Issues
When the federal government is sued under the Federal Tort Claims Act for failure to properly inspect a mine as required by statute, is it liable under state tort law in the way that a private individual is liable, or is it liable in the same way as a state or municipal government, as the Ninth Circuit held?
Respondent Joseph Olson was injured and nearly killed when a nine-ton rock fell on him while he was working in a mine in Arizona. In his suit for damages he alleged that the federal agency responsible for ensuring his safety, the Federal Mine Safety and Health Administration, was negligent in its inspection of the mine and was responsible for his injuries. The federal government argued in its defense that under the Federal Tort Claims Act it can be held liable under state law only in the way in which a private person, not a government agency, is held liable. Thus, the government urged that since there was no like action against private persons for this type of situation, it could not be held liable. This case may have potentially significant effects not just on individuals and their ability to sue the federal government, but also federal agencies and their ability to avoid tort liability during the course of carrying out their duties.
Questions as Framed for the Court by the Parties
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 Ninth Circuit held, the same as that of state and municipal entities under like circumstances.
Facts
The Respondents, Joseph Olson and Javier Vargas, were injured on January 31, 2000 while working at the Mission Mine, an underground copper mine operated by ASARCO, Inc., in Sahuarito, Arizona. Brief for Respondents at 1, United States v. Olson, U.S. (No. 04-759) (hereinafter Resp't Brief). While Joseph Olson was packing explosives into holes drilled into the ceiling of a portion of the mine, a slab of rock fell on him. Id.. Olson filed a complaint in the United States District Court for the District of Arizona in June 2002, alleging that the United States was liable for his injuries under the Federal Tort Claims Act (“FTCA”) due to the negligence of Mine Safety and Health Administration (“MSHA”) Office Supervisor James Kirk and MSHA Inspector Alan Varland. Brief for Petitioner at 4, United States v. Olson, U.S. (No.04-759) (hereinafter Pet'r Brief). Under the Federal Mine Safety and Health Amendments Act of 1997, designed to promote the health and safety of American mine workers, the MSHA must perform “frequent inspections and investigations in coal or other mines each year[.]” 30 U.S.C. § 813(a). The MSHA must also perform an immediate inspection whenever a miner or a representative of a miner has reasonable grounds to believe that a violation of the statute or a mandatory health or safety standard exists and submits a written and signed notice. 30 U.S.C. § 813(g)(1). Olson alleged in his complaint that Kirk had received six anonymous complaints regarding safety conditions at the mine, specifically that the mine employed inadequate measures to prevent rock falls, but failed to respond to them. Respt's Br. at 1. In addition, Olson alleged that Varland visited the mine for an inspection on September 28, 1999, but did not inspect certain parts that management had barricaded from view, despite a statutory requirement that the MSHA inspect each underground mine “in its entirety” four times a year. Petr.'s Br. at 1-2.
The government moved to dismiss the complaint, and the district court granted its motion. The court based its ruling on two grounds. Petr.'s Br. at 5. First, the court held that Olson failed to state a claim for tort liability under Arizona state law, noting that liability for the United States under the FTCA is defined by the liability a state imposes on private persons in like circumstances. Id.. Second, the court held that Olson's claims were barred by the discretionary function exception to the FTCA. Id. at 7. Under the discretionary function exception, the United States is not liable for any claim based upon the exercise or failure to exercise a discretionary duty on the part of a federal agency or federal employee. Id..
On appeal, the Court of Appeals for the Ninth Circuit reversed. Relying on its decision in Louie v. United States, 776 F.2d 819 (9th Cir. 1985) [DF2] , the court held that Arizona tort law applicable to governmental entities should be applied, as there was no private sector analogue to mine inspections because private persons do not have regulatory power. Petr.'s Br. at 8-9. Under Arizona tort law, the state would be liable for failure of its mine inspectors to conduct mandatory inspections. The court concluded that by analogy that the federal government would be liable for a similar failure to conduct inspections required by federal law. Id. at 9. The government petitioned for a rehearing, but was denied. The United States Supreme Court granted certiorari on March 7, 2005.
Analysis
The doctrine of “sovereign immunity” essentially holds that the United States government cannot be sued without its consent. F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). However, Congress passed the Federal Tort Claims Act (FTCA) in order to delineate specific circumstances in which the government would waive the protections of sovereign immunity and consent to being sued. 28 U.S.C. § 1346 (b)(1). As such, in passing the FTCA, Congress chose to forgo the powerful protections that the shield of sovereign immunity provides the United States government in order to provide a remedy, in the form of money damages, to individuals harmed by federal employees. 28 U.S.C. § 2674. More specifically, Congress was attempting to correct the apparently anomalous result that arose when federal employees committed torts. In other words, individuals who suffered torts at the hands of private citizens could collect money from that individual or the individual's employer, but those harmed by federal employees acting in the scope of their federal duties could not collect the same damages, simply because the individual committing the tort was working for the government. By its passage, the FTCA made the United States government vulnerable to suit in the same way that the private employer of a tortfeasor would be vulnerable.
The language of the FTCA itself waives sovereign immunity “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1) (emphasis added). Further, Congress has said that the United States is liable “in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674 (emphasis added).
In the present case, it is unclear whether the facts surrounding the alleged tort create a situation where a private person would be liable under the FTCA. The facts constitute, at worst, a failure of federal employees to inspect, or at best, a failure of those employees to inspect adequately. The problem arises because, generally speaking, private individuals have no duty to inspect, let alone to do so well, so it is virtually impossible to determine if a private person would be liable under 'like circumstances' when no 'like circumstances' exist. Thus, when the FTCA states that the United States waives its sovereign immunity in situations where it would be liable if it were a “private person,” an apparent gap in the law emerges: what to do when an alleged tort is committed by a federal employee while he or she is performing a function that private individuals do not perform?
The petitioners urge that the plain language of the statute should prevail. See Brief for Petitioner at 13-14, United States v. Olson, U.S. (No. 04-759) (hereinafter Pet'r Brief). Essentially, they argue that when Congress said “private” it meant “private” and that when there is no private analogue to the allegedly tortious behavior (i.e. no such thing as a 'private duty to inspect'), courts should not look to create analogous fact patterns with state and local entities, and the government should not be liable. Pet'r Brief at 20-22. Thus, the petitioner contends, if a case does not involve circumstances where a private individual would be liable, then there is no government liability, and the analysis ends there. Pet'r Brief at 23. In asserting this position, the government stresses the importance of the doctrine of sovereign immunity, and emphasizes the fact that Congress, knowing the tremendous impact of waiving its important sovereign protections, chose its words carefully. Pet'r Brief at 18-20. Therefore, the liability of the United States under these actions should not be expanded without express consent from Congress. Further, for the Court to extend the liability of the federal government under the FTCA from the bench would amount to judicial legislation. Pet'r Brief at 21-22.
The respondents, on the other hand, read the FTCA language slightly more broadly. Brief for Respondents, United States v. Olson, U.S. (No. 04-759) (hereinafter Resp't Brief). They contend that the language of the FTCA is clear, but when faced with a situation that does not fit directly into the language, then courts must make the best analogy possible to the facts of the case at bar and follow the precedent accordingly. Resp't Brief at 6-7. Respondents urge that since there is no private analogue to the government's “inspection duty,” the next closest comparison is to analogize to a state actor, who, under state law, would be liable for a failure to inspect. Resp't Brief at 12. Under this line of argument the Court could conclude that the United States should be liable under the facts of this case. However, this analysis would require the Court to both look beyond the plain language of the statute to its legislative history, as well as requiring the Court to exercise more judicial discretion in selecting an analogous situation whose precedent can guide the outcome. Respondents contend that this line of thinking is acceptable as long as the court neither extends the liability of the United States beyond that of a private person under like circumstances, nor imports special government immunities into the analysis. Resp't Brief at 12-17.
While it is unclear which argument the Court will find most persuasive, it is apparent that if they choose to side with the Petitioners, they will be placing the burden back on Congress to decide whether the government should waive sovereign immunity in this instance. However, Respondents would assert that in siding with them, the Court would simply be performing its mandated function: providing meaning and boundaries to the language of legislation already passed by Congress.
Discussion
The Court's decision in United States v. Olson will directly affect the ability of individuals to sue the United States. The main issue in the case is whether the United States, in an action brought under the Federal Tort Claims Act for negligence in performing an inspection required by federal law, should be held liable under state law in only the way in which a private person is held liable, or rather whether the United States should also be held liable in the way in which a state or local government is held liable. The United States argues that under the plain language of the Federal Tort Claims Act and the decisions of other Circuit Courts of Appeals, it should only be held liable in circumstances in which a private person would be liable. Olson argues that the Ninth Circuit, in using the Louie doctrine, has properly interpreted the Federal Tort Claims Act and correctly ruled that in circumstances in which there is no private analogue to the federal government's conduct, such as inspecting a mine, the United States should be held liable in the same way that a state or local government would be liable.
If the Supreme Court rules in favor of the United States, it may become much more difficult for individuals to sue the United States and federal employees acting in the course of their work, as there must be a state law that holds individuals liable for the same conduct that the government has committed. If the Court rules in favor of Olson, however, the United States may be liable for damages in tort actions in many more situations than Congress intended. In addition, the United States may have to face huge litigation costs or costs of reorganizing its practices to avoid lawsuits.
Conclusion
Written by: Daniel Fisch & Micaela McMurrough