Petition for Writ of Certiorari — Figueroa v. United States
Supreme Court brief1994
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93-979 [eae on vs
DEC 16 1993
OFFICE OF THE CLERK |
No. -
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1993
ELADIO T. FIGUEROA, et al.,
Petitioners,
We
UNITED STATES OF AMERICA, et al.,
Respondents.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Bennet A. McConaughy
Counsel of Record
Edward R. Coulson
Joseph E. Delaney
FOSTER PEPPER & SHEFELMAN
1111 Third Avenue, Suite 3400
Seattle, WA 98101
(206) 447-4400
Counsel for Petitioners
December 14, 1993
eR ABS
a
QUESTIONS PRESENTED FOR REVIEW
| Whether the Federal Employees’
Compensation Act, 5 U.S.C. § 8101
("FECA"), preempts claims for non-
disabling emotional distress and increased
risk of future disease, neither of which
result from or constitute existing
physical injuries.
2. Whether FECA’s provision
restricting review of decisions of the
Secretary of Labor requires courts to
abstain from deciding questions of the
scope of FECA’s coverage which do not
arise from a decision by the Secretary.
3. Whether FECA, contrary to
virtually every other workers’
compensation statute, bars claims against
the United States for intentional or
reckless conduct.
4. Whether intentional or reckless
conduct by officers of the United States
«» Ge -«
exposing persons to a danger created by
the officers’ unlawful conduct violates
the exposed persons’ constitutional rights
to personal security under the substantive
due process clause of the Fifth Amendment
of the United States Constitution.
5. Whether officers of the United
States are entitled to qualified immunity
because they are acting as employers
rather than law enforcement officials when
creating and exposing persons to a danger.
LIST OF ALL PARTIES
The plaintiffs are:
Leo A. Abilo
Bartolome E. Abuan
Bartolome H. Abuan
Rosita P. Abuan
Angela M. P. Abuan
Patricia A. P. Abuan
Vanessa N. P. Abuan
Melanie R. P. Abuan
Esther Leon Guerrero
Bukikosa
Shawlon Tiana
Bukikosa
Romeo A. Acejo
Elisa Acejo
Pamela A. Acejo
Joy A. Acejo
Romel A. Acejo
Vicente M. Acfalle
Arlene T. Acfalle
Zachery L. T.
Acfalle
Vanessa C.T. Acfalle
Eric J. T. Acfalle
Alejandro R. Ada
Ana C. Ada
Jessica R.
Tainatongo
Gerry A. Adrillano
Pacita M. Adrillano
Bobby M.Adrillano
- iii -
Marilyn M. A. Repeki
Maesie M. A. Rote
Perlita M. Adrillano
William Jr. Adrillano
Gerry A. Adrillano
Pacita M. Adrillano
Bobby M. Adrillano
Marilyn M. A. Repeki
Maesie M. A. Rote
Perlita M. Adrillano
William Jr. Adrillano
Levi M. Adrillano
Gilbert J. Rote
Brandon G. Adrillano
William R. Repeki
Mary B. A. Repeki
Carl C. Afaisen
Mae S. Santos
David Afaisen
Jennifer Afaisen
Cecilia Afaisen
Juan 0. Aflague
Immaculada S. Aflague
Frankie S. Aflague
Mark D. S. Aflague
Danny T. Agar
Rossana S. Agar
Danny S. Agar, Jr.
Erin S. Agar
Eric S. Agar
Eduardo E. Aguon
Annette B. Aguon
Manuel E. Aguon
Ray R. Aguon
Jeanette E. D. Aguon
Gilbert A. Aguon
Jose C. Agquon
Francia P. Aguon
Linda F. Aguon
Michael V. Aguon
Rudolfo S. Agustin
Brigida C. Agustin
Barbara J. Agustin
Aiisha S. Agustin
Sherina L. Agustin
Rudolfo S. Agustin,
Jr.
Adrianne R. Agustin
Athena L. Agustin
Allan B. Alferos
Concepcion B.
Alferos
Lorenzo Alferos
Laurens John S.
Alferos
Helen L. G. Salas
Gilbert H. Alvarez
Harriet Blas
Melanie J. Alvarez
Jerry J. Alvarez
Gilbert H. Alvarez,
Jr.
Bonnie A. Blas
Christopher C. Blas
Jerson Gilbert Blas
Isabel Alvarez
Jason Anthony Blas
Pedro S. Apuron
Rosa G. Apuror
Andrew C. R. Apuron
Pedro S. Apuron, Jr.
Daisy A. J. Apuron
Carl A. Aquino
Josefina L. Aquino
Matthew L. Aquino
Carl A. Aquino
Joseph Q. Aquino
Tahnee L. G. Aquino
Donna M. Gogue
Franklin P. Arteroy
T. D. Artero
Elizabeth M. D.
' Artero
Pedro A. Atalig
Ann F. Babauta
Marla S. Babauta
Maria B. Cruz
Thomas S. Babauta
Maria M. Babauta
Paul B. Balajadia
Therese B. Briggs
Clarice B. Briggs
Audrey B. Briggs
Byron B. Briggs
Tedorsha B. Briggs
Ramon C. Balajadia,
Jr.
Gilda P. Balajadia
Don Ray P. Balajadia
Mitchell P. Balajadia
Larry Sambilay
Barrett
Flordeliza C. Barrett
Larizza C. C. Barrett
Lyn D. C. Barrett
Liezl R. C. Barrett
Rogelio V. Basto
Lilia A. Basto
Jeremy A. Basto
Jaydee A. Basto
JoAnn A. Basto
Kimberly A. Basto
Joseph P. Baza
Jose L. G. Baza
Maria P. Baza
Rogelio D. Bejerana
Elsa A. Bejerana
Roel Bejerana
Oliver Bejerana
Eleanor Bejerana
Aguon
Laurence Bejerana
iv -
Samuel A. A.
Bejerana
Bernice A. Bejerana
George R. Bell
Diana S. A. Bell
Lana J. Bell
Caroline A. Bell
Henry J. Bell
Debra M. Bell
Briant G. Bell
Bernadette M. Bell
Luciano C. Bensan
Silveria B. Bensan
Daniel B. Bensan
Crispin B. Bensan
Joseph Camacho Blas
Deborah S. Blas
Christopher J. S.
Blas
Joseph J. S. Blas
Brian A. S. Blas
Joseph M. Blas
Juan F. Blas
Juanita B. Blas
Rosie A. B. Blas
Edith M. B. Blas
Mark A. B. Blas
Peter V. B. Blas
Selma H. Guerrero
Tammy J. G. Blas
Donavan C. G. Blas
Augusto B. Blas
Josephia B. Blas
Raymond A. Blas
Doris G. Blas
Raymond A. Blas, Jr.
Franklin M. Borja
Zina M. Santos
Tesha Santos
Kayleen N. Sa1rtos
Sheena M. Santos
Jose I. Borja
Arlene B. Baza
George S. A. Baza
Chris Baza
Nick Baza
Analyn Baza
Junior F. Borja
Josephine I. Borja
Jennifer I. Borja
Pedro F. Borja
Rosemarie I. Borja
Lorie A. I. Borja
Ivan I. Borja
Jodi I. Borja
Thomas M. Borja
George C. Borja
Amelia M. Borja
Doines M. Borja
Jeffrey M. Borja
Daniel B. Bunoan
Maria P. Bunoan
Carolyn P. Bunoan
Crystal P. Bunoan
Bridget P. Bunoan
Monica P. Bunoan
Dennis B. Caasi
Deding B. Caasi
Dennis B. Caasi, II
Dennisa Caasi
Roberto E. Cabreza
Beverly C. C. Cabreza
Matthew E. C. Cabreza
Ashlee R. C. Cabreza
Simeon S. P. Cachero
Donald I. Calvo
Maria S. Calvo
Isabel J. Calvo
Genessa S. Calvo
Zeriah K. Calvo
Joshua M. Calvo
Gregory S. Camacho
Bernadette F. Santos
Trina Rose Santos
Kanaryn Joy Santos
Serapio T. Cardines
Anacleto D. Carpela
Vilma C. Carpela
Matt C. Carpela
Rebecca C. Carpela
Rosa C. Carpela
Eleuteria D. Carpela
Anthony Q. Castro
Rose M. Castro
Krystal N. M. Castro
Jacob A. Castro
Beatrice Q. Castro
Jesus S. N. Castro
Anita Q. Castro
Joseph Q. Castro
David B. Castro
Carina D. Castro
David J. D. Castro
Nathan D. D. Castro
Jose R. Duenas
Rosario P. Duenas
Ernest C. Castro
Selina C. Castro
Ernest C. Castro,
Jr.
Fanti C. Castvo
Joseph C. Cas“ro
John B. Castro
Bernadita R. Castro
Bennett Marie R.
Castro
Frank A. R. Castro
Lynette Ann R.
Castro
Joseph John R.
Castro
Johnny C. Newby
Joseph Michael Newby
- vi -
John Newby
Noel G. Castro
Ana Garredo Castro
Randolph I. Castro
Ann Marie Quenga
Castro
Roseanne Marie Quenga
Castro
Rachel Ann Quenga
Castro
Richard J. Castro
Mark G. Cepeda
Esper Josita Mondina
Marc R. Cepeda
Jesse B. Chaco
Jesus B. Chaco
Virginia B. Chaco
Jeffrey B. Chaco
John Vincent B. Chaco
Harold Jr. Charfauros
Cecilia M. Charfauros
Verony A. M.
Charfauros
Harold Charfauros Jr.
Christina M.
Charfauros
Nora L. Charfauros
Luis T. Charfauros
Rosie M. Charfauros
Luis M. Charfauros
III
AnnMarie J.
Charfauros
John E. M. Charfauros
Justin C. M.
Charfauros
Vanessa R. T.
Charfauros
Charlie A. Chequina
Eloise T. Chequina
Jose Q. Chiquina
Guadalupe T.
Chiquina
Annabel C. Borja
Vincent J. T.
Chiquina
Lucinda M. T.
Chigquina
Leonides H. Corcuera
Lolita C. Corcuera
Patrocinio C.
Corcuera
Francisco C.
Corcuera
Julie M. Corcuera
John Gilbert M.
Corcuera
Nersty C. Corcuera
Beverly Jane T.
Corcuera
Ian Kenneth T.
Cunanan
Neil Ross T.
Corcuera
Mario Salayon Cortez
Dolores R. Cortez
Swellen R. Cortez
Elder R. Cortez
Jenny R. Cortez
Lourdes G. Cortez
Nenita C. Baldovino
Nelson V. Baldovino
Gloria G. Cortez
Estelita G. Cortez
Jose Adriano G.
Cortez
Rogelio G. Cortez
Rodrigo G. Cortez
Neal P. C. Baldovino
Nicolette C.
Baldovino
Lourdes C. Aq iino
- vii
Geraldine C.
Baldovino
Kevin C. Baldovino
Renz C. Cortez
Alan S. Cruz
Janet B. Cruz
Josephine S. Cruz
Atanacio A. Cruz
Robin R. Cruz
Josephine C. Alforque
Benny S. Cruz
Gertrudes J. M. Cruz
Jennifer M. Cruz
Yvonne M. Cruz
Maurice V. Cruz
Liga R. Cruz
Charles G. Cruz
Rita B. Cruz
Charles B. Cruz
Andrew B. Cruz
Eric E. Cruz
Linda M. T. Cruz
Mandy J. Cruz
Nicole E. Cruz
Derrick C. Cruz
Francisco A. Cruz
Ignacia C. Cruz
Marvin A. Cruz
Edwin T. Cruz
Francisco A. CruzZ,
Jr.
Barbara R. Cruz
Darlene G. C. Pereda
Corina M. Cruz
Dawn N. Cruz
Leonard R. Cruz
Nekita F. Cruz
Arlene J. C. Remis
Naomi S. Cruz
William A. Cruz
Frank S. Cruz
Erbuta D. Cruz
Jean D. Cruz
Glenn R. Cruz
Anna C. Cruz
Naomi C. Cruz
Vanessa C. Cruz
Valene C. Cruz
Isidro P. Cruz
Anita N. Cruz
Isidore D. N. Cruz
Irma P. N. Cruz
Isaac Leo N. Cruz
Jose Acfalle Cruz
Dolores M. Cruz
Jose A. Cruz, Jr.
Mara L. M. Cruz
Douglas K. M. Cruz
Marvin E. Cruz
Jacqueline M. Cruz
Kasie L. M. Cruz
Kenny L. M. Cruz
Koryn L. M. Cruz
Victor S. Cruz
Brigida F. Cruz
Vincent G. C. Cruz
Carmelita A. Cruz
Lelani T. A. Cruz
Dwayne F. A. Cruz
Gerald J. A. Cruz
Vicente M. Cruz
Victoria C. Cruz
Victor S. Damian
Maria S. Damian
Engracio B. Damian
Primo J. Dancel
Kimi N. Dancel
Virginia Dancel
Kiyomi N. Kayo
Munetaka Kayo
Mika D. Kayo
Ken Kayo
- viii
Tadashi Kayo
Candido Dela Cruz
Ana B. Dela Cruz
Teresa M. Dela Cruz
Mario G. Delos Reyes
Lydia R. Delos Reyes
Feroza T. Delos Reyes
Imelda D.R. Zacarias
Nia Deen D.R. Lim
Roger B. Delos Reyes
Santiago G. Delos
Reyes
Herminia B. Delos
Reyes
Helma B. Delos Reyes
Allan B. Delos Reyes
Roy D. Dema-Ala
Stoney Thomas DeMent
LaDonna R. DeMent
Jeffrey S. Reyes
Karlene K. Reyes
Michael A. DeMent
Darrell DeMent
Carlos A. Deocampo
IIl
Clarita A. Deocampo
Carlos C. Deocampo
Leslie E. Dezell
Elizabeth G. Dezell
Steven A. Dezell
Stephanie G. Dezell
Francisco U. Diaz
Antonia C. Diaz
Raymond C. Diaz
James C. Diaz
Frances R. C. Diaz
Claire M. C. Diaz
Vicente C. Diaz
Catherine P. Diaz
Vincent P. P. Diaz
Julian A. P. Diaz
Melissa C. P. Diaz
Mariano D. Doronila
Rosalina J. Doronila
Marfil G. Doronila
Jay J. Doronila
Ilyn J. Doronila
Antonio U. Duenas
Ann C. Duenas
Brian A. C. Duenas
Brandon J. C. Duenas
Johnny Castro Duenas
Mary B. Duenas
Roy B. Duenas
Winnie M. B. Duenas
Juan C. Duenas
Randolph C. Duenas
Johnny C. Duenas
Roland C. Duenas
Frederick C. Duenas
Leonora C. Duenas
Michael C. Duenas
Pauline C. Duenas
William M. Dulla
Ana Selna J. Dulla
Winchell J. Dulla
Annette J. Dulla
Eddie R. H. Dungca
Teodora M. Dungca
Dominic M. Dungca
Darcy James M.
Dungca
Mamerto C. Dusaban
Helendres H. Dusaban
Chester Ryan H.
Dusaban
Chastity June H.
Dusaban
Chona H. Dusaban
Jerry Reyes Enaligo
Margarita R. Enaligo
Jerry R. Enaligo
eee enn eee
Andre’ R. Enaligo
Jayleen R. Enaligo
Paul Borja Enriquez
Jacqueline I.
Enriquez
Krisha L. Enriquez
Caressa C. Cardona
Pedro C. Esteban
Maria D. Esteban
Peter D. Esteban
Mary D. Esteban
Paul D. Esteban
Edward Pp. Esteban
Bruce A. Estrada
Ofelia A. Estrada
Jenett E. Bozant
Bruce A. Estrada, Jr.
Caroline A. Estrada
Robert A. Estrada
Mary Jane E.
Schneider
Annabel A. Estrada
Charles E. Ettleman
Betty Ann Ettleman
Crystal Ettleman
Curtis Ettleman
Joseph Eustaquio
Frances S. Eustaquio
Hope A. Eustaquio
Johnny E. Farnum
Julie Q. Farnum
Johnny Jr. Farnum
Jason C. Farnum
Jaclyn L. Q. Farnum
James P. Fejeran
Jesus C. Fejeran
Serafina P. Fejeran
Francis P. Fejeran
Antoinette C. P.
Fejeran
Frances C. Quitugua
Felix Fernandez
Eladio T. Figueroa
Suzette C. Figueroa
Leilani M. Figueroa
Othilia R. Figueroa
Leandra L. Figueroa
Antonio P. Flores
Paul B. Flores
Vicente S. Flores
Maria A. Benavente
Vincent B. Flvzres
Bruce B. Flores
Albert A. Benavente
Monica A. Benavente
Frederico P. Franco
Leonor A. Franco
Nelson A. Franco
Stella A. Franco
Daniel M. Fujikawa
Kelly R. Fujikawa
Amanda R. Fujikawa
Antonio K. Fujikawa
Augeda M. Fujikawa
Antonio S. N.
Fujikawa
Eloy M. Fujikawa
William M. Fujikawa
Joyce M. Fujikawa
Dennis C. Garcia
Matilde T. Garcia
Darrell C. Garcia
Desiree C. Garcia
Dailene C. Garcia
Anthony M. Garrido
Luisa P. Quintanilla
Charles M.
Quintanilla,Jr.
Vanessa A.
Quintanilla
Chris P. Quintanilla
Valery A. Garrido
Jose Ulloa Garrido
Carolyn R. Garrido
Raul V. R. Garrido
Joshua A. Garrido
Michael L. G. Garrido
Martha I. Garrido
Christopher M.
Garrido
Chrisynda M. Garrido
Jesus A. Gogo
Francisco M. Santos
Joseph S. Gogo
Pedro A. S. Gogo
Lourdes G. Rosario
Dolores S. Gogo
Jesus S. Gogo
Vicente S. Gog
Elizabeth S. Gogo
Henry G. Goss
Ana P. Goss
Francis B. Guerrero
Francis E. Guerrero
Asuncion P. Guerrero
Erica P. Guerrero
Jacob P. Guerrero
Francisco Esteban
Guerrero
Teresita S. A.
Guerrero
Peter J. A. Guerrero
Paul M. A. Guerrero
Andrew G. A. Guerrero
Lawrence D. A.
Guerrero
Vivian C. Guerrrero
Matthew R. C.
Guerrero
Dolores S. N. Guzman
Duke J. S. N. Guzman
Darry J. S. N. Guzman
Leon S. N. Guzman
’
Leena D. S. N.
Guzman
Duane R. Harrison
Bernice Harrison
Thomas P. Heacock,
wes
Rafael Hermosilla
Jesse E. Hermosilla
Charles Hermosilla
Wayne Hermosilla
Connie E. Hermosilla
Helen E. Hermosilla
Esther E. Hermosilla
Scott E. Hermosilla
Esmeralda Hermosilla
Juan S. A. Hernandez
Amancio S. Hitosis
Felicita G. Hitosis
Kevin G. Hitosis
Yolanda G. Hitosis
Glenn G. Hitosis
Cecile S. Holloway
Calvin E. Holloway,
Sr.
Terence M. S.
Holloway
Kimberly S. Holloway
Michelle H. Holloway
Eileen T. Holloway
Milton Holt
Bobby S. Ignacio
Artemio Inocencio
Katsuko S. Inocencio
Dolores S. Inocencio
Teresa S. Inocencio
Monte Inocencio
Mathiot
Almitra Inocencio
Francisco S. Isezaki
Vivian S. Isezaki
Franklin S. Isezaki
» gh o
Francine S. Isezak
Kevin S. Isezaki
Orlene S. Isezaki
Jeremiah S. Isezaki
Joseph G. Jackson,
Jr.
Christine M.
Manibusan
Shawn Jackson
Ryan Jackson
Derick Jackson
Benedicto V. Laher
Teodora A. Laher
Johnny G. Lava
Augusto C. Laxamana
Candida L. Laxamana
Carolyn L. Laxamana
Elsa M. L. Laxamana
Rex S. L. Laxamana
Hill D. Leon Guerrero
Julia C. Leon
Guerrero
Hill C. Leon
Guerrero,
Jr.
Patrick C. Leon
Guerrero
Joann C. Leon
Guerrero
Joleene C. Leon
Guerrero
Sergio Leon Guerrero
Maria G. Leon
Guerrero
Marilyn E.L.G.
Quintanilla
James G. Leon
Guerrero
Sylvia G. Leon
Guerrero
Joseph Jr. G.Leon
Guerrero
Edward G. Leon
Guerrero
Christine M.L.G.
Quintanilla
Richard A.
Quintanilla
Iil
Ron L.G. Quintanilla
Naomi N. Leon
Guerrero
Richard A.
Quintanilla, Jr.
Jeromiah K. P.
Lizama
John P. Lizama
Maria P. Lizama
Glenn P. P. Lizama
Gary A. P. Lizama
Bryon T. P. Lizama
Dwayne L. P. Lizama
Jose C. Llameio
Terry T. Llamelo
Joann M. Llamelo
Jennylynn Llamelo
Joey Jr. Llamelo
Jesse J. Llamelo
Jeanette Llamelo
Alvin P. Lorenzo
Lillian B. Lorenzo
Joshua R. Baluyut
Jaimee B. Lorenzo
Janet B. Lorenzo
Renee A. Lorenzo
Joaquin J. D. Lujan
Brigida P. Lujan
Joanne D. P. Lujan
Joaquin J. D. Lujan,
ge
Manuel L. Lumbang,
Sr.
- xii
Hermana A. Lumbang
Claudia C. Lumbang
Susan A. Lumbang
Rene A. Lumbang
Nora A. L. Arellano
Wilfredo A. Lumbang
Pablo R. Lustiano
Ruby S. Lustiano
Richard S. Corbilla
Paul S. Lustiano
Leslie S. Lustiano
Eva M. S. Lustiano
Carlito L. Macaraeg
Virginia A. Macaraeg
Joayde A. Macaraeg
Carlota A. Macaraeg
Jose B. Mafnas
Mae M. Mafnas
Joseph J. M. Mafnas
Carl J. M. Mafnas
Marylee R. M. Mafnas
Michael J. M. Mafnas
Malissa R. M. Mafnas
Jose Santos Mafnas
Bernadita T. Mafnas
John T. Mafnas
Joseph T. Mafnas
Jeffrey T. Mafnas
Bernice T. Mafnas
James T. Mafnas
Juanito E. Magnase
Leonora L. Magnase
Francisco T.
Manalisay
Maxima C. Manalisay
Frances A. C.
Manalisay
Benny C. Mandapat,
Sr.
Elma P. Mandapat
Edwin P. Mandapat
Benny C. Mandapat,
Jr.
Bobby P. Mandapat
John A. Manibusan
Geraldine A.
Manibusan
Joseph G. Manibusan
Keisha R. Manibusan
Joseph H. Manibusan
Jesusa E. Manibusan
Therese C. Iglesias
Rose M. Castro
Peter P. Manibusan
Lelani M. Manibusan
Charles R. Manibusan
Jovita G. Manibusan
Jose M. Manibusan
Christopher G.
Guerrero
Ester M. Guerrero
Myron T. Guerrero
Roy Victor Mantanona
Mary T. Mantanona
Shirley J. Mantonona
Roy Jr. Mantonona
Kenneth B. Mantanona
Lynna A. Mantanona
Jocelyn M. Mantanona
Gene J. Mantanona
Joleen C. Mantanona
Jennilyn T.
Mantanona
Danny Marges
Mary Jane J. Marges
Diane J. Marges
Desiree J. Marges
Danny Boy Marges
Oly D. Marquez
Leonides S. Marquez
Ester M. Maillonx
Roderick S. Marquez
- xiii
Joselito S. Marquez
Gavino T. Mateo
Maria V. Warner
Ronald G. Warner
William L. Meeks
Mary A. T. Meeks
Isaac J. T. Meeks
Bill A. T. Meeks
Lisa M. T. Meeks
Albert P. Mendiola
Evangeline Torres
Bryan R. Mendiola
Alberta M. Mendiola
Stephanie L. Torres
Antonio M. Mendiola
Lucia C. Mendiola
Glenn A. Mendiola
Robert M. Mesa
Florencia M. Mesa
Joaquin M. Mesa
Arnold M. Mesa
Luis M. Mesa
Annie M. Mesa
Rose G. Quintanilla
Nadine S. Quintaniila
Laralynn R.
Quintanilla
Reanna J. Quintanilla
Christobal N.
Quintanilla
Rosalia G.
Quintanilla
Freddie A. Mesias
Jacqueline Mesias
Agustin A. Mesias
Caitlin Mesias
Joel A. Mesias
Caridad A. Mesias
Jesus A. Mesias
Ernesto A. Mesias
Susan A. Mesias
Chona A. Mesias
Esmeraldo M.
Monterde
Maria S. Monterde
Frank A. Sablan
Maria T. S. Monterde
Juan T. Naputi
Josephine M. Naputi
Christine M. Naputi
Annette M. Naputi
John H. M. Naputi
Valerie M. Naputi
Baby Jo M. Naputi
Peter J. D. Nauta
Jesus M. Nauta
Maria D. Nauta
Pauline J. D. Nauta
Frederick E. Oakes
Neri C. Ogo
Ioana C. M. Ogo
Michelle A. M. Ogo
Neri H. M. Ogo
Veronica B. Ogo
Josefa J. C. Borja
Joseph A. B. Ogo
Ramon A. B. Ogo
Michele Okiyama
Limtiaco
Vicente C. G.
Okiyama
Angelina B. Okiyama
Benny A. Okiyama
Cordina M. Okiyama
Eugene D. Okiyama
Abraham 0. Ordona
Rosita E. Ordona
Dina R. Ordona
Carino
Monica M. Ordona
Lacy
Leoneal A. Ordona
| |
- xiv -
Abraham J. Ordona
Aris E. Ordona
Jonathan O. Lacy
Eric V. Carino
Willard J. M. Lacy II
Jacinto M. Pablo
Teresita C. Pablo
Jennifer J. Pablo
Jared J. Pablo
Alfredo C. Pangelinan
Felisa D. Pangelinan
Gregory D. Pangelinan
Fred D. Pangelinan
Benny D. Pangelinan
Rosalinda D.
Pangelinan
Monica D. Pangelinan
Alicia D. Pangelinan
Marissa D. Pangelinan
David G. Pangelinan
Doris M. Salas
Joseph F. Pangelinan
Maria B. Pangelinan
Joseph F. Pangelinan,
Jr.
Zina M. Pangelinan
Melvin J. Pangelinan
Steven J. Pangelinan
Joseph S. Pangelinan
Maria N. Pangelinan
Marie P. Lizama
Gerald N. Pangelinan
Lisa J. Pangelinan
Scott D. Pangelinan
Christopher J. Lizama
John Q. Lizama
Ernesto S. Patague
Araceli A. Patague
Ernesto A. Patague,
UE.
Eugene A. Patague
Erson A. Patague
Earl J. A. Patague
Ervin A. Patague
Edward A. Patague
Castor N. Patino
Arsenia P. Patino
Ailene Patino
Clarito Patino
Carlito Patino
Juan P. Patubo
Avelina P. Patubo
Irenea P. Fontanella
Albino P. Patubo
Charito R. Patubo
Alvin J. R. Patubo
Alexander R. Patubo
Francisco G. Paulino
Juana M. Paulino
Jenny R. M. Paulino
Michelle M. Paulino
Christine M. Paulino
Timothy F. Paulino
Franklin J. M.
Paulino
Matilda L. G.
Paulino
Myra R. L. G.
Paulino
Anica L. L. G.
Paulino
Reiko L. G. Paulino
Francisco G. Pereda
Linda J. Teodoro
Anthony S. Perez
Jacqueline M. E.
Perez
Paul A. EB. Perez
Teresa M. E. Perez
Antonio P. Perez
Maria F. Perez
Thomas L. Perez
- XV
Salvador Perez, Jr.
Concepcion S. N.
Perez
Benjamin P. Posadas
Rosemarie J. T.
Posadas
Gabriel B. T. Posadas
Jonah J. T. Posadas
Michael A. Prejean
Diane D. Prejean
Matthew A. Prejean
Carol J. Prejean
Bernadita G. Tenorio
Jose A. Hamamoto
David R. Quenga
Rosaleen D. Cruz
Larry Lizama Quenga
Anita S. I. Quenga
Juan B. Quichocho
Martha M. Quichocho
Jesse V. Quichocho
Yvonne M. Quichocho
Cheryl A. Quichocho
John R. Quichocho
James R. Quichocho
Don Steven Quinata
Joaquin N. Charfauros
Natividad Q.
Charfauros
Cherilyn B. Reyes
Jesus Q. Quinata
Inez C. Quinata
Lina M. Quinata
Michael J. Quinata
Ricky C. Quinata
Francis P. Quinata
Joaquin Q. Quinata
Maria S. Quinata
Jeffrey J. Quinata
Frankline J. Quinata
Evangeline S.
Quinata
Kenny S. Quinata
Sonny S. Quinata
Christopher §&
Quinata
Roy A. Quinata
Tony A. Quinata
Cecilia R. Quinata
Tony Jr. R. Quinata
Lena R. R. Quinata
Sheela R. Quinata
Sonya R. Quinata
Danny G. R. Quinata
Rosario A. Quinata
Rudy Q. Sanchez
Tom C. Quitugua
Maria C. Quit.igua
Frank J. Quitugua
Lisa C. Quitugua
Ryan J. Ragadio
Richard R. Ragadio
Rana S. Ragadio
Andresina A. Ragadio
Richard G. Ragadio
Richard M. Ragadio
George M. Raguindin
Elizabeth G.
Raguindin
George D. Raguindin
Yvonne R. Raguindin
Jennifer A.
Raguindin
Mark A. Raguindin
Annette M. Raguindin
Enrique C. Rama
Teresita Rama
Joel L. Rama
Jessica L. Rama
Bernardino A.
Ramirez
Vincent H. Ramos
- xvi -
Florante R. Rebanal
Susan S. J. Briola
Lucas B. Rebanal
Anthony F. Reyes
Pedro T. Reyes
Helen F. Reyes
Peter F. Reyes
Ashley R. Nanete
Darla Reyes
Ronald Reyes
Jeremia C. Reyes
William C. Reyes
Callen C. Reyes
Wilfred C. Reyes
Ana C. Reyes
Bertrand M. Reyes
Kenneth E. Rhein
Lorraine M. Rhein
Larry Rhoden
Adolpho S. Roberto
Estella C. Roberto
Edward C. Roberto
Brenda C. Roberto
Danny C. Roberto
Jesse A. Rodriguez
Bernice S. Rodriguez
Jesse P. Rodriguez
John A. Rosario
Cecilio C. Sablan
Victoria P. Sablan
Jude G. Sablan
Diana R. Sablan
Jesse A. Benavente
Albert P. Padua, Jr.
Jesse C. S. Benavente
Tessie A. S.
Benavente
Diana Jean S.
Benavente
Frankie L. G. Sablan
Anita S. Sablan
Arlene S. Sablan
Darlene S. Sablan
Franklin S. Sablan
Glenn T. Salanga
Elaine S. Salanga
Glenn T. Salanga,
Jr.
Brian J. Salanga
Jonathan S. Salanga
Sherilynn S. Salanga
Elisha S. Salanga
Joseph M. Salgado
Rosie A. Barrera
Joseph J. Salgado
Donna Lee Salgado
Paul I. Salgado
Eddie I. Salgado
Shirley I. Salgado
Cynthia T. Salgado
Audrey G. Salgado
Ana I. Salgado
Arsenio C.
Salumbides
Vincent P. San
Agustin
Natividad T. Quenga
Tracy Q. Duenas
Danella Q. Duenas
Delores Q. Duenas
Merissa Q. Duenas
Michelle Q. Duenas
Melanie Q. Duenas
Bobbie Jo T. Quenga
Jacquelin R. Quenga
Carmen Marie San
Agustin
Ann Carlene San
Agustin
Romulo D. V. Sanchez
Annie M. Sanchez
Romeo J. Sanchez
- xvii -
Audrey T. Sanchez
Ronnie M. Sanchez
Francisco Q. Santiago
Antoinette W.
Santiago
Jeremiah W. Santiago
Joseph J. W. Santiago
Anthony G. Santos
Christina L. S.
Camacho
Anthony G. Santos,
Jr.
Tia Lynn Santos
Henry S. N. Santos
Maria D. Santos
Rosa S. Santos
Henry D. Santos
Jose D. Santos
Annie S. Aguon
Jose M. Santos
Maria M. Santos
Joey M. Santos
Jeanie Marie Santos
Jeffrey M. Stanos
Joyce F. Santos
Joseph S. N. Santos
Acencion S. N. Santos
Domingo S. Santos
JoAnn S. N. Santos
Dwayne S. A. Santos
Mark J. Santos
Walter R. Santos
Juanita M. Santos
Robert D. M. Santos
Eileen E. M. Santos
Therese T. Barcinas
Walter D. M. Santos,
Jr.
Phillip R. M. Santos
Tomas D. Santos
Thomas D. Santos
Vicente R. Santos
LoveJoy T. Q. Santos
Liza K. D. Santos
Lenna L. D. Santos
Lugene K. U. Santos
Denise S. San
Nicolas
Mancini L. U. Santos
Alfredo S. Silverio
Ofelia N. Silverio
Eliseo N. Silverio
Alfie N. Silverio
Santiago S. Sogo-an
Rosemin M. Sogo-an
Shariffa M. Sogo-an
Sheryll M. Sogo-an
Randy M. Sogo an
Eduardo M. Soriano
Julia B. Soriano
Rick J. B. Soriano
Daniel C. Speight
Martha L. Speight
Yvonne M. Speight
Edward J. Aguigui,
Jr.
Antonio R. Suarez
Barbara T. Suarez
Antonio T. Suarez,
Jr.
Cristina T. Suarez
Lovelle T. Suarez
Primitivo S.
Susbilla
Julia S. Susbilla
Mishella S. Ibit
George C. Taijeron
Julie A. Taijeron
Katrina M. Taijeron
George C. Taiteron
Franc A. Taij2ron
Anselmo M. Garrido
- xviii -
Margarita M. Garrido
William R. Taimanglo
Jesse G. Tajalle
Marilyn F. Quintana
Arlene F. Morla
Vicente G. Tajelle
Editha E. Tajalle
Vicente G. Tajalle,
Jr.
Justo E. Tajalle
Geraldo E. Tajalle
Jose T. Takano
Perfecto L. Taladoc
Pilar B. Taladoc
Pepito Taladoc
Patricia Taladoc
Perry Taladoc
Perfecto L. Taladoc,
Jr.
Rudy T. Tamondong
Mercedes C. Tamondong
Janette E. Tamondong
Leah Ann C. Tamondong
Grace Marie C.
Tamondong
Froilan H. Tanghal
Evangeline C. Tanghal
Catherine C. Tanghal
Lawrence C. Tanghal
Valerie C. Tanghal
Toribio A. Tangi
Takiko N. Tangi
Adolfo N. Tangi
Manuel L. Tenorio
Paul E. Tenorio
Amado V. Tenoso
Cristeta P. Tenoso
Thelma P. Tenoso
Mabel P. Tenoso
Morey B. Teruel
Gloria A. Teruel
Michael J. A. Teruel
Jeffrey A. Teruel
Antonio S. Toves
Josephine R. Toves
Leilani R. Toves
Robert J. Benavente
Joreese M. Benavente
Jessica A. Benavente
Suzanne M. Toves
James K. Toves
Agnes T. Cruz
Juan I. Toves
Rodrigo Z. Cruz
Robert S. Toves
Isabel S. Toves
Marlyn Toves
Cynthia S. Toves
Gary S. Toves
Darcy S. Toves
Robert S. Unpingco
Beata Unpingco
Odilia Unpingco
Robinette Unpingco
Pedro Q. Untalan
Cecilia C. Untalan
Erin M. Untalan
Camarin A. Untalan
Charlene B. Untalan
Peter R. Untalan
Vicente I. Unzalan
Annie L. G. Untalan
Vicente I. Untalan,
Jr.
Alvin L. G. Untalan
Phuoc Van Dinh
Domingo T.
Villaflores, Jr.
Maria M. I.
Villaflores
Mellanie I.
Villaflores
4
s
:
5
- xix -
Domingo I.
Villaflores
II
Melody J. I.
Villaflores
Lucas A. Villagomez
Rose Z. Villagomez
Jennifer R.
Villagomez
Lucas A. Villagomez,
Jr.
Larry C. Villagomez
Matthew J. Villagomez
Zachary R. Villagomez
LeeAnn R. Villagomez
Warlito Villaranda
Catherine C. Bosma
Kurt William Bosma
Wallid Villaranda
Bernard Watson
Thomas J. Garrison
George T. Watson
Bernadette V. Watson
George J. Watson I
Maysha T. Watson
Michael L. Weaver
Mary Ann San Nicholas
Marissa J. San
Nicholas
Misty M. San Nicholas
Michael C. Q. Wong
Linda S. D. Wong
Christopher S. D.
Wong
Jesus B. Yamanaka
Cecilia Q. Yamanaka
Francisco Q. Yamanaka
Alan J. Yamanaka
Jesse P. Yamanaka
Arlene Y. Hattig
Julie A. Yamanaka
Janet A. Yamanaka
Walter J.
Walter J.
Jr.
Alisha N.
Ashley B.
Hattig
Hattig,
Yamanaka
Yamanaka
- xx -
The defendants are:
United States of America
Capt. A.D. Loizeaux
Commander G.E. Monroe
Adm. T.J. Johnson (Ret.)
Capt. Ralph M. Cugowski
Commander John R. Doyle
Lt. Roger M. Natsuhara
Lt. James Hannigan
Capt. Ole L. Oleson
Robert Bieniasz
Lt. Lyndle R. Burton
Dr. Donald E. Sprague
Jesus T. Lizama
John Does 1 Through 20
AOL tt Mlle
- xxi -
TABLE OF CONTENTS
Page
OPINIONS BELOW 2
JURISDICTION 3
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED ° 6
STATEMENT OF THE CASE 8
z. INTRODUCTION 8
II. FACTS OF THE CASE 10
A. Misuse of PCBs at Piti
Power Plant ‘ 10
B. The United States and Its
Officers Failed To Evaluate
The Plant After The Explosion
or Provide Adequate Training
or Protective Gear
III. PROCEDURAL HISTORY
A. Filing of Case
B. The United States’ Motion
To Dismiss
Cc. The Individuals’ Motion To
Dismiss a a a
D. The Ninth Circuit Decision
REASONS FOR GRANTING OF THE WRIT
15
18
18
19
20
21
21
- xxii -
Ze The Scope of FECA, And Who
Determines That Scope, Is An
Important, Unsettled Question
Under Federal Law About Which
The Circuits Have Reached
Differing Results ...... 21
A. Courts can decide questions
concerning the scope of FECA
where the issue presented is,
one of the scope of FECA,
rather than coverage in and
a | a
B. FECA does not extend to
claims for emotional distress
which are not accompanied by
an existing physical injury . 27
e. FECA does not bar claims for
injuries which result from
reckless or intentional
conduct on the part of the
United States of its
Geen ss ae «0 es 0 « 2
II. The Decision Below That The
Individual Respondents Are
Entitled to Qualified Immunity
Conflicts With Applicable
Decisions of This Court ... 31
os a a a a a ee
- xxiii -
TABLE OF AUTHORITIES
CASES: Page
of Federal Bureau of Narcotics,
403 U.S. 388 (1971) ..- - + «+ 2+ +s > 19
Vv
Texas, 112 S. Ct. 1061 9992) . «2 « Se
Vv , 424 U.S.
800 (1976) pe dr hl a co oe ee a 23
Vv , 700 F.2d
281 (6th Cir. 5 > a oo or oe or 28, 29
Vv j , 687 F.2d 14
(3rd Cir. 1982) . . gan ge ee eS 25
Eladio T. Figueroa, et al. v. United
States of America, et al., F.3d
, 1993 WL 411755 (9th Cir.
Oct. 19, 1993) ote eg .; 2
Vv , 834 F.2d 1465 (9th
Cir. 1987) aa ee ae ae 29
890 F.2d 195 (9th Cir. 1989) oe ae ee
w Vv , 631 F. Supp.
631 (E.D. Pa. 1982) .. - cae 8, eee
, 460 U.S.
190 (1983) Sis ease ae 31
4 ia, 395 A.2d
399 (D.C. 1978) .. ee ar er ae 30
- XXivV -
CASES: Page
Vv j , 970 F.2d
194 (6th Cir. 1992) aa Ae 30
nv j , 628
F. Supp. 535 (D.D.C. 1986) ; 29
Sheehan v. United States, 896 F.2d
1168, 1173, modified 917 F.2d 424 ;
(SGn CAP. 200e) «ss es ¢ = 26, 26, 29
Shin Hyon-Su v. Madea Pacific Corp.,
No. 87-00063A (D. Guam Appellate
Division, June 8, 1988) .. rae 32
Swafford v. United States, 970 F.2d
194 (6th Cir. 1992) ee ae eae 30
nderw Vv ni 1
Service, 742 F. — 968 (M.D.
Tenn. 1990) ; ; aie 29
STATUTES
5 U.S.C. § 8101 et. seg. 4, 7
28 U.S.C. § 1254(1) 6
5 U.S.C. § 8116(c) 7
5 U.S.C. § 8128 (b) 8, 24
15 U.S.C. §§ 2601-2671 12
15 U.S.C. §§ 2605(e) (2) (A) 12
15 U.S.C. § 2605(e) (1) (B) 12
28 U.S.C. § 1346(b) 19
TA ES: Page
a ee ae ©) Oe a 19
an G.8.C. @ 20048 6 ee tH ee ee 21
28 U.S.C. § 1294(4) - - - + © © es es 8 21
oe 0.8.C. $8 2674-80... + +s 2 = # © * 18
CONSTITUTIONS :
Fifth Amendment, United States
@omevitetion ..<«.+:s*s* * s+ # 6
RULES :
Ped. R. Civ. P. 54(D) . + + © + = * 5, 20
Fed. R. Civ. P. 12(b) (6) ip cp ES Oe, es Ee 9
RE TIONS :
ag C.9.8..§ TO.20 «= 25 + © + eo © we * 12
40 C.F.R. § 761.30(a) (1) (vi) - - + =: > 13
40 C.F.R. § 761.30(a) (1) (xii) - - + =: - 13
40 C.F.R. § 761.40 . +++ e+e 2°. a3, 32
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1993
ELADIO T. FIGUEROA, et al.,
Petitioners,
Vv.
UNITED STATES OF AMERICA, et al.,
Respondents.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Petitioners petition this Court fora
Writ of Certiorari to the United States
Court of Appeals for the Ninth Circuit to
review the judgment in Eladio T. Figve2roa
al., F.3d , 1993 WL 411755 (9th
Cir. Gct. 19, 1993) .
- 2-
OPINIONS BELOW
The October 19, 1993 Opinion of the
United States Court of Appeals for the
Ninth Circuit, reversing the trial court’s
denial of the Respondents’ motion to
dismiss on qualified immunity grounds and
affirming the trial court’s granting of
Respondents’ motion to dismiss on FECA
preemption grounds is reported at
F.3d _s,_- 1993 WL 411755 (9th Cir.
Oct. 19, 1993), and is reprinted at
Appendix A1-39.
The May 29, 1992 Order of the Un: ted
States District Court for the Territory of
Guam Staying Proceedings is unpublished
and is reprinted at Appendix A40-54. The
April 19, 1992 Order of the United States
District Court for the Territory of Guam
Re: Motions for Reconsideration is
unpublished and is reprinted at
Appendix A55-97. The January 17, 1992
— a
Bekah th salon
Order of the United States District Court
for the Territory of Guam Granting in Part
the United States’ Motion to Dismiss is
unpublished and is reprinted at Appendix
. A98-133. The December 19, 1991 Order of
the United States District Court for the
Territory of Guam Denying the Individual
Defendants’ Motion To Dismiss is
unpublished and is reprinted at Appendix
A134-159.
JURISDICTION
This action arises out of the
explosion of a transformer in the Piti
Power Plant operated by the United States
Navy in Guam, and the clean-up of highly
toxic substances released in that
explosion. The exposed persons filed an
action against the United States and
certain officers in the United States
District Court for the Territory of Guam.
The Respondent United States moved to
- 4 -
dismiss claims of those Petitioners who
were federal employees on the grounds that
the claims were preempted by the Federal
Employees’ Compensation Act, 5 U.S.C.
§ 8101 et. seq. ("FECA"). The Individual
Respondents moved to dismiss Petitioners’
constitutional tort claims on the ground
of qualified immunity. On December 19,
1991, the United States District Court for
the Territory of Guam (Rothstein, J.
sitting by designation) denied the
Individual Respondents’ motion to dismiss.
Appendix A134-159. On January 22, 1992
the District Court granted in part the
United States’ motion to dismiss, holding
that questions of FECA coverage should be
resolved by the Secretary of Labor.
Appendix A98-133. Petitioners and tke
Individual Respondents sought
reconsideration of the District Court’s
decisions and on April 19, 1992 the
i
|
- 5 -
District Court denied the Individual
Respondents’ motion for reconsideration,
and granted in part and denied in relevant
part Petitioners’ motion for
reconsideration. Appendix A55-97. On
May 29, 1992 the District Court stayed
trial court proceedings and granted
Petitioners’ motion to direct partial
judgment under Fed. R. Civ. P. 54(b).
Appendix A40-54. Petitioners appealed
that portion of the January 22, 1992 Order
dismissing the claims of the federal
employee Petitioners while the Individual
Respondents appealed the District Court’s
denial of their motion to dismiss on
qualified immunity grounds. On
October 19, 1993 the United States Court
of Appeals for the Ninth Circuit affirmed
the trial court’s dismissal of the federal
employee Petitioners’ claims on FECA
grounds and reversed the District Court’s
- 6 -
denial of the Individual Respondents’
motion to dismiss, holding that the
Individual Respondents were entitled to a
dismissal of Petitioners’ claims on
qualified immunity grounds. Appendix Al-
39.
This Court has jurisdiction to review
the judgment of the United States Court of
Appeals for the Ninth Circuit under 28
U.S.C. § 1254(1) .
CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED
Fifth Amendment, United States
Constitution:
No person shall be held to
answer for a capital, or other
infamous crime, unless on a
presentment or indictment of a
Grand Jury, except in cases
arising in the land or naval
forces, in the militia, when an
actual service in time of war or
public danger; nor shall any
person be subject for the same
offence to be twice put in
jeopardy of life or limb; nor
shall be compelled in any
criminal case to be a witness
d o B«
against himself, nor be deprived
of life, liberty, or property
without due process of law; nor
shall private property be taken
for public use, without just
compensation.
The Federal Employees’ Compensation
Act, 5 U.S.C. § 8116(c), provides in
relevant part:
The liability of the United
States or an instrumentality
thereof under this subchapter or
any extension thereof with
respect to the injury or death
of an employee is exclusive and
instead of all other liability
of the United States or the
instrumentality to the employee,
his legal representative,
spouse, dependents, next of kin,
and any other person otherwise
entitled to recover damages from
the United States or the
instrumentality because of the
injury or death in a direct
judicial proceeding, in a civil
action or in admiralty, or by an
administrative or judicial
proceeding under a Workmens
Compensation Statute Or under a
Federal Tort Liability Statute.
5 U.S.C. § 8128(b) provides in relevant
part:
The action of the secretary Or
his designee in allowing or
denying a payment under this
subchapter is --
(2) “Not subject to review by
another official of the United
States or by a court by mandamus
or otherwise.
STATEMENT OF THE CASE
Ze INTRODUCTION
This case addresses the remedies
available to federal employees who suffer
injuries as a result of intentional or
reckless workplace conduct. The issues
include whether federal employees may
assert claims in federal court when they
are ordered by their supervisors to enter
a building highly contaminated with toxic
chemicals without protective equipment or
training, with full knowledge by those
supervisors that the employees will be
exposed to toxic chemicals. It also
addresses the issue of whether federal
employees may sue the United States for
emotional distress and other non-physical
ere eee en ne ee
eee ee
ek Niet cat A AEE tint it Een: od Mes Sate ome
resee Ob Oe he» eA
mae ae
ee ee pete Pe ee ee
~ @-
injuries arising from intentional or
reckless conduct where those claims would
not be covered by FECA.
Petitioners are federal employees,
their families, and others who were
exposed over several months to
polychlorinated biphenyls ("PCBs"),
dioxins and furans following the explosion
of the transformer laden with PCB oii.’
Dioxins, furans and PCBs are highly
toxic chemicals which cause a variety of
serious conditions, including cancer,
liver disorders, destruction of the immune
system, and birth defects. Fortunately,
in some respects, any physical injury from
these substances takes 4 long time to
IBecause the claims below were
dismissed under Fed. R. Civ. P. 12 (b) (6),
the factual statements herein are drawn from
the complaint, as well as from a repcrt by
the General Accounting Office into the
circumstances of the explosion and the
cleanup.
- 10 -
develop. Unfortunately, during that time,
the exposed person lives in constant fear
of what may or will happen to him or her
in the future.
The United States and its officers
set the stage for disaster by ignoring
simple and clear regulations for the
labelling, handling and maintenance of PCB
transformers. Subsequently, federal
officials ordered the employees to clean
up and operate the contaminated plant
without adequate training, protective
gear, or site evaluation, knowing that the
employees would be exposed to harmful
levels of toxic chemicals.
Under these circumstances, neither
the government nor its officials should be
shielded from liability.
II. FACTS OF THE CASE
A. Misuse of PCBs at Piti Power
Plant.
i
1
2
3
z
- li -
The Piti Power Plant contained
several large transformers used in the
production of electricity. The
transformers were filled with insulating
fluid consisting largely of oil combined
with PCBs. PCBs were used in transformers
because of their conductive qualities and
because they do not break down over years
of use. This latter quality, although
beneficial in the transmission of
electricity, is also a cause of PCBs’
deadly reputation as a chronic toxic
hazard -- PCBs accumulate in human tissues
and are very resistant to elimination.
Because of the toxicity and
persistence of PCBs, the United States has
extensively regulated their use since
1976.2. These regulations are based upon
oxic Substances Control Act ("TSCA"),
15 U.S.C. §§ 2601-2671. TSCA prohibits the
manufacture, process or use of PCBs in other
than a totally enclosed manner after
- 12 -
well-documented human health and
environmental hazards of PCB exposure. 40
C.F.R. § 761.20. Federal law requires all
PCBs to be marked with clear and adequate
warnings.’ None of the PCB labeling,
maintenance, warning oz notice provisions
were complied with in any respect at the
Piti Power Plant.
On May 26, 1987, transformer One-A
exploded and sprayed up to fifty gallons
of toxic chemicals throughout the plant.
Prior to and during the explosion, the
January 1, 1978. 15 U.S.C. §§ 2605(e) (2) (A).
*15 U.S.C. § 2605(e) (1) (B). 40 C.F.R.
§ 761.40. In the case of PCB transformers,
such as those at the Piti Power Plant, these
warnings were required to be in the form of
large yellow stickers, at least six inches
square, to be in place by January 1, 1979.
40 C.F.R. § 761.40. As of December 1985,
all PCB transformers were required to be
registered with local fire response
personnel. 40 C.F.R. § 761.30(a) (1; (vi).
Visual inspections of every PCB transformer
were required to be performed every three
months. 40 C.F.R. § 761.30(a) (1) (xii).
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PCBs were subject to intense heat and
pressure, causing a chemical reaction
producing dioxins and furans, which are
even more lethal than PCBs and among the
deadliest toxic substances known to man.
The transformer explosion resulted ina
deadly toxic fog which blanketed the plant
and the men inside at levels up to
hundreds of thousands of times higher than
permissible under EPA and OSHA
regulations.
After the explosion, respondents
violated a number of statutory and
regulatory provisions concerning hazardous
waste cleanup. Because none of the
transformers were labeled as required, the
plant employees had no idea that the oil
which exploded from the transformer
- 14 -
contained PCBs.‘ The employees were
directed to gather outside the plant
directly in line with a ventilation system
which was pumping out contaminated smoke.
The officials dismissed half the expcsed
employees, permitting them to go home
without any decontamination, testing or
instructions. The employees thus exposed
their families to PCBs, dioxins and furans
through contact with their person or
clothing.°
‘Contrary to regulations, respondents
had not advised the employees of the
presence of PCBs in the plant, labeled the
transformers as containing PCBs, trained
most of the employees in the handling of
PCBs, or warned the employees of the
consequences of a spill oor explosion
involving PCBs.
SOther employees were sent to the Naval
Hospital, Guam, where they waited for hours
before being given an opportunity to clean
the chemicals from their bodies. They did
not see a doctor. They were not warned of
or treated for the medical risks of exposure
to PCBs, dioxins and furans. They were not
advised to wear personal protective
equipment ("PPE") in the presence of such
Bian lek Sue eae Mies, Sold
In violation of EPA regulations
requiring an evaluation of the site of a
toxic explosion, respondents did not test
the plant for the presence of toxic
substances other than PCBs. Because of
this failure to properly evaluate the
site, petitioners were unnecessarily
exposed to dioxins and furans .°
Respondents did not obtain the PPE
required by regulations for over seven
months after the spill. Instead, they
substances. They were not given baseline
medical tests, even though regulations
required such tests. They were released
with no further treatment or advice.
*Respondents continued to operate the
power plant after the explosion, despite the
presence of PCBs, dioxins and furans. Even
upon learning on July 13, 1987, of the
presence of lethal dioxins and furans, the
United States and its officers did not stop
clean-up operations.
- 16 -
ordered plaintiffs to work on their hands
and knees in a confined hazardous waste
enclosure, where temperatures rose to over
120°F, wearing absorbent coveralls and
otherwise inadequate protective gear. The
respondents did not establish a required
separate decontamination facility until
over three months after the explosion.’
Until this facility was in place, the
employees dressed, rested, and ate meals
7Employees were allowed to take their
work clothing heme, where it was mixed with
clothing of their families. They were given
garbage bags as foot gear; the garbage bags
tore on grating in the plant. The personal
shoes worn by the employees absorbed these
toxic chemicals and were then worn home.
The employees were given plastic glove; that
tore and dissolved upon exposure to soivents
used in the clean-up operation. Employees
were provided inadequate half-face
respirators: regulations required full-face
respirators. The employees charged with
operating the plant (as opposed to cleaning
it up) were also needlessly exposed to toxic
substances by being provided with little if
any protective gear.
« 29 «
in a confined space polluted with toxic
aie adie, aiden
substances.
The respondents falsely advised
RO eT OT EME EY Tig”
employees that the toxic materials would
7 not be absorbed through the porous
coveralls provided. In fact, the
coveralls absorbed the PCBs, dioxins and
furans and held them against the
employees’ skin.
After petitioners were forced to
i AGA ai See at as ne I or
conduct the bulk of the cleanup of the
Briar7rese
plant over several months, they were
replaced with a private cleanup company.
a ES RR DA AALS Reh ock Se
‘ This company, outfitting its employees in
"moon suits" and otherwise complying with
applicable law and regulations, charged
the United States an estimated $10 million
simply to do the final portion of the
jarhaibes 02 NN en aati Ds ind ia are aoc g
cleanup.
- 18 -
III. PROCEDURAL HISTORY
A. Filing of Case.
Petitioners began this action by
filing administrative claims pursuant to
the requirements of the Federal Tort
Claims Act, 28 U.S.C. § 2671-80 ("FTCA").
Petitioners’ administrative claims were
denied. Petitioners filed an action in
the United States District Court for the
Territory of Guam on April 23, 1990. They
asserted claims against the United States
under the FTCA, and claims against the
Individual Respondents under Bivens v. Six
Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971). Federal
jurisdiction in the District Court was
based on 28 U.S.C. § 1346(b) and 28 U.S.C.
$ 1331.
PO ee ee oan.
Ae Sinha: Nahi A PRs eh ter ow Bin A
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B. The United States’ Motion t>
Dismiss.
On September 6, 1991 the United
States filed a motion to dismiss. On
January 22, 1992 the District Court
granted in part the United States’ mction
to dismiss, dismissing the federal
employees’ claims on the grounds that the
Secretary of Labor should decide whether
some remedy might possibly be available to
them under FECA.'
Cc. The Individuals’ Motion to
Digmi
ton April 14, 1992, the District Court
issued an order on motions for
reconsideration, striking certain portions
of its January 22, 1992 Order, but leaving
intact its decision on FECA. On June 2,
1992 the District Court entered an Order
staying proceedings jn which it granted
plaintiff’s request for Rule 54(b)
certification of its dismissal of the
employees claims against the United States.
On July 29, 1992, the District Court entered
a partial judgment. Plaintiffs filed a
timely appeal from this partial judgment on
September 4, 1992.
- 20 -
On September 6, 1991 the Individual
Respondents filed a motion to dismiss,
arguing they were entitled to qualified
immunity. On December 19, 1991 the
District Court denied the Individual
Respondents’ motion to dismiss.’
D. The Ninth Circuit Decision.
On October 19, 1993 the Ninth Circuit
Court of Appeals issued an opinion
affirming the District Court’s dismissal
of the federal employees’ claims on the
grounds that courts should defer to the
Secretary of Labor whether FECA covers the
claims in question. The Ninth Circuit
reversed the District Court’s denial of
the Individual Respondents’ motion to
°On April 14, 1992 the District Court
denied the Individual Respondents’ :wtion
for reconsideration of its December 19, 1991
Order. The Individual Respondents filed a
notice of appeal on May 22, 1992, invoking
appellate jurisdiction under 28 U.S.C.
§ 1291 and 28 U.S.C. § 1294(4).
4
4
s
:
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:
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- 21 -
dismiss and held that the Individual
Respondents were entitled to qualified
immunity from the claims for
constitutional violations.
REASONS FOR GRANTING OF THE WRIT
Three important issues are presented
by this petition concerning the scope of
FECA. First, does FECA extend to bar
claims for non-physical injuries, for
which there is no recovery under FECA, or
is the FECA bar limited to its express
terms under the statute -- to claims for
"injury or death"? Second, who determines
the proper scope of FECA when a claim not
covered by that statute is presented to
the courts: the Secretary of Labor or the
courts? Third, does FECA apply at all
- 22 -
where the conduct giving rise to the claim
is reckless or intentional?
All three questions are important in
resolving the rights of federal employees
everywhere. There is a substantial
disagreement among the circuits on the
answers to at least the first two of these
questions.
Where an actual controversy is
properly before a federal court, the court
has a "virtually unflagging obligation .
to exercise the jurisdiction given" it.
Colorado River Water Conservation District
v. United States, 424 U.S. 800, 817
(1976). The question concerning
resolution of issues under FECA arises; due
to provisions of the statute. FECA, by
its terms, restricts judicial review of
s #8 «
claims which have been submitted under
FECA:
The action of the secretary or
in allowing or
his designee
under this
subchapter is --
(2) Not subject to review by
another official of the United
States or by a court by mandamus
or otherwise.
5 U.S.C. § 8128(b) (emphasis supplied).
The federal employees in this case
have never submitted a claim under FECA,
and this is not an action seeking a review
of such a claim. The damages they have
sustained do not constitute a disabliag
injury, disease, or death within the scope
of FECA. Thus, there is no reason to
defer to the Secretary in the
consideration of these claims.
Two distinct interpretations of 3
U.S.C. § 8128(b) have arisen in the courts
of appeal. Some courts have found that
— oo
this provision bars federal courts from
exercising jurisdiction over every case
where there is a "substantial question" of
whether employees’ claims are covered by
FECA -- i.e., any uncertainty about how
the Secretary of Labor might resolve the
issue of FECA coverage -- regardless of
how the question arose. DiPippa v. United
States, 687 F.2d 14, 16 (3rd Cir. 1982).
Other circuits, hewing truer to the
statute, have permitted a judicial
determination of the scope of FECA where
the claim is not first submitted to the
Secretary and the issue relates to the
"scope of coverage" (i.e., whether FECA
covers a particular type of injury) as
opposed to whether FECA applies to the
incident in question (coverage "in and of
itself"). Sheehan v, United States, 896
F.2d 1168, 1173, modified 917 F.2d 424
(9th Cir. 1990).
- 25 -
In § 8128(b), Congress simply
prohibited courts from second guessing the
Secretary of Labor’s actual decisions to
insure that "the Courts not be burdened by
a flood of small claims challenging the
Aiba A ma cs
merits of compensation decisions
." Sheehan, 896 F.2d at 1173. In this
case, the claims were never submitted to
the Secretary of Labor, and there is no
request that a court "review" a
cionin niet Leth tent asthe ia As ey nae LET ASE Jap Sia LE
determination by the Secretary one way or
the other. Instead, the issue presented
is whether the Court can determine that
the relief sought is in any event beyond
the scope of FECA.
Determining whether the employees’
claims are within the scope of FECA where
they seek relief not provided under FECA
is a traditional function of the
judiciary, and the federal courts sheuld
|
:
;
:
:
3
reach the merits of the claim. In cases
- 26 -
such as this one, where the potential FECA
issue is one of scope of coverage rather
than the merits of an underlying
compensation claim, the question is not
whether the Secretary might possibly find
the claim covered by FECA. Instead, the
court must determine whether a plaintiff’s
Claim is cognizable under FECA. If that
claim is not cognizable under FECA, it is
not subject to the FECA bar.
This Court should resolve the split
in the circuits and find that it is the
courts which must decide the scope of
FECA’s coverage where no claim is
submitted to the Secretary. This Court’s
guidance in this area is particularly
prudent in light of the growing class of
claims stemming from non-physical
‘njueien. Many of these claims --
including the Petitioners’ claims for
emotional distress under Guam law -- did
Rede
:
‘
4
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4
4
« 29 «
not exist when FECA was enacted. The
Secretary of Labor has an inherent
incentive to classify non-compensable
injuries as covered by FECA, since
jndividuals will then be precluded f1rom
suing the United States, even though the
United States does not compensate them for
their injuries. See DeFord v. Secretary
of Labor, 700 F.2d 281, 290 (6th Cir.
1983) (FECA must be given liberal
construction to provide compensation but
not stretched where unjust).
B.
f m n r which ar
s s
—— ee
Petitioners’ FTCA claims are claims
for emotional distress caused by the
jncreased likelihood of contracting cancer
and other diseases caused by their
exposure to toxic substances. Again,
there is a split in the circuits
- 28 -
concerning whether such claims are barred
by FECA.
The better reasoned cases, observing
that FECA was intended to apply to
Gisabling injuries, hold that FECA was not
intended to cover and does not extend to
claims for non-disabling emotional
injuries, and thus does not bar their
assertion under the FTCA. Sheehan, 896
F.2d at 1173; Guidry v. Durkin, 834 F.2d
- 1465, 1472 (9th Cir. 1987); DeFord v.
Secretary of Labor, 700 F.2d 281, 290 (6th
Cir. 1983); Underwood v. United States
Postal Service, 742 F. Supp. 968, 971
(M.D. Tenn. 1990); Newman v. Legal
Services Corp., 628 F. Supp. 535, 543
(D.D.C. 1986); Lawrence v. United States,
631 F. Supp. 631, 636 (E.D. Pa. 1982);
Mason v. District of Columbia, 395 A.2d
399 (D.C. 1978).
» 29 -
Other cases hold that FECA does bar
all claims for emotional distress arising
from the workplace. Swafford v. United
States, 998 F.2d 837, 840-41 (10th Cir.
1993); McDaniel v. United States, 97° F.2d
194, 197 (6th Cir. 1992).
This Court should hold that claims
for non-disabling emotional distress are
not barred by FECA.
Cc. FECA does not bar claims for
injuries whic) lt f
on the part of the United States
An important question of Federal law
is whether FECA bars claims for injuries
which are not the result of workplace
"accidents", but instead result from
reckless or intentional conduct on the
part of federal officials. FECA is the
federal government analog to state
workers’ compensation laws, Lockheed
Aircraft Corp., 460 U.S. 190, 193-94
- 30 -
(1983). The scope of workers’
compensation provisions is universally
restricted to workplace accidents, not
intentional or reckless conduct by the
employer. See generally, 2A A. Larson
Workmen’s Compensation Law § 68.00; e.g.,
Gulden v. Crown Zellerbach Corp., 890 F.2d
195 (9th Cir. 1989) (employee ordered to
cleanup PCB spill on hands and knees
without protective clothing stated
intentional tort against employer, which
was not barred by state workers’
compensation statute).
FECA should be construed consistently
with state workers’ compensation statutes,
and the compromise imposed by FECA limited
to accidental conduct.’ Under the FTCA,
- If the operator of the Piti Plant
had been a private employer, the employees’
claims for intentional or recklessly
inflicted harm would not be barred under
Guam law. Shin Hyon-Su_v. Maeda Pacific
Corp., No. 87-00063A (D. Guam Appellate
Se ae at
sachs yet "Bet ee WR NEN ORS IRA POT E R be
1a EAD Te Soy We
» 3% -
28 U.S.C. 2674, the United States "shall
be liable .. . in the same manner and to
the same extent as a private individual
under like circumstances .. --" The
United States should be held accountable
to the same standards as private emp] 5yers
and should not escape responsibility for
its reckless or intentional acts.
This Court should construe FECA as
not applying to intentional or reckless
conduct.
II. The Decision Below That the
The Ninth Circuit decision that the
Individual Respondents are entitled to
qualified immunity conflicts with this
Court’s decision in Collins v. City cf
Harker Heights, Texas, e390 8. Ce: i063
(1992).
Division, June 8, 1988).
- 32 -
The Ninth Circuit found that sirce
the Petitioners were federal employees
when the Individual Respondents exposed
them to the dangerous condition, that the
Individual Respondents were entitled to
qualified immunity because they were
acting as government employers. However,
as this Court held in Collins:
[T]he employment relationship .
is not of controlling
Significance. On the one hand,
if the City has pursued a policy
of equally deliberate
indifference to the safety of
pedestrians that resulted ina
fatal injury to one who
inadvertently stepped into an
open manhole, the Court of
Appeals’ holding would not speak
to this situation at all,
although it would seem that a
claim by such a pedestrian
should be analyzed in a similar
manner as the claim by this
petitioner.
112 S. Ct. at 1065. This Court made it
clear that "provisions of the Federal
Constitution afford protection to
employees who serve the government: as well
- Fee anand eo A ch ”
ior ° fe
as those who are served by them." 112 S.
Ct. at 1065. Thus, the fact that
Petitioners are employees of the federal
government does not excuse the Individual
Respondents’ conduct. Contrary to the
Ninth Circuit’s decision, Petitioners’
constitutional rights are no less than
those of citizens who are not employees of
the federal government.
CONCLUSION
For the foregoing reasons, this Court
should grant a Writ of Certiorari to the
Court of Appeals for the Ninth Circuit to
review its decision in this case and
resolve the questions of whether the
Secretary of Labor or the Courts decide
the scope of FECA coverage and whether
government officers who violate the
constitutional right of the federal
employees are entitled to a greater
qualified immunity than government
- 34 -
officers who violate the constitutional
rights of citizens who are not federal
employees.
Respectfully submitted,
Bennet A. McConaughy
Counsel of Record
Edward R. Coulson
Joseph E. Delaney
FOSTER PEPPER & SHEFELMAN
1111 Third Avenue,
Suite 3400
Seattle, WA 98101
Telephone: (206) 447-4400
Counsel for Petitioners
40072434.01
a
Ear
TABLE OF CONTENTS
OPINION OF THE UNITED STATES
COURT OF APPEALS FOR THE NINTH
CTR 3 se eS
ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE TERRITORY
OF GUAM STAYING PROCEEDINGS
ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE TERRITORY
OF GUAM RE: MOTIONS FOR
RECONSIDERATION .
ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE TERRITORY
OF GUAM GRANTING IN PART THE
UNITED STATES’ MOTION TO
DISMISS ...-++ + *=«: *
ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE TERRITORY
OF GUAM DENYING THE INDIVIDUAL
DEFENDANTS’ MOTION TO
DISMISS “oee he
A1-39
A40-54
A55-97
A98-133
A134-159
Al
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELADIO T. FIGUEROA, et al., No. 92-15914
D.C. No.
CV-91-00030-
BUR
Plaintiffs-Appellees,
Vv.
UNITED STATES OF AMERICA, A.D.
LOIZEAUX, G.E. MONROE, T.J.
JOHNSON, et al.,
OPINION
Defendants-Appellants.
ELADIO T. FIGUEROA, LEO A.
ABILO; BARTOLOME E. ABUAN,
ROMEO A. ACEJO, et al.,
ll te ee ets te ee ee a ee ee ee
Plaintiffs-Appellants,
No. 92-16602
Vv.
UNITED STATES OF AMERICA,
et al.,
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Defendants-Appellees. )
)
APPEAL FROM THE UNITED STATES DISTRICT
COURT
FOR THE DISTRICT OF GUAM
BARBARA J. ROTHSTEIN, DISTRICT JUDGE,
PRESIDING
Argued and Submitted
July 15, 1993-San Francisco, California
|
A2
Filed October 19, 1993
Before: J. Clifford Wallace, Chief Judge,
and Dorothy W. Nelson and Diarmuid F.
O’Scannlain, Circuit Judges
Opinion by Judge Nelson; Concurrence by
Chief Judge Wallace
SUMMARY
Government Law/Immunity/Civil Litigetion
and Procedure
The court of appeals reversed a
district court judgment in part and
remanded in part, holding that government
officials were entitled to qualified
immunity for ordering employees to clean
up a toxic spill without informing them
about the potential harm, based on the law
as it existed in 1987.
In 1987, an electrical transformer
ruptured on the United States Navel Base
in Guam, releasing a variety of toxic
chemicals. Federal employees sued the
United States and 12 individuals who
supervised the toxic cleanup. The
A3
plaintiffs’ cause of action against the
individual defendants alleged a
substantive due process claim for tortious
conduct. The plaintiffs alleged that the
defendants were negligent in ordering the
plaintiffs to clean up the chemicals and
return to work without advising them about
appropriate protective measures, and in
not providing proper medical care
immediately following the explosion.
The government moved to dismiss all
claims against it, arguing that they vere
preempted by the Federal Employees
Compensation Act (FECA). The individual
defendants moved for dismissal of the
constitutional tort claim on the ground of
qualified immunity. The district court
dismissed the claims against the
government, holding that the FECA coverage
question should be resolved by the
Secretary of Labor. The court denied the
AG
individual defendants’ motion. All
parties appealed.
[1] The general rule is that when a
claim arguably falls under FECA, the
question of coverage should be resolved by
the Secretary. [2] FECA also contemplates
coverage for a condition of emotional
distress that results from the stress of
being exposed in a discrete event toa
toxic substance that could cause future
physical harm. As a result of their
exposure to the toxic chemicals, and after
suffering some medical problems, the
plaintiffs were concerned about developing
cancer. [3] The district court properly
dismissed the plaintiffs’ FTCA claims.
[4] In order to proceed in their
suit against the individual defendants,
the plaintiffs must have alleged a
violation of a right that was clearly
established in 1987 at the time of the
AS
accident. [5] In 1987, a right not to be
placed in danger by a government actor was
contingent upon that actor first depriving
an individual of his liberty. [6] It
could not be concluded that in 1987 it was
clearly established that a government
employer’s order to an employee to perform
a dangerous task, without informing the
employee about the potential harm of which
the employee was ignorant, constituted a
deprivation of liberty for purposes of the
due process clause. [7] Defendants were
entitled to a defense of qualified
immunity as a matter of law.
Wallace, C.J., concurred to write
that he disagreed with the majority's
characterization of the law in 1987.
COUNSEL
Edward R. Coulson, Bennet A.
McConaughy, Joseph E. Delaney, Foster
Pepper & Shefelman, Seattle, Washington,
A6é
for the plaintiffs-appellants/plaintiffs-
appellees.
Stuart M. Gerson, Assistant Attorney
General, Fredrick A. Black, United States
Attorney, Barbara L. Herwig, Richard
Montague, Attorney, Civil Division, U.S.
Department of Justice, Washington, D.C.,
for the defendants-appellants.
Stuart M. Gerson, Assistant Attorney
General, Fredrick A. Black, United States
Attorney, J. Patrick Glynn, Director,
Joann J. Bordeaux, Deputy Director, Paul
M. Honigberg, Judith N. Macaluso, Torts
Branch, Civil Division, U.S. Department of
Justice, Washington, D.C., for defendant-
appellant United States.
OPINION
D.W. NELSON, Circuit Judge:
In May of 1987, an electrical
transformer ruptured at the Piti Power
Plant cn the United States Naval Base in
A7
Guam, releasing a variety of toxic
chemicals. Subsequently, 251 federal
employees who were at the plant at the
time of the accident filed suit against
the United States and twelve individuals
who supervised the toxic spill clean-up.
Plaintiffs brought five causes of action
against the United States under the
Federal Tort Claims Act, 28 U.S.C.
§§ 2671-80 ("FTCA"). Their Sixth cause of
action was directed at the individual
Defendants and alleged a substantive due
process claim for tortious conduct. All
Plaintiffs’ claims stemmed from their
allegations that Defendants were negligent
or grossly negligent: 1) in ordering
Plaintiffs to clean-up the polychlorinated
biphenyls chemicals and to return to work
without advising them about appropriate
protective measures or securing the area;
and 2) in not providing proper medical
A8
care immediately after the expiosion.
Plaintiffs sought damages for current and
potential future physical injuries and for
emotional distress resulting from their
fear that they would develop cancer at
some future date.
The government moved to dismiss all
claims against it on the ground that these
claims were preempted by the Federal
Employees Compensation Act, 5 U.S.C.
§ 8101 et. seq. ("FECA"). The individual
Defendants moved for dismissal of the
constitutional tort claim on the ground of
qualified immunity. The district court
granted the government’s motion based on
its judgment that the FECA coverage
question should be resolved by the
Secretary of Labor ("Secretary"). The
district court denied the individual
Defendants’ motion. All parties timely
appeal.
AG
DISCUSSION
ie FECA Preemption
Under FECA, federal employees are
compensated for injuries sustained during
the performance of their duties. The
remedies provided under FECA are exclusive
of all other remedies against the United
States for job-related injury or death. 5
U.S.C. § 8116(Cc).
There are two sorts of FECA coverage
questions. The first question is whether
FECA covers a particular type of injury.
This is a question of "the scope of
coverage." Sheehan v. United States, 896
F.2d 1168, 1174 (9th Cir.), modified, 917
F.2d 424 (9th Cir. 1990). The second
question is whether a plaintiff is
entitled to compensation under the facts
of a particular event. This question
requires a determination of such facts as
"'whether the injury. - - occurred while
A10
the employee was on the job.’" Id.
(quoting Griffin v. United States, 703
F.24 321, 322 (6th Cie. 200275 tase 28 6
question of "coverage in and of itself.”
Id. (internal quotations omitted).
In this case, the district court
dismissed Plaintiffs’ FTCA claim on the
ground that there was a question of FECA
preemption concerning Plaintiffs’ alleged
injuries which should be resolved by the
Secretary of Labor. Plaintiffs’ appeal
from this dismissal, arguing that under
Sheehan this is a question of scope of
coverage and the district court was
therefore required to resolve the question
itself. Defendant counters that this case
is more akin to Reep v. United States, 557
F.2d 204 (9th Cir. 1977), under which the
district court correctly deferred the
question of coverage to the Secretary.
Id. at 207-208.
——
All
[1] Sheehan held that when there is
a question about the scope of FECA
coverage, this question should be resolved
by the district court and Reep’s
instruction to defer coverage questions to
the Secretary "does not apply." 896 F.2d
at 1174 (internal quotations omitted).
Rather, Reep only applies when there are
questions about whether a particular
factual circumstance falls under FECA.
Id. In Sheehan, however, the plaintiff’s
claim was not colorable under FECA age a
matter of law. Sheehan’s holding
regarding who should resolve an FECA scope
of coverage question rested upon this
court's judgment that the alleged
emotional distress was "divorced from any
claim of physical harm." Id. Thus
Sheehan stands only for the proposition
that when a plaintiff has failed to allege
a colorable claim under FECA as a matter
Al12
of law, the district court should render a
judgment. We do not read Sheehan as
altering the general rule that when a
claim arguably falls under FECA, the
question of coverage should be resolved by
the Secretary. See Reep, 557 F.2d at 207.
[2] In this instance, Plaintiffs’
Claims are colorably under FECA.
Plaintiffs’ alleged mental distress
injuries are tied to physical harm, both
potential and actual. As a result of
their exposure to the PCBs, and after
suffering some medical problems,
Plaintiffs are concerned about developing
cancer. Under FECA, an occupational
disease or illness includes:
a condition produced in the work
environment over a period longer
than a single work day .. . by
such factors as .. . continued
or repeated stress or strain; or
exposure to hazardous elements
such as, but not limited to,
toxins, poisons, fumes .. . or
4
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Z
.
A13
repeated conditions . . . of the
work environment.
20 C.F.R. § 10.5(a) (16). FECA thus
contemplates coverage for a condition
produced over a long period of time by
"stress" or as a result of being exposed
to a "toxic" substance that may cause
future harm. Arguably, mental distress is
a form of stress. It takes only a small
step to conclude that FECA also
contemplates coverage for a condition of
emotional distress that results from the
stress of being exposed in a discrete
event to a toxic substance that could
cause future physical harm.
[3] Moreover, the Department of
Labor has determined that emotional
distress may be considered a disability
when it arises "from [a worker’s]
emotional reaction to . . . a requirement
imposed by the employment." In re Lillian
Al14
Cutler & Dept. of Labor, 28 Dig. & Dec.
Empl. Comp. App. Bd. 125 (1979); Castro v.
United States, 757 F. Supp. 1149, 1151
(W.D. Wash. 1991) (observing that FECA
covered emotional distress claims that
arose froma "reaction to . . . regular or
specifically assigned work duties"); Burke
v. United States, 644 F. Supp. 566, 568
(E.D. La. 1986) (discussing Assistant
Administrator of Labor’s official
affirmative response to whether job-
related mental distress fell under FECA)
(emphasis supplied). Accordingly, the
district court properly dismissed
plaintiffs’ FTCA claims in order to allow
the Secretary to resolve the question of
whether or not the claims are covered by
FECA.
II. Qualified Immunity
Ordinarily, the denial of a 12(b) (6)
motion is not a reviewable final order, it
A15
is only when a question of immunity is
involved that we use the collateral crder
doctrine to exercise jurisdiction. We
review the district court’s denial of a
12(b) (6) motion de novo. Fresno Rifle and
Pistol Club, Inc. v. Van De Kamp, 965 F.2d
723, 725 (9th Cir. 1992). We assume the
truth of the complaint’s well-pleaded
factual allegations and construe them in
the light most favorable to the plaintiff.
Oscar v. University Students Coop. Ass‘n,
965 F.2d 783, 785 (9th Cir.), cert.
denied, 113 S. Ct. 655 (1992). A 12(b) (6)
motion should not be granted "unless it
appears beyond doubt that the plaintiff
can prove no set of facts in support of
his claim which would entitle him to
relief." Conley v. Gibson, 355 U.S. 41,
45-46 (1957).
The twelve individual Defendants
argue that the district court erred in
Se
A16
denying their motion to dismiss since the
Plaintiffs’ constitutional claim is not
cognizable under the due process clause.
In the alternative, Defendants argue that
they are entitled to qualified immunity.
We need only deal with the latter
challenge.
[4] "[(G)overnment officials
performing discretionary functions,
generally are shielded from liability for
civil damages insofar as their conduct
does not violate clearly established
statutory or constitutional rights of
which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982). In order to proceed in
their suit against the individual
Defendants, Plaintiffs must have alleged a
violation of a right that was clearly
established in 1987 at the time of the
accident. Siegert v. Gilley, 111 S. Ct.
A17
1789, 1793 (1991); Anderson v. Creighton,
483 U.S. 635, 639-40 (1987). In addition,
the contours of that right "must be
sufficiently clear that a reasonable
official would understand that what he is
doing violates that right." Anderson, 483
U.S. at 640.
[5] Defendants argue that
Plaintiffs’ substantive due process claim
is essentially a claim that they were
deprived of a safe workplace. Plaintiffs
counter that they are alleging a violation
of their more general liberty interest not
to be placed in a position of danger by
government actors. Thus, we must decide
whether to characterize Plaintiffs’ claim
as alleging acts of commission or
omission. This is a difficult question.
The line between the two types of conduct
can easily become blurred. See, e.g,
White v. Rochford, 592 F.2d 381, 384
A18
(7th Cir. 1979) (it is a "tenuous
metaphysical construct which
differentiates sins of omission and
commission"). Nevertheless, we think a
line can be drawn. Plaintiffs claim that
they were exposed to a danger as a result
of Defendants’ actions in ordering them to
clean-up after the explosion and thus that
Defendants played more than a passive
role. See, e.g., Bowers v. DeVito, 686
F.2d 616, 618 (7th Cir. 1982); we agree
with the district court that these are
allegations of affirmative conduct.
However, the district court failed to
consider that in 1987 a right not to be
placed in danger by a government actor was
contingent upon that actor first depriving
an individual of his liberty.
In determining whether Plaintiffs had
a clearly established right in 1987 not to
be placed in danger by a government
A19
employer, we "survey the legal landscape"
as it existed in 1987, Wood v. Ostrander,
879 F.2d 583, 591 (9th Cir. 1989), cert.
denied, 498 U.S. 938 (1990). We begin by
looking at those cases that are "most
like" the instant case. Id. at 592.
However, the exact situation need not have
been the subject of a prior case. Rather,
if there are cases establishing a clear
constitutional right, the question for
this court is whether those cases are
meaningfully distinguishable from the
instant case. Id. at 591-93. In the
"absence of binding precedent," we look to
all available decisional law. See
Capoeman v. Reed, 754 F.2d 1512, 1514 (9th
Cir.. 1985). This "includes cases from
state courts, other circuits and district
courts." Wood, 879 F.2d at 591. If there
is no law that is binding for this circuit
and there are few cases on point, "an
A20
additional factor that may be considered
in ascertaining whether the law is clearly
established is a determination of the
likelihood that the Supreme Court or this
circuit would have reached the same result
as the non-binding authorities at that
time." Id. at 593 (internal quotations
omitted) .
A. Walker and McClary
The case most factually similar to
this one is from the Seventh Circuit. In
Walker v. Rowe, 791 F.2d 507 (7th Cir.),
cert._denied, 479 U.S. 994 (1986), several
state prisoners attacked and killed three
guards and injured several others. Some
of the injured guards and the estates of
the three deceased guards brought suit
claiming that prison officials had
deprived them of their right to a safe
working environment by affirmatively
"act[ing])" to "increase[ ] the danger"
A21
faced by the guards. Id. at 509 (emphasis
supplied). We observe that the district
court failed to consider Walker because it
wrongly considered it to be a case that
dealt with acts of omission.
Although the Seventh Circuit
recognized that in some situations a
government actor had a duty not to engage
in acts or omissions which placed an
individual in a position of danger, id. at
511, the court dismissed the guards’
claims. The decision turned upon the fact
that the creation of danger did not result
from a governmental curtailment of the
guards’ freedom to act on their own
behalf. Id. at 510-11. The guards had
not been "dragoon[ed]" or "forced" into
their jobs. Id. While employers do
compel their employees to some degree,
there was no governmental compulsion such
as when a "state imprisons a person" or
A22
"([w])hen the state arrests the adult having
custody of a child," that forced the
guards to face dangers that most people
would choose to avert. Id. at 511.
Accordingly, in 1986 the Seventh Circuit
recognized that there was a due process
right not to be exposed to danger when a
governmental restriction on an
individuai’s freedom had created the
initial danger and then the government had
done nothing to help the individual. This
right was based on the maxim that "(t]he
state must protect those it throws into
snake pits." Id. at 511. Conversely, the
Seventh Circuit did not recognize a
substantive due process right when the
government had created or "increased" the
danger faced by an individual but had done
nothing to restrict the individual’s
_
A23
freedom to avert that danger. Id. at
509-10.’
The Second Circuit engaged ina
similar analysis in McClary v. O’Hare, 786
F.2d 83 (2a Cir. 1986), which concerned
the death of a state employee as a result
of a work-related accident. The deceased
plaintiff's estate brought a substantive
due process claim against plaintiff's
supervisor, alleging that he had
intentionally failed to follow the safety
procedures that would have averted the
accident. Id. at 84-85. The Second
! As Plaintiffs point out, to some
extent. Walker relies upon cases which
refused to find a substantive due process
right when the plaintiffs alleged only that
a government actor had refused to interfere
to prevent danger, rather than affirmatively
acting to create or increase an individual’s
danger. Id. at 5§10. The Walker court,
however, conceded that in the case before ae
the prison officials had acted to increase
the danger to its employee guards. Thus,
this was not a case which turns on the
distinction between acts of commission or
omission.
A24
Circuit affirmed the dismissal of the
claim, stressing that there was no
allegation that the deceased had been in
the state’s control at the time of his
death.” Id. at 88-89.
Accordingly, during the relevant time
period, the law was more complex than
either party or the district court
acknowledges. On the one hand, there was
no clearly established general
constitutional right not to be exposed to
danger by a government actor irrespective
of whether that exposure was cast in terms
of an act of commission or omission. On
the other hand, there was a clearly
established right not to be exposed to
2 The district court refused to
consider McClary on the ground that it was
a procedural rather than a substantive due
process case. As Defendants point out,
however, McClary involved both a procedural
and a substantive due process claim relating
to a workplace injury (Blue at 25 n. 7).
A25
danger if a government actor had first
taken some action to restrain a person’s
liberty. In 1987, the question of whether
a defendant had engaged in affirmative
conduct went to the issue of restraint.
If such a restraint had occurred, however,
it did not matter whether the resulting
danger occurred due to a failure to act or
to a purposeful action. See Bowers, 686
F.2d at 618 ("({iJf the state puts a man in
a position of danger . . . and then fails
to protect him, it will not be heard to
say that its role was merely passive")
(emphasis supplied).
B. Precedential Effect of
Walker and McClary
Although Walker, and to a lesser
extent McClary, are factually similar to
the present case, neither decision is
binding authority in this circuit. Thus
we must address whether there is any
A26
indication that in 1987 this circuit or
the Supreme Court would have disagreed
with the Seventh and Second circuits and
found that a government official had a
clearly established duty not to expose an
individual to danger, irrespective of
whether or not the government actor had
restrained that individual’s liberty.
The district court relied upon three
cases to support its judgment that the
Defendants were not entitled to qualified
immunity’ The district court relied upon
our decision in Wood, 879 F.2d at 583,
which is considered to be the beginning of
"danger creation" cases in this circuit.
See Grubbs, 974 F.2d at 121. Wood, in
turn, followed the Seventh Circuit
* The third case relied upon by the
district court, Ward v. City of San Jose,
737 F. Supp. 1502 (N.D. Cal. 1990), has
since been reversed on this issue. Ward v.
City of San Jose, 967 F.2d 280 (9th Cir.
1991). .
A27
decision in White, 592 F.2d at 381, the
second case relied upon by the district
court. Neither Wood nor White, however,
demonstrates that there was a clearly
established right in 1987 not to be
exposed to danger by a government actor
without some initial governmental
restriction upon a person’s liberty.
In White, the police arrested a
gentleman on the freeway and abandoned his
young niece and two nephews in the car
which was left on the freeway. Id. at
382. The Seventh Circuit held that the
children had a due process liberty right
not to have been stranded. Id. at 383-85.
Rather, the police should have brought the
children to a safe location. Id. White
stands for the proposition that "[w]hen
the state arrests the adult having custody
of a child, the state had better take care
A28
of the child." Walker, 791 F.2d at 511
(emphasis supplied).
In Wood, the plaintiff was a
passenger in a car that had been pulled
over by the police at 2:30 a.m. The
police arrested the driver, impounded the
car, instructed the passenger to leave the
car, and then refused to give her a ride
out of the area. She was later rapec by a
third party. 879 F.2d at 586. Also faced
with a qualified immunity defense, Wood
concluded that in 1984 the Ninth Circuit
would have followed White, id. at 594, and
that by 1984 "passengers of arrested
drivers" had a clearly established
substantive due process right not to be
"abandon[ed]" by police officers and
thereby exposed to danger. Id. at 593.
In addition to White, Wood also
Stated that, in 1984, this court mostly
likely would have embraced the "logic" of
A29
two other relevant Seventh Circuit
decisions: Jackson v. City of Joliet, 715
F.2d 1200 (7th Cir. 1983); cert. denied,
465 U.S. 1049 (1984), and Bowers, 686 F.2d
at 616. Wood, 879 F.2d at 594. In
Bowers, the deceased plaintiff’s estate
alleged that the state mental health
department had "recklessly" exposed the
public to danger by releasing a violent
mental patient who then killed deceased.
686 F.2d at 617. In Jackson, a police
officer failed to come to the aid of a car
crash victim who later died. 715 F.2d at
1201-04. In both cases, the Seventh
Circuit refused to find a substantive due
process right, notwithstanding that in
Bowers the allegation could easily be
characterized as an exposure to danger
claim.
Wood read Bowers and Jackson as
requiring that a due process exposure to
A30
danger claim must allege some restraint on
an individual’s or a relevant third-
party’s liberty, which creates a special
relationship between the individual and
the government officer that then triggers
the defendant’s duty to protect the
individual from any potential harm. Wood,
879 F.2d at 993-94. Wood distinguished
White from Jackson and Bowers on the
ground that in White "the arrest created
the danger" to the three children. Id. at
594 (quoting Jackson, 715 F.2d at 1204).
The critical difference between Bowers,
Jackson and White was that in White <.
deprivation of liberty had created the
danger. This restriction upon the
children’s liberty triggered the state’s
duty to protect them. Id.; Jackson, 715
F.2d at 1204. In contrast, in Jackson and
Bowers, the state had done nothing to
interfere with the individual’s liberty
A31
and thus any danger that presented itself
to the plaintiff as a result of the
state’s action or inaction did not
implicate due process.
In sum, none of the cases relied upon
by the district court demonstrate that in
1987 there was a clearly established right
in this circuit, or in any other circuit,
not to be placed in a position of danger
by a government actor absent some
limitation on a person’s ability to act on
his own behalf to avert harm. Rather, by
1986 a person had a clearly established
right not to be exposed to danger by a
government actor as a result of his
restricting an individual’s or a relevant
third party’s liberty to act on his own
behalf.
©. Deprivation of Liberty
Plaintiffs are aware that absent an
allegation that a government actor
A32
deprived them of their liberty, in 1987
there was no clearly established right not
to be placed in a position of danger by
their government employer. Plaintiffs
contend that their liberty was deprived
because Defendants "forced" them to clean
up the toxic spill, while at the same time
deliberately keeping them in a state of
ignorance about the potential danger they
faced. Plaintiffs contend that in 1987
this sort of conduct feli under the
definition of "deprivation of liberty"
because it prevented them from acting on
their own behalf to avoid potential Farm.
The cases from the relevant time
period suggest that the courts were indeed
broadening the definition of "deprivation
of liberty" for exposure to danger claims.
On one end of the spectrum were those
cases that involved a restraint on ar
individual’s liberty as a result of a
A33
custodial relationship. See, e.g., Estate
of Gilmore v. Buckley, 787 F.2d 714, 721
(ist Cir.) (discussing custodial cases),
cert. denied, 479 U.S. 882 (1986). Cn the
other end of the spectrum were those cases
where a government defendant had only
indirectly restrained an individual’s
freedom. See, e.g., White, 592 F.2d at
384-85; Ward, 737 F. Supp. at i509-10. By
1986, many courts employed the short-hand
phrase "special relationship" to describe
the nexus between a government actor’s
possible and varied types of control over
an individual’s liberty that would trigger
a duty not to throw that individual into a
Situation of danger. Estate of Gilmore,
787 F.2d at 722; Walker, 791 F.2d at 511.
"Generally speaking, all of these cases
[stood] .. . for the proposition" that a
"special relationship" is created when
"the state, by exercising custody or
A34
control over the plaintiff, effectively
strips her of her capacity to defend
herself, or affirmatively places her ina
position of danger." Estate of Gilmore,
787 F.2d at 721-22 (emphasis supplied).
Other courts defined a "special
relationship" as a situation where there
was a pre-existing custodial relationship
and distinguished this from a situation
where an individual’s exposure to danger
was a result of his liberty being
restricted in some noncustodial manner.
See, e.g., Ward, 737 F. Supp. at 1510. In
1987, however, all these various types of
deprivation of liberty shared a common
attribute: deprivation of liberty denoted
some sort of governmentally sanctioned
A35
interference with a person’s physical
liberty.‘
[6] Therefore, after surveying the
legal catia, we cannot conclude that
in 1987 it was clearly established that a
government employer’s order to an employee
to perform a dangerous task, without
informing the employee about the potential
harm of which the employee was ignorant,
constituted a deprivation of liberty for
purposes of the due process clause. See,
e.g., Walker, 791 F.2d at 510; McClary,
786 F.2d at 89 (deliberate expcszre of
public employees to high risk does not
violate the constitution when exposure
‘We explicitly make no holding whether
in 1987 there was a right not to be exposed
to danger as a result of a government actor
restricting an individual’s civic liberties.
See, e.g., Collins v. City of Harker
Heights, 112 S. Ct. 1061, 1065-66 (1992);
Walker, 791 F.2d at 510 (in 1986 a public
employee could not be threatened with a loss
of his job as a result of speaking out on
matters of "public concern").
A36
does not stem from an abuse of
governmental power and when "identical
actions could have been carried out by a
private employer"). Rather, the only
Clear definition of deprivation of Lipdrty
that is found in the cases is an act,
direct or indirect, of governmental
interference with a person’s bodily
liberty.
[7] While we acknowledge that a
broader understanding of deprivation of
liberty may have emerged later, see, e.g.,
Grubbs, 974 F.2d at 121, we hold that in
1987 there was no clearly established
constitutional right not to be placed ina
position of danger by a government
employer absent some sort of governmental
restriction on an individual’s physical
freedom to act to avert potential harm.
Defendants are thus entitled to a defense
of qualified immunity as a matter of law.
A37
Conclusion
We affirm the district court’s
dismissal of Plaintiffs’ FTCA claims
against the United States. We reverse the
district court’s judgment that the
individual Defendants are not entitled to
qualified immunity and remand this motion
for judgment in accord with this opinion.
AFFIRMED in part, REMANDED in part.
WALLACE, Chief Judge, concurring:
I concur in part I of the opinion and
in the result reached in part II. I write
separately to emphasize two points.
First, as the majority correctly
holds in part II.C., as of 1987, Figv2roa
did not have a clearly established right
to be free from danger, unless a
government official took some affirmative
action to interfere with his physical
liberty. Walker v. Rowe, 791 F.2d 507,
510-11 (7th Cir.), cert. denied, 479 U.S.
A38
994 (1986); McClary v. O’Hare, 786 F.2d
83, 88-89 (2d Cir. 1986); Bowers v.
DeVito, 686 F.2d 616, 618 (7th Cir. 1982).
In this case, the government did not
restrain or otherwise interfere with the
physical liberty of Figueroa or any other
member of the plaintiff class. That is
sufficient to decide the issue. The
majority’s attempt to draw a line between
acts of omission and acts of commission is
unnecessary to the resolution of this case
and should be regarded as dicta.
Second, I disagree with the
majority’s characterization of the state
of the law in 1987. The cases cited by
the majority do not create a clearly
established right "not be to be exposed to
danger if a government actor had first
taken some action to restrain a person’s
liberty." Maj. op. at 11833. Instead,
these cases establish a right to be free
A39
from danger created by the action of a
government official that interferes with a
person’s physical liberty. That is an
important distinction. Because our task
in reviewing a qualified immunity defense
is to describe accurately the state of the
law, not to extend it, I cannot agree with
the majority’s subtle change.
A40
IN THE DISTRICT COURT OF GUAM
TERRITORY OF GUAM
ELADIO T. FIGUEROA, et al.,
Civil Action
No. 91-00030
Plaintiffs,
Vv.
UNITED STATES OF AMERICA,
et al.,
PROCEEDINGS
)
)
)
)
)
) ORDER STAYING
)
)
)
Defendants. )
)
THIS MATTER comes before the court on
the United States’ motion to dismiss on
grounds of collateral estoppel, on
plaintiffs’ motion to stay the proceedings
and for certification for interlocutory
appeal, on the individual defendants’
motion to stay the proceedings pending
appeal, and on the United States’ motion
to strike plaintiffs’ response regarding
unexhausted administrative claims.
A4l1
I. FACTUAL BACKGROUND
The United States Department of the
Navy operates the Piti Power Plant in
Guam. On May 26, 1987, at 3:22 p.m., a
transformer at the Piti Power Plant
exploded and sprayed approximately
60 gallons of polychlorinated biphenals,
commonly referred to as PCBs, throughout
the plant.
On April 23, 1991, 1230 individually
named plaintiffs filed suit against the
United States and twelve individuals in
their official capacity for actions
arising out of the spill. Two hundred
fifty-two of the plaintiffs were federal
employees at the time of the accident. In
their complaint, plaintiffs stated causes
of action against the United States for
negligence in the clean-up of the PCBs as
well as for negligence in evaluating the
damage and advising plant workers about
A42
protective measures. Plaintiffs also
brought causes of action against the
United States based on strict liability,
knowing, wanton and willful conduct and
the Guam Toxic Substance Exposure
Compensation Act ("TSECA"). Finally,
plaintiffs state a constitutional tort
claim, Bivens v. Six Unknown Named Agents,
403 U.S. 388 (1971), against various
individual naval officers and doctors.
In a related action, Abuyuan v. General
Electric Co., No. 89-00031 (D. Guam), a
certified class of federal employee
plaintiffs, including many of the same
plaintiffs in this action, filed suit
against manufacturers General Electric Co.
and Monsanto alleging negligence and
violation of TSECA.
In a December 19, 1991, order, this
court denied the individual defendants’
motion to dismiss on the grounds of
A43
failure to state a claim, qualified
immunity and inadequate factual pleadings.
In a January 17, 1992, order, this court
granted the United States’ motion to
dismiss various claims against them,
including: (1) the claims of the 252
federal employee plaintiffs on the grounds
they are preempted by the Federal
Employees Compensation Act ("FECA");
(2) claims based on TSECA; (3) claims for
prejudgment interest and attorneys fees;
and (4) plaintiffs’ claims based on
ultrahazardous activity or strict
liability.’ In its motion to dismiss, the
United States also asked this court to
dismiss as plaintiffs those individuals
' In the January 17, 1992, order, the
court further held that the law governing
the liability of the parties would be the
law of Guam, prior to the passage of TSECA,
on exposure to toxic substances. Finally,
the court denied the government’s motion to
dismiss plaintiffs’ request for medical
monitoring expenses.
A44
who filed administrative claims as "spouse
of" or "child of" a power plant worker on
the grounds that these persons failed to
exhaust administrative remedies. The
court denied that part of the government’s
motion and directed them to produce within
30 days a list of those individual
plaintiffs that it believes have not
exhausted administrative remedies.
Plaintiffs were then to explain, within
30 days of receiving the names, why they
contend these individuals have exhausted
administrative remedies. The United
States filed its list on February 18,
1992, and the plaintiffs filed their
response on May 14, 1992.
In a February 25, 1992, decision in
Abuan, Judge Munson granted the
defendants’ motions for summary judgment,
finding that the federal employee
plaintiffs failed to proffer sufficient
A45
evidence of exposure or causation to
maintain their action and that plaintiffs’
admitted lack of physical injuries
prevented them from stating claims for
relief under Guam common law. Abuan,
1. v n El Ris
No. 89-00031, Decision and Order Re
Defendants’ Motion for Summary Judgment.
In an April 13, 1992, order this
court denied the individual defendants’
motion for reconsideration and granted in
part plaintiffs’ motion for
reconsideration, amending this court’s
January 17, 1992, order to state that only
plaintiffs’ TSECA claim based on increased
likelihood of injury would have to be:
dismissed for lack of subject matter
jurisdiction on the grounds that it
impermissibly imposes liability without
fault.
A46
The United States now moves for
summary judgment on the claims of the non-
federal employee plaintiffs on the grounds
that those claims are precluded under the
doctrine of collateral estoppel by Judge
Munson’s decision in Abuan. The United
States also seeks dismissal of the claims
of the 307 non-federal-employee plaintiffs
who the government alleges failed to file
administrative claims. Finally, the
United States moves to strike plaintiffs’
response regarding these plaintiffs’
failure to exhaust administrative
remedies.
Plaintiffs move for a stay of these
proceedings and for certification for
interlocutory appeal that part of this
court’s January 17 order dismissing the
federal employee plaintiffs’ claims on the
grounds that those claims are pre-empted
by plaintiffs’ remedies under FECA. The
—aooooeoeoeoreeeeeeee
a
A47
individual defendants also move for a stay
of these proceedings pending appeal to the
Ninth Circuit Court of Appeals of this
court’s December 19, 1991, order denying
their motion to dismiss based on qualified
immunity.
II. DISCUSSION
A. Individual Defendants’ Motion to Stay
On May 22, 1992, the individual
defendants filed a notice of appeal of
this court’s December 19, 1991, order
denying their motion to dismiss based on
qualified immunity, and this court’s
April 13, 1992, order denying
reconsideration. As qualified immunity is
designed to relieve a government official
from the burdens of litigation and is not
merely a defense, an interlocutory appeal
of an order denying dismissal based on
qualified immunity is an appeal of right.
A48
Mitchell v. Forsyth, 472 U.S. 511, 526-27
(1985). Unless the district court
certifies that an appeal would be
frivolous, such an appeal divests the
district court of jurisdiction over the
claim. See United States v. Claiborne,
727 F.2d 842, 850 (9th Cir.), cert.
denied, 469 U.S. 829 (1984); Chuman v.
Wright, No. 92-55007, slip op. at 1 (9th
Cir. March 27, 1992).
Defendants’ appeal of this court's
order denying dismissal based on qualified
immunity is not frivolous. The individual
defendants presented substantial questions
to this court that the court resolved in
plaintiffs’ favor. Accordingly, this
court will not certify the appeal as
frivolous and the individual defendants
are entitled to a stay of all proceedings
against them pending appeal.
A49
Certificati
Under Fed. R. Civ. P. 54(b), this
court may direct the entry of a final, and
therefore appealable, judgment on fewer
than all claims when: (1) the case
involves multiple parties or claims;
(2) the court has disposed of one, but
less than all, of a parties’ claims; and
(3) there is no just reason for delay.
Plaintiffs move for entry of judgment
under Rule 54(b) of that part of this
court’s January 17, 1992, order dismissing
the federal employee plaintiffs’ claims on
the grounds that they are precluded by
FECA. Plaintiffs also ask the court to
stay the remaining proceedings pending
appeal.
Defendants do not oppose
certification of this issue for
interlocutory appeal. The United States,
ASO
however, does request that the court
resolve its motion for summary judgment of
dismissal of the claims of the non-
federal-employee plaintiffs’ claims prior
to staying the proceedings.
The court finds that its order
dismissing the federal employee plaintiffs
claims on the grounds that their sole
remedy is provided by FECA is appropriate
for certification for interlocutory
appeal. The January 17 order completely
disposed of the federal employee
plaintiffs claims against the United
States and left only the claims of the
non-federal employee plaintiffs and of all
plaintiffs against the individual
defendants. In addition, immediate appeal
on this issue would advance the ultimate
resolution of the litigation. As long as
the proceedings will be stayed to permit
the Ninth Circuit to address the
A51
individual defendants’ appeal on qualified
immunity, there is no just reason to delay
the appeals’ court’s hearing plaintiffs’
appeal.
C. United States’ Motions for Summary
Judgment and to Strike
Although the government has req ested
that the court rule on its pending motions
for summary judgment of dismissal of the
non-federal-employee plaintiffs’ claims
prior to staying these proceedings, the
court will hold those motions in abeyance
until it lifts its stay. The United
States bases its motion for summary
judgment on Judge Munson’s decision in
Abuan. A notice of appeal of that
decision already has been filed. As long
as these proceedings will not be movi 1g
forward in any other way, the court
believes that the wisest use of judicial
resources would be to permit the Ninth
A52
Circuit to address Judge Munson’s ruling
prior to its considering the government’s
motion. If Judge Munson’s ruling is
reversed on appeal, the motion will become
moot. If Judge Munson’s ruling is
affirmed, the court can immediately
consider the United States’ motion.
Finally, although there are no
appellate court rulings to be made on the
United States’ motion to dismiss the
claims of the non-federal-employee
plaintiffs who they allege failed to file
administrative claims, the briefs
submitted by the parties indicate that
there remain considerable differences
between the parties regarding the
administrative claim process. The court
believes that holding this motion in
abeyance during the stay will give the
parties additional opportunity to address
the issue and perhaps resolve on their own
A53
whether particular putative plaintiffs
actually submitted administrative claims.
As plaintiffs have failed to explain their
nearly two-month delay in filing their
response regarding these plaintiffs’
administrative claims, the court believes
that they will give particular attention
to resolving this issue.
III. CONCLUSION
It is hereby ORDERED, ADJUDGED and
DECREED that:
(1) the individual defendants’
motion for a stay of the proceedings
against them pending appeal of this
court’s order denying their motion to
dismiss on qualified immunity grounds is
GRANTED;
(2) plaintiffs’ motion for a stay
and for certification for interlocutory
appeal of this court’s January 17, 1992,
ene tes =
A54
ruling dismissing the federal employee
plaintiffs’ claims against the United
States on the grounds that they are
precluded by FECA is GRANTED; and
(3) all future proceedings in this
matter, including the United States’
motions for summary judgment and to strike
plaintiffs’ response regarding plaintiffs
who failed to file administrative claims,
are STAYED pending the appeals discussed
above.
DATED at Seattle, Washington this
29th day of May, 1992.
Ls
BARBARA J. ROTHSTEIN
CHIEF UNITED STATES
DISTRICT JUDGE
AS5
IN THE DISTRICT COURT OF GUAM
TERRITORY OF GUAM
ELADIO T. FIGUEROA, et al.,
Plaintiffs, Civil Action
No. 91-00030
Vv.
ORDER RE:
UNITED STATES OF AMERICA, MOTIONS FOR
et al., RECONS IDERA-
TION
Defendants.
ee eee ee ee ee ee ee ee
THIS MATTER comes before the court on
the individual defendants’ motion for
reconsideration of this court’s
December 19, 1991, order denying dismissal
of plaintiffs’ claims and on plaintiffs’
motion for reconsideration of portions of
this court’s January 12, 1992, order
dismissing plaintiffs’ claims against the
United States.
I. FACTUAL BACKGROUND
AS6
The United States Department of the
Navy operates the Piti Power Plant in
Guam. On May 26, 1987, at 3:22 p.m., a
transformer at the Piti Power Plant
exploded and sprayed approximately
60 gallons of polychlorinated biphenals,
commonly referred to as PCBs, throughout
the plant.
On April 23, 1991, 1230 individually
named plaintiffs filed suit against the
United States and twelve individuals in
their official capacity for actions
arising out of the spill. Two hundred
fifty-two of the plaintiffs were federal
employees at the time of the accident.
Jurisdiction of plaintiffs’ complaint is
based on the Federal Tort Claims Act
("FTCA"), 28 U.S.C. § 1346(b), 2671-80.
In their complaint, plaintiffs state
causes of action against the United States
for negligence in the clean-up of the PCBs
A57
as well as for negligence in evaluating
the damage and advising plant workers
about protective measures. Plaintiffs
also bring causes of action against the
United States based on strict liability,
knowing, wanton and willful conduct and
the Guam Toxic Substance Exposure
Compensation Act ("TSECA"). Finally,
plaintiffs sixth cause of action is a
constitutional tort claim, Bivens v. Six
Unknown Named Agents, 403 U.S. 388 (1971),
against various naval officers and
doctors. Plaintiffs seek to recover
damages for their current and future
injuries from exposure to toxic substances
and for their increased fear of developing
cancer at some time in the future as a
result of this exposure.
In a December 19, 1991, order, this
court denied the individual defendants’
motion to dismiss on the grounds of
A58
failure to state a claim, qualified
immunity and inadequate factual pleadings.
In a January 17, 1992, order, this court
granted the United States’ motion to
dismiss various claims against them,
including: (1) the claims of the 252
federal employee plaintiffs on the grounds
they are preempted by the Federal
Employees Compensation Act ("FECA") ;
(2) claims based on TSECA; (3) claims for
prejudgment interest and attorneys fees;
and (4) plaintiffs’ claims based on
ultrahazardous activity or strict
liability.’
1In its motion, the United States also
asked this court to dismiss as plaintiffs
those individuals who filed administrative
claims as "spouse of" or "child of" a power
plant worker on the grounds that these
persons failed to exhaust administrative
remedies. The court denied that part of the
government’s motion and directed them to
produce within 30 days a list of those
individual plaintiffs that it believes have
not exhausted administrative remedies.
Plaintiffs were then to explain, within
A59
The individual defendants now move
for reconsideration of this court’s
December 19, 1991, order. Plaintiffs move
for reconsideration of portions of this
court’s January 17, 1992, order.
II. DISCUSSION
A motion for reconsideration is
properly granted only if it raises
arguments that were not addressed in the
original motion. Taylor v. Knapp, 871
F.2d 803, 805 (9th Cir. 1989), cert.
denied, 110 S.Ct. 192 (1989). See also
30 days of receiving the names, why they
contend these individuals have exhausted
administrative remedies.
In the January 17, 1992, order, the
court further held that the law governing
the liability of the parties would be the
law of Guam, prior to the passage of TSECA,
on exposure to toxic substances. Finally,
the court denied the government’s motion to
dismiss plaintiffs’ request for medical
monitoring expenses.
A60
Backland v. Barnhart, 778 F.2d 1386, 1388
(9th Cir. 1985).
A. Individual Defendants Motion for
In its December 19, 1991, order, this
court held that plaintiffs’ Fifth
Amendment Substantive Due Process cause of
action adequately asserts violation of a
protected constitutional right, i.e., the
right not to be placed in a position of
known danger by government officials, and
held that the individual defendants’ were
not entitled to qualified immunity.
Defendants now ask the court to
reconsider these holdings. They argue
that this court was incorrect when it
concluded that the individual defendants’
decisions to require the power plant
employees to return to work implicated any
established constitutional right. Tkey
also argue that this court’s resolution of
| A61
the qualified immunity issue was
incorrect. Finally, the individual
defendants raise a new argument, that
plaintiffs’ constitutional tort claim is
precluded by the exclusive remedies of
FECA.
1. Asserted Constitutional Right
In its December 19, 1991, order this
court held that plaintiffs’ allegation
that the individual defendants
intentionally placed plaintiffs ina
position of known danger adequately stated
a claim for violation of a protected Fifth
Amendment substantive due process right.
See Order Denying Individual Defendants’
Motion to Dismiss at 4-8. The court
explained that while there is no
substantive due process violation where a
government official has no duty to
intercede to prevent a harm he knew about
but did not create, substantive due
A62
process is violated where the government
official has affirmatively acted to place
an individual in danger. Id. at 6.
Defendants argue first that this
court erred in finding such a right in an
environmental harm case. Defendants next
argue that this court erred because
plaintiffs have no constitutional right to
a safe work environment. Collins v. City
of Harker Heights, 60 U.S.L.W. 4182
(February 26, 1992); Walker v. Rowe, 791
F.2d 507, 510 (7th Cir.), cert. denied 479
U.S. 994 (1986) .?
*Defendants also argue that this court
placed too much reliance on the plaiu:iffs’
allegation that they were provided with
inadequate protective gear when they were
directed to return to work. Defendants
point out that the GAO report states that
the appropriate personal protective
equipment overalls were not in the naval
supply system. Defendants argue that where
resources necessary to comply with clearly
established constitutional law are not
available, qualified immunity shields the
individual defendants from liability. See
Youngberg v. Romero, 457 U.S. 307, 323
A63
Defendants’ arguments are
unpersuasive. The court considered and
rejected defendants’ first argument in its
original order. Order Denying Individual
Defendants’ Motion to Dismiss at 4-8 ("The
governmental action in the environmental
harm cases differs from the governmental
action that plaintiffs assert violated
their rights in this case"). Plaintiffs
do not assert a constitutional right to be
free from environmental harm or from
exposure to toxic chemicals, and the facts
of their complaint need not be interpreted
in such a restrictive manner.
Defendants’ second argument fails to
take into account the distinctions made by
(1982). Defendants’ reliance on Youngberg
is misplaced. Youngberg deals with the
resources available to directors and
administrators of state institutions,
including mental hospitals, and instructs
courts to treat with deference the decisions
of administrators regarding use of
resources. Id. at 322-23.
A64
this court regarding the necessary action
by a government official before plaintiffs
can assert a constitutional violation. As
the Supreme Court recently made clear in
Collins, a city’s failure to train or warn
its employees about known hazards in the
workplace does not violate the due process
clause. Collins, 60 U.S.L.W. at 4186. In
Collins, the plaintiff asserted that the
city of Harker Heights, Texas, deprived
her husband of his life and liberty
because it failed to provide a reasonably
safe work environment. However, the court
in Collins drew a distinction between its
case, where the deceased’s job of cleaning
the sewer system required him to face
inherent risks, and cases where the
government has an affirmative duty of
care.
Other cases cited by the individual
defendants where courts have rejecteca a
A6é5
constitutional claim based on the right to
a safe work environment similarly have
distinguished the situation where the
government has affirmatively acted to
place a person in danger. See, ¢€.g.,
Walker, 791 F.2d at 511 ("The state must
protect those it throws into snake pits,
but the state need not guarantee that
volunteer snake charmers will not be
bitten"); Bradberry v. Pinellas County,
789 F.2d 1513 (11th Cir. 1986). See also
Ruge v. City of Bellevue, 892 F.2d 738
(8th Cir. 1989) ("where the states abuses
its governmental authority through an
alleged policy of actively placing a
person into a situation of known danger,
the Constitution proscribes and limits
such action") .?
*The Supreme Court’s decision in
Collins effectively overrules Ruge, which
had held that plaintiff asserted a 42 U.S.C.
§ 1983 claim for municipal liability where
A66
In addition, although the court in
Walker held that where a state employee
voluntarily accepts a job, the state has
no duty to provide a safe working
environment, the incident at issue here
involves more than plaintiffs’ regular
working conditions. As the court
explained in its December 19, 1991, order,
the explosion at the power plant was a
discrete, identifiable event releasing
toxic chemicals into the plant.
Plaintiffs allege that defendants knew
about this danger and still directed them
it alleged that the city had a policy of not
shoring up ditches into which it sent its
employees. Ruge is distinguishable from the
situation at issue here. The policy ȣf not
shoring up ditches was a latent unsafe
working condition. Here, however, the
explosion was a discrete event. While the
municipal employees in Ruge knew they would
be working in ditches, the employees here
did not accept their positions with any
forewarning or anticipation that they would
be instructed to work in a dangerous
situation following an explosion.
F
£
FA
ns
A67
to return to work. Such an allegation
adequately asserts a substantive due
process claim. The individual defendants’
arguments to the contrary are again
unpersuasive.
r # Qualified Immunity
"Government officials performing
discretionary functions . .. are shielded
from liability for civil damages insofar
as their conduct does not violate clearly
established statutory or constitutional
rights of which a reasonable person would
have known." Harlow v. Fitzgerald, 457
U.S. 818 (1982). Government officials are
presumed to have knowledge of clearly
established law and to be able to act
reasonably with respect to that law. A
determination of whether the qualified
immunity doctrine applies in a particular
case focuses on two inquiries:
(1) whether the constitutional rights
A68
allegedly violated were clearly
established at the time of defendants’
conduct; and (2) whether defendants’
conduct was objectively reasonable with
reference to the clearly established law.
The operation of these standardy
interacts with the level of generality at
which plaintiffs’ constitutional right is
identified. Anderson v. Creighton, et
al., 483 U.S. 635, 639 (1987). Under
Anderson, the constitutional right
asserted by plaintiffs must be
sufficiently specific to permit reasonable
government officers to understand that
their actions may violate that right. Id.
at 640.
In its December 19, 1991, order. this
court held that the right not to be placed
in known danger by government officials
was well established in 1987 and that the
court could not conclude at this stage of
A69
the proceedings that plaintiffs could
prove no set of facts that would establish
that the individual defendants’ actions
were not objectively reasonable. In
reaching its decision that plaintiffs’
asserted constitutional right was well
established, the court relied primarily on
cases such as Ward v. City of San Diego,
791 F.2d 1329, 1332 (9th Cir. 1986), cert.
denied, 483 U.S. 1020 (1987); Wood v.
Qstrander, 879 F.2d 583 (9th Cir. 1989),
cert. denied, 111 S.Ct. 341 (1990); Wnite
v,. Rochford, 592 F.2d 381 (7th Cir. 1979),
where government officials had taken
affirmative action that placed plaintiffs
in a position of known danger.
Defendants argue that the court erred
in two respects. First, the individual
defendants argue that plaintiffs’ asserted
constitutional right was not clearly
established at the time of the 1987
A70
explosion. Second, the individual
defendants argue that the court
impermissibly substituted its own view of
reasonableness for the objective
reasonableness standard required ina
qualified immunity determination.
a. Clearly Established Law
Defendants argue, as they did in
their motion to dismiss, that plaintiffs
are attempting to state their
constitutional right in an overbroad
manner, contrary to the admonition in
Anderson. Defendants argue that
plaintiffs’ complaint, looked at with the
specificity required in Anderson, asserts
that plaintiffs’ constitutional rights to
be free from environmental harm and to be
safe and secure in their workplace have
been violated.
In support of this argument,
defendants again point to cases where
A71
courts nave ‘hela that there is no
constitutional right to be free from
exposure to harmful chemicals. See, e.g.,
In re "Agent Orange" Product Liability
Litigation, 475 F. Supp. 928, 934
(E.D.N.Y. 1979). Defendants also,
however, point to the line of cases
holding that there is no constitutional
right to freedom from governmental
indifference to occupational safety. See,
e.g., Collins v. Harker Heights, 60
U.S.L.W. 4182 (February 26, 1992); Walker
v. Rowe, 791 F.2d 507, 510 (7th Cir.),
cert. denied, 479 U.S. 994 (1986).
As discussed above, the court has
again concluded that plaintiffs have
asserted a substantive due process right.
In determining whether that right was
firmly established in 1987, at the time of
the’power plant explosion, the court is to
look at all available decisional law.
A72
See, e.g., Tribble v. Gardner, 860 F.2d
321 (9th Cir. 1988). Of the cases
advanced by the parties, In re "Agent
(1979); Walker (1986); Washington v.
District of Columbia, 802 F.2d 1478 (D.C.
Cir. 1986); Rankin v. City of Wichite
Falls, 762 F.2d 444 (5th Cir. 1985); Ward
(1986); and White were decided prior to
the explosion at issue here. White and
Ward both hold that government officials
violate substantive due process when they
knowingly place individuals in positions
of known danger. In re "Agent Orange"
holds that there is no constitutional
right to freedom from exposure to
environmental harm. Walker, Washington
and Rankin all hold that there is no
A73
constitutional right to a safe work
environment .‘
Defendants argue that confronted with
these cases, a reasonable official would
conclude that he is bound either by the In
re Agent Orange line of cases finding or
by the Walker line of cases and would
therefore not understand that he was
violating a constitutional right by
requiring the plaintiffs’ to return to
work and by providing them with inadequate
safety equipment. Defendants also argue
that even if this court determines tliat
the right not to by [sic] placed in known
danger by government officials was firmly
‘Defendants cite a fourth case, McClary
v. O’Hare, 786 F.2d 83 (2d Cir. 1986) for
the proposition that there is no
constitutional right to a safe work
environment. McClary, however, is
inapposite. It involves a procedural due
process claim based on officials’ failure to
comply with municipal and state safety
regulations in the daily operation of its
highways.
A74
established, the facts of this case are
too different from the facts of White and
Ward for the unlawfulness of the
individual defendants’ actions to have
been apparent.
Defendants are correct in their
assertion that it was clearly established
in 1987 that there was no constitutional
right either to be free from environmental
harm or to have a safe work environment.
However, the facts of these lines of cases
are too dissimilar from the facts of this
case to be the clearly established law for
determining whether the individual
defendants are entitled to immunity from
suit. Both the environmental harm and
safe work environment claims involve.
actions based on existing conditions and
do not involve affirmative government
action. Walker involved allegations of a
municipal policy of failing to shore up
A75
ditches, a known dangerous working
condition. Washirigton involved an attack
by a prisoner on a prison guard and
allegations of unsafe conditions at the
jail allowing the prisoner access to the
guard. Rankin involved the death by
drowning of a municipal worker at a water
treatment plant when the worker attempted
to help a co-worker who had slipped. In
none of these cases did a governmental
actor take affirmative steps to place the
individuals in a position of known danger,
as did the individual defendants in White,
Ward and, allegedly, this case.
That the government officials here
were not law enforcement officers as they
were in White and Ward does not mean that
plaintiffs’ asserted constitutional right
is too broadly asserted. Nor does
defendants’ reliance on F.E. Trotter, Inc.
v. Watkins, 869 F.2d 1312 (9th Cir. 1989)
A76
persuade this court that these plaintiffs
have phrased their constitutional right
too broadly. In Trotter, the plaintiffs
asserted a substantive due process
violation based on government officials’
use of fabricated data to prepare an
advisory document. The Ninth Circuit held
that, although there were some cases
finding substantive due process violations
in irrational zoning decisions, because no
case had specifically held that
preparation of an advisory report using
fabricated data was a substantive due
process violation, the law finding such a
constitutional right was not clearly
established.
This court finds Trotter unpersuasive
in this situation for two reasons. First,
the Ninth Circuit opinion in Trotter would
seem to suggest that the facts of a case
be identical to those in a prior decision
A77
before the asserted constitutional right
would be clearly established. This is not |
what Anderson requires, and to the extent
defendants rely on Trotter for this
proposition, the court rejects such an
interpretation. Under Anderson,
The contours of the right must |
be sufficiently clear that a
reasonable official would
understand that what he is doing
violates that right. That is
- r1 1 the v 4
held unlawful, but it is to say . =~"
that in the light of :
pre-existing law the
unlawfulness must be apparent.
Anderson, 483 U.S. at 640. Second, the
plaintiffs in Trotter phrased their
constitutional right very narrowly,
asserting a right not to have the
government deliberately use false data in
an advisory opinion to deprive them of
their property rights. Without any
attempt to phrase this asserted right in
A78
terms of a broader, well recognized right,
it is little wonder that the Ninth Circuit
would require practically an identical set
of facts before finding that such a right
was clearly established. Plaintiffs here,
however, clearly link the affirmative
action of the government officials to
similar affirmative action by government
officials in other cases. In addition, as
the court pointed out in its prior order,
both Ward and White anticipate that they
will not be restricted to law enforcement
situations.
Thus, the court concludes again chat
plaintiffs’ asserted constitutional right
was clearly established at the time of the
1987 explosion. Case law existed at that
time finding violation of substantive due
process rights where government officials
deliberately placed individuals in a
position of known danger. While the cases
A79
cited by defendants finding that there is
no constitutional right to a safe work
environment may have been dispositive had
workers been on duty at the time of the
explosion and sued the individual
defendants for failing to prevent the
conditions that lead to the explosion,
those cases are unavailing here. These
plaintiffs do not allege failure to
maintain a safe work environment. Rather
they allege that the individual defendants
violated their constitutional rights when
they required them to return to work after
the explosion.
b. OQbjective Reasonableness
Even if the court again finds that
plaintiffs’ asserted constitutional right
was clearly established, defendants argue
that the court erred in finding that the
individual defendants did not act
objectively reasonably in light of
A80
existing law at the time. Specifically,
Gefendants refer to the Supreme Court’s
decision in Hunter v. Bryant, 112 S.Ct.
534 (1991) issued three days before this
court’s December 19, 1991, order stating
that the district court is to look at the
conduct of the governmental officers in
the circumstances at the time of their
actions, not whether another reasonable,
or more reasonable interpretation can be
constructed five years after the fact.
Hunter v. Bryant, 112 S.Ct. 534, 537
(1991). Defendants argue that, in light
of Hunter, this court applied the wrong
reasonableness test. Defendants argue
that in stating "in light of this known
Ganger [the presence of toxic chemicals in
the plant), it simply cannot be reasonable
for government officials to choose
continued power generation over the safety
of the power plant employees," this court
A81
substituted its own notion of reasonable
official conduct for the objective
reasonableness called for under Hunter.
See Order Denying Individual Defendants’
Motion to Dismiss at 13. In addition,
defendants argue that this court
impermissibily used the "known danger"
criteria to determine what was reasonable.
The court, evidently too abruptly,
used "known danger" as a shorthand way of
describing the conditions that the
individual defendants faced as they made
their decision to continue operating the
Piti Power Plant following the May 26,
1987, explosion. Extremely toxic
chemicals were housed at the power plant.
The transformer explosion sprayed
approximately 60 gallons of
polychlorinated biphenals, commonly
referred to as PCBs, throughout the plant.
The extent of the release of toxic
A82
chemicals was not immediately known.
However, it is common knowledge that
exposure to toxic chemicals can have
severe health effects. In addition, che
individual defendants’ decision to provide
some protective equipment, regardless of
whether it was adequate, indicates that
they were aware that the explosion posed
some danger to plant employees.
It is igainst this background tlat
the court decided whether, examining the
evidence in the light most favorable to
the plaintiff, plaintiffs could prove any
set of facts that would entitle them to
relief. In other words, the court
determined that plaintiffs could show a
set of facts from which it could conclude
that the objective reasonableness of the
individual defendants’ actions could not
be established as a matter of law.
A83
Finally, defendants are incorrect
when they state that the court substituted
its own notion of reasonableness for the
objective reasonableness inquiry. In
Hunter, the Ninth Circuit held that, at
the summary judgment stage, the objective
reasonableness of the police officer’s
actions in determining that they had
probable cause to arrest the plaintiff was
a question for the trier of fact, and a
grant of summary judgment was not
appropriate unless there was only one
reasonable conclusion a jury could reach.
Bryant v. United States Treasury
Department, Secret Service, 903 F.2d 717
(9th Cir. 1990). The Supreme Court held
that the Ninth Circuit’s statement of law
was wrong because it did not examine the
reasonableness of the officers’ actions at
the time but rather asked whether another
reasonable or more reasonable construction
A84
of events could be found five years later.
Hunter, 112 S.Ct. at 537.
In denying that the individual
defendants are entitled to qualified
immunity, this court does not ask whether
another reasonable or more reasonable
course of action was possible in the wake
of the power plant explosion. Rather,
this court merely concludes that
plaintiffs have set forth sufficient facts
to raise a question as to whether the
individual defendants’ conduct was
objectively reasonable.
As they have not persuaded the court
that its earlier decision was in errcr,
the individual defendants’ motion for
reconsideration of denial of the qualified
immunity defense is denied.
3. Inadequacy of Pleadings
In cases where violation of a
constitutional right includes an element
A85
of the government officials’ subjective
intent, the heightened pleading standard
requires plaintiffs to state in their
complaint nonconclusory allegations
setting forth evidence of unlawful intent.
Branch v. Tunnell, 937 F.2d 1382, 1386
(9th Cir. 1991). In its December 19,
1991, order, this court stated that in
their original complaint plaintiffs did
little more than describe the time and
place of the allegedly unconstitutional
conduct and the identity of the allegedly
responsible officials.’ The complaint did
‘Ordinarily, all that is required of a
plaintiffs in their complaint is that they
allege specific conduct violating their
rights, the time and place of the coaduct
and the identity of the responsible
officials. Vv ip,
838 F.2d 663, 666 (746 ©6<Cie. 1988),
cert. denied, 490 U.S. 1065 (1989).
Plaintiffs argue that as subjective intent
is not an element of the substantive due
process violation at issue here, they have
sufficiently plead their cause of action.
As the court has determined that defendants
set forth no new arguments on this issue in
A86
not link any specific individual to any
specific conduct. The court ruled that
plaintiffs would have until March 31,
1992, to amend their complaint with more
specific facts linking the individual
defendants with the alleged violation of
plaintiffs’ constitutional rights.°
Defendants argue that it was error
for this court to recognize the proper
pleading standard and then permit
plaintiffs to conduct discovery and amend
their complaint rather than to dismiss the
complaint. Defendants further argue that
by allowing such discovery, the court
emasculates the purpose of the qualified
their motion for reconsideration, the court
need not consider plaintiffs’ arguments.
Upon stipulation of the parties, this
date was extended pending the court’s ruling
on the individual defendants’ motion for
reconsideration.
A87
immunity defense, which is to include
immunity from discovery.
Defendants’ arguments are again
unpersuasive. First, this court fully
considered defendants’ arguments regarding
the propriety of dismissal in making its
original ruling and need not revisit these
arguments on reconsideration. Second,
whereas qualified immunity does include
immunity from discovery, the court denied
the individual defendants’ motion for
qualified immunity.
4. iv f FE n
Bivens Claim
Defendants next present an issue that
was not raised at all in their individual
motion to dismiss. Defendants argue that
this Bivens action is precluded by the
Federal Employees Compensation Act
("FECA"), 5 U.S.C. §§ 8101-8193, which
Congress intended to make the exclusive
A88
remedy against the United States for job-
related injuries.
Where there are special factors
counseling hesitation, federal courts
should not invoke their remedial powers to
create a Bivens action for
unconstitutional official conduct. See
Bush v, Lucas, 462 U.S. 367 (1983). One
such special factor is the existence of a
comprehensive statutory scheme providing
exclusive remedies for the allegedly
unconstitutional government conduct giving
rise to the Bivens action. Id, at 368
(Civil Service Reform Act); Schweiker v.
Chilicky, 487 U.S. 412, 428-29 (1988)
(Social Security Act) ; ae ae an
McClure, No. 90-56021, slip op. at 6 (9th
Cir. Bec. 24, 299i}.
Defendants argue that because FECA is
"intended to provide an exclusive remedy
for all employees of the United States
A89
suffering job-related injuries. .. ,"
Guidry v. Durkin, 834 F.2d 1465, 1471 (9th
Cir. 1987), this court should not allow a
Bivens action based on injuries suffered
by these shatentece in connection witn
their employment at the power plant.
Defendants’ argument is again
unpersuasive. The court notes first that
even if it were to hold that FECA does not
preclude a Bivens action, such a ruling
would only affect the federal employee
plaintiffs, not their spouses or other
family members. See Order Granting in
Part the United States’ Motion to Dismiss
at 5. Second, defendants’ argument is
incomplete. While FECA clearly precludes
actions against the United States for job-
related injuries, it is not clear that
FECA precludes actions against individual
government officials for allegedly
deliberate constitutional violations. As
A90
plaintiffs point out, to give FECA
preclusive effect in such a situation
would, in essence, allow government
officials to act with impunity toward the
employees they supervise.
Finally, the cases cited by
defendants where courts held that other
statutory schemes should preclude a Bivens
action are distinguishable from this one.
In Schweiker and Sky Ad, Inc., plaintiffs
pursued Bivens actions based on procedural
due process violations. The courts held
that the statutory schemes involved were
designed specifically to deal with review
of administrative decisions, thereby
precluding a separate legal action based
on that process. Similarly, in Bush, the
Supreme Court held that the Civil Service
Reform Act precluded a Bivens action
arising out of personnel decisions because
the Act provided a comprehensive and
A91
complete remedial scheme for all personnel
decisions. In his concurrence,
Justice Marshall specifically stated that
"there is nothing in today’s decision to
foreclose a federal employee from pursuing
a Bivens remedy where his injury is not
attributable to personnel actions which
may be remedied under the federal
statutory scheme." Bush, 462 U.S. at 391.
Accordingly, the individual
defendants’ motion for dismissal based on
the preclusive effects of FECA is denied.
B. Plaintiffs’ Motion for
Reconsideration
Plaintiffs seek reconsideration of
only that part of this court’s January 17,
1992, order, dismissing plaintiffs’ claims
based on the Guam Toxic Substances
Exposure Compensation Act ("TSECA").
In its January 17, 1992, order, this
court dismissed plaintiffs’ TSECA action,
A92
finding that TSECA was hostile to the
interests of the United States and that to
borrow such a hostile statute as the state
law for application under the FTCA
violated constitutional supremacy clause
principles. This court stated that the
applicable rule of decision would instead
be borrowed from existing Guam common law.
The court also found that even if TSECA‘’s
application would not violate supremacy
Clause principles, plaintiffs’ TSECA
action would nonetheless have to be
dismissed on the grounds: (1) that TSECA
exceeded the FTCA’s waiver of sovereign
immunity because TSECA’s provisions
establishing presumptions for injury and
causation essentially impose liability
without fault; and (2) that this court
lacked subject matter jurisdiction because
TSECA does not require a showing of injury
and causation, as required under the FTCA.
A93
As a fundamental principle of
judicial restraint, courts avoid reaching
constitutional questions unless necessary.
See, e.9., Lyng v. Northwest Indian
Cemetery Protective Association, 485 U.S.
439 (1988). Upon reconsideration, tle
court determines that its examination of
the constitutionality of TSECA was
premature. In a proceeding parallel to
this one, plaintiffs bringing suit against
General Electric Company and Monsanto
Company for their role in the power plant
explosion were unable to establish that
they were exposed to a level of toxic
substances sufficient to warrant future
medical monitoring or to place themselves
at an increased riek of future injury,
illness or disease, even under the
presumptions set out by TSECA. See Abuan
v. General Electric Co., Civil Action
No. 89-00031, Decision and Order Re
ial aa aa a i a
A94
Defendants’ Motions for Summary Judgment,
February 25, 1992, at 4, 10. As a result,
the court in Abuan granted defendants’
motion for summary judgment and declined
to rule on the various constitutional
challenges to TSECA.
As illustrated by Abuan, in the
discovery proceedings the parties will
produce considerable information regarding
the level of toxic substances at which the
power plant employees were exposed. Such
information will be produced regardless of
whether plaintiffs are pursuing their FTCA
action by applying TSECA or by applying
the common law of Guam. If, as in Abuan,
the plaintiffs are unable to show a
sufficient level of exposure, the court
need not ever consider whether TSECA
violates constitutional supremacy clause
principles. Under principles of judicial
AS5
restraint it should not do so at this
stage.’
Accordingly, the court will vacate
that portion of its January 17, 1992,
article dismissing plaintiffs’ TSECA claim
and strike the United States’ motion to
dismiss the TSECA claim as premature. The
government may renew its motion to dismiss
the TSECA claim following sufficient
discovery to determine the levels at which
plaintiffs have been exposed to toxic
chemicals.
III. CONCLUSION
’For the same reasons that the court
-need not address the constitutionality of
TSECA at this point, the court will defer
ruling on the government’s motion to dismiss
plaintiffs’ TSECA claim on the grounds of
lack of subject matter jurisdiction and on
the grounds that the TSECA essentially
imposes strict liability, which is beyond
the scope of the waiver of sovereign
immunity in the FTCA.
A96
It is hereby ORDERED, ADJUDGED and
DECREED that:
(1) the individual defendants’
motion for reconsideration of this court’s
December 19, 1991, order denying their
motion to dismiss is DENIED;
(2) plaintiffs’ motion for
reconsideration of this court’s
January 17, 1992, order granting in part
the United States’ motion to dismiss is
GRANTED; and
(3) that part of this court’s
January 17, 1992, order stating that
plaintiffs’ TSECA claim would have to be
dismissed is VACATED; and
(4) the government’s motion to
dismiss plaintiffs’ TSECA claim is
STRICKEN with leave to renew.
A97
DATED at Seattle, Washington this
13th day of April, 19°2.
Ls/
BARBARA J. ROTHSTEIN
CHIEF UNITED STATES
DISTRICT JUDGE
ie
A98
IN THE DISTRICT COURT OF GUAM
TERRITORY OF GUAM
ELADIO T. FIGUEROA, et al.,
Civil Action
No. 91-00030
Plaintiffs,
Vv.
UNITED STATES OF AMERICA,
et al.,
ING IN PART
THE UNITED
STATES ’
MOTION TO
DISMISS
)
)
)
)
)
)
) ORDER GFANT-
)
)
)
Defendants. )
)
THIS MATTER comes before the court on
the United States’ motion to dismiss all
claims against it. Having reviewed the
matter, together with all documents fled
in support and in opposition, having heard
oral argument and being fully informed,
the court finds and rules as follows:
I. FACTUAL BACKGROUND
The United States Department of the
Navy operates the Piti Power Plant in
A99
Guam. On May 26, 1987, at 3:22 p.m., a
transformer at the Pita Power Plant
exploded and sprayed approximately
60 gallons of polychlorinated biphenals,
commonly referred to as PCBs, throughout
the plant.
On April 23, 1991, 1230 individually
named plaintiffs filed suit [sic] the
against the United States and twelve
individuals in their official capacity for
actions arising out of the spill. Two
hundred fifty-two of the plaintiffs were
federal employees at the time of the
accident. Jurisdiction of plaintiffs’
complaint is based on the Federal Tort
Claims Act ("FTCA"), 28 U.S.C. § 1346(b),
2671-80. In their complaint, plaintiffs
state causes of action alleging negligence
in the clean-up of the PCBs as well es
negligence in evaluating the damage and
advising plant workers about protective
A100
measures. Plaintiffs also bring causes of
action based on strict liability, knowing,
wanton and willful conduct and the Guam
| Toxic Substance Exposure Compensation Act
("TSECA"). Plaintiffs seek to recover
damages for their current and future
injuries from exposure to toxic substances
and for their increased fear of developing
cancer at some time in the future as a
result of this exposure.
The government now moves for
dismissal of all claims against it on the
grounds that: (1) the claims of the
252 federal employee plaintiffs are
precluded by the Federal Employees
Compensation Act ("FECA"); (2) the claims
of some plaintiffs must be dismissed for
failure to exhaust administrative
remedies; (3) plaintiffs cannot proceed
under the Guam Toxic Substance Exposure
Compensation Act because it is
A101
impermissibily hostile to federal
supremacy principles; (4) the FTCA does
not-permit awards of prejudgement interest
or attorneys fees; (5) the FTCA precludes
plaintiffs’ strict liability claim; and
(6) the claims for medical monitoring must
be dismissed because the FTCA does not
authorize equitable relief. The court
heard oral argument on these issues on
November 12, 1991.
II. DISCUSSION
A. Standard of Review
Under Fed. R. Civ. P. 12(b) (6), a
complaint should not be dismissed unless
it appears beyond doubt that the
plaintiffs can prove no set of facts that
would entitle them to relief. Conley v.
Gibson, 355 U.S. 41, 45, 47-48 (1957);
California Dump Truck Owners Ass’n v.
Associated Gen, Contractors, 562 F.2d 607,
A102
614 (9th Cir. 1977). Even if dismissal is
appropriate, plaintiffs should still have
the opportunity to amend their complaint
when it appears that a more carefully
drafted complaint might state a claim upon
which relief could be granted.
Friedlander v. Nims, 755 F.2d 810, 813
(lith Cir. 1985); gee algo Bonanno v.
Thomas, 309 F.2d 320 (9th Cir. 1962).
The court notes initially that the
issues addressed by the government in
their motion to dismiss present few
factual issues. Rather, they contend
primarily that the causes of action
brought by plaintiffs are not permissible
under the FTCA.
B. Exclusivity of Federal Employees
Remedy Under FECA
Under FECA, 5 U.S.C. § 8101, et geg.,
federal employees are compensated for
injuries sustained during the performance
A103
of their duties. 5 U.S.C. § 8102. The
remedies provided to federal employees
under FECA are exclusive of all other
remedies against the United States with
respect to a job-related injury or death
of a federal employee. 5 U.S.C.
§ 8116(c); Johansen v. United States,
343 U.S. 427, 435-37 (1952); Sheehan v.
United States, 896 F.2d 1168, 1173,
modified, 917 F.2d 424 (9th Cir. 1990).
In essence, a federal employee exchanges
the ability to file a subsequent lawsuit
for the promise of prompt payment of
specified amounts. Lockheed Aircraft
Corp. v. United States, 460 U.S. 190,
193-94 (1983).
The kinds of injuries compensated for
under FECA are set out in the statute and
a wide body of regulations. For example,
a work-related injury is defined as
including, in addition to injury by
A104
accident, "a disease proximately caused by
the employment." 5 U.S.C. § 8101(5). An
occupational disease or illness includes:
a condition produced in the work
environment over a period longer
than a single work day or work
shift by such factors as
systemic infection; continued or
repeated stress or strain; or
exposure to hazardous elements
such as, but not limited to,
toxins, poisons, .. . or
repeated conditions or factors
of the work environment.
20 C.F.R. § 10.5(a) (16). The touchstone
for determining coverage under FECA is
whether the injury is job-related. Reep
v. United States, 557 F.2d 204 (9th Cir.
1977).
To ensure uniformity of
interpretation, tne Secretary of Labor is
vested with the authority to determine
whether an injury or illness is covered by
FECA. See Gunston v. United States,
358 F.2d 303 (9th Cir. 1966), cert,
denied, 384 U.S. 993 (1966). The
A105
Secretary’s decisions are not reviewable
by the courts. 5 U.S.C. § 8128(b). In an
FTCA action by a federal employee, the
district court’s only initial
determination is whether there is a
"substantial question" of FECA coverage.
Reep, 557 F.2d at 207. If so, the court
must dismiss the action in favor of a
ruling by the Secretary of Labor. A
substantial question of FECA coverage
exists unless it is certain that the
Secretary would find no coverage. DiPippa
v. United States, 687 F.2d 14, 16 (3d Cir.
1982).
The government contends that the FTCA
Claims of all federal employee plaintiffs
must be dismissed because the alleged
injuries occurred on the job and a
substantial question of FECA coverage
exists with respect to plaintiffs’ claims
for emotional distress and future medical
A106
injuries from exposure to the toxic
chemicals released in the explosion.
Plaintiffs, on the other hand, contend
that there is no substantial question of
FECA coverage for their claims for
emotional distress, exposure that has not
resulted in present injury, and increased
future risk of disease. Plaintiffs also
argue that this court, not the Secretary
of Labor, should make the determination
here whether FECA applies because the
government has already stated that some of
the injuries sustained by plaintiffs are
not compensable. See Plaintiffs’
Opposition to Motion to Dismiss at 18.
citing Memorandum in Support of United
States’ Motion to Dismiss at 6.
The court agrees with the government
and concludes that the claims presented by
the federal employee plaintiffs present a
substantial question of FECA coverage.
A107
First, and most importantly, the federal
employee plaintiffs’ injuries, both
present and future, are clearly job-
related. They arise unquestionably out of
the explosion and release of PCBs at the
Piti Power Plant where these plaintiffs
were employed. Second, some emotional
injuries, even absent physical harm, are
covered by FECA. Castro v. United States,
757 F. Supp. 1149 (W.D. Wash. 1991).!
Courts that have determined that FECA did
not apply to claims of emotional distress
‘Plaintiffs suggest that this court
should differentiate between negligent
infliction of emotional distress claims and
intentional infliction of emotional distress
Claims. They further suggest that there is
no substantial question of coverage for
intentional infliction of emotional distress
claims. The court in Metz v. United States,
723 F. Supp. 1133, 1132 (D. Md. 1989),
however, considered precisely this question
and determined that because Mr. Metz’
claimed injury was job-related, FECA
coverage did apply to plaintiff’s
intentional infliction of emotional distress
claim.
A108
have done so only where the claims were
not somehow related to the performance of
occupational duties or to some potential
for physical harm. See Sheehan v. United
States, 896 F.2d 1168, 1174 (9th Cir.
1990) (no substantial question of FECA
coverage on plaintiff’s claim for
emotional distress resulting from sexual
harassment); Metz v. United States,
723 F. Supp. 1133, 1136 (D.Md. 1989). The
federal employee plaintiffs’ emotional
distress claims here are both job-related
and based on exposure to a toxic
substance. The emotional distress claim
is precisely the result of the potential
physical injury.
Third, plaintiffs cannot split their
Claims and seek to place their claims for
future physical injury or increased risk
of future physical injury outside the
scope of FECA coverage simply because the
A109
physical injury has not yet manifested
itself and is unlikely to do so until well
after the three-year period for presenting
FECA claims expires. Section 8122(b) of
FECA specifically contemplates coverage of
disabilities that do not manifest
themselves until well after the event that
produced the injury. Section 8122(b) also
specifies that the three-year period for
filing FECA claims does not begin to run
until the employee becomes aware or snould
have become aware that his disability is
job-related. Furthermore, to permit
plaintiffs to recover for some presently
manifested injuries under FECA now and
pursue an FTCA action for injuries that
will not manifest themselves until some
time in the future would effectively
eviscerate the exclusivity provisions of
FECA. FECA is the exclusive remedy for
A110
all job-related injuries, regardless of
when they manifest themselves.
Finally, the court emphasizes that it
is coverage, not compensation, that
determines whether FECA applies. Griffin
v. United States, 703 F.2d 321 (8th Cir.
1983). The Secretary of Labor would be
well within his statutory authority to
determine that although a particular kind
of injury is covered by FECA’s provisions
because the injury is job-related, the
injury is not compensable. Accordingly,
the court wili dismiss the federal
employee plaintiffs’ claims.
C. Exhaustion of Administrative Remedies
Prior to filing suit against the
government under the FTCA, plaintiffs must
exhaust administrative remedies by
presenting a claim to the relevant agency.
28 U.S.C. § 2675(a); Avery v. United
States, 680 F.2d 608, 609 (9th Cir. 1982).
_ of —— —_
. ~
a
Al1l1l
A claim is presented to an agency when the
agency is given minimal written notice.
Adams v. United States, 615 F.2d 284 (5th
Cir.), on rehearing, 622 F.2d 197 (5th
Cir. 1980). Administrative remedies are
exhausted when the agency denies the claim
or has failed to act upon it for six
months. 28 U.S.C. 2675a. |
The government argues that
333 plaintiffs have not properly filed
administrative claims. Plaintiffs argque
that the claims were indeed made, but that
there have been many name changes.
Plaintiffs further argue that the majority
of the 333 plaintiffs identified by the
government were family members of persons
exposed to PCBs from the power plant
explosion who filed administrative claims
as "spouse of" or "child of" a power plant
employee. Plaintiffs conclude that this
A112
was sufficient minimal notice for purposes
of exhausting administrative remedies.
It is the court’s understanding that
a system was set up whereby all claimants
filed one of two items in presenting their
claims to the Navy: (1) an "Authorization
to Bring Claims" authorizing plaintiffs’
counsel to make a claim on their behalf;
or (2) a PCB claim form. Not all
plaintiffs filed the PCB claim form. In
most cases, a single claim form was
submitted with several authorizations
attached to it. The Navy summarily denied
these claims without objecting to the form
of the claim.
In Avery, adopting the standard of
the Fifth Circuit, the Ninth Circuit held
that all that was required for minimal
notice was sufficient written notice to
permit the agency to bring an
investigation into the claim. Avery,
A113
680 F.2d at 609. The Avery court
concluded that even a skeletal claim form
setting forth only the bare elements of
notice of accident and injury was
sufficient. Id.
The claims forms submitted by
plaintiffs as "spouse of" or "child of"
were sufficient notice to the Navy to
begin an investigation. The claims
identified the person who had been exposed
to the toxic chemicals and the particular
plaintiff’s relationship to that person.
The effort required on the part of the
Navy to discover the actual name of that
plaintiff would have been minimal. In
addition, as the Navy denied the claims
without objecting to the form of notice,
the court will not now permit the
government to raise such an objection.
The government’s motion to dismiss the
causes of action for those plaintiffs who
A114
filed administrative claims as "spouse of"
or "child of" for failure to exhaust
administrative remedies will be denied.
Finally, the court notes that there
is some question whether some of the
333 plaintiffs addressed in this part of
the government’s motion filed
administrative claims at all. The
government is to produce within thirty
days from the date of this order the names
of all plaintiffs who did not file an
administrative claim. Plaintiffs will
then have thirty days to submit proof that
these particular plaintiffs did file an
administrative claim within the parameters
of this ruling.
D. The Guam Toxic Substance Exposure
Compensation Act
The FTCA states that the government
is to be held liable under the statute "in
the same manner and to the same extent as
A115
a private individual under like
circumstances." 28 U.S.C. § 2674. For
purposes of determining liability then,
the FTCA "borrows" the substantive law of
the jurisdiction in which suit is brought.
See Moor v. County of Alameda, 411 U.S.
693, 701, 701 n. 11 (1973); Richards v.
United States, 369 U.S. 1, 7-8 (1962);
Feres v. United States, 340 U.S. 135, 142
(1950).
Plaintiffs bring a cause of action
under the Guam Toxic Substance Exposure
Compensation Act ("TESCA") as the state
substantive law pursuant to which the
government’s liability is to be
determined. TSECA, which was enacted in
May of 1990,? provides that a claimant can
recover not only for present injury, but
*TSECA applies to all claims not
reduced to final judgment as of TSECA’s
effective date. 10 Guam Code Ann. § 41105.
A116
also for "increased risk of illness or
injury" without having to prove any
present injury. i0 Guam Code Ann.
§ 41104(2). Once a plainties shows
exposure to a toxic substance beyond
federally permitted levels, TSECA places
the burden of disproving such increased
risk of illness or injury on the
defendant. 10 Guam Code Ann.
§ 41104(5) (a). TSECA further provides
that all doubts are to be resolved in
favor of the exposed person and that
"studies indicating harmful effects of
exposure on animals shall create a
presumption that exposure of humans will
also be harmful and will cause similar
results." 10 Guam Code Ann.
§ 41104(5)(b), (c). In addition, prior to
passage of TSECA, the Guam Legislature
appropriated $900,000 for an "Employees
Recovery Fund" designed, among other
A117
things, to assist power plant employees
and their families in retaining counsel to
secure compensation and other remedies
"from the United States and its agents and
from the manufacturers and suppliers of
_ the transformer." Public Law 20-22.
The government argues that
plaintiffs’ TSECA claim must be dismissed
for lack of subject-matter jurisdiction
because TSECA may not be used as the
"borrowing" statute for purposes of
jurisdiction under the FRCA. The
government argues that TSECA is hostile to
the United States and impermissibly
infringes on Supremacy Clause principles.
Plaintiffs respond that TSECA is not
impermissibly hostile to the government
because it is a law of general
applicability and does not single out the
United States for liability. Plaintiffs
specifically point to the fact that the
A118
Governor of Guam initially vetoed TSECA
because he felt it subjected Guam to
unlimited potential liability.
Plaintiffs’ Opposition to Motion to
Dismiss at 35.
Plaintiffs arguments are
unpersuasive. Where state law is hostile
to federal interests, Supremacy Clause
principles dictate that only those
portions of the law that are not hostile
to the United States can be applied to the
United States. See United Stats [sic] v,
Little Lake Misere Land Co., Inc.,
412 U.S. 580 (1973); North Dakota v.
United States, 460 U.S. 300 (1983). In
both of these cases, when faced with a
choice between federal law and state law
that was hostile to federal interests, the
Supreme Court rejected the state law.
Although TSECA may not on it face
restrict liability to the United States,
A119
its historical and legislative context
make clear that it was passed directly in
response to the incident involved in this
case. See United Steelworkers v. Weber,
443 U.S. 193, 201 (1979) (statute should
be read against background of legislative
history of its enactment and historical
context). First, TSECA was passed after
the power plant explosion but made
applicable to all claims that had not yet
been reduced to final judgment, which
allowed this claim to be brought under
TSECA.
Second, TSECA imposes liability for
precisely the kinds of harms allegedly
sustained by residents of Guan from
exposure to the toxic chemicals releé sed
in the Piti Power Plant explosion and
assigns burdens of proof to defendants in
areas where it would be difficult for
A120
plaintiffs to meet those burdens.’ For
example, TSECA permits the plaintiffs
merely to show exposure to toxic chemicals
above certain federally permitted levels
and then shifts the burden of disproving
an increased likelihood of disease to the
defendant. This use of federal regulatory
levels to shift the burden of proof is
inappropriate. The government sets
regulatory levels with a margin of error
to protect the health of the general
population, Johnston v. United States,
597 F. Supp. 393-94, 424-26, not to
establish causation in an individual case.
Furthermore, because TSECA provides a
cause of action for increased risk of
disease in addition to present, actual
‘These novel provisions of TSECA also
essentially impose liability without a
showing of injury or causation and, as
discussed below, would warrant dismissal of
plaintiffs’ TSECA claims because strict
liability is not permitted under the FTCA.
A121
injury, it would be virtually impossible
for the government to rebut the
presumption of causation created by
plaintiffs’ showing exposure beyond the
federal regulatory levels.
TSECA also states that studies
indicating the harmful effects of exposure
on animals will create a presumption that
similar exposure to human beings will
result in similar harmful effects. Use of
such animal studies to show causation in
human beings has been rejected by feceral
courts. Brock v. Merrell Dow
Pharmaceuticals, Inc., 874 F.2d 307,
313-14 (Sth Cir.1989); Richardson v.
Richardson-Merrell, Inc., 857 F.2d 823,
830-31 (D.C. Cir. 1988).
Third, TESCA was passed shortly after
the Guam Legislature appropriated $900,000
for, among other things, retention of
counsel to pursue claims against the
A122
United States based on injuries sustained
in the explosion. The Guam Legislature
clearly had a strong incentive- recouping
these appropriate funds--to pass
legislation that would make it easier for
plaintiffs to recover from the United
States. Accordingly, the court will
dismiss plaintiffs’ TSECA claims and will
not borrow from TSECA to access FTCA
liability.
Ordinarily, in cases where the
federal government argues that a
particular state law is hostile to federal
interests, the government urges a court to
apply federal law instead. However, there
is no federal substantive law for FTCA
cases for the parties to proceed under in
place of TSECA. Thus, the parties again
will have to look to Guam, only this time
to its common law, to provide the
substantive law for decision in this case.
A123
Fees
Paragraph four of plaintiffs’ prayer
for relief seeks "interest, attorney fees
and costs of suit." The government arques
that plaintiffs are not entitled to either
prejudgment interest or attorneys fees
under the FTCA.
The government is correct with
respect to both interest and attorneys
fees. The FTCA specifically precludes an
award of prejudgment interest. 28 U.S.C.
§ 2674. The FTCA also states that
attorneys may recover up to a twenty-five
percent contingent fee but does not
specifically auth
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