# Reply Brief — Anderson v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_2085%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1998
- **Citation:** 523 U.S. 1072

## Text

PITLLE
| wag 30 0.

CLERK

No. 97-1191 —

—_— *

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

2

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_2085%3A3. Public record. Not legal advice.