U.S. v. Olson, Joseph, et al. (11/08/2005)

Question presented: Whether the liability of the United States under the Federal Tort Claims Act with respect to safety inspections is the same as that of private individuals under like circumstances or, as the 9th Circuit held, the same as that of state and municipal entities under like circumstances?

BY KARA REINHARDT, MEDILL NEWS SERVICE

Jose Villanueva didn't feel safe in the Arizona mine where he worked for Asarco, a mining, smelting and refining company. Concerned about rock fall, he had his daughter write an anonymous complaint to the federal Mine Safety and Health Administration in January 1999. His daughter and a family friend also called the MSHA a total of five times over the summer of 1999, making more anonymous complaints. When the MSHA conducted a routine inspection in September 1999, Villanueva told the inspector that ground supports in the mine were inadequate and couldn't prevent rock fall.

On Jan. 31, 2000, disaster struck as Villanueva was loading explosives into holes drilled in the ceiling of the mine. A nine-ton slab of earth fell from the ceiling, crushing him to death and seriously injuring two other workers, Joseph Olson and Javier Vargas. A Department of Labor investigation found that the MSHA had not inspected the mine thoroughly, and Asarco had not properly supported the ceiling.

Olson, his wife and Vargas sued the U.S. government for negligence in federal district court in Arizona. They claimed the government was liable under the Federal Tort Claims Act for two MSHA inactions: failure to consider or investigate the safety complaints and failure to adequately inspect the mine.

The district court disagreed, citing the act's exception for "discretionary functions" not mandated by the government but instead left to its employees' discretion. It was up to MSHA employees to determine the scope of the inspection and to order investigations of the complaints, Judge William D. Browning ruled. Therefore, the government was immune from liability.

When the court dismissed their suit, they appealed to the 9th Circuit Court of Appeals. The 9th Circuit unanimously reversed on April 2, 2004, finding that the MSHA officials' actions were not discretionary functions. MSHA policies actually required employees to evaluate all complaints and inspect each mine in its entirety, the court found. Therefore, the government couldn't claim immunity under the discretionary-function exception. But it still couldn't be held liable under the Federal Tort Claims Act unless a private party would face liability in like circumstances.

The 9th Circuit has held, however, that in a case where a federal agency is performing a "unique governmental function" that private persons do not perform, the United States can be held liable if a state or municipal entity would be held liable under like circumstances. In this case, the 9th Circuit ruled that there is no private-sector equivalent of a federal mine inspector, and state or municipal inspectors would be held liable under Arizona law for failing to perform mandatory inspections. Therefore, the United States can be held liable as well.

The federal government appealed to the U.S. Supreme Court, arguing that the Federal Tort Claims Act specifically states that the United States does not waive its sovereign immunity unless a "private individual"—not a state or municipal entity—would be liable under "like circumstances."

"The decision of the court of appeals disregards the plain language of the Federal Tort Claims Act in a manner that fundamentally expands the FTCA's waiver of sovereign immunity beyond the bounds of what Congress enacted," the acting solicitor general said in the government's petition for certiorari.

According to the petition, earlier Supreme Court decisions make clear that liability imposed on municipalities has no bearing on the federal government's liability under the Federal Tort Claims Act. The petition warned that to subject the federal government to the wide variety of state governmental immunity doctrines would be "highly destabilizing."

Federal government actions instead should be judged in reference to the "Good Samaritan" doctrine, which addresses the liability of a person "who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection" of the other person or a third person, the petition argued.

But even if the Supreme Court rules that the lower courts should apply the Good Samaritan doctrine instead, the government still would be liable, said Thomas Cotter, Olson and Vargas' attorney.

"Under either test, we should win," he said.

Under the Good Samaritan doctrine, a person is liable for negligence if (1) he increases the risk of physical harm, (2) he assumes the duty of someone else or (3) another person suffers harm due to reliance on his conduct. The district court ruled that the first two circumstances weren't present in this case but didn't address the third. And that's precisely why the government would be liable, Cotter said: Olson and Vargas suffered harm because they relied on the MSHA to investigate complaints and inspect the mine thoroughly.

"This is exactly the kind of case that the Federal Tort Claims Act was intended to remedy," Cotter said. "I think the facts of this case are egregious and there should be liability on the MSHA."

Unfortunately, he said, the government seems to be using the case to limit federal tort claim liability, delaying compensation for his clients. "I think they're trying to create a broader scope than just my case."

The Supreme Court accepted review in the case on March 7, 2005, and on Nov. 8, 2005, the Court unanimously vacated the 9th Circuit's judgment.

Writing for the Court in a brief 5-page opinion, Justice Stephen Breyer said that the 9th Circuit had it wrong it two ways; reading the Federal Tort Claims Act too broadly in one respect and too narrowly in another. Too broadly in that the Act makes the federal government liable if a private person would be, not if a state or municipal entity would be. Too narrowly in that Act makes the federal government liable if it would be in like circumstances not in the same circumstances. For example, Justice Breyer noted, if a lighthouse operator acts as a good Samaritan and creates a relationship with a ship that depends on the lighthouse's beacon, that could be similar to the reliance mines place in federal mine inspectors.

The Court remanded the case for reconsideration under Arizona law.

The opinion was the first issued under the stewardship of Chief Justice John Roberts.

Attorneys in this case:For U.S.:PAUL D. CLEMENTActing Solicitor General, Counsel of RecordPETER D. KEISLERAssistant Attorney GeneralEDWIN S. KNEEDLERDeputy Solicitor General DEANNE E. MAYNARDAssistant to the Solicitor GeneralMARK B. STERNDANA J. MARTIN