Barrett v. U.S.

• Court: U.S. Court of Appeals — Second Circuit
• Writing for the Court: Before TIMBERS, KEARSE and MAHONEY; MAHONEY
• Citation: Barrett v. U.S., 853 F.2d 124 (2nd Cir. 1988)
• Decision Date: 02 August 1988
• Docket Number: D,No. 707,707
• Parties: Elizabeth BARRETT, individually and as administratrix of the Estate of Harold Blauer, deceased, Plaintiff, v. UNITED STATES of America, Defendant. UNITED STATES of America, Third-party Plaintiff-Appellee, v. STATE OF NEW YORK, Third-party Defendant-Appellant. ocket 87-6189.

Page 124

853 F.2d 124

57 USLW 2113

Elizabeth BARRETT, individually and as administratrix of the Estate of Harold Blauer, deceased, Plaintiff, v. UNITED STATES of America, Defendant.

UNITED STATES of America, Third-party Plaintiff-Appellee, v. STATE OF NEW YORK, Third-party Defendant-Appellant.

No. 707, Docket 87-6189.

United States Court of Appeals Second Circuit.

Argued Feb. 19, 1988.

Decided Aug. 2, 1988.

Barrie L. Goldstein, Asst. Atty. Gen. of the State of N.Y., New York City (Robert Abrams, Atty. Gen. of the State of N.Y., O. Peter Sherwood, Sol. Gen., Harvey Golubock, Deputy First Asst. Atty. Gen., New York City, of counsel), for third-party defendant-appellant.

Beth A. Kaswan, Asst. U.S. Atty. for the S.D.N.Y., New York City (Rudolph W. Giuliani, U.S. Atty. for the S.D.N.Y., Richard W. Mark, Asst. U.S. Atty., New York City, of counsel), for third-party plaintiff-appellee.

Before TIMBERS, KEARSE and MAHONEY, Circuit Judges.

MAHONEY, Circuit Judge:

The State of New York appeals from an order of the United States District Court for the Southern District of New York, Constance Baker Motley, Judge, 668 F.Supp. 339, denying its motion to vacate a prior order of that court permitting impleader or, in the alternative, to dismiss the third-party complaint of the United States against New York for contribution in a Federal Tort Claims Act suit brought by plaintiff Elizabeth Barrett against the United States. The district court denied New York's motion on the ground, inter alia, that the eleventh amendment did not bar jurisdiction of a third-party action for contribution by the United States against New York in federal court.

On October 6, 1987, the United States moved to dismiss this interlocutory appeal on the ground that the eleventh amendment claim was frivolous. A different panel of this court denied that motion. We have appellate jurisdiction of this interlocutory appeal under 28 U.S.C. Sec. 1291 (1982) because the district court's denial of New York's motion on eleventh amendment immunity grounds constituted a reviewable collateral order. Minotti v. Lensink, 798 F.2d 607, 608 (2d Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 2484, 96 L.Ed.2d 376 (1987). But see Libby v. Marshall, 833 F.2d 402, 405 (1st Cir.1987) (rejecting Minotti v. Lensink ).

Background

The facts concerning this litigation are set out in greater detail in previous opinions of this court, see Barrett v. United States, 798 F.2d 565 (2d Cir.1986); Barrett v. United States, 689 F.2d 324 (2d Cir.1982), cert. denied, 462 U.S. 1131, 103 S.Ct. 3111, 77 L.Ed.2d 1366 (1983), and of the United States District Court for the Southern District of New York (summarized in Barrett v. United States, 660 F.Supp 1291, 1295 n. 2 (S.D.N.Y.1987)). They will not be repeated here, except as necessary to frame the issues now before this court.

Elizabeth Barrett is the administratrix of the estate of her father, Harold Blauer, who died in 1953 when the New York State Psychiatric Institute administered a drug to him in the course of a chemical warfare experiment which it was conducting in cooperation with the United States Army. Blauer had no knowledge of, and therefore did not consent to participate in, this experiment. Nor were these facts disclosed to Barrett when Blauer's estate initially reached a settlement in 1955 with New York State and the (unidentified) supplier of the drug administered to him in the amount of $18,000. This settlement was ratified by the New York Court of Claims, as required by New York law. The United States paid $9,000 of the $18,000 payment, but this was not disclosed to the payee, or apparently to the Court of Claims.

In August, 1975, however, the Secretary of the Army revealed the dismaying truth of the matter. Barrett thereupon commenced three suits in federal court, which have been consolidated. After a bench trial of Barrett's wrongful death claim against the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Secs. 1346(b) and 2671-2680 (1982), the district court held that Blauer's death was proximately caused by the negligence of the United States in inadequately testing the fatal drug before providing it to the New York State Psychiatric Institute for human experimentation. On June 4, 1987, the Court entered judgment against the United States in the amount of $702,044.00. See Barrett v. United States, 660 F.Supp. 1291 (S.D.N.Y.1987).

New York had originally been named as a defendant by Barrett, but had been dismissed from the action early in the litigation on the ground that New York was immune to direct suit by Barrett in federal court. Prior to the trial of Barrett's FTCA claim, however, the United States sought to implead New York as a third-party defendant. On June 27, 1986, the district court granted the United States leave to file the third-party complaint, which asserted claims for contribution and indemnity. After the main FTCA trial was concluded and judgment was entered against the United States, New York moved to vacate the prior order granting impleader or, alternatively, to dismiss the third-party complaint on several grounds, including eleventh amendment immunity from suit in federal court.

In an opinion issued on September 8, 1987, see Barrett v. United States, 668 F.Supp. 339 (S.D.N.Y.1987), the district court held that, although the United States no longer had a claim against New York for indemnity, see Barrett v. United States, 668 F.Supp. at 340, its claim for contribution against New York as a joint tortfeasor was not barred by the eleventh amendment. The court also rejected contentions by New York that the United States' claim for contribution was barred by a release executed by the estate of Harold Blauer as part of the 1955 settlement with New York, and that the contribution claim was precluded, as a matter of res judicata, by the Court of Claims judgment approving the 1955 settlement and a subsequent 1976 Court of Claims dismissal of Barrett's petition for pre-suit discovery pursuant to N.Y.Civ.Prac.L. & R. 3102(e) (McKinney 1970).

For the reasons hereinafter stated, we affirm the district court's decision with respect to the eleventh amendment issue, and decline to exercise pendent appellate jurisdiction with respect to the release and res judicata issues.

Discussion

A. Eleventh Amendment Immunity.

The eleventh amendment ¹ acts as a jurisdictional bar to suits brought in federal court against a state by citizens of another state. See, e g., Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 99 n. 8, 104 S.Ct. 900, 907 n. 8, 79 L.Ed.2d 67 (1984) ("The limitation deprives federal courts of any jurisdiction to entertain such claims...."). On the other hand, "[n]othing in the Eleventh Amendment 'has ever been seriously supposed to prevent a State's being sued by the United States.' " Arizona v. California, 460 U.S. 605, 614, 103 S.Ct. 1382, 1388, 75 L.Ed.2d 318 (1983) (quoting United States v. Mississippi, 380 U.S. 128, 140, 85 S.Ct. 808, 815, 13 L.Ed.2d 717 (1965)). Federal subject matter jurisdiction in such cases may be predicated upon Article III, section 2 of the Constitution, which extends the judicial power of the United States "to Controversies to which the United States shall be a Party." U.S. Const. art. III, Sec. 2, cl. 1; see United States v. Texas, 143 U.S. 621, 643, 12 S.Ct. 488, 493, 36 L.Ed. 285 (1892).

Despite the constitutional vesting of original jurisdiction of such suits in the Supreme Court, see U.S. Const. art. III, Sec. 2, cl. 2, Congress has given original jurisdiction to the federal district courts, as well, over suits by the United States against a state in 28 U.S.C. Sec. 1345 (1982). See United States v. California, 328 F.2d 729, 736-38 (9th Cir.) (legislative history, as well as plain meaning of statute, supports this result), cert. denied, 379 U.S. 817, 85 S.Ct. 34, 13 L.Ed.2d 29 (1964); United States v. Illinois, 454 F.2d 297, 301 (7th Cir.1971) (following United States v. California ), cert. denied, 406 U.S. 918, 92 S.Ct. 1767, 32 L.Ed.2d 117 (1972).

It is also now recognized that the federal courts have jurisdiction to entertain third-party suits for indemnity by the United States against a state, even where the main action was commenced by a private citizen. "[T]here is no historical or other ground for believing that Congress intended to exclude third-party proceedings commenced by the United States from the broad jurisdictional power granted the district courts under Section 1345." Williams v. United States, 42 F.R.D. 609, 614 (S.D.N.Y.1967). As the Seventh Circuit observed in United States v. Illinois, an FTCA case:

The instant claim for indemnity is merely a claim by the United States that it has suffered a loss by reason of the negligence of Illinois. The district court, having jurisdiction over an original action by the United States for indemnity, would have jurisdiction over the identical claim brought as a third-party action. We find no sound basis for a contrary result based on the nebulous theory that the original action was "commenced" by other plaintiffs.

United States v. Illinois, 454 F.2d at 301.

Eleventh amendment challenges to jurisdiction in such actions for indemnity by the United States have been uniformly rejected, with the exception of one early case whose validity has been undermined. ² See Parks v. United States, 784 F.2d 20, 23-25 (1st Cir.1986); United States v. Illinois, 454 F.2d at 300-01; Lee v. Brooks, 315 F.Supp. 729, 732 (D.Hawaii 1970); Williams v. United States, 42 F.R.D. at 616.

We are aware of only two cases that have squarely addressed the issue whether a third-party action for contribution, like such an action for indemnity, ³ may be maintained by the United States against a state in federal court, consistent with the eleventh amendment. In Lee v. Brooks, 315 F.Supp. 729 (D.Hawaii 1970), the court decided for the United States on the jurisdictional issue, and then proceeded to...