin v. United States, 644

F.2d 846 (10th Cir. 1981); Roelofs v. United States, 501

F.2d 87 (Sth Cir. 1974), cert. denied, 423 U.S. 830 (1975).3

? It is noteworthy that petitioner does noi contend that the govern-

ment activity in which Layman and Thompson were employed falls

within any of the other exemptions contained in the Maryland statute.

> Petitioner errs (Pet. 10) in suggesting that Lockheed Aircraft

Corp. v. United States, 460 U.S. 190 (1983), controls this case. The

Court there held that the exclusive remedy provision of the Federal

Employees’ Compensation Act does not bar a third-party action

against the United States for contribution or indemnity. Lockheed

Aircraft Corp. did not address the applicability of amy state

workmen’s compensation statute to such claims against the United

States, much less consider the scope of the Maryland statute which has

been held by that state’s highest court to bar a third-pariy action for

contribution or indemnity.

2. The second question presented in this case is the

same as the issue now before the Court in Westfall v.

Erwin, No. 86-714; i.e., whether a federal employee is sub-

ject to personal liability under state law for his official

acts.4 The court of appeals in the present case concluded

that a federal employee is “absolutely immune from suits

based on common-law torts, provided that the alleged tort

was an action within the outer perimeter of the official’s

line of duty” (Pet. App. Al2).

We argue in our brief in Westfall (at 8-48), that a federal

employee is immune from liability under state tort law

when the conduct that forms the basis of the tort claim

falls within the scope of the employee’s official duties, at

least where those duties involve the exercise of a minimal

quantum of discretion.’ Here, as in Westfall (Br. 47-48),

the individual federal employees are entitled to immunity

under this standard. These employees’ planning, super-

visory, and safety duties (see Pet. App. A37-A40) plainly

require them to make a variety of sensitive judgments in

determining whether to undertake particular projects and

generally supervising the employees under their authority.

With respect to this question, therefore, the Court should

hold the petition for a writ of certiorari pending its deci-

sion in Westfall.

4 We have served counsel for petiiioner with a copy of our brief in

Westfall.

> We noted that this Court also has in some circumstances extended

immunity to employees performing ministerial duties (see Br. 12-13 &

n. 10).

CONCLUSION

As to Question 2, the Court should hold the petition for

a writ of certiorari and dispose of it as appropriate in light

of the disposition of Westfall v. Erwin, No. 86-714. In all

other respects, the petition for a writ of certiorari should

be denied.

Respectfully submitted.