Opposition Brief — Wainwright v. United States

FEB 1 1991

F. SPANIOL,

In the Supreme Court of the Gnited States

OCTOBER TERM, 1990

ROBERT M. WAINWRIGHT, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney General

ROBERT S. GREENSPAN

LORI M. BERANEK

Altorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals correctly held that the

United States was not liable under the Federal Tort Claims

Act for injuries suffered by an employee of a subcontrac-

tor working on a government facility because, under Loui-

Siana’s workers’ compensation law, the United States was

a “statutory employer” of the injured worker.

(I)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Berry v. Holston Well Services, Inc. , 488 So. 2d 934

eb Us & sao Wn kh a end 6 a

Bowen v. Massachusetts, 487 U.S. 879 (1988) ...

Chaline v. United States, 887 F.2d 505 (Sth Cir.

1989), cert. denied, 110 S. Ct. 1115 (1990) ...

Crider v. United States, 885 F.2d 294 (Sth Cir. 1989),

cert. denied, 110 S. Ct. 2561 (1990) .........

DiMella v. Gray Lines of Boston, Inc. , 836 F.2d 718

dee Cr FAW Ok os wee 8 08

Doggett v. United States, 858 F.2d 555 (9th Cir.

oe dR ne Wid a Su oa aeRO ie OR ko 8 ss

Ewell v. United States, 776 F.2d 246 (10th Cir.

ee ei he a ee Ve ok Gack ek SER ce

Frisby v. Schultz, 487 U.S. 474 (1988) .........

Giltner v. United States, 894 F.2d 1334 (Sth Cir.),

cart. Gemied. fi) S. <2. 55 CiSse) ...........

Hebert v. United States, 860 F.2d 607 (Sth Cir.

ee Ske ua) ee aeons pe Mewes

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

eS Sa i a it a ee ee eed tw hei

Klohn v. Louisiana Power & Light, 406 So. 2d 577

er a oe rd aa a

Leigh v. NASA, 860 F.2d 652 (Sth Cir. 1988) ..

Louie v. United States, 776 F.2d 819 (1985) ....

(111)

Cases — Continued:

Mandel v. United States, 719 F.2d 963 (8th Cir.

SOE is wks sade eee ee hee ee ens

Raymer v. United Staies, 660 F.2d 1136 (6th Cir.

1981), cert. denied, 456 U.S. 944 (1982) .....

Rayonier, Inc. v. United States, 352 U.S. 315

FN ooo obs c cue TOES ERR Puke ROA aes

Schindler v. United States, 661 F.2d 552 (6th Cir.

Bh i 6. oe RK VE Rs AEC ee ack

Thomas v. Calavar Corp., 679 F.2d 416 (Sth Cir.

No aie RE CE aa 00. Reo ee

United States v. Muniz, 374 U.S. 150 (1963) ...

Wright v. United States, 719 F.2d 1032 (9th Cir.

SET. eck Ecker agae cca el tet Loree, tii

Statutes:

Federal Tort Claims Act:

i'n cbt GA n eke ewe p

ee Pe SE so n'a cg ab nah ewan ys

Ege Se oe: a A ere ee a

La. Rev. Stat. Ann. § 23:1061 (West 1985 & Supp.

Ec PE Beck cle oe cia is oa ee te ie

Miscellaneous:

IL. Javson, Handling Federal Tort Claims (1989 &

ES CRE oan 3 vk ce oe ra etka ke ete

nN

Page

—

In the Supreme Court of the Gnited States

OCTOBER TERM, 1990

No. 90-862

ROBERT M. WAINWRIGHT, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINIONS BELOW

The opinions of the court of appeals, Pet. App. 12a-14a,

and of the district court, Pet. App. la-lla, are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

September 5, 1990. A petition for rehearing was denied on

October 2, 1990. Pet. App. 16a. The petition for a writ of

certiorari was filed on November 23, 1990. The jurisdic-

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

STATEMENT

1. In this suit under the Federal Tort Claims Act, 28

U.S.C. 1346(b), 2671-2680, petitioner Rot ert Wainwright

(1)

tr

seeks damages from the United States for injuries that he

sustained while working on a construction project at the

Veterans Administration (VA) hospital in Pineville, Loui-

siana. The United States, through the VA, contracted with

Westerchil Construction Company to build a nursing home

care unit. Westerchil subcontracted with Moreno, Inc. —

petitioner’s employer —to install underground water pipes

for the unit. Petitioner suffered a serious injury when the

ditch in which he was working caved in on him. He then

brought this suit against the United States for negligent

failure to provide a safe workplace and to take adequate

steps to protect workers against the possibility of a cave-

in. Pet. App. 2a-3a, 12a-13a. !

2. The government moved for summary judgment,

arguing that under Louisiana’s workers’ compensation law

the United States was Wainwright’s “statutory employer”

and, consequently, was not liable in tort for his injuries.'

Pet. App. la-2a. The district court granted the motion. It

noted that the FTCA permits “recovery in tort against the

United States only ‘under the 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.’” Pet. App. 3a. Under Louisiana

law, the court continued, the proper test for determining

whether the government qualifies as a statutory employer

' Under Louisiana’s workers’ compensation law, workers’ compen-

sation benefits are an injured worker’s exclusive remedy against his

employer. When a principal contracts with an independent contractor

for the performance of work that is part of the principal’s business,

the principal is — under circumstances discussed further below — deemed

an employer of the contractor’s employees. La. Rev. Stat. Ann.

§ 23:1061 (West 1985 & Supp. 1990); see Pet. App. 20a-24a. (As noted

below, an amer ‘ment to the statute enacted in 1989 is not effective

with respect to this case.)

The defense that these provisions afford to a principal is commonly

referred to as the “statutory employer defense.”

ar

cs

is “whether the contractor was performing the government’s

trade, business, or occupation.” /d. at Sa-6a. Although it

recognized that in Berry v. Holston Well Service, Inc., 488

So. 2d 934 (1986), the Louisiana Supreme Court had

developed a more “stringent definition of a statutory

employer” for private employers, the court adhered to prior

Fifth Circuit decisions holding that the Berry test was in-

applicable as a matter of state law to governmental entities.

Pet. App. 5a-6a (citing Chaline v. United States, 887 F.2d

505, 506-507 (Sth Cir. 1989), cert. denied, 110 S. Ct. 1115

(1990); Leigh v. NASA, 860 F.2d 652, 653 (Sth Cir. 1988);

Thomas v. Calavar Corp., 679 F.2d 416, 418-419 (Sth Cir.

1982)). The district court concluded that “the United States

was [petitioner’s] statutory employer and his exclusive

remedy is under the Louisiana Workmen’s Compensation

Law.” Pet. App. 8a.

3. Inan unpublished decision, the court of appeals af-

firmed, stating that, “in a thorough opinion,” the district

court had “correctly interpreted and applied the settled law

of this circuit.” Pet. App. I4a.

ARGUMENT

This is the most recent in a series Of cases in which the

Fifth Circuit has held that Louisiana’s statutory employer

defense bars an FTCA action against the United States by

an individual injured while working for a government con-

lractor On a government project. See Giltner v. United

States, 894 F.2d 1334 (Sth Cir.), cert. denied, 111 S. Ct.

55 (1990); Chaline, supra; Leigh, supra; Hebert v. United

States, 860 F.2d 607 (Sth Cir. 1986). In each of those cases,

the court of appeals has held that the United States’ liabili-

ty should be determined by reference to state-law standards

governing the availability of the statutory employer defense

to governmental entities. Last Term, in Gi/tner, this Court

4

denied a petition for certiorari seeking review of the ques-

tion whether the United States’ liability should instead be

judged by reference to the standard for private employers.

The petition in this case presents the same question. For

reasons similar to those we advanced in Giltner, further

review is unwarranted.

1. Before the Louisiana Supreme Court’s decision in

Berry, a single standard governed the availability of the

statutory employer defense to both private and govern-

mental entities in Louisiana. In cases in which an employee

of a contractor was injured while working on a public or

private project, the issue was whether the worker “was in-

jured while doing work that is part of the ‘trade, business,

or occupation’” of the principal. Thomas v. Calavar, 679

F.2d at 419; see Klohn v. Louisiana Power & Light, 406

So. 2d 577 (La. 1981). However, in Berry, a case brought

by an injured worker against a private principal, the

Supreme Court of Louisiana announced a “three level

analysis” governing the availability of the statutory employer

defense. 488 So. 2d at 937. The “central question” under

Berry is “whether the contract work is specialized or non-

specialized.” Jd. at 938. If the work is specialized, the

statutory en:ployer defense is unavailable to the principal;

if the work is not specialized, the availability of the defense

depends on whether the contract work “can be considered

a part of the principal’s trade, business or occupation” and

whether the principal “is engaged in the work at the time

of the alleged accident.” /d. at 938-939.

The Fifth Circuit has determined that, as a matter of state

law, the Berry test does not apply to cases in which the prin-

cipal is a governmental entity. As the court explained in

Hebert v. United States, 860 F.2d at 608, Berry “does not

modify the rule of [A/o/n] or [Thomas], which analyze the

statutory employer status of government entities.” The court

tay

of appeals adhered to that understanding of Louisiana law

in this case.?

In a recent amendment to Louisiana’s workers’ compen-

sation law, the Louisiana legislature has overruled Berry and

effectively restored a single test governing the availability

of the “statutory” employer defense to all emplovers. As

amended, the workers’ compensation statute now provides,

with respect to cases arising after January 1, 1990:

The fact that work is specialized or nonspecialized, is

extraordinary construction or simple maintenance, is

work that is usually done by contract or by the prin-

cipal’s direct employee, or is routine or unpredictable,

shall not prevent the work undertaken by the principal

from being considered part of the principal’s irade,

business, Or occupation, regardless of whether the prin-

cipal has the equipment or manpower capable of per-

forming the work.

La. Rev. Stat. Ann. § 23:1061 (West Supp. 1990). This new

provision does not apply to petitioner’s claim, which arose

prior to the amendment’s effective date. But this modifica-

tion of Louisiana’s workers’ compensation scheme deprives

the question presented by the petition of any prospective

importance.

2. The Federal Tort Claims Act permits suit against the

United States for injuries caused by the negligence of federal

* As petitioner appears to acknowledge, the correctness of the Fitth’s

Circuit’s construction of state law presents no question calling for this

Court’s review. See Bowen v. Massachusetts, 487 U.S. 879, 9O8 (1988)

(“We have a settled and firm policy of deterring to regional courts of

appeals in matters that involve the construction of state law.”); Prishy

\. Schultz, 487 U.S. 474, 482 (1988) (“Following our normal practice,

‘we defer to the construction of a state statute given it by the lower

- federal courts . . . to reflect our belief that district courts and courts

of appeals are better schooled in and more ab. to interpret the laws

of their respective States.” ”).

6

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.” 28 U.S.C. 1346(b); see 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 cir-

cumstances”). In several decisions, this Court has made clear

that these provisions preclude the federal government from

arguing that it is not liable for “uniquely governmental” ac-

tivities and from invoking governmental immunities con-

ferred by States on state and local governmental entities.

United States v. Muniz, 374 U.S. 150, 159, 164 (1963);

Rayonier, Inc. v. United States, 352 U.S. 315, 318-319

(1957); Indian Towing Co. v. United States, 350 U.S. 61,

64-68 (1955). In general, “the test established by the Tort

Claims Act for determining the United States’ liability is

whether a private person would be responsible for similar

negligence under the laws of the State where the acts oc-

curred.” Rayonier, Inc, 352 U.S. at 319; see Raymer v.

United States, 660 F.2d 1136, 1140-1142 (6th Cir. 1981),

cert. denied. 456 U.S. 944 (1982); Ewell v. United States,

776 F.2¢ 7-4, 248-249 (10th Cir. 1985). See generally | L.

Jaysor, Handling Federal Tort Claims §§ 217.01-217.03

(1989 & Supp. 1990).

Nevertheless, the courts of appeals have sometimes re-

ferred to state law rules applicable to state governmental

entities to determine the extent of the United States’ liabili-

ty under the FTCA. In Louie v. United States, 776 F.2d

819 (1985), for instance, the Ninth Circuit concluded that

the federal government’s liability for an allegedly negligent

failure by military police to restrain an intoxicated service-

man “rests properly on an examination of the liability of

the state or a municipality under like circumstances.” /d.

at 825; see Crider v. United States, 885 F.2d 294, 296 (Sth

Cir. 1989), cert. denied, 110 S. Ct. 2561 (1990) (following

ae at Hoe

Louie); Doggett v. United States, 858 F.2d 555, 561 (9th

Cir. 1988) (where “unique governmental functions” are in-

volved, court seeks “to determine what liability state law

attaches to * * * analogous entities subject to its jurisdic-

tion”).* The rationale of these decisions appears to be that

when a State has exposed governmental entities to suit, a

court may properly refer to laws defining the extent of their

liabilities for the purpose of determining the scope of the

United States’ FTCA liability.

In our view, this is not an appropriate case in which to

consider the question of when, if ever, a federal court may

refer to state-law rules applicable to governmental entities

in determining the extent of the United States’ liability under

the FTCA. Unlike Indian Towing, Rayonier, and Muniz,

this is not a case in which the federal government relies on

the absence of a similar private function or invokes immuni-

ty granted by a State to its governmental entities —

limitations on liability that, this Court has determined, Con-

gress meant to relinquish in the Federal Tort Claims Act.

Rather, as the Fifth Circuit has read Louisiana law, Loui-

siana’s workers’ compensation scheme drew a distinction

(from the time of the Berry decision until the recent amend-

ment of the statute) between public and private entities with

respect to injuries to employees of contractors. Such a

distinction could rationally be based on intrinsic differences

between the contracting activities of governmental and

private entities or on policy considerations regarding the

relative merits of the workers’ compensation remedy and

iort jiability in the private and public sectors. The applica-

tion of ‘he Federal Tort Claims Act in that kind of situa-

tion presents a novel question. We are unaware of any deci-

’ See generally 1 L. Jayson, supra, § 217.02 (collecting cases in which

courts have reterred to standards governing municipal liability to deter-

mine federal government’s liability under the FTCA).

sion by courts outside the Fifth Circuit addressing the same

or a comparable issue.* Moreover, as noted above, Loui-

siana’s recent amendment to its workers’ compensation law

has mooted the issue as to claims arising after January 1,

1990. Under these circumstances, further review is not

warranted.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney General

ROBERT S. GREENSPAN

LORI M. BERANEK

Altorney

FEBRUARY 199]

+ None of the cases cited in the petition, Pet. 20, 24, involved a situa-

tion in which the court isolated separate rules for private and govern-

mental entities and chose to apply the latter in determining the United

States’ liability under the FTCA. Rather, those cases stand for the unex-

ceptional principle that issues of liability and scope of employment must

be resolved by reference to state law. See Mandel v. United States, 719

F.2d 963, 966 (8th Cir. 1983) (United States entitled to same defenses

as individuals); Raymer v. United States, 660 F.2d at 1140-1144 (FTCA

covers “uniquely governmental” activities); see also DiMella v. Gray

Lines of Boston, Inc., 836 F.2d 718, 720 (ist Cir. 1988) (state govern-

mental immunities not available to United States); Wright v. United

States, 719 F.2d 1032, 1034-1035 (9th Cir. 1983) (same); Schindler v.

United States, 661 F.2d 552, 557-560 (6th Cir. 1981) (same).

US. GOVERNMENT PRINTING OFFICE 1991—262.061/20349