Eagle-Picher Industries, Inc. v. U.S.

Decision Date25 June 1991
Docket NumberEAGLE-PICHER,Nos. 90-5098,90-5105 and 90-5128,s. 90-5098
Citation937 F.2d 625
Parties, 290 U.S.App.D.C. 307, 60 USLW 2026 INDUSTRIES, INC., Appellant, v. UNITED STATES of America. GAF CORPORATION, Appellant, v. UNITED STATES of America. UNR INDUSTRIES, INC., UNARCO Industries, Inc., Appellants, v. UNITED STATES of America.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeals from the United States District Court for the District of Columbia (Civil Action Nos. 84-01360, 83-01322 and 87-02521).

Sidney S. Rosdeitcher, New York City, for appellant GAF Corp., in No. 90-5105.

Paul G. Gaston, with whom Joe G. Hollingsworth was on the brief, Washington, D.C., for appellants Eagle-Picher Industries, Inc. and UNR Industries, Inc., in Nos. 90-5098 and 90-5128.

David S. Fishback, Asst. Director, Torts Branch, Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., and J. Patrick Glynn, Director, Torts Branch, Dept. of Justice, were on the brief, Washington, D.C., for appellee, in Nos. 90-5098, 90-5105 and 90-5128.

Before WALD, RUTH B. GINSBURG and THOMAS, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

In these consolidated appeals, three manufacturers of asbestos products appeal from the district court's dismissal of their claims against the United States. The manufacturers had sought contribution or indemnification from the United States for costs incurred in the litigation and settlement of actions brought by shipyard workers alleging injury from asbestos products. The district court ruled that it lacked subject-matter jurisdiction to consider claims arising out of injuries to public shipyard employees and, moreover, that certain of the manufacturers' claims were time-barred. For the reasons set forth below, we affirm in part, reverse in part, and remand this matter for further proceedings.

I. BACKGROUND
A. Factual and Procedural Background

Beginning in the 1930s and continuing throughout World War II, Eagle-Picher Industries, Inc., UNR Industries, Inc. (also known as UNARCO Industries, Inc.), and GAF Corporation (collectively, "manufacturers" or "plaintiffs") supplied asbestos products to shipyards across the country. Since that time, thousands of shipyard workers have developed asbestos-related diseases as a result of exposure to those products and have sued the manufacturers under a variety of legal theories. See generally Special Project, An Analysis of the Legal, Social, and Political Issues Raised by Asbestos Litigation, 36 Vand.L.Rev. 573 (1983) (discussing theories of asbestos-injury liability); Note, Admiralty Jurisdiction: The New Wave in Asbestos Litigation, 13 Balt.L.Rev. 145, 146-47 & nn. 7-26 (1983) (collecting authorities). In litigating and settling these claims, the manufacturers have incurred substantial expenses; underlying the instant appeals are more than 2,700 claims totalling more than $14 million.

The manufacturers brought suit against the United States in the District Court for the District of Columbia seeking contribution or indemnification for these costs. The plaintiffs alleged, inter alia, that the asbestos products involved in the shipyard workers' injuries were designed in accordance with government specifications, that the government was aware of the hazards posed by the products as designed, and that the government breached its duty of care both in designing the products and in failing to warn the plaintiffs and the shipyard workers of those hazards. The plaintiffs also alleged that the government failed to exercise due care in its supervision and control of government and contract shipyards by introducing such hazardous products into the workplace and by failing to promulgate health and safety regulations adequate to protect shipyard workers from the resulting hazards.

The manufacturers claimed that the district court had jurisdiction under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Secs. 1346(b), 2671 et seq.; the general admiralty and maritime law of the United States, 28 U.S.C. Sec. 1333; the Suits in Admiralty Act ("SAA"), 46 U.S.C.App. Secs. 741-52; the Public Vessels Act ("PVA"), 46 U.S.C.App. Secs. 781-90; and the Admiralty Jurisdiction Act, 46 U.S.C.App. Sec. 740. See, e.g., GAF Complaint at 4. The government disagreed on all counts and moved to dismiss for lack of subject-matter jurisdiction. The government argued that the court lacked jurisdiction over any claims arising from injuries to public shipyard employees and moved to dismiss all such claims. The government also argued that one plaintiff (UNR Industries) had failed to comply with the timely notice requirements of the FTCA and moved to dismiss the majority of UNR's claims on these grounds as well. The district court granted both of the government's motions. Eagle-Picher Industries, Inc. v. United States, No. 84-1360, Memorandum Opinion ("Mem. op.") (D.D.C. Aug. 4, 1989).

B. Relevant Statutes

This case involves the intricate interaction of several statutes. We begin our discussion with a brief review of the relevant provisions of three of those statutes.

The FTCA operates as a limited waiver of sovereign immunity, providing that the United States shall be liable "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. Sec. 2674. The precise application of this "analogous liability" standard lies at the heart of the controversy in this case.

The Longshore and Harbor Workers' Compensation Act (the "Longshore Act"), 33 U.S.C. Secs. 901 et seq. (1982), is a workers' compensation scheme governing "injur[ies] occurring upon the navigable waters of the United States." Id. Sec. 903(a). Like most workers' compensation regimes, the Longshore Act includes an exclusivity clause (Sec. 905(a)) which provides that liability under the Act's compensation provisions "shall be exclusive and in place of all other liability of such employer to the employee." Notwithstanding Sec. 905(a), the Act (for all times relevant to this litigation) also provided that "[i]n the event of injury to a person ... by the negligence of a vessel [ ] such person ... may bring an action against such vessel as a third party." Id. Sec. 905(b). Although longshore workers are most often employed by distinct companies (called "stevedores"), in some cases a vessel directly employs its own longshore workers. In such a circumstance, a vessel owner may be immune from suit in its capacity as employer, but liable to a longshore worker in its capacity as vessel owner. Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 529-32, 103 S.Ct. 2541, 2546-48, 76 L.Ed.2d 768 (1983). In 1984, Congress amended Sec. 905(b) to bar such "dual-capacity" actions. See 33 U.S.C. Sec. 905(b) (1988) ("no such action shall be permitted, in whole or in part or directly or indirectly (in any capacity, including as the vessel's owner )" (emphasis supplied)). All of the claims involved in this appeal, however, accrued before the Act was so amended.

The Federal Employees' Compensation Act ("FECA"), 5 U.S.C. Secs. 8101 et seq., is a workers' compensation scheme governing civilian employees of the United States. FECA's exclusivity provision, Sec. 8116(c), states that the "liability of the United States ... under this subchapter ... is exclusive and instead of all other liability of the United States." This provision, however, is somewhat less sweeping than an initial reading might suggest. As the Supreme Court concluded in Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 196, 103 S.Ct. 1033, 1037, 74 L.Ed.2d 911 (1983) (citation omitted), Sec. 8116(c) "was intended to govern only the rights of employees, their relatives, and people claiming through or on behalf of them" and did not disturb " 'the rights of unrelated third parties.' " Cf. United States v. Yellow Cab Co., 340 U.S. 543, 71 S.Ct. 399, 95 L.Ed. 523 (1951).

II. JURISDICTION UNDER THE FEDERAL TORT CLAIMS ACT:

INTERACTION OF THE FTCA, THE LONGSHORE ACT, AND FECA

A. The Parties' Arguments

The manufacturers' argument is straightforward. Pursuant to the analogous-liability standard of the FTCA, they contend, the government is liable if a "private individual under like circumstances" would also be liable. The manufacturers urge that an analogous, private-party defendant would be governed, inter alia, 1 by the Longshore Act and that under Sec. 905(b) of that Act a "dual-capacity" employer (i.e., a vessel owner who directly hired longshore workers) would be liable to an employee for its negligence qua vessel owner. They argue further that a third party who compensates an employee for injuries caused by the dual-capacity employer's negligence would be allowed to recover such compensation from the negligent employer.

The government, the plaintiffs maintain, operated in a dual capacity with regard to public employees in public shipyards. 2 The plaintiffs allege that the government acted negligently in its capacity as a vessel owner and that the plaintiffs have since compensated federal employees for injuries resulting from that negligence. Accordingly, the plaintiffs conclude, just as a private vessel owner/stevedore would be liable for a third-party claim, so the government too is liable under the FTCA for a third-party claim.

The government's argument is more intricate. The government first states that "[t]he United States is immune to direct tort suit by its employees for any work-related injuries, due to the all-encompassing immunity set forth in [ ] Sec. 8116(c) of the FECA." United States Brief ("U.S.Br.") at 13 (emphasis in original). The government contends that, although a privately employed longshore worker may sue a private vessel owner/stevedore for negligence in its capacity as vessel owner under the Longshore Act's Sec. 905(b), a federal employee could not undertake a similar suit against the federal...

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