Opposition Brief — Matsushita Electric Co. v. Ziegler

No. 98-1201 ;

AiR RRA RA SR RRO A OOM RAE RE HPT

a i

In the Supreme Court of the Giuted States

OCTOBER TERM, 1998

MATSUSHITA ELECTRIC COMPANY AND

TOKO MARINE & FIRE INSURANCE COMPANY,

PETITIONERS

JOHN ZEIGLER, CUSTOMS AGENT

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

SETH P. WAXMAN

Solicitor Cr Nery

Counse } of Re cord

DAVID W. OGDEN

Acting Ass stant Aft j

(re pis ral

BARBARA L. HERWIG

ANNE M. LOBEL!

Attorne WS

De partn 4 "Yi or J iat re

Washington, D.C. 2053

/ 202) 5 1s ee |

QUESTION PRESENTED

Whether the Westfall Act, 28 U.S.C. 2679, bars a

negligence action against a United States Customs

-Officer acting within the scope of his employment.

(I)

i aererenere ates

So me

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Gutierrez de Martinez vy. DEA, 111 F.2d 1148

(4th Cir.), cert. denied, 118 S. Ct. 335 (1997) .................. 1]

Gutierrez de Martinez vy. Lamagno, 515 U.S. 417

Sh ERA cS eB ARO ter GO 9 10,11

Kosak vy. United States, 465 U.S. 848 (1984)... 4.7,9.11

United States v. Gonzales, 520 U.S. 1 (1997) ................ 7

United States v. Smith, 499 U.S. 160 (1991)... 5, 6,8, 9

Statutes:

Federal Employees Liability Reform and Tort

Compensation Act of 1988, 28 U.S.C. 2679 ............... 2

oe | 4 | Gent eee 3, 7, 10

i 3

eb IO 4. | SEATS cee 5, 9,10

cog gg OST TEES egies aaa 2,5

Federal Tort Claims Act:

28 U.S.C. 1346(b) (Supp. IIT 1997) oooocccccccccsscecseeeoosse-.. 2

I a 2, 4, 6, 11

Re SUS aI 8

Tucker Act, 28 U.S.C. 1346 et ORES Piva tS si he ee ce ae 1]

ofS Tati a a ve aR a 5, 10

eI cnpiclataebinsct ce ake 10

Miscellaneous:

H.R. Rep. No. 700, 100th Cong., 2d Sess. (1988)... 9

(IIT)

Jn the Supreme Court of the Anited States

OCTOBER TERM, 1998

No. 98-1201

MATSUSHITA ELECTRIC COMPANY AND

TOKIO MARINE & FIRE INSURANCE COMPANY,

PETITIONERS

v.

JOHN ZEIGLER, CUSTOMS AGENT

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-9a)

is reported at 158 F.3d 1167. The order of the district

court is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

October 27, 1998. The petition for a writ of certiorari

was filed on January 25, 1999. The jurisdiction of this

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

(1)

2

STATEMENT

1. The Federal Tort Claims Act (FTCA) provides

that, with certain exceptions, the United States shall be

liable, to the same extent as a private party, “for injury

or loss of property * * * caused by the negligent or

wrongful act or omission of any employee of the

Government while acting within the scope of his office

or employment.” 28 U.S.C. 1346(b) (Supp. III 1997).

The statute provides an express exception for “[a]ny

claim arising in respect of * * * the detention of any

goods or merchandise by any officer of customs or

excise or any other law-enforcement officer.” 28 U.S.C.

2680(c).

Individual federal employees generally may not be

held personally liable for actions taken within the scope

of their employment, pursuant to the Federal

Employees Liability Reform and Tort Compensation

Act of 1988, 28 U.S.C. 2679, (the Westfall Act or the

Act). The Westfall Act provides that if the Attorney

General certifies that an employee defendant was

acting within the scope of his employment “at the time

of the incident out of which the [tort] claim arose,” then

“any civil action or proceeding commenced upon such

claim * * * shall be deemed an action against the

United States * * *, and the United States shall be sub-

stituted as the party defendant.” 28 U.S.C. 2679(d)(1).

The Act also specifies that the plaintiff's remedy

against the United States in such circumstances is

ordinarily exclusive and precludes any separate action

against the individual employee:

The remedy against the United States provided by

{the FTCA] for injury or loss of property, or per-

sonal injury or death arising or resulting from the

negligent or wrongful act or omission of any em-

3

ployee of the Government while acting within the

scope of his office or employment is exclusive of any

other civil action or proceeding for money damages

by reason of the same subject matter against the

employee whose act or omission gave rise to the

claim.

28 U.S.C. 2679(b)(1). Congress provided two ex-

ceptions to Section 2679(b)(1)—a civil action may be

brought against an individual federal employee either

“for a violation of the Constitution of the United

States” or “for a violation of a statute of the United

States under which such action against an individual is

otherwise authorized.” 28 U.S.C. 2679(b)(2).

2. In April 1994, petitioner Matsushita Electric

Company (Matsushita) shipped a computer chip place-

ment machine from Japan to Georgia for import into the

United States. During shipping, the machine was

encased in a vacuum seal to protect its metal parts from

humidity. When the machine reached the United

States, the United States Customs Service decided to

inspect it. John Zeigler, a customs officer, cut open the

vacuum seal and performed the inspection. The

machine was not resealed. The United States Customs

Service subsequently cleared the machine for entry into

the United States, but the purchaser rejected the

machine because its metal parts were corroded by rust.

Pet. App. 2a.

Matsushita and its insurer, petitioner Tokio Marine &

Fire Insurance Company, brought this action for dam-

ages against John Zeigler and against the Hartsfield

Warehouse Company, owner of the facility in which the

4

customs inspection took place. The United States

Attorney certified that Zeigler had been acting within

the scope of his employment when he broke the vacuum

seal surrounding the machine, and the United States

accordingly moved to substitute itself for Zeigler as the

party defendant pursuant to the Westfall Act. The

United States also moved to dismiss the action, arguing

that the FTCA exception for claims arising from the

detention of goods by customs officers precluded

Matsushita’s claim against the United States. The

district court granted both motions. Pet. App. 2a.

The United States Court of Appeals for the Eleventh

Circuit affirmed. Pet. App. la-9a. The court of appeals

first held that 28 U.S.C. 2680(c)’s exception to liability

for claims arising from customs officers’ detention of

goods barred Matsushita’s tort claim against the United

States. Pet. App. 3a. The court noted that this Court

in Kosak v. United States, 465 U.S. 848 (1984), had

construed the Section 2680(c) exception broadly to ex-

tend to claims arising from the allegedly negligent

handling or storage of property that had been detained.

Pet. App. 3a.

The court of appeals went on to hold that substituting

the United States for the individual defendant, Zeigler,

was required, even though Matsushita’s suit against the

United States was barred. The court observed that

“{ojn its face, the plain language of [the Westfall Act]

makes clear that where, as here, a federal employee

acts within the scope of his or her employment, an

individual can recover only against the United States”

unless the plaintiffs suit falls within one of the

* Petitioners subsequently settled their claim against the

Hartsfield Warehouse Company, and the Company is not a party

in this Court.

5

exceptions to the Act. Pet. App. 5a. The court also

noted that substituting the United States for the

individual defendant is mandatory (under Section

2679(d)(1)) once the Attorney General certifies that the

employee was acting within the scope of employment.

Ibid.

The court of appeals rejected Matsushita’s contentior

that the statutory scheme should not apply “in a case in

which the purported remedy would be illusory.” Pet.

App. 5a. The court concluded that “the plain meaning

of [the Westfall Act]’s text,” coupled with this Court’s

decision in United States v. Smith, 499 U.S. 160 (1991),

made it unmistakably clear that Congress intended the

plaintiff's action against the United States to be the

exclusive remedy, unless the legislation itself recog-

nized an alternative cause of action. Pet. App. 5a. The

court emphasized that this Court in Smith held that the

Westfall Act immunized government employees from

suit even when an FTCA exception precluded recovery

against the government. Rejecting Matsushita’s argu-

ment that Smith should be distinguished because there

the substitution at issue did not abrogate a common law

right of action against the individual employee, the

court of appeals determined that the “broad and all-

encompassing language of [the Act]” barred Mat-

sushita’s action against Zeigler. Jd. at 6a.

The court of appeals also rejected Matsushita’s

argument that its claim against Zeigler fell within the

exception to the Westfall Act for cases “brought for a

violation of a statute of the United States under which

such action against an individual is otherwise

authorized.” 28 U.S.C. 2679(b)(2)(B). Matsushita had

argued that the statute authorizing customs officers to

inspect and detain goods, 19 U.S.C. 1499, contained an

implicit duty of care giving rise to a cause of action in

6

tort against individual officers. The court of appeals,

however, determined that “[nlothing in § 1499 creates

any rights in individuals” and concluded that Zeigler’s

duty of care arose not from statute, but “from common

law negligence principles.” Pet. App. 8a-9a. The court

likewise rejected Matsushita’s contention that the

statute authorizing the federal treasury to satisfy

judgments against revenue officers under certain cir-

cumstances created a cause of action against Zeigler

that fell within the scope of the exception. Id. at 9a.

The court of appeals concluded that the district court

had properly applied the statutes requiring both the

substitution of the United States for Zeigler and the

subsequent dismissal of the action against the United

States. Accordingly, it affirmed the judgment of the

district court. Pet. App. 9a.

ARGUMENT

The decision of the court of appeals is correct and

does not warrant this Court’s review. The court of

appeals applied the relevant statutes in a straight-

forward manner to the facts presented, and correctly

held that Matsushita’s arguments for avoiding the

application of the statutes were foreclosed by this

Court’s decision in United States v. Smith, 499 U.S. 160

(1991).

1, Matsushita does not dispute the court of appeals’

determination that its claim against the United States

is barred by the exception to the FTCA contained in 28

U.S.C. 2680(c). See Pet. App. 3a. That exception pro-

vides that the United States shall not be liable under

the FTCA for “{aJny claim arising in respect of * * *

the detention of any goods or merchandise by any

officer of customs or excise or any other law-enforce-

ment officer.” 28 U.S.C. 2680(c). Matsushita’s claim

7

against the United States arose from such a detention

of goods and it is therefore clearly outside the scope of

liability under the FTCA. See generally Kosak v.

United States, 465 U.S. 848 (1984). Rather, Matsushita

challenges the court of appeals’ application of the

Westfall Act to bar its action against Zeigler. Mat-

sushita contends that the Act should not bar a suit

against an individual federal employee if applying the

statute would abrogate a pre-existing common law

remedy against the individual employee. See Pet. 8.

Matsushita argues (Pet. 6-7) that the common law

recognized a cause of action for negligence against

customs officers and that this action survives the

enactment of the Act.

For the reasons given by the court of appeals,

Matsushita is incorrect. The Westfall Act plainly

provides that “(t]he remedy against the United States

provided by [the FTCA] for injury or loss of property

* * * resulting from the negligent or wrongful act or

omission of any employee of the Government while

acting within the scope of his office or employment is

exclusive of any other civil action or proceeding for

money damages by reason of the same subject matter

against the employee whose act or omission gave rise to

tne claim.” 28 U.S.C. 2679(b)(1) (emphasis added). The

statute, by its terms, clearly bars Matsushita’s suit

against Zeigler.

Matsushita nonetheless argues that the legislative

history of the Act reveals that Congress “did not intend

to eliminate recognized causes of action against in-

dividual United States Customs Officers.” Pet. 5. Leg-

islative history, of course, generally cannot justify a

court’s departure from the plain language of a statute

when that language is clear. See, e.g., United States v.

Gonzales, 520 U.S. 1, 4-6 (1997). And in this case, the

8

argument based on legislative history is also foreclosed

by this Court’s decision in United States v. Smith,

supra,

The plaintiffs in Smith sued a military doctor for

medical malpractice in connection with the birth of their

child at an Army hospital in Italy. 499 U.S. at 162. This

Court sustained the Westfall Act substitution of the

United States for the individual defendant, even though

the United States was shielded from liability by the

FTCA exception (28 U.S.C. 2680(k)) for claims arising

in a foreign country. This Court stated explicitly that

“Congress recognized that the required substitution of

the United States as the defendant in tort suits filed

against Government employees would sometimes fore-

close a tort plaintiffs recovery altogether.” 499 U.S. at

166. The Court also observed that the existence of two

explicit statutory exceptions should deter the courts

from “inferring a third exception that wouid preserve

tort liability for Government employees when a suit is

barred under the FTCA.” Jd. at 167.

Matsushita nonetheless argues that “Congress did

not intend to eliminate recognized causes of action”

against certain individual defendants when it enacted

the Westfall Act. Pet. 5. For support, Matsushita cites

legislative materials and conclusions set forth in the

dissenting opinion in Smith. Ibid. (citing and quoting

499 U.S. at 181 n.6 (Stevens, J., dissenting alone)). But

the majority opinion in Smith expressly considered this

legislative history and then rejected the suggestion

that remedies against individual federal employees

would survive the enactment of the Westfall Act, ex-

plaining that “the legislative history reveals con-

siderably less solicitude for tort plaintiffs’ rights than

the dissent suggests.” Jd. at 175. Indeed, this Court

discerned in the legislative history a clear intent that

“any claim against the government that is precluded by

[FTCA] exceptions * * * also is precluded against an

employee.” Jbid. (internal quotation marks omitted)

(quoting H.R. Rep. No. 700, 100th Cong., 2d Sess. 6

(1988)). The Court concluded that the language of the

enacted statute “clearly implemented” Congress’s

intent to preclude suits against employees to the extent

that substituted suits against the United States were

barred, and it applied the statute straightforwardly as

it was written. /bid. See also Gutierrez de Martinez v.

Lamagno, 515 U.S. 417, 422 (1995) (citing Smith for the

proposition that the “immunity of the United States”

would not be grounds for a plaintiff to “bring [an

individual defendant] back into the action”).

Contrary to Matsushita’s suggestion, therefore, the

Westfall Act does not “preserve recognized remedies

that had existed outside the reach of the FTCA” (Pet.

4). Rather, the application of the Act to Matsushita’s

claims against Zeigler must be sustained under this

Court’s controlling decision in Smith.

2. Nor does Matsushita’s claim against Zeigler sur-

vive the Westfall Act substitution on the ground that it

falls within the statutory exception for a claim “for a

violation of a statute of the United States under which

such action against an individual is otherwise author-

ized.” 28 U.S.C. 2679(b)(2)(B). Matsushita is simply

mistaken in contending that its action against Zeigler

“was and is now predicated upon two United States

statutes [19 U.S.C. 1499 and 28 U.S.C. 2006] which set

forth a United States Customs’ Officer’s rights and re-

sponsibilities.” Pet. 11. Rather, as this Court explained

in Kosak, 465 U.S. at 860, and as Matsushita’s own

history of the cause of action acknowledges (Pet. 6-7), a

claim against an individual customs official for negli-

gently damaging goods is based on common law

10

negligence principles. The court of appeals in this case

correctly so held. Pet. App. 8a.

As the court of appeals properly observed, neither

Section 1499 nor Section 2006 creates any rights in

individuals. See Pet. App. 8a-9a. Section 1499

(reprinted at Pet. App. 10a-12a) authorizes customs

officers to inspect merchandise, and sets forth pro-

cedures for those inspections. Section 2006 (reprinted

at Pet. App. 14a) authorizes the Treasury to pay certain

judgments against revenue officers. Neither statute

creates any rights that can be vindicated by individuals

affected by customs officers’ performance of their

duties. Indeed, if Matsushita were correct in

suggesting that Zeigler should be held individually

responsible because he had a “statutory right to inspect

goods and [a] corresponding obligation to do so reason-

ably and responsibly” (Pet. 11), then the exception

provided in Section 2679(b)(2)(B) would swallow

Section 2679(b)(1)’s rule of individual non-liability.

Under Matsushita’s view, every statute granting a

federal employee the right to perform a task would

carry with it a right of action against the individual

employee for negligent performance, a result that

squarely conflicts with the structure and purpose of the

Westfall Act.

3. Similarly misplaced is Matsushita’s reliance on a

footnote from this Court’s opinion in Gutierrez de

Martinez v. Lamagno, supra. See Pet. 12-13. In

Gutierrez de Martinez, another case involving an excep-

tion to the FTCA that shielded the United States from

liability, this Court held that the Attorney General’s

certification of employment under the Westfall Act is

subject to judicial review. 515 U.S. at 423-425. The

Court’s decision was based in part on its recognition of

the “fatal consequences” to the plaintiffs of the “un-

11

recallable substitution of the United States as the party

defendant,” a substitution that “would cause the demise

of the action.” Jd. at 422. The Court acknowledged

these consequences even though the plaintiffs in that

case had “filed a common-law tort action,” Gutierrez de

Martinez v. DEA, 111 F.3d 1148, 1151 (4th Cir.), cert.

denied 118 S. Ct. 335 (1997), just as Matsushita did

here. Because this Court’s decision in Gutierrez de

Martinez expressly recognizes that the Westfall Act

can properly be applied to deprive a plaintiff of an

effective remedy in a common-law action, it hardly

supports petitioner’s contrary claim.

Matsushita relies in particular on a footnote in

Gutierrez de Martinez for the claim that a tort action

against an individual customs officer has survived the

Westfall Act (Pet. 12-13 (citing and quoting Gutierrez

de Martinez, 515 U.S. at 427 n.5)), but that reliance is

misplaced. The footnote explains that certain FTCA

exceptions “are for cases in which other compensatory

regimes afford relief,” citing as an example Section

2680(c) (the exception for claims arising out of the

collection of tax or customs duties) and Kosak v. United

States, supra (construing that exception). 515 U.S. at

427. Kosak in turn noted that alternative remedies for

the negligence of a customs officer were available in

some cases at common law or under the Tucker Act, 28

U.S.C. 1346 et seg. See 465 U.S. at 860 & n.22. But

Kosak’s discussion of common law remedies preceded

the 1988 enactment of the Westfall Act, which de-

finitively eliminated individual liability of a federal

employee for most actions taken in the scope of

employment. This Court’s footnote citation to Kosak in

1995 may simply refer to the continued existence of

other remedies under the Tucker Act; it cannot fairly

12

be read as a considered judgment that common law tort

remedies survive the Westfall Act.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

DAVID W. OGDEN

Acting Assistant Attorney

General

BARBARA L. HERWIG

ANNE M. LOBELL

Attorneys

MARCH 1999