# Petition for Writ of Certiorari — Figueroa v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_0953%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1994 - **Citation:** 511 U.S. 1030 ## Text eee 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). a , j 2 te a Pitino w Gi NE AO ALG, ~ 22 «= 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 «= 19 -« 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 : $ i : 4 3 £ - 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 a 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 a 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 »£f 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 th [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_0953%3A1. Public record. Not legal advice.