Sea-Land Service, Inc. v. U.S.

• Decision Date: 29 November 1990
• Docket Number: No. 90-5132,SEA-LAND,90-5132
• Citation: 919 F.2d 888
• Parties: SERVICE, INC., Appellant, v. U.S.A.
• Court: U.S. Court of Appeals — Third Circuit

Page 888

919 F.2d 888

1991 A.M.C. 609

SEA-LAND SERVICE, INC., Appellant, v. U.S.A.

No. 90-5132

United States Court of Appeals Third Circuit.

Argued Aug. 21, 1990.

Decided Nov. 29, 1990.

Stephen K. Carr (argued), Richard A. Menchini, Sharon Elliot, Haight, Gardner, Poor & Havens, New York City, Crummy, Del Deo, Dolan, Griffinger & Vecchione, Newark, N.J., for appellant.

Stuart M. Gerson, Asst. Atty. Gen., Samuel A. Alito, U.S. Atty., J. Patrick Glynn, Director, David S. Fishbach, Asst. Director, J. Charles Kruse, Sp. Litigation Counsel, Steven M. Talson (argued), Trial Atty., Torts Branch, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for appellee.

Before STAPLETON, COWEN and WEIS, Circuit Judges.

OPINION OF THE COURT

STAPLETON, Circuit Judge:

In 1979, David W. Swogger brought suit in a state court against five shipowners, including Sea-Land Service, Inc. ("Sea-Land"). Swogger sought recovery for asbestos-caused personal injuries incurred as a result of his service from 1949 to 1978 aboard vessels owned by the five shipowners. After Swogger died in 1980, the suit was converted to a wrongful death action. Sea-Land settled with Swogger's estate in 1985. Because Swogger had served from 1943 to 1948 on United States ships that were built with asbestos, Sea-Land in 1987 filed suit against the United States under the Suits in Admiralty Act ("SAA"), 46 U.S.C.App. Secs. 741 et seq., in the United States District Court for the District of New Jersey. The complaint sought contribution and/or indemnity for Sea-Land's settlement with Swogger's estate. The district court dismissed Sea-Land's claims, holding that they were barred by an implied discretionary function exception to the SAA's waiver of sovereign immunity. ¹ We have jurisdiction pursuant to 28 U.S.C. Sec. 1291, and our review is plenary. We will affirm the judgment of the district court.

I.

Sea-Land raises two questions in its appeal: whether the SAA contains a discretionary function exception to its waiver of sovereign immunity and, if so, whether the Government's use of asbestos in ships sailed during and after World War II falls within the exception.

A.

Although not contained in any explicit provision of the Constitution, the English legal doctrine that the sovereign is immune from any suit to which it has not consented has been applied by courts in this country as vigorously as it had been in England. Feres v. United States, 340 U.S. 135, 139, 71 S.Ct. 153, 156, 95 L.Ed. 152 (1950). Thus, it is an "accepted jurisprudential principle that no action lies against the United States unless the legislature has authorized it." Dalehite v. United States, 346 U.S. 15, 30, 73 S.Ct. 956, 965, 97 L.Ed. 1427 (1953); see also Library of Congress v. Shaw, 478 U.S. 310, 315, 106 S.Ct. 2957, 2962, 92 L.Ed.2d 250 (1986) ("As sovereign, the United States, in the absence of its consent, is immune from suit.").

The Supreme Court has used strict standards to determine when Congress has consented to suit and thereby waived the sovereign immunity of the United States. The Court has stated that "a waiver of sovereign immunity cannot be lightly implied, but must be unequivocally expressed." United States v. Mottaz, 476 U.S. 834, 851, 106 S.Ct. 2224, 2234, 90 L.Ed.2d 841 (quoting United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980)). Waivers of sovereign immunity are to be construed "strictly in favor of the sovereign." Library of Congress, 478 U.S. at 318, 106 S.Ct. at 2963. ²

Thus, even when Congress has used somewhat open-ended language in a statute that waives the immunity of the United States, the Court has not construed the waiver as broadly as the language of the statute would permit. For example, in Library of Congress, 478 U.S. at 319-20, 106 S.Ct. at 2963-64, the Court, in determining that Title VII did not waive sovereign immunity for awards of interest, stated that "[o]ther statutes placing the United States in the same position as a private party also have been read narrowly to preserve certain immunities that the United States has enjoyed historically." In Laird v. Nelms, 406 U.S. 797, 92 S.Ct. 1899, 32 L.Ed.2d 499 (1972), the Court held that although the Federal Tort Claims Act imposed liability on the United States for the "negligent or wrongful act or omission of any employee of the Government ..., 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," the United States was nonetheless not liable for the entire range of conduct classified as tortious under state law.

Moreover, when the issue is whether Congress has waived sovereign immunity for the consequences of governmental policymaking, courts have recognized the sensitive nature of the issue and have declined to find a waiver absent unmistakable evidence of such an intent. As Professor Davis has observed "the process of governing almost always helps some and hurts others." 5 K. Davis, Administrative Law Treatise Sec. 27.11 (1983). As a result, the imposition of liability for damages occasioned by governmental policymaking would necessarily involve a very substantial, if not prohibitive, social cost not only in terms of the imposed liability itself, but also in terms of the constraining effect of that liability on the decisions of governmental policymakers. In the absence of compelling evidence to the contrary, we will decline to assume that Congress intended to impose that social cost on the federal government.

Against this backdrop, we turn to the Federal Tort Claims Act ("FTCA") and the SAA. The FTCA, 28 U.S.C. Sec. 1346(b), which Congress enacted in 1946, waives sovereign immunity in suits against the United States for injuries or losses caused by the negligent or wrongful act or omission of any employee of the government under circumstances where a private person would be liable to the claimant. The Act contains an explicit exception, known as the discretionary function exception, which excludes any claim "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. Sec. 2680(a).

The SAA was enacted in 1920, over twenty-five years before the FTCA. ³ It provides that in "cases where if [a United States] vessel were privately owned or operated, ... a proceeding in admiralty could be maintained, any appropriate nonjury proceeding in personam may be brought against the United States." 46 U.S.C.App. Sec. 742. The United States operated merchant marine vessels during World War II under the auspices of the War Shipping Administration. Executive Order 9054, 3 C.F.R. 1086 (1938-43), reprinted in 1942 U.S.C.S. 154. Unlike the FTCA, the SAA does not contain an explicit discretionary function exception. That raises the first question in this appeal: Is there a discretionary function exception to the SAA notwithstanding the lack of an express provision to that effect?

Although the FTCA contains an explicit discretionary function exception to its waiver of sovereign immunity, the Supreme Court has indicated that the exception merely makes explicit what would otherwise be implicit:

It was believed that claims of the kind embraced by the discretionary function exception would have been exempted from the waiver of sovereign immunity by judicial construction; nevertheless, the specific exception was added to make clear that the Act (FTCA) was not to be extended into the realm of the validity of legislation or discretionary administrative action.

United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 810, 104 S.Ct. 2755, 2762, 81 L.Ed.2d 660 (1984).

We understand Varig to teach that, as a matter of judicial construction, we should not read a general waiver of sovereign immunity to include a waiver of immunity with respect to damage occasioned by policy decisions. Accordingly, we hold that the SAA, which explicitly contains only a general waiver, also implicitly contains a discretionary function exception to its waiver of sovereign immunity.

With one exception, every court of appeals that has considered the question has agreed with our conclusion. In re Joint Eastern and Southern Districts Asbestos Litigation, 891 F.2d 31 (2d Cir.1989); Wiggins v. United States, 799 F.2d 962 (5th Cir.1986); Bearce v. United States, 614 F.2d 556 (7th Cir.), cert. denied, 449 U.S. 837, 101 S.Ct. 112, 66 L.Ed.2d 44 (1980); Canadian Transport Co. v. United States, 663 F.2d 1081 (D.C.Cir.1980); Gercey v. United States, 540 F.2d 536 (1st Cir.1976), cert. denied, 430 U.S. 954, 97 S.Ct. 1599, 51 L.Ed.2d 804 (1977). The lone court of appeals case coming to the opposite conclusion is Lane v. United States, 529 F.2d 175, (4th Cir.1975).

In Lane, 529 F.2d at 179, the court concluded that there was "no basis upon which we can import the many exceptions in the Tort Claims Act into the Suits in Admiralty Act, where the United States is to be held accountable in admiralty whenever a private person, in similar circumstances, would be." We disagree with both the Fourth Circuit's conclusion and its characterization of the conclusion we here reach. We are not importing an exception from one act to another; instead, we are acknowledging that Congress must speak with unmistakable intent in order to waive tort immunity for the government's discretionary functions. Accordingly, we agree with the courts of appeals other than that for the Fourth Circuit in holding that the SAA contains an implied discretionary function exception to its waiver of sovereign immunity.

B.

Sea-Land claims that even if the SAA contains a discretionary function exception to its waiver of sovereign immunity, the conduct of the United States in this case does not fall within the exception. It makes...