Amicus Curiae Brief — General Dynamics Corp. v. Trevino

Supreme Court brief1989

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Supre

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me Court, US.

ale FILED

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H F. SPANIOL, JR.

No. 89-376 | | se

—_—

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

GENERAL DYNAMICS CORPORATION,

. Petitioner,

Vv.

GLORIA TREVINO, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF OF AMICUS AEROSPACE INDUSTRIES

ASSOCIATION OF AMERICA, INC. IN SUPPORT OF

PETITION OF GENERAL DYNAMICS

CORPORATION FOR A WRIT OF CERTIORARI

DUNAWAY & CROSS

MAC S. DUNAWAY

Counsel of Record

GARY E. CROSS

PETER B. SHERMAN

1146 19TH STREET, N.W.

WASHINGTON, D.C. 20036

(202) 862-9700

ATTORNEYS FOR AMICUS

AEROSPACE INDUSTRIES

ASSOCIATION OF AMERICA, INC.

TABLE OF AUTHORITIES

INTEREST OF AMICUS CURIAE

SUMMARY OF THE ARGUMENT

ARGUMENT

CONCLUSION

(i)

TABLE OF CONTENTS

A. TREVINO’S DEFINITION OF ‘“‘APPROVED”’

CONFLICTS WITH A BASIC PREMISE OF

NE oo 0 es el oa THI Os 8 48

TREVINO’S HOLDING THAT THE COURTS

MUST LOCATE THE EXERCISE OF GOVERN-

MENT DISCRETION AS TO DISCRETE DESIGN

FEATURES THREATENS UNDUE INTER-

FERENCE WITH THE GOVERNMENT’S PRO-

CUREMENT POLICIES AND WOULD

FRUSTRATE THE CENTRAL CONCERNS OF

| A re

TREVINO’S NARROW INTERPRETATION AND

APPLICATION OF THE GOVERNMENT CON-

TRACTOR DEFENSE TEST CONFLICTS WITH

THE TEST AS APPLIED IN OTHER CIRCUITS.

. THE NAVY’S CONTINUED USE OF THE

EQUIPMENT WITH KNOWLEDGE OF THE

ALLEGED DEFECTS CONSTITUTES AP-

PROVAL UNDER THE GOVERNMENT CON-

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TABLE OF AUTHORITIES

Cases

Boyle v. United Technologies Corp.,

ee ee GR, BE oi boi 6a ve ennceaecvcecesns

Dowd v. Textron, Inc.,

792 F.2d 409 (4th Cir. 1986),

cert. dented, 108 S. Ct. 2897 (1988)...............

Harduvel v. General Dynamics Corp.,

878 F.2d 1311 (11th Cir. 1989) ..................

Ramey v. Martin-Baker Aircraft Co.,

874 F.2d 946 (4th Cir. 1989)....................

Schwindt v. Cessna Aircraft Co.,

No. CV485-472 (S.D. Ga. 1988).................

Shaw v. Grumman Aerospace Corp.,

778 F.2d 736 (11th Cir. 1985),

cert. dented, 108 S. Ct. 2896 (1988)..............

Smith v. Xerox Corp.,

Ge FOO £00 Ge OM. BABB)... wee ce ccceens

Trevino v. General Dynamics Corp.,

865 F.2d 1474 (Sth Cir. 1989) ...................

Trevino v. General Dynamics Corp.,

876 F. 2d 1154 (5th Cir. 1989) (en banc)..........

Statutes

Federal Tort Claims Act,

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-376

GENERAL DYNAMICS CORPORATION,

Petitioner,

GLORIA TREVINO, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF OF AMICUS AEROSPACE INDUSTRIES

ASSOCIATION OF AMERICA, INC. IN SUPPORT

OF PETITION OF GENERAL DYNAMICS

CORPORATION FOR A WRIT OF CERTIORARI

INTEREST OF AMICUS CURIAE

Amicus Aerospace Industries Association of America, Inc.

is the national trade association representing manufacturers

of ,aerospace-related equipment; its membership, which in-

cludes petitioner General Dynamics Corp., routinely contracts

with the Government for the design of equipment.

SUMMARY OF THE ARGUMENT

In Boyle v. United Technologies Corp., 108 S. Ct. 2510

(1988), the Court addressed the question of ‘‘when a con-

tractor providing military equipment to the Federal Govagn-

ment can be held liable under state tort law for injury co

by a design defect.’’ Jd. at 2513. In answering that question,

the Boyle Court established the requirements that must be

met for a Government contractor to assert successfully the

so-called ‘‘Government contractor’ defense. One of the re-

quirements established by Boyle is that ‘‘the United States

approved reasonably precise specifications’’ for the equipment

alleged to be defective. Jd. at 2518. —

Less than a year after Boyle, the United States Court of

Appeals for the Fifth Circuit had occasion to determine what

Boyle meant by the word ‘‘approved’’ in the phrase ‘‘approved

reasonably precise specifications.’’ Trevino v. General

Dynamics Corp., 865 F.2d 1474 (5th Cir. 1989). Trevino held

that the Government has not ‘‘approved’’ a design feature

developed by a contractor unless the Government actually ex-

ercised its discretion to select that design feature. Jd. at 1486.

Trevino’s answer to the question of what does and does not

constitute Government ‘‘approval’’ for purposes of the

Government contractor defense misinterprets Boyle, frustrates

the policies that Boyle sought to advance, and causes conflict

and confusion among the circuit courts as to the proper ap-

plication of Boyle. Amicus Aerospace Industries Association

of America, Inc. urges the Court to grant the petition for a

writ of certioran in order to correct Trevino’s error and tu

guide the lower courts as they are called upon to decide when

the Government contractor defense is available.

ARGUMENT

A. Trevino’s Definition of ‘‘Approved’’ Conflicts

with a Basic Premise of Boyle.

The Court in Boyle v. United Technologies Corp. adopted

the following three-part test for determining the availability

of the Government contractor defense to contractors who

design military equipment for the government:

Liability for design defects in military equipment can-

not be imposed, pursuant to state law, when (1) the

United States approved reasonably precise specifica-

tions; (2) the equipment conformed to those

specifications; and (3) the supplier warned the United

States about the dangers in the use of the equip-

ment that were known to the supplier but not to the

United States.

108 S. Ct. at 2518. The United States Court of Appeals for

the Fifth Circuit in Trevino v. General Dynamics Corp. then

interpreted Boyle’s tesi as follows:

The government contractor defense as reformulated

in Boyle protects government contractors from liabili-

ty for defective designs tf discretion over the design

feature in question was exercised by the government.

865 F.2d at 1486 (emphasis added). This interpretation of

Boyle, conditioning the availability of the Government contrac-

tor defense on whether the Government considered and

selected the particular design feature alleged to be defective,

cannot be squared with the central analytical underpinnings

of Boyle’s three-part test.

Boyle recognizes, implicitly but necessarily, that the Govern-

ment contractor defense may be available in cases where the

Government had no knowledge of, much less exercised discre-

tion over, a design defect in military equipment. As here rele-

vant, Boyle requires as conditions of the defense that the con-

tractor provided the Government with, and the Government

approved, “‘reasonably precise’’ specifications, and that the

contractor warned the Government of dangers known to the

contractor but not known to the Government.’ It follows that

Boyle does not deny the defense where (i) reasonably precise

specifications have been provided to the Government, but the

later-alleged design defect is not disclosed by those reasonably

precise specifications; and (ii) the Government contractor does

not itself know of the defect.

Under Boyle, then, the Government contractor defense may

be asserted successfully even though the Government, not-

withstanding having examined reasonably precise specifica-

tions, never learned of the design defect that later came to

be the central issue in a tort suit. If the Government was

unaware of a defective feature of a design, then the Govern-

ment cannot have exercised its discretion to choose or reject

that defective feature. Yet the Government contractor defense

is still available under Boyle, so long as the specifications were

reasonably precise and the Government contractor withheld

no information in its possession but not in the Government’s.

This conclusion flows inevitably from Boyle’s requirement

that the specifications approved by the Government be only

reasonably precise, as opposed to exhaustively precise.

Trevino’s holding that the Government contractor defense is

available only if the Government exercised discretion over the

actual design feature in question cannot be reconciled with

Boyle’s permissiveness regarding the design specificity

1As Trevino notes, ‘‘the second element, that the product comply with

the design specifications, was not implicated in this case . . ..’’ 865 F.2d

at 1487.

necessary to satisfy Boyle’s first requirement. It makes no

sense to hold that the Government must approve a design

feature that need not necessarily even have been provided

to the Government; accordingly, Trevino’s definition of ‘‘ap-

proved’’ is in error.

On this point, Trevino states: ‘“The requirement that the

specifications be precise means that the discretion over signift-

cant details and all critical design choices will be exercised by

the government.’’ 865 F.2d at 1481 (emphasis added). Amicus

respectfully disagrees with this important assumption. In the

sentence just preceding the one quoted, and elsewhere

throughout the opinion, Trevino recognizes that the specifica-

tions need be only reasonably precise. Id. This certainly per-

mits the possibility that certain detailed, albeit perhaps defec-

tive, design features will escape Government notice.?

Judge Jolly’s dissent from the Fifth Circuit’s denial of General

Dynamics’ request for an en banc hearing forcefully makes

the point that ‘‘approved’’ was an inappropriate word for the

Court to have selected if the Court intended that the Govern-

ment contractor defense would be denied whenever the

Government has not exercised its policy-level discretion to

select a defective design. Trevino v. General Dynamics Corp.,

865 F.2d 1474 (5th Cir.), reh’g dented en banc, 876 F.2d 1154

(5th Cir. 1989) Golly, J., dissenting). Boyle’s requirement that

the specifications be only ‘‘reasonably precise,’’ as opposed

to ‘‘absolutely precise’ or ‘‘comprehensive,’’ is equally in-

dicative that Boyle does not require that the Government cor-

sciously and substantively evaluate every aspect of a contractor-

developed design.

2The point is not whether the defects alleged in Trevino were disclosed

by General Dynamics’ blueprints; it appears that they were. See Trevino,

865 F.2d at 1477 (General Dynamics supplied 71 pages of detailed work-

ing drawings). The point is that Trevino’s definition of ‘‘approved’’ fails

to account for the clear analytical implications of the three-part Boyle test.

Boyle’s third requirement — that the contractor warn the

Government of dangers of which the contractor is aware but

of which the Government is unaware — equally betrays

Trevino’s analysis. The inescapable implication of this require-

ment is that the Government contractor defense is not lost

merely because the contractor was unaware of, and therefore

did not warn the Government of, a danger caused by a design

defect. Boyle foresees that this may happen, notwithstanding

the Government’s scrutiny of reasonably precise specifications,

and accounts for it in-the carefully crafted third requirement.

Trevino’s requirement that the Government have considered

the precise design defect at issue, or else the defense is lost,

flies in the face of Boyle’s recognition that some defective

features will escape both the contractor’s and the Govern-

ment’s evaluation.

Trevino’s attempt to account for the presence of Boyle’s third

requirement is tortured at best. Trevino states:

The Court’s inclusion of a warning element must

indicate that approval requires some level of evalua-

tion and review; otherwise a government contrac-

tor might argue one day that it should have the

benefit of the defense despite its failure to give a

warning because the government had rubber-

stamped the design, because the information

withheld would have been of no use to the govern-

ment and was not desired by the government, and

because the provision of the information would not

have affected the government’s ‘‘approval’’ of the

design.

865 F.2d at 1481. This analysis amounts to saying that the

third requirement is important so that a contractor will not

‘“‘argue one day’’ that it need not meet that very requirement;

the third requirement supports Trevino, if at all, only when

TrY?<*

Trevino assumes it away. Viewed straightforwardly, Boyle’s

third requirement refutes Trevino, for the simple reason that

the Government cannot exercise discretion to choose a design

defect that the contractor, unaware of it, has not disclosed.

The requirement that the contractor provide only reasonably

precise specifications, and that the contractor warn of only

known dangers, demonstrates that the Government contrac-

tor defense is not dependent in all cases upon the Govern-

ment’s deliberate selection of the allegedly defective design

feature. Trevino’s -central holding cannot be squared with

Boyle’s plain language or with its analytical fram” “ork.

B. Trevino’s Holding that the Courts Must Locate the

Exercise of Government Discretion as to Discrete

Design Features Threatens Undue Interference

with the Government’s Procurement Policies and

Would Frustrate the Central Concerns of Boyle.

Trevino’s interpretation of the requirement that ‘‘the United

States approved reasonably precise specifications’’ is not on-

ly semantically and logically at odds with Boyle’s three-part

test; it also portends disruptive and unworkable judicial in-

terference in the Government’s military procurement deci-

sions. Trevino thus frustrates the spirit, as well as the letter,

of Boyle.

Boyle recognizes that balancing the needs of the military pro-

curement process against the rights created by the Federal

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

judicial inquiry into the availability of the Government contrac-

tor defense in individual cases.* But it is one thing for a court

3But there is no question that the rights of injured claimants must

sometimes give way to the Government’s interest. Boyle recognizes that

‘‘the federal interest embodied in the ‘discretionary function’ exemption’

requires more than ‘‘a perfectly reasonable tort rule.’’ 108 S. Ct. at 2518.

to examine the degree of precision in the design specifications

provided to the Government by its contractors and to deter-

mine whether the Government approved those specifications,

' and quite another for the courts to evaluate in detail the

Government’s decisionmaking procedures in searching for the

elusive ‘‘exercise of discretion’’ concerning the most minute

details of equipment design. The latter exercise, required by

Trevino, will put courts in the middle of the military procure-

ment process, spawn.conflicting results on similar facts, and

burden the Government to an extent well beyond that sanc-

tioned by Boyle.

Trevino states: ‘“The trier of fact should not evaluate the

wisdom or quality of any government decision, but must locate

the actual exercise of the discretionary function.’’ 865 F.2d

at 1480. In purporting to do so, however, Trevino interprets

the meaning of Government memoranda, second-guesses the

Government’s personnel assignments, and weighs the respec-

tive expertise of the Government’s and the contractor’s

engineers. 865 F.2d at 1486. Thus, in the guise of searching

for the Government’s exercise of discretion, Trevino actually

displaces that discretion.‘ If a court disagrees with the Govern-

ment’s design choice in a given case, it need only undertake

a Trevino-like microscopic analysis of the Government’s deci-

sionmaking process to conclude that what appeared to be an

exercise of discretion, such as deciding which personnel would

review a contractor’s design proposals, was instead an ab-

dication of it. Nothing in Boyle, in the discretionary function

‘For example, Trevino acknowledges that the Government may exer-

cise its discretion through incompetent personnel, but states that the use

of incompetent personnel ‘‘may be evidence that the government does

not intend to exercise design discretion . . .”’ and concludes ‘‘[t]hat seems

to be the case here.’’ 865 F.2d at 1487 n.12. This loose analysis is carte

blanche for the courts to question, and thus to penalize through denial of

the Government contractor defense, military decisions on how to allocate

personnel resources.

exemption of the Federal Tort Claims Act, or in separation-

of-powers principles, justifies this result.

The thrust of Trevino is to minimize the role of Govern-

ment contractors in the design of military equipment. There

is functionally little difference in requiring that the Govern-

ment develop all military designs, and requiring, as Trevino

does, that the Government weigh the merits of every design

feature, no matter how detailed, developed by its contractors

for it. Trevino thus has the effect of imposing the requirement

set forth in Shaw v. Grumman Aerospace Corp., 778 F.2d 736,

746 (11th Cir. 1985), cert. denied, 108 S. Ct. 2896 (1988),

that the Government contractor’s participation in the design

process be minimal if the Government contractor defense is

to be available. Boyle, of course, expressly rejected Shaw’s

restrictive approach. 108 S. Ct. at 2518. Boyle teaches that

it is not the courts’ place to decide whether or when the

Government should rely upon contractors to develop designs

for military equipment. The practical application of Trevino

threatens exactly such interference.

C. Trevino’s Narrow Interpretation and Applica-

tion of the Government Contractor Defense

Test Conflicts With the Test as Applied in

Other Circuits.

In holding that the Government contractor defense was not

applicable in Trevino, the Fifth Circuit focused on the manner

and timing of the Government’s participation in the develop-

ment of the designs created by General Dynamics. According

to Trevino, the only method by which the approval require-

ment of Boyle can be met is by the Government’s substan-

tive review and evaluation of the allegedly defective design

feature.

‘an 10

Trevino’s interpretation of Boyle creates a conflict with other

circuits and within the Fifth Circuit itself. In Smith v. Xerox

Corp., 866 F.2d 135 (5th Cir. 1989), a case decided the same

day as Trevino, a different panel of the Fifth Circuit examined

the phrase ‘‘reasonably precise specifications’’ within the

meaning of Boyle’s first requirement. Although Smith focus-

ed primarily on this aspect of the Boyle test, it was implicit

in Smith that Government approval requires only the Govern-

ment’s review and assent, which is, as Justice Jolly stated,

a ‘‘considerably less stringent requirement than imposed by

the Trevino panel.’’ Trevino v. General Dynamics Corp., 865

F.2d 1474 (5th Cir.), reh’g denied en banc, 876 F.2d 1154,

1157 (5th Cir. 1989) Golly, J., dissenting). Although the two

Fifth Circuit panels emphasized different aspects of the

Government contractor test, a fair reading of their respec-

tive opinions places them clearly in conflict in their interpreta-

tions of Boyle.

In dissenting from the Fifth Circuit’s denial of General

Dynamics’ request for an en banc hearing, Judge Jolly, who

authored the opinion in Smith, stated: ‘‘I believe that Trevino

has effectively rewritten the Supreme Court’s test for govern-

ment contractor immunity given in Boyle .. ..’’ Id. at 1155.

Specifically, the dissent faulted Trevino’s failure to use the

‘“plain meaning’’ of approval, with the result of forcing the

Government to ‘‘establish reasonably precise specifications

. . «.’ Id. (emphasis in original). According to the dissent,

the proper inquiry under Boyle to determine whether there

has been approval is as follows:

was the challenged feature disclosed with reasonable

precision in the accepted design documents, and was

the design accepted on behalf of the government by

an officer who had, and knew he or she had, the du-

ty and authority to decline or accept the challenged

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design feature on safety grounds if he or she deem-

ed it appropriate toe do so?

Id. at 1156.

This interpretation of Boyle is supported by Harduvel v.

General Dynamics Corp., 878 F.2d 1311 (11th Cir. 1989), in

which the court stated:

In Boyle, the Court recognized a broad formulation

of the government contractor defense that shields

manufacturers of products made for the government

from tort liability for flaws in product design.

* * *

In the military context, this immunity serves the fur-

ther important purpose of shielding sensitive military

decisions from scrutiny by the judiciary, the branch

of government least competent to review them.

Id. at 1315.

In upholding the Government contractor defense, Harduvel

stated that the ‘‘defense requires ‘only that the government

approve reasonably precise specifications,’ and is met where,

as here, the contractor incorporated government performance

specifications into a design that the government subsequent-

ly reviewed and approved.”’ Jd. at 1320 (citing Smith v. Xerox

Corp.).

The notion of Government approval suggested in Smith and

applied in Harduvel is clearly broader than that found in

Trevino. While Trevino demands greater involvement by the

judiciary in determining whether the military made appropriate

procurement decisions, Smith and Harduvel recognize Boyle's

purpose to preserve the military’s discretion in the procure-

ment area. Clearly, Tvevino’s narrow interpretation of approval

cannot be reconciled with the broad interpretation of the

Government contractor defense set forth in Boyle and follow-

ed in both Smith and Harduvel.

D. The Navy’s Continued Use of the Equipment with

Knowledge of the Alleged Defects Constitutes

Approval under the Government Contractor

Defense.

Boyle does not address the issue of when the Government’s

approval of a design must occur. Lower courts have held that

the Government’s approval can be manifested by the subse-

quent use of the equipment by the military where such use

is accompanied by the military’s knowledge of the alleged

defect. In Schwindt v. Cessna Aircraft Co., CV485-472 (S.D.

Ga. 1988), the court refused to limit the time of Government

approval to the design and delivery stages, stating as follows:

the relevant time to evaluate the first prong is not

limited to the time when the Air Force originally took

delivery of the 0-2 aircraft. The Air Force’s later

decisions regarding the equipment may constitute

approval of reasonably precise specifications.

Mem. Op. at 7.

Although there was ample evidence in Trevino that the Navy

used the diving chamber with the knowledge of, and after ex-

perience with, the alleged design defects, Trevino failed to

give this fact any weight in its decision. This failure overlooks

a wealth of subsequent history and puts Trevino in conflict with

other circuits on this score as well.

In Dowd v. Textron, Inc., 792 F.2d 409 (4th Cir. 1986), cert.

denied, 108 S. Ct. 2897 (1988), the contractor had designed

the equipment without any participation by the Army.

However, the court found that the contractor met its burden

of proving that the Government approved reasonably precise

specifications when it showed that the Army. continued to use

the equipment after learning of the design defects. Indeed,

the Government’s decision to continue to use the equipment

with the known defects ‘‘amply establish[es] government ap-

proval of the alleged design defects.’’ Jd. at 412; see also

Ramey v. Martin-Baker Aircraft Co., 874 F.2d 946 (4th Cir.

1989). Thus, even in the absence of contemporaneous con-

sideration of the design by the military, these cases conclude

that approval by the Gevernment occurs when the military

makes use of the equipment after obtaining knowledge of the

design defects.

The facts in Trevino were that the Navy knew of the alleg-

ed defects from the time it began to manufacture the diving

chamber and on at least four occasions had experienced pro-

blems similar to the one that occurred on the date of the acci-

dent. The Navy’s continued use of the diving chamber with

knowledge of the alleged design defects constituted approval

under prior case law — Trevino’s failure to credit these facts

puts it into direct conflict with that case law and further sup-

ports General Dynamics’ petition.5

5Similarly, Judge Jolly would hold that when the Government makes use

of equipment for a period of years with no complaints, and has knowledge

of design defects, it has approved the contract specifications within the

meaning of Boyle. 876 F.2d at 1156.

CONCLUSION

For the foregoing reasons, Amicus Aerospace Industries

Association of America, Inc. urges that the petition for a writ

of certiorari be granted.

Respectfully submitted,