Westfall v. Erwin - Oral Argument

Argument of Donald B. Ayer

Chief Justice Rehnquist: We'll hear argument now in No. 86-714, Rodney P. Westfall versus William T. Erwin.

Mr. Ayer, you may proceed whenever you're ready.

Mr. Ayer: Mr. Chief Justice, and may it please the Court.

The issue in this case is whether the Court of Appeals erred in denying immunity to three supervisors at a military supply depot in a negligence action against them for employment-related injuries suffered to an employee at the depot.

There is substantial agreement, as indicated in the briefs, among the parties concerning a number of points.

First the parties agree that there is a thing called absolute immunity that exists under the Federal common law and does protect a significant category of Federal activities, that is, the activities of Federal employees against personal liability of those employees from State tort law actions.

Unknown Speaker: This is the Barr against Matteo and Howard against Lyons line of cases?

Mr. Ayer: That's correct, Your Honor.

Unknown Speaker: Mr. Ayer, what's the source of that immunity do you suppose?

Mr. Ayer: Apart from this Court's cases, you mean, going back?

Unknown Speaker: Yes.

Do you detect any source for finding that immunity?

Mr. Ayer: Well, the source, I think, is the priority of protecting the ability of the Federal government to function and perform the duties and tasks that it has ultimately under the Constitution.

I think one could ask the question, is it a matter of supremacy and are we invoking the supremacy clause.

And I would say I guess my answer to that would be, sort of.

And I'll explain that by saying that technically in this case we are talking about an application of State law that has been made applicable in the context of exclusive jurisdiction Federal enclaves as a matter of Congressional action, a blanket enactment of State law.

But the concern remains very real.

So that the "sort of" is explained by the fact that there is not a technical conflict that does not involve an act of Congress triggering the application of State law.

There is nonetheless the tension between the application of evolving State tort law concepts and the priority of the Federal government being able to perform its functions through its employees.

Unknown Speaker: This is not a constitutional principle, though, right.

I mean, Congress could I presume pass a statute saying there is no immunity whatever for Federal?

Mr. Ayer: That is certainly true, yes.

Unknown Speaker: So it's sort of like a negative commerce clause kind of?

Mr. Ayer: Well, I think what we're talking about is maybe a sort of an assumption or a presumption that it is intended that the Federal government be able, intended in the Constitution, absent some action by Congress indicating otherwise, that it be able to go forward with its activities as authorized by Congress, and the disruption that would result by the regular interaction of State law principles interfering with the performance of those functions I think is what it's designed to protect.

Congress could of course say we do not intend to have these Federal authorizations override State law.

Unknown Speaker: So you are proposing a sort of dormant commerce clause analysis in effect?

Mr. Ayer: I think that's correct, Justice O'Connor.

Unknown Speaker: Our cases have never discussed the theory, have they?

In fact, the Barr case arose out of what was it, a liable?

Mr. Ayer: That's right.

Unknown Speaker: Action and was discussed in terms of privilege, not immunity at all.

Mr. Ayer: Well, it was clearly discussed by reference to the decision in Gregoire v. Biddle and the need to protect the Federal functioning.

It was discussed in language, I think, that went well beyond the implications of the defamation character of the action that was involved there.

Unknown Speaker: Federal instrumentalities from State taxes, what's the basis of that immunity?

Mr. Ayer: It may well be somewhat analogous to this situation.

It's analogous in the sense, as Justice Scalia has pointed out, that Congress could override it if it chose to.

If it chose to define Federal priorities in a way that allowed the State law to override, it certainly could do so.

But we're dealing with a situation here where there has been no such overriding, and we're trying to focus on what the proper rule ought to be in the situation where Congress presumably intends to have its activities carried out in a way that has evolved both under statutes and regulations.

Unknown Speaker: Well, isn't there some analogy here to Clearfield Trust?

It seems to me there's as much analogy to that kind of Federal common law as there is to the negative commerce clause.

Where in effect you know the Government deals in checks, we need to know when these things or what rule they're going to be governed by, they're in all fifty States, so we don't follow the State rule in every single case.

Not as a matter of necessarily some at least explicit Constitutional doctrine, but just as I suppose you say, if Congress had thought about it, or the Court will think about it for Congress, that's the sort of rule there ought to be.

Mr. Ayer: I will agree with that as well, Your Honor.

I mean, I would prefer to characterize it in the terms that the Court has put it in, and that is, in terms of the need to protect the functioning of the Federal government and to analyze it that way.

And we think that when analyzed that way, there are a number of policy considerations upon which the doctrine has rested.

Before I get to that, I'd like to indicate precisely what it is we are seeking to argue here today, and what we've argued in our briefs.

Although we believe that Federal employees are properly immune from State tort law actions for all acts that they take within the scope of their employment, our principal submission both in our briefs, and today is that they are immune for that conduct within the outer perimeter at least when they are in the exercise of some activity that does involve a component of discretion.

That is, in the words of this Court's decision in Davis v. Scherer, they exercise discretion whenever the law

"fails to specify the precise action that the official must take in each instance. "

Unknown Speaker: Well, Mr. Ayer, if what we are trying to do is to determine what Congress would do if it had thought about it, should we analogize then to the Federal Tort Claims Act for our guidance in determining discretionary acts for which there might be immunity?

Mr. Ayer: I think not, Justice O'Connor.

And there's a couple of reasons for that.

One is that, maybe the most practical, although I think not the most significant one, is that the Federal Tort Claims Act and the Discretionary Function exception of that Statute really doesn't provide us with much of a practical solution when one goes to it and tries to identify the precise level of discretion.

This Court's decisions in Varig do indeed suggest that a fairly low level of discretion should be the cut off under the Tort Claims Act at least where you're dealing with regulatory sorts of activities.

But much beyond that there is, I think we have to say, some significant amount of confusion as to exactly where the line is drawn in various situations.

But--

Unknown Speaker: Well, nonetheless, that's a line Congress has drawn, and wouldn't most Tort claimants be suing both the employee and the Federal Government if they had a State tort action, so you would be determining that question anyway, wouldn't we?

Mr. Ayer: --Well, that's possible that they would be.

But I'd like to give the second reason, which is really the primary reason why it's not an appropriate thing to do.

And that is that the Tort Claims Act and personal immunity are really dealing with very different things, and have very different consequences.

The principle that the government will be liable for its conduct and essentially that the burdens of harm resulting from its conduct in certain defined situations defined in the Statute, primarily defined to include sort of run of the mill negligence in the performance of duties is a principle that amounts to a reallocation of that burden.

It is not an action that will necessarily at all have the impact of shaping the conduct of the Federal government.

The Federal government has to engage in many activities that will unavoidably have some harmful affects, and the conclusion is drawn as to at least some of those that the government should nonetheless should pay for those things while going on doing them in many instances.

With regard to personal liability, you're dealing with a very different animal which will have very different consequences.

Imposing the liability on the individual will clearly have a direct effect in shaping his or her conduct.

Unknown Speaker: Mr. Ayer, is there anything in the Federal Tort Claims Act that substitutes the liability of the United States for the liability of the individual actor as a defendant?

Mr. Ayer: Yes, there is.

There are a couple of answers to that, Chief Justice Rehnquist.

One is that when there is an award under the Federal Tort Claims Act, you may not proceed further or proceed at all against an individual.

And our understanding of that and our sense of what that meant was that Congress wanted to be very careful to create a clear line substituting liability once an action had been brought.

We do not read that at all as indicating its understanding that individual employees would otherwise be liable.

The law at the time the Tort Claims Act was enacted we are frank to say was less than completely clear.

We think that when one reads Spaulding v. Vilas, one comes up with a principle of absolute immunity without regard to malice applicable at least at the level of a sub-cabinet officer.

Barr v. Matteo was taken by this Court and was decided on a vote of 4-1-4 with the one vote obviously going in favor of the immunity but for reasons that didn't join in the majority opinion because the law at that time was not a hundred percent clear.

In that state of unclarity of the law, it made perfect sense for Congress to enact the provision that it did, setting a bright line rule and a defense for an individual should the government actually be held liable.

Now, there's two other examples, two other sets of statutes that are also I think responsive to Your Honor's question.

One of those is known as the Drivers' Act, and the other I think is known as the Rodriguez Act.

In any event, the second one deals with the liability of doctors.

Taking the second one first, in the early 1970s, there developed some case law including the District of Columbia Circuit's decision in Henderson v. Bluemink finding Federal doctors liable for their actions simply acting as doctors.

And in response to that, in a rather direct response applicable to various categories of Federal doctors, Congress enacted legislation saying those doctors aren't liable, substituting in essence the United States as a party.

They did not at that time take action with regard to other categories of Federal employees.

We believe that they didn't do that because they were acting directly in response to a particular problem that had arisen.

The problem had not arisen as to the other categories of employees at that time.

Unknown Speaker: Well, why doesn't the plaintiff in a case like that just sue the United States under the Federal Tort Claims Act?

Mr. Ayer: In this case, they cannot sue the United States because they have a remedy under the Federal Employees Compensation Act.

Unknown Speaker: So it's like when you're covered by Workmen's Compensation, a private employee, you try to find some other person to sue so that you can get a tort recovery rather than a Workmen's Compensation?

Mr. Ayer: Well, I would think many plaintiffs do do that.

And I also think it is noteworthy that under the laws of many States, and I think it's actually a substantial majority of States, it is not allowed to sue a co-employee, once you have recovered a Worker's Compensation recovery.

The second statute, in answer to your question, is the Drivers Act, which in 1961--

Unknown Speaker: May I, before you leave the other?

Is it therefore true that the Federal Employee Compensation Act omits a provision that's found in many other compensation statutes, and maybe that should be the remedy?

Mr. Ayer: --The Federal Employees Compensation Act does not state whether or not an employee who recovers may sue a co-employee.

And we think that that silence is just that, silence.

Unknown Speaker: And most other compensation schemes do have such an express provision, or has it been read into some of those statutes?

What I'm really probing for, is it possible that one could give you the relief you seek by saying that's how that statute should have been interpreted if that's really what the problem is?

Mr. Ayer: Well, I think it is clearly not, and this is something that we certainly looked into in preparing our briefs in this case.

I think it is certainly not that we can say, that's the way that statute should have been interpreted.

And the reason it's not is at the time the FECA statute was enacted, the state of affairs in the States was not as I've just described it.

I think it is now 47 States that have a provision in some form or other that more or less denies a co-employee recovery once you have a Workers' Comp recovery.

Unknown Speaker: Why isn't it reasonable to assume that if Congress promptly reacted to the medical malpractice situation the way they did and also reacted to the drivers' liability the way they did, seeing a problem there, that they would do precisely the same thing here, if there's such a simple solution?

Who should do the lawmaking here at the bottom of this case that we're all troubled by?

Mr. Ayer: Well, I think there is a very good argument to be made for the Court's continuing to do the lawmaking which rests initially on the fact that the this Court has been doing the lawmaking in this area for a very long time.

Unknown Speaker: And apparently, when they did the lawmaking, the found a basis for liability against doctors and a basis for liability who would... I mean, Congress would have thought there would have been liability against drivers, why not against people who store whatever this product was in a negligent manner?

Mr. Ayer: Well, as to the doctors, I think there is serious doubt as to whether anybody thought that that was an appropriate thing to have happen.

With regard to the drivers, I think indeed you can make a reasonable argument that driving, that the rules of the road that everybody has to obey including Federal mail delivery people and other Federal employees.

Somebody's got to have a set of rules or we're all going to be running into each other.

And the idea that a court would have concluded that Federal employees must play by the same rules including the liability rules is not surprising as to drivers.

I think it would be quite surprising with regard to virtually every other category of Federal employee and Federal activity that you can imagine.

Unknown Speaker: Well, supposing a maintenance worker on this building, why should he be under different rules than maintenance workers on a district building?

Mr. Ayer: Well, two answers, I guess.

One is that I think one has to look very carefully at the actual rules that govern in a particular situation whether it be private or whether it be a State employee.

In most State governmental situations you are dealing with a rule of immunity which is somewhat less protective and they do vary all over the lot.

But you are also dealing with in almost every State, at least the vast majority, an indemnification provision which indemnifies for almost any liability that they might suffer.

Unknown Speaker: No, I'm not thinking of it from the point of view of the defendant, but the plaintiff.

Why should it make a difference whether a bucket of paint is dropped by a worker on a public building or a private building?

Anybody should be careful with buckets of paint.

Mr. Ayer: I think you have to look at the defendant in order to answer that question.

And the answer is that the United States Government is charged with the responsibility of governing.

And Congress has decided that that responsibility includes a whole range of activities.

It cannot be tortious for the United States Government to govern.

And it is a substantial burden and a substantial disruption of that ability to govern if individual employees of the Government are going to be held liable when they take a step that involves any judgment at all on their part and they may personally be held liable in a situation where the United States Government has not decided and does not have to decide to indemnify them.

Unknown Speaker: I don't understand why that's different than driving a car.

You say the Federal employees have to obey the traffic rules.

Why don't they have to obey other rules that govern normal conduct that imposes risks?

Mr. Ayer: I think the best answer to that is the answer that was given both by Judge Learned Hand and by this Court in Barr v. Matteo, which is that if we could know in advance which individual government employees were acting improperly before a suit was brought, and we could single them out and say we're going to allow actions but only against the bad guys, only against the ones that do something wrong because we want those people to be accountable and we want them to stop it, and we want to make them pay.

The trouble is that you can't do that.

You can't know in advance.

Unknown Speaker: You can't do it with careless drivers, either.

Mr. Ayer: Well, the driving situation, Justice Stevens, I think is different because of the nature of the rules and the relationship.

When you're talking about driving, you're talking about people using the common roads.

Unknown Speaker: Negligent driving, there's a difference between negligent driving and negligent workmanship?

Mr. Ayer: I think there is.

I think the difference is that the rules of the road must govern everyone or they don't work.

The rules of liability for dropping paint buckets or whatever it is I don't think you can say that about.

I think you have a balance when you have the Federal Government acting, you necessarily have a balance of that Federal governmental function against the loss of a right of action of an individual.

And the rule that's been laid down by this Court in Barr v. Matteo and to a less explicit extent in the Constitutional cases dealing with qualified immunity is a rule that says there's a trade off and to this degree, we're going to make it in favor of protecting the governmental functioning.

Unknown Speaker: You're confusing me when you begin to talk about State rules as opposed to negligence liability.

Is your contention that a Federal worker by reason of his status as a Federal worker is not subject to a State rule such as a rule, for example, that you will not use lead-based paints on indoor rooms?

Mr. Ayer: Well, we think that the answer to that question is a very complicated answer.

And it has to be an integration, a looking at both the State law rule and the rules, statutes, authorizations directing the Federal employee to perform his job.

Unknown Speaker: Is your contention that simply because he has a discretion in what paint to use, which he surely does, that he can use a lead-based paint, when you have a State statute that says they won't be used?

Mr. Ayer: In terms of whether he can be sued for personal liability, our position is that--

Unknown Speaker: No, no.

I'm not talking about personal liability.

Mr. Ayer: --Whether in fact it's proper for him to?

Unknown Speaker: Does the State law apply to him?

Mr. Ayer: Well, in that situation my own sense would be not having researched the Federal Statutes saying what a particular painter should do or what a particular agency painting should do, my sense is that probably the State law would apply.

Unknown Speaker: That's my feel, too.

Mr. Ayer: Well, I would think so.

Unknown Speaker: But you say no personal liability for his doing it?

Mr. Ayer: Right, that's right.

Unknown Speaker: Well, what if the painter drops the can of paint on somebody because he doesn't like them and he just does it, and it's intentional.

Mr. Ayer: He does it maliciously.

Unknown Speaker: Yes, intentional.

Mr. Ayer: Well, I think--

Unknown Speaker: Absolute immunity?

Mr. Ayer: --Our position in this case is--

Unknown Speaker: Isn't that what Judge Learned Hand said?

Didn't he say where it's done deliberately, he's still protected?

Mr. Ayer: --I think that's exactly right, Justice Marshall.

Unknown Speaker: That's what he said.

Mr. Ayer: I think that's what he said.

And I think that is the logical implication of our view.

Now,--

Unknown Speaker: Well, after all, it was pretty intentional in Barr.

Mr. Ayer: --That's right.

The action certainly was intentional.

Maybe I can make more clear and more explicit the concerns on the Federal functioning side of the ledger by going through them briefly in terms of what we're talking about.

It's really not very hard to come up with a parade of horribles, cases where everybody would like, if you start with the assumption that some Federal employee has done something dreadful, there's a strong gut desire to want to find him liable.

But you've also got to think about the many many cases that are going to be brought where Federal employees in fact have not done anything wrong and are going to be put through a variety of trials.

The effects that that's going to have.

Even leaving aside any question of discretion on that person's part are going to be first a general inhibition from the performance of the job.

If a person is exposed to a potential personal liability and having to go through law suits, a rational response and the one that we can anticipate--

Unknown Speaker: But counsel, why is that any different from an employee working for General Motors, for example.

Mr. Ayer: --I think you would have to look and see what the indemnification arrangements were for the General Motors employee.

Unknown Speaker: You certainly can't rule out the possibility the Federal Government would see the need for indemnification or insurance.

Mr. Ayer: But does the Federal Government have to indemnify its employees?

Unknown Speaker: Well, General Motors doesn't, either.

But it's good business to protect morale and all the rest.

And I would suppose the same, you know--

Mr. Ayer: Well, the difference I think is that the business of the Government is not to be equated with the business of a private corporation.

Unknown Speaker: --When they're engaged in activities like painting buildings, why not?

Mr. Ayer: Well, because the reasons I would give you are that it's going to inhibit in a general way and in a very specific way, it's going to inhibit employees from wanting to take the jobs and/or to do the things that may create the greatest exposure.

Unknown Speaker: If you are talking about Mr. Barr in Barr v. Matteo, I think what you say makes a great deal of sense.

But if you're talking about someone who's painting a building, it seems to me that is quite a different case.

Mr. Ayer: Well, we think the painting of the building is one case.

Let's take for example,--

Unknown Speaker: Mr. Ayer, in any event, do you extend this immunity to every Federal employee?

I think you said something earlier, he has to have some discretion in the doing of his job.

Do you draw a line at policy makers?

Mr. Ayer: --Well, that's what this case is all about, Justice Brennan, is whether the policy and planning rule that was enunciated by the Eleventh Circuit, not in this specific case but in a later case as their Circuit's rule, whether that is what should govern.

And it's our view very strongly--

Unknown Speaker: Their rule is a limiting rule?

Mr. Ayer: --Very limiting rule.

And we think that there's two things wrong with it.

Unknown Speaker: They went to high policy makers did they?

Mr. Ayer: They called it policy and planning.

Unknown Speaker: Policy and planning makers.

You would go further and say any one who has discretion on how to do his job?

Mr. Ayer: I want to make two points about that: number one, we do very strongly believe that an absolute immunity is appropriate whenever a Federal employee acts within the scope of his duty, within the outer perimeter of his duties.

We are here in this case--

Unknown Speaker: Has that ever been held?

Mr. Ayer: --Well, I think that's a reasonable reading.

Unknown Speaker: Of what?

Mr. Ayer: Of the Court's decisions in Barr and the Court's decision in Spalding.

Unknown Speaker: I don't think I thought so in Barr, did I?

Mr. Ayer: I don't think you did.

Unknown Speaker: No.

Mr. Ayer: But in response to that, I'd just like to say that there is a discussion in Barr in the plurality opinion relating to the exercise of discretion.

That discussion of discretion, if one reads it carefully I think is fairly understood to define the outer limits, the outer perimeter of authority and is not a requirement of discretion.

Unknown Speaker: Mr. Ayer, focusing on the facts of this case, where is the discretion exercised, and what is it?

The way the soda ash was piled?

Mr. Ayer: Well, we are applying the discretion test which is in footnote 14 of this Court's decision in Davis v. Scherer that says that when a particular task is not specifically defined, when it isn't prescribed what an employee must do, he is exercising discretion, and the discretion that is involved here is in the performance that three defendants are supervisors at this Army depot, and they oversee the work of the depot which includes the letting off of materiel, the repackaging, the moving around and sending out of materiel, and the storage.

Unknown Speaker: My next question is, aren't they going to do exactly the same thing whether we have a rule of immunity or not?

Mr. Ayer: I think if we don't have a rule of immunity there is a significant for any job that involves risks that someone may be hurt and therefore may want to sue, we're creating a situation where the cost of doing that job increases to the government, where individual employees if they have any discretion are likely to shade that discretion and make decisions in a way that is not necessarily in the interest of the Federal Government.

Unknown Speaker: Discretion here in the way the bags of soda ash were piled?

Mr. Ayer: In the way the work was done, in where they were put when they were brought in, in who was assigned to do it and whether safety equipment was used, if any was necessary, in how the job was done.

And we think that those are clearly discretionary decisions within the meaning of this Court's decision in Davis v. Scherer.

Unknown Speaker: My only point is that the fact of discretion as you have defined it is certainly going to be carried out whether there is a rule of immunity or not, and therefore one of the reasons for Barr v. Matteo is inapplicable to the fact situation here.

Mr. Ayer: I think there is a real question in any case where there's any discretion how that discretion's going to be exercised, and which way, how are we going to do the job.

And the question is whether we want that judgment to be shaded by concern about liability.

If I may do so, I'd like to save the remainder of my time for rebuttal.

Argument of M. Clay Alspaugh

Chief Justice Rehnquist: Thank you, Mr. Ayer.

We'll hear now from you, Mr. Alspaugh.

Mr. Alspaugh: Mr. Chief Justice, and may it please the Court.

The position of respondents here is simply that Barr and its progeny set out applicable rules, we feel, to apply immunity involving common law or State tort actions.

There is a distinct difference between an activity that is within the outer perimeters of a job of a government employee, and an activity that is discretionary within that outer perimeter.

A question was put earlier as to whether or not that outer perimeter in and of itself would establish liability and were there any cases on that.

Doe v. McMillan speaks directly to that point.

In that case, the printer of documents was sued.

The Court held without a doubt his activities were within the outer perimeters but that his job and doing what he was doing on this occasion was not discretionary.

Since it was not discretionary, he did not enjoy the Barr immunity.

There were other questions involved which are constitutional in nature, but it was directed directly to the Barr case.

There is a need to allow causes of action like this.

There is a need in Alabama and throughout the States.

In this particular instance... there's 22 States, as a matter of fact, that do allow some type of a co-employee case.

In this particular case, the plaintiff, Erwin, did receive an injury as a consequence of being exposed to soda ash.

He did receive worker's compensation under Federal Workers Compensation.

However, that compensation statute is limited in its application.

He received an injury to his vocal cords.

He cannot talk.

As a consequence of not being a scheduled member, this man received an injury for which there was no redress except in a direction action against a coemployee in this case.

Other fact situations are not like this one.

There may be cases where the Federal workers compensation does provide sufficient indemnity so as to preclude suit, and as a matter of fact, there's a petition for cert. before this Court on that very point.

Unknown Speaker: Well, how would the sufficiency of the Federal Workers' Compensation provision preclude or not preclude suit?

Mr. Alspaugh: It should not unless there's a specific statute addressing that simply because of the due process issues.

In the States where there have been co-employee and workmen's compensation both recoverable, and it would be analogous to the Federal circumstance, suits were allowed unless there was a constitutional amendment immunizing that co-employee in exchange for receipt of the benefits.

It's a trade off also.

Unknown Speaker: But I thought your argument was based on the idea that here the workmen's compensation award was somehow inadequate and if it had been more adequate, then perhaps the suit against the co-employee would be barred.

I don't think there's much ground for making that distinction, is there?

Mr. Alspaugh: No, sir.

I did not mean to imply that.

I'm saying that there would be some argument that there was a justification for extending immunity in those circumstances, though I do not think it is a valid argument.

Unknown Speaker: For a Court extending immunity?

Mr. Alspaugh: No, sir.

I think it would be a legislative determination.

Primary example of that is the Bivens circumstance where the Federal Torts Claims Act did not provide for actions of malice such as in the Bivens case.

After Bivens, the Federal Tort Claims Act was expanded to include actions such as were taken up in that particular instance.

And we submit that that would be the proper manner and way in which to present and face this particular issue.

What is discretion?

Discretion I don't believe means the right to make a decision one way or another necessarily.

Discretion is whether or not the act was a judgment or a decision which it is necessary that the Government official be able to make without fear of suit, that is, something that effects governing, something that effects the extension of governing, of policy making, not policy application.

The analogy that applies in this instance is the FTCA.

Clearly State law applies in an instance that happens within a State under the FTCA.

Unknown Speaker: I understand that.

We only want fearless policy makers, we do not want fearless implementors of policy, is that it?

Mr. Alspaugh: No, sir.

Unknown Speaker: We want to be sure we have really terrific impartial Federal policies but we don't really care how they're implemented, is that it?

Mr. Alspaugh: Yes, sir.

I think that there could be and these cases hold generally that you have to look at each particular instance, each particular function, what is the nature of the policy involved, what is the nature of the action, what is the nature of the duty, the functional analysis test.

So certainly in certain instances you can have an aggressive policy implementor but that doesn't in all instances mean that person is immune to suit under common law causes of action.

Unknown Speaker: Well, Mr. Alspaugh, if the supervisors in this case had made an explicit policy that they were going to store the bags in the manner in which they stored the bags here, then under your theory, no suit could be brought.

Is that right?

Mr. Alspaugh: No, ma'am.

Only in the event that that policy effected governing, per se.

There is no uniqueness--

Unknown Speaker: Well, we're not talking about just making policy, we're talking about certain kinds of policies, then--

Mr. Alspaugh: --That's right, yes, ma'am, I think so.

Clearly, the policies that affect governance... governing--

Unknown Speaker: --Are you proposing the kind of distinction that used to exist for purposes of municipal immunity from suit?

That is whether, you remember in the old days, whether the municipality was acting in a governmental capacity or in a proprietary capacity?

Is that what you're bringing in here?

Mr. Alspaugh: --No, sir, not really.

I don't think I want to say that, for this reason.

I don't believe--

Unknown Speaker: I hope not because that is a very confusing doctrine.

What are you proposing, then?

Mr. Alspaugh: --The case law does not say that.

I think that you're going to have to look at the position, the level, the type of activity of the defendant, and then decide on a case-by-case basis based on the law as it is now as to whether or not the activities involved, number one, were within the outer perimeters, and number two, involved discretion.

And if that discretion is such that it affects governing, then there is absolute immunity.

Unknown Speaker: Well, it's easy to say, but what do you mean by, affects governing?

Everything, any discretion by a government official affects governing in the broad sense, right?

You mean it in a more narrow sense than that?

Mr. Alspaugh: Yes, sir.

In my judgment, you need to use the same analysis as was used in the Davis case.

That is, you looked at the State activities.

They said, in Davis, that since the State Officials are subject to 1983, we're going to make the Federal officials subject to 1983, looking at their activities.

I think you could look the same way at the General Motors question, you can look at the activities that are analogous to the activities involved, and make a decision as to whether or not that is governing or simply ministerially carrying out the activities at the time.

Unknown Speaker: So it has to be the type of activity that only government can do?

Mr. Alspaugh: I think so.

Unknown Speaker: That's the old proprietary governmental distinction.

Why are you so afraid to endorse the proprietary governmental distinction?

Mr. Alspaugh: Sir?

Unknown Speaker: Why are you so afraid to endorse the proprietary governmental distinction?

A lot of people thought it made sense for a long time.

Mr. Alspaugh: Proprietary has so many meanings just as discretionary has.

I wish that we could lay down a set of rules that we could punch a bunch of holes and put pegs in it.

,--

Unknown Speaker: You agree with the Government that this is a job that we should be doing?

Mr. Alspaugh: --Sir?

Unknown Speaker: This is a law making job that the Court should do rather than Congress, you agree with that?

Mr. Alspaugh: No, sir.

I think that Congress should do it, but I think this Court has to explain what was meant in Barr and subsequently in Doe and the extent that discretion is involved in order to obtain immunity.

I think you're going to have to do that.

I think I know what it says, but the other Courts do not know.

Unknown Speaker: Well, do we really have to do anything more than to say whether or not piling these bags or whatever they were amounts to discretion or doesn't?

Do we have to decide every possible case?

Mr. Alspaugh: No, sir.

But if you do not lay out those guidelines, there's going to be the same problem that there is now within the Circuit.

Unknown Speaker: But you don't care about that if you win this case, do you?

Mr. Alspaugh: That's exactly right, sir.

Except for the fact that in the Eleventh Circuit, there are now pending four cases, one of which is mine, that are on these very issues.

[Laughter]

That are on these very issues, so I may be back up here again in not too long.

Unknown Speaker: So your submission is a case by case analysis?

Mr. Alspaugh: Yes, sir.

Unknown Speaker: In every single case you go through this routine of inquiry which you think Doe against McMillan indicated, and so can we set down some rules here that would govern your other case?

Mr. Alspaugh: Well,--

Unknown Speaker: You would hope so, I suppose?

Mr. Alspaugh: --I would hope so.

I think it may be a case by case analysis, if you use the Constitutional tort analysis, it's a case by case analysis.

If you look at what Barr said, it said, we need to look at the functional approach, we need to look at each particular case.

And that's what you're going to have to do.

The question is, I think you could do it by defining what "discretion" means, if that is the word.

If you mean discretion in all policy making, that's one thing.

If you mean carrying out the day to day operations, that's another thing.

That's not policy making in my judgment.

Unknown Speaker: Well, I suppose that a lot of the reason for any immunity at all is that Government employees shouldn't be afraid to do their duty.

Mr. Alspaugh: Yes, sir.

Unknown Speaker: And I suppose being afraid to do some kinds of duties is just more significant than being afraid to do other kinds of duties?

Mr. Alspaugh: I think that that clearly is what this Court has held.

I think that it has held that high level people that are involved in policy making should not have that fear, but there should be no distinction between a civilian and a Government employee if that fear would not affect the effective carrying on of government.

Unknown Speaker: Well, didn't the Court in the majority in Dalehite v. United States hold that the stacking of the fertilizer on the depot down in Texas was a discretionary function?

Mr. Alspaugh: Yes, sir, they did in that instance and that was an FTCA case.

Unknown Speaker: Is there any reason why that same sort of discretionary analysis shouldn't be applied here?

Mr. Alspaugh: Yes, sir.

I think so.

Because there is more to it merely than the stacking.

There is a question here of failure to warn, negligent failure to warn in and of itself.

For instance,--

Unknown Speaker: You don't quarrel then with the Dalehite majority's principle as a guide in this area.

You just say the facts here are different than Dalehite?

Mr. Alspaugh: --Yes, sir, could be, could be.

For example--

Unknown Speaker: That's different from what you are arguing in your brief, then.

You know, the Dalehite test is not a policy level discretion test.

You're saying only policy officials can benefit from the discretionary function exemption you would allow in these private suits.

Mr. Alspaugh: --Yes, sir.

I think that Dalehite says clearly that there is a distinction between the policy making aspect and the carrying out of that policy.

I believe the word that's referred to is, execution of the plan adopted.

That's what Dalehite said.

Unknown Speaker: But that includes a plan for the stacking of bags of fertilizer.

Yes.

Which General Motors can do, right?

That's not a distinctively governmental kind of thing?

Mr. Alspaugh: It's the execution of that plan, how it's carried out, not necessarily only stacking it up, but also what information do you impart relative to the stacking up of it.

Unknown Speaker: Then it becomes governmental?

Mr. Alspaugh: No, sir, it was governmental when they made the decision to stack it up.

Unknown Speaker: You mean, just because it was the government doing it.

Although it was the kind of thing that could have been stacked at General Motors or Olin-Mathieson or anywhere else, if the government decides to do it, it's governmental?

Mr. Alspaugh: That was what was decided.

Unknown Speaker: I never read that that way.

Mr. Alspaugh: I think that's what was decided in the case.

Unknown Speaker: If you are right about absolute immunity, you nevertheless would say that there's a qualified immunity, wouldn't you?

Mr. Alspaugh: Yes, sir, I do.

Unknown Speaker: And except for what, except for ministerial acts?

You get no qualified immunity for those, do you?

Mr. Alspaugh: Yes, sir, that's correct.

Well, there's also other instances, I believe, but qualified immunity, as I understand it, is very narrow.

It's much more narrow than the State cause of action immunity.

It says, as I understand it, that if there is a rule that is reasonably understood and that rule or law is violated reasonably there is still immunity or can be immunity, but there's a burden to show that it was reasonable to have violated it.

That is somewhat different than the common law cause of action, in my judgment.

The objective reasonableness in light of existing law is where the qualified immunity attaches.

Unknown Speaker: And I suppose you say just by definition, a negligent act couldn't qualify?

Mr. Alspaugh: It could qualify if you applied the quote unquote existing law to be the State law that applies.

However, there is an argument related to the qualified immunity that says that Federal law of course always supercedes State law.

Therefore, we won't have the opportunity to look at the State law.

Unknown Speaker: Well, what was the State law of Alabama that governed this case at the time these defendants acted?

Mr. Alspaugh: Alabama has a workmen's compensation law just like most other States, provides compensation if you're hurt on the job.

Unknown Speaker: But that wasn't something that would have governed the conduct of these defendants.

What did Alabama law have, you take due care that you don't injure other people?

Mr. Alspaugh: Due care, pure due care.

Unknown Speaker: And so the question of qualified immunity is whether you knew that was the law or not?

Mr. Alspaugh: It would be in that instance.

And if you extended it to warnings, failure to warn, it may be included within that, but due care is the standard, purely due care.

You also have to look of course in Alabama as to whether or not... and I think other States... there was a duty associated with it.

That never came up, it was never reached in this issue.

But in many of the cases that are co-employee-type cases, duty is the most important aspect of it.

There are other cases, though, that are not co-employee that apply this immunity also, or that are attempting to apply this immunity.

There are other instances where suits are directed against individuals where the FTCA does not apply.

Where there's no government compensation available.

The Johns case that's cited in these briefs and also is on hold is such a case.

That's where a man was killed on a government reservation.

You cannot sue TVA who owned the reservation for wrongful death in Alabama.

Therefore, the only opportunity that man had was to sue the co-employees.

Therefore, they say, though TVA would not be immune to death in another State, these individuals are immune.

So in that instance, the man has absolutely no redress.

The question again is discretionary function.

Unknown Speaker: Do I understand you to say that you are willing to accept for the application to these cases the same discretionary function test that's used in the FTCA cases?

Mr. Alspaugh: Yes, sir.

Unknown Speaker: You're willing to do that?

Mr. Alspaugh: Yes, sir.

Unknown Speaker: You think it's the same line?

Mr. Alspaugh: Yes, sir, I am.

Unknown Speaker: And you're sure that that would give you a victory here?

Mr. Alspaugh: As I understand the facts in this case, I do, yes, sir.

As it applies to the incidents in this case, yes, sir, I do.

I think FTCA and I said in my brief is much broader, simply because it covers a lot of instances where this Court has specifically said there is absolute immunity, but nevertheless, the rationale of FTCA, I think, applies.

Unknown Speaker: Let me ask this, if the discretion line is the same under the tort claims and under your understanding of the immunity doctrine, are all these other cases that are pending, at least in your circuit, suits by co-employees?

Mr. Alspaugh: All with the exception of one, and that is one that I have.

The rest of them are co-employee suits.

They are all negligence cases.

None of them involve the liable cases.

Unknown Speaker: Because it seems to me if they're not co-employee suits, that then there would always be a suit against the government in the case where the employee is immune.

Mr. Alspaugh: Except in instances where the FTCA does not apply.

There are certain agencies where it doesn't apply.

TVA's one of them.

But there are certain agencies where it does not apply.

I do not know what will be addressed further in my response.

I don't guess it'll be anything we haven't talked about, but nevertheless, there was raised in brief some issues dealing with the likelihood that the common law cause of action is analogous to the constitutional tort cause of action.

I do not think it is, notwithstanding what the D.C. Court said.

It simply said that if you have a Federal law that supercedes a State law, we will apply it and they can work hand in hand.

In closing, I think that the law is clear that there are two prongs in every case like this against a co-employee or a government employee that have to be addressed, and that the discretion only provides immunity in the event it does affect government itself and not the day to day operations of government.

Thank you.

Rebuttal of Donald B. Ayer

Chief Justice Rehnquist: Thank you, Mr. Alspaugh.

Mr. Ayer, you have two minutes remaining.

Mr. Ayer: The point I'd like to emphasize more than any other is that immunity only has any useful effect if there is some measure of certainty for the employees who are protected by it.

And the rule that's been announced here, a rule of policy and planning discretion is a rule that has no certainty whatsoever.

You can inject into it all sorts of different considerations and courts certainly will if that turns out to be the law.

We can talk about whether activity is governmental, we can talk about how far removed the supervisor is from the individual who is really affected.

There's an endless list of considerations one could think about.

Unknown Speaker: But your principal argument here as you described at the outset is that you want immunity where there is some measure of discretion.

That isn't a very firm rule, either.

Mr. Ayer: Some meaning, any, Justice White.

And we think that it does indeed provide a significant measure of certainty if it's taken that way.

If it is elevated to some level of what color collar does someone wear or something like that, indeed it will not.

But if every action where the precise conduct is not prescribed by law is protected, and that's the definition this Court used in its footnote in Davis v. Scherer, whenever it's not prescribed.

Unknown Speaker: So if the law says, please pile this soda ash in paper sacks ten sacks high, that wouldn't be detailed enough.

You have to go on.

Mr. Ayer: If the law says don't let any employees stack soda ash without wearing gloves,--

Unknown Speaker: So you're about as close to your per se rule as you can get.

Mr. Ayer: --We're pretty close to a per se rule.

Unknown Speaker: Of any government employee acting within the perimeter of his duties?

Mr. Ayer: That's correct, Your Honor, and I think that's terribly important, because it's the operational level where the conflict comes.

It's when an employee is fired, it's when a grant is denied.

Unknown Speaker: How much lower is it than somebody stacking sacks?

Mr. Ayer: Excuse me?

Unknown Speaker: How much lower do you get?

Mr. Ayer: Well, there could be regulations if indeed soda ash were a dangerous substance, which it is not.

Unknown Speaker: But I mean, is there anything lower than that?

Mr. Ayer: Well, there could be regulations that say--

Unknown Speaker: Could there be regulations that what is lower than that, or could you answer it?

Mr. Ayer: --That is lower than that?

Unknown Speaker: Yes.

Mr. Ayer: Well, I think that there are activities that are non-discretionary such as a file clerk in a government office who stamps deeds or documents--

Unknown Speaker: That's lower than handling sacks of garbage?

Mr. Ayer: --It's less discretionary, we think.

But we think that for the supervisor directing the handling of chemicals or other substances, he has a lot of discretion as to how the job is done.

And to say that he doesn't is really rejecting the question of discretion at all, and just looking at the level of the position.

Chief Justice Rehnquist: Thank you, Mr. Ayer.

The case is submitted.