Adams v. U.S.

• Decision Date: 23 August 2005
• Docket Number: No. 04-35247.,No. 04-35154.,No. 04-35129.,No. 04-35248.,04-35129.,04-35154.,04-35247.,04-35248.
• Citation: 420 F.3d 1049
• Parties: Timm ADAMS; et al., Plaintiffs-Appellees, Thomas Helicopters, Inc., Intervenor-Appellant, and E.I. Du Pont De Nemours and Company, Inc.; et al., Intervenors, v. UNITED STATES of America, Defendant-Appellee. Timm Adams; et al., Plaintiffs, v. E.I. Du Pont De Nemours Company, Inc., a Delaware corporation; et al., Defendants, and DeAngelo Brothers, Inc., a Pennsylvania corporation, Defendant-Appellant, United States of America, Respondent-Appellee. Timm Adams; et al., Plaintiffs, E.I. Du Ponte De Nemours and Company, Inc.; et al., Intervenors, and DeAngelo Brothers Inc., Intervenor-Appellant, v. United States of America, Defendant-Appellee. Timm Adams; et al., Plaintiffs, and Thomas Helicopters, Inc., an Idaho corporation; et al., Petitioners-Appellants, v. E.I. Du Pont De Nemours and Company, Inc., a Delaware corporation; et al., Defendants, and United States of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

420 F.3d 1049

Timm ADAMS; et al., Plaintiffs-Appellees, Thomas Helicopters, Inc., Intervenor-Appellant, and E.I. Du Pont De Nemours and Company, Inc.; et al., Intervenors, v. UNITED STATES of America, Defendant-Appellee.

Timm Adams; et al., Plaintiffs, v. E.I. Du Pont De Nemours Company, Inc., a Delaware corporation; et al., Defendants, and DeAngelo Brothers, Inc., a Pennsylvania corporation, Defendant-Appellant, United States of America, Respondent-Appellee.

Timm Adams; et al., Plaintiffs, E.I. Du Ponte De Nemours and Company, Inc.; et al., Intervenors, and DeAngelo Brothers Inc., Intervenor-Appellant, v. United States of America, Defendant-Appellee.

Timm Adams; et al., Plaintiffs, and Thomas Helicopters, Inc., an Idaho corporation; et al., Petitioners-Appellants, v. E.I. Du Pont De Nemours and Company, Inc., a Delaware corporation; et al., Defendants, and United States of America, Respondent-Appellee.

No. 04-35129.

No. 04-35154.

No. 04-35247.

No. 04-35248.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 9, 2005.

Filed August 23, 2005.

Steven F. Schossberger, Boise, ID, for intervenor-appellant Thomas Helicopters, Inc.

John L. King, Boise, ID, for intervenor-appellant DeAngelo Brothers, Inc.

David S. Fishback, Department of Justice, Washington, DC, for defendant-appellee United States of America.

Appeal from the United States District Court for the District of Idaho; B. Lynn Winmill, District Judge, Presiding. D.C. Nos. CV-03-00049-BLW, CV-03-00318-BLW.

Before BEEZER, THOMPSON, and M. MARGARET McKEOWN, Circuit Judges.

DAVID R. THOMPSON, Senior Circuit Judge.

The Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b)(1), 2671-2680, includes a certification process for immunity from tort claims against employees of the government. 28 U.S.C. § 2679(b)(1). Such employees are defined, in part, as "persons acting on behalf of a federal agency." 28 U.S.C. § 2671. We conclude that the word "persons" as used in this portion of the FTCA does not include corporations, notwithstanding the Dictionary Act's provision that the word "person" when used in an Act of Congress includes "corporations" "unless the context indicates otherwise." 1 U.S.C. § 1. Thus, we hold that a corporation may not obtain immunity through the certification process of 28 U.S.C. § 2679, and we affirm the district court's order affirming the government's denial of FTCA certification to the corporate defendants, Thomas Helicopters, Inc., and DeAngelo Brothers, Inc.

I

The Bureau of Land Management contracted with Thomas Helicopters and DeAngelo Brothers to apply herbicide to Bureau-managed land in Idaho to prevent weed growth. Approximately 440 plaintiffs made up of farmers and land-owners sued the manufacturer of the herbicide, as well as Thomas Helicopters, DeAngelo Brothers, and the United States, alleging that the improper application of the herbicide caused it to drift onto the plaintiffs' land resulting in damages in excess of $700 million.

Thomas Helicopters and DeAngelo Brothers petitioned the United States government to certify them as government employees under the FTCA. Had they been so certified, they would no longer be defendants and would be out of the case. The FTCA allows the United States to substitute itself for the government employee as the defendant "[u]pon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose." 28 U.S.C. § 2679(d)(1), (2). The United States rejected the petitions on the ground that certification was not available to corporate entities. Thomas Helicopters and DeAngelo Brothers then sought review of that decision in the district court. The district court affirmed the government's denial of certification, and this appeal followed.

II

The district court's order that certification was properly refused is immediately appealable, Arthur v. United States, 45 F.3d 292, 294 (9th Cir.1995), and presents to us a question of law that we review de novo. See Pelletier v. Fed. Home Loan Bank of San Francisco, 968 F.2d 865, 875 (9th Cir.1992). We have jurisdiction under 28 U.S.C. § 1291.

A

The FTCA provides a waiver of the United States government's sovereign immunity for tort claims arising out of the conduct of government employees acting within the scope of their employment. 28 U.S.C. § 1346(b)(1); United States v. Orleans, 425 U.S. 807, 813-14, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976). The FTCA defines "employee of the government" in a way that creates five categories of employees:¹

[1] officers or employees of any federal agency,

[2] members of the military or naval forces of the United States,

[3] members of the National Guard while engaged in training or duty,

[4] persons acting on behalf of a federal agency in an official capacity, [and]

[5] officer[s] or employee[s] of a Federal public defender organization, [with certain exceptions].

28 U.S.C. § 2671 (emphasis added). The fourth category lies at the heart of this case. As used in that category, "federal agency" includes

executive departments, the judicial and legislative branches, the military departments, independent establishments of the United States, and corporations primarily acting as instrumentalities or agencies of the United States, but does not include any contractor with the United States.

Id.

The FTCA leaves the term "persons" undefined. The Dictionary Act, however enacted approximately one year before the FTCA, provides (as it did before the FTCA's passage) that

In determining the meaning of any Act of Congress, unless the context indicates otherwise —

. . . .

the word[ ] "person" . . . include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals. . . .

1 U.S.C. § 1.

The FTCA provisions for substituting the government for the "employee of the government" as the defendant in an FTCA action were adopted as an amendment to the FTCA in 1988 in reaction to the Supreme Court's decision in Westfall v. Erwin, 484 U.S. 292, 108 S.Ct. 580, 98 L.Ed.2d 619 (1988). In Westfall, the Court narrowed the scope of official immunity by holding that individual federal employees were immune from personal liability only when acting "within the scope of their official duties and the conduct is discretionary in nature." 484 U.S. at 297-98, 108 S.Ct. 580. The Court left any further immunity of federal employees up to Congress. Id. at 300, 108 S.Ct. 580 (noting that Congress is in the best position to decide the scope of immunity and that "legislated standards governing the immunity of federal employees . . . would be useful."). Congress responded by enacting what is commonly known as the Westfall Act (the Federal Employees Liability Reform and Tort Compensation Act of 1988, 28 U.S.C. § 2679), which conferred immunity to federal employees acting within the scope of their office or employment regardless of whether their conduct was discretionary.

B

Under the Dictionary Act, the FTCA's "government employee" definition, which uses the word "persons," 28 U.S.C. § 2671, would include corporations unless "the context [of the FTCA] indicates otherwise." 1 U.S.C. § 1. The Supreme Court's decision in Rowland v. California Men's Colony, 506 U.S. 194, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993), guides our interpretation of this contextual proviso of the Dictionary Act.

In Rowland, the Court applied the Dictionary Act's definition of "person" to the in forma pauperis statute, 28 U.S.C. § 1915, and held that the context of the in forma pauperis statute indicated that its use of "person" referred only to individuals, not to artificial entities. Rowland, 506 U.S. at 201-11, 113 S.Ct. 716.

The Rowland Court, in applying the Dictionary Act's definition of "person" to another Act of Congress, carefully considered the Dictionary Act's proviso that its definition should not be applied if "`the context [of the other Act] indicates otherwise.'" Rowland, 506 U.S. at 199, 113 S.Ct. 716 (quoting 1 U.S.C. § 1) (emphasis added). The Court stated that context in this clause means "the text of the Act of Congress surrounding the word at issue, or the texts of other related congressional Acts." Id. Context does not extend to legislative history: "If Congress had meant to point . . . to legislative history. . . it would have been natural to use a more spacious phrase, like `evidence of congressional intent,' in place of `context.'" Id. at 200, 113 S.Ct. 716.

In determining what a statute's context indicates, the Court stated that the scope of "indicates" is "broader" than that of "context" and while it is a "matter of judgment," it "imposes less of a burden than . . . `requires' or `necessitates.'" Id. Finally, to determine that the context of a statute indicates that a definition set forth in the Dictionary Act is not appropriate, a court need not conclude that the Dictionary Act's meaning would produce an absurd result. Id. at 200-01, 113 S.Ct. 716.

Applying this framework, the court in Rowland held that the word "person" as used in the in forma pauperis statute referred only to individuals. First, the in forma pauperis statute assumed litigants could appear pro se, which indicated that Congress must have been thinking only in terms of natural persons. Id. at 203, 113 S.Ct. 716. Second, the in forma pauperis statute required an affidavit supporting the person's "allegation of poverty," but artificial entities do not suffer poverty. Id. Third, the in forma pauperis statute required the person to make an affidavit, but "[b]ecause artificial entities cannot take oaths, they cannot make affidavits." Id. at 204, 113 S.Ct. 716. Finally, the in forma pauperis statute provided no resolution of the question how to apply the statute's "inability to pay" standard to corporations, and "congressional silence on the subject indicates that Congress simply was not thinking in terms...