Reply Brief — Anderson v. United States

PITLLE

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CLERK

No. 97-1191 —

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IN THE

Supreme Court of the United States

October Term, 1997

TRACI ANDERSON and CYNTHIA IRONS,

Petitioners,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

REPLY BRIEF IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

Abraham A. Arditi

1200 Hoge Building

705 Second Avenue

Seattle, WA 98104

Telephone: (206) 623-1593

Counsel of Record

March 26, 1998

2BCD Legal Printers. Seattle. Washington

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The government does not argue an award of

attorneys fees falls outside the plain language of 28

U.S.C. §2674, which provides,

The United States shall be liable [under

the FTCA] in the same manner and to

the same extent as a private individual

under like circumstances . . .

(Emphasis added.) Instead, it says only a statute which

"mention{s] attorneys’ fees" can "provide the requisite

express waiver of sovereign immunity." (Brief in Opp.

p. 3.) But requiring a mention of "attorneys fees" is

only another way of applying a principle of narrow

construction which this Court has repeatedly rejected in

FTCA cases. (See, Pet. p. 6-8.) "A statute can be

unambiguous without addressing every interpretive

theory offered by a party." Salinas v. United States,

118 S.Ct. 469, 475 (1997). And 28 U.S.C. §2674 is

unambiguous in its incorporation of all state law

remedies but for specified exceptions.

Although the government argues the Ninth

Circuit’s decision is "consistent with the precedent of

this Court" (Brief in Opp. p. 3), it cites no decision by

this Court endorsing a rule of narrow construction of

the waiver of sovereign immunity in the FTCA.

Ruckelshaus v. Sierra Club, 463 U.S. 680, 686 (1983),

simply holds Congress "would have said so in far

plainer language than" it used, if it in fact intended to

make the United States liable for the Josing party’s

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attorneys fees under the Clean Air Act. And in any

event Ruckelshaus’ language on construing waivers of

sovereign immunity is in clear tension with the

principles this Court has set over the past fifty years for

construing the waiver in the FTCA. See, 463 U.S. at

685. Alyeska Pipeline Co. v. Wilderness Society, 421

U.S. 240 (1975), does not involve an award of

attorneys fees against the United States. And in any

event it does not address the standards for construing

the waiver in the FTCA either.

Finally, the government argues the Equal Access

to Justice Act "specifically excludes ’cases sounding in

tort? from its waiver of sovereign immunity for

attorneys’ fees and expenses. 28 U.S.C. 2412(d)(1)(A).”

(Brief in Opp. p. 9.) But all this exclusion does is

implicitly allow state law to govern the availability of

attorneys fees and expenses in tort claims against the

United States. Here, state law, as incorporated by the

FTCA, permits just such an award.

DATED: March 26, 1998.

Respectfully submitted,

Abraham A. Arditi

Attorney for Petitioners