No. 98-1201
In the Supreme Court of the United States
OCTOBER TERM, 1998
MATSUSHITA ELECTRIC COMPANY AND
TOKO MARINE & FIRE INSURANCE COMPANY, PETITIONERS
v.
JOHN ZEIGLER, CUSTOMS AGENT
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BRIEF FOR THE RESPONDENT IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
DAVID W. OGDEN
Acting Assistant Attorney General
BARBARA L. HERWIG
ANNE M. LOBELL
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether the Westfall Act, 28 U.S.C. 2679, bars a negligence action against
a United States Customs Officer acting within the scope of his employment.
In the Supreme Court of the United States
OCTOBER TERM, 1998
No. 98-1201
MATSUSHITA ELECTRIC COMPANY AND
TOKIO MARINE & FIRE INSURANCE COMPANY, PETITIONERS
v.
JOHN ZEIGLER, CUSTOMS AGENT
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BRIEF FOR THE RESPONDENT IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-9a) is reported at 158
F.3d 1167. The order of the district court is unreported.
JURISDICTION
The judgment of the court of appeals was entered on October 27, 1998. The
petition for a writ of certiorari was filed on January 25, 1999. The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
1. The Federal Tort Claims Act (FTCA) provides that, with certain exceptions,
the United States shall be liable, to the same extent as a private party,
"for injury or loss of property * * * caused by the negligent or wrongful
act or omission of any employee of the Government while acting within the
scope of his office or employment." 28 U.S.C. 1346(b) (Supp. III 1997).
The statute provides an express exception for "[a]ny claim arising
in respect of * * * the detention of any goods or merchandise by any officer
of customs or excise or any other law-enforcement officer." 28 U.S.C.
2680(c).
Individual federal employees generally may not be held personally liable
for actions taken within the scope of their employment, pursuant to the
Federal Employees Liability Reform and Tort Compensation Act of 1988, 28
U.S.C. 2679, (the Westfall Act or the Act). The Westfall Act provides that
if the Attorney General certifies that an employee defendant was acting
within the scope of his employment "at the time of the incident out
of which the [tort] claim arose," then "any civil action or proceeding
commenced upon such claim * * * shall be deemed an action against the United
States * * *, and the United States shall be substituted as the party defendant."
28 U.S.C. 2679(d)(1). The Act also specifies that the plaintiff's remedy
against the United States in such circumstances is ordinarily exclusive
and precludes any separate action against the individual employee:
The remedy against the United States provided by [the FTCA] for injury or
loss of property, or personal injury or death arising or resulting from
the negligent or wrongful act or omission of any employee of the Government
while acting within the scope of his office or employment is exclusive of
any other civil action or proceeding for money damages by reason of the
same subject matter against the employee whose act or omission gave rise
to the claim.
28 U.S.C. 2679(b)(1). Congress provided two exceptions to Section 2679(b)(1)-a
civil action may be brought against an individual federal employee either
"for a violation of the Constitution of the United States" or
"for a violation of a statute of the United States under which such
action against an individual is otherwise authorized." 28 U.S.C. 2679(b)(2).
2. In April 1994, petitioner Matsushita Electric Company (Matsushita) shipped
a computer chip placement machine from Japan to Georgia for import into
the United States. During shipping, the machine was encased in a vacuum
seal to protect its metal parts from humidity. When the machine reached
the United States, the United States Customs Service decided to inspect
it. John Zeigler, a customs officer, cut open the vacuum seal and performed
the inspection. The machine was not resealed. The United States Customs
Service subsequently cleared the machine for entry into the United States,
but the purchaser rejected the machine because its metal parts were corroded
by rust. Pet. App. 2a.
Matsushita and its insurer, petitioner Tokio Marine & Fire Insurance
Company, brought this action for damages against John Zeigler and against
the Hartsfield Warehouse Company, owner of the facility in which the customs
inspection took place.* The United States Attorney certified that Zeigler
had been acting within the scope of his employment when he broke the vacuum
seal surrounding the machine, and the United States accordingly moved to
substitute itself for Zeigler as the party defendant pursuant to the Westfall
Act. The United States also moved to dismiss the action, arguing that the
FTCA exception for claims arising from the detention of goods by customs
officers precluded Matsushita's claim against the United States. The district
court granted both motions. Pet. App. 2a.
The United States Court of Appeals for the Eleventh Circuit affirmed. Pet.
App. 1a-9a. The court of appeals first held that 28 U.S.C. 2680(c)'s exception
to liability for claims arising from customs officers' detention of goods
barred Matsushita's tort claim against the United States. Pet. App. 3a.
The court noted that this Court in Kosak v. United States, 465 U.S. 848
(1984), had construed the Section 2680(c) exception broadly to extend to
claims arising from the allegedly negligent handling or storage of property
that had been detained. Pet. App. 3a.
The court of appeals went on to hold that substituting the United States
for the individual defendant, Zeigler, was required, even though Matsushita's
suit against the United States was barred. The court observed that "[o]n
its face, the plain language of [the Westfall Act] makes clear that where,
as here, a federal employee acts within the scope of his or her employment,
an individual can recover only against the United States" unless the
plaintiff's suit falls within one of the exceptions to the Act. Pet. App.
5a. The court also noted that substituting the United States for the individual
defendant is mandatory (under Section 2679(d)(1)) once the Attorney General
certifies that the employee was acting within the scope of employment. Ibid.
The court of appeals rejected Matsushita's contention that the statutory
scheme should not apply "in a case in which the purported remedy would
be illusory." Pet. App. 5a. The court concluded that "the plain
meaning of [the Westfall Act]'s text," coupled with this Court's decision
in United States v. Smith, 499 U.S. 160 (1991), made it unmistakably clear
that Congress intended the plaintiff's action against the United States
to be the exclusive remedy, unless the legislation itself recognized an
alternative cause of action. Pet. App. 5a. The court emphasized that this
Court in Smith held that the Westfall Act immunized government employees
from suit even when an FTCA exception precluded recovery against the government.
Rejecting Matsushita's argument that Smith should be distinguished because
there the substitution at issue did not abrogate a common law right of action
against the individual employee, the court of appeals determined that the
"broad and all-encompassing language of [the Act]" barred Matsushita's
action against Zeigler. Id. at 6a.
The court of appeals also rejected Matsushita's argument that its claim
against Zeigler fell within the exception to the Westfall Act for cases
"brought for a violation of a statute of the United States under which
such action against an individual is otherwise authorized." 28 U.S.C.
2679(b)(2)(B). Matsushita had argued that the statute authorizing customs
officers to inspect and detain goods, 19 U.S.C. 1499, contained an implicit
duty of care giving rise to a cause of action in tort against individual
officers. The court of appeals, however, determined that "[n]othing
in § 1499 creates any rights in individuals" and concluded that
Zeigler's duty of care arose not from statute, but "from common law
negligence principles." Pet. App. 8a-9a. The court likewise rejected
Matsushita's contention that the statute authorizing the federal treasury
to satisfy judgments against revenue officers under certain circumstances
created a cause of action against Zeigler that fell within the scope of
the exception. Id. at 9a.
The court of appeals concluded that the district court had properly applied
the statutes requiring both the substitution of the United States for Zeigler
and the subsequent dismissal of the action against the United States. Accordingly,
it affirmed the judgment of the district court. Pet. App. 9a.
ARGUMENT
The decision of the court of appeals is correct and does not warrant this
Court's review. The court of appeals applied the relevant statutes in a
straightforward manner to the facts presented, and correctly held that Matsushita's
arguments for avoiding the application of the statutes were foreclosed by
this Court's decision in United States v. Smith, 499 U.S. 160 (1991).
1. Matsushita does not dispute the court of appeals' determination that
its claim against the United States is barred by the exception to the FTCA
contained in 28 U.S.C. 2680(c). See Pet. App. 3a. That exception provides
that the United States shall not be liable under the FTCA for "[a]ny
claim arising in respect of * * * the detention of any goods or merchandise
by any officer of customs or excise or any other law-enforcement officer."
28 U.S.C. 2680(c). Matsushita's claim against the United States arose from
such a detention of goods and it is therefore clearly outside the scope
of liability under the FTCA. See generally Kosak v. United States, 465 U.S.
848 (1984). Rather, Matsushita challenges the court of appeals' application
of the Westfall Act to bar its action against Zeigler. Matsushita contends
that the Act should not bar a suit against an individual federal employee
if applying the statute would abrogate a pre-existing common law remedy
against the individual employee. See Pet. 8. Matsushita argues (Pet. 6-7)
that the common law recognized a cause of action for negligence against
customs officers and that this action survives the enactment of the Act.
For the reasons given by the court of appeals, Matsushita is incorrect.
The Westfall Act plainly provides that "[t]he remedy against the United
States provided by [the FTCA] for injury or loss of property * * * resulting
from the negligent or wrongful act or omission of any employee of the Government
while acting within the scope of his office or employment is exclusive of
any other civil action or proceeding for money damages by reason of the
same subject matter against the employee whose act or omission gave rise
to the claim." 28 U.S.C. 2679(b)(1) (emphasis added). The statute,
by its terms, clearly bars Matsushita's suit against Zeigler.
Matsushita nonetheless argues that the legislative history of the Act reveals
that Congress "did not intend to eliminate recognized causes of action
against individual United States Customs Officers." Pet. 5. Legislative
history, of course, generally cannot justify a court's departure from the
plain language of a statute when that language is clear. See, e.g., United
States v. Gonzales, 520 U.S. 1, 4-6 (1997). And in this case, the argument
based on legislative history is also foreclosed by this Court's decision
in United States v. Smith, supra.
The plaintiffs in Smith sued a military doctor for medical malpractice in
connection with the birth of their child at an Army hospital in Italy. 499
U.S. at 162. This Court sustained the Westfall Act substitution of the United
States for the individual defendant, even though the United States was shielded
from liability by the FTCA exception (28 U.S.C. 2680(k)) for claims arising
in a foreign country. This Court stated explicitly that "Congress recognized
that the required substitution of the United States as the defendant in
tort suits filed against Government employees would sometimes foreclose
a tort plaintiff's recovery altogether." 499 U.S. at 166. The Court
also observed that the existence of two explicit statutory exceptions should
deter the courts from "inferring a third exception that would preserve
tort liability for Government employees when a suit is barred under the
FTCA." Id. at 167.
Matsushita nonetheless argues that "Congress did not intend to eliminate
recognized causes of action" against certain individual defendants
when it enacted the Westfall Act. Pet. 5. For support, Matsushita cites
legislative materials and conclusions set forth in the dissenting opinion
in Smith. Ibid. (citing and quoting 499 U.S. at 181 n.6 (Stevens, J., dissenting
alone)). But the majority opinion in Smith expressly considered this legislative
history and then rejected the suggestion that remedies against individual
federal employees would survive the enactment of the Westfall Act, explaining
that "the legislative history reveals considerably less solicitude
for tort plaintiffs' rights than the dissent suggests." Id. at 175.
Indeed, this Court discerned in the legislative history a clear intent that
"any claim against the government that is precluded by [FTCA] exceptions
* * * also is precluded against an employee." Ibid. (internal quotation
marks omitted) (quoting H.R. Rep. No. 700, 100th Cong., 2d Sess. 6 (1988)).
The Court concluded that the language of the enacted statute "clearly
implemented" Congress's intent to preclude suits against employees
to the extent that substituted suits against the United States were barred,
and it applied the statute straightforwardly as it was written. Ibid. See
also Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 422 (1995) (citing
Smith for the proposition that the "immunity of the United States"
would not be grounds for a plaintiff to "bring [an individual defendant]
back into the action").
Contrary to Matsushita's suggestion, therefore, the Westfall Act does not
"preserve recognized remedies that had existed outside the reach of
the FTCA" (Pet. 4). Rather, the application of the Act to Matsushita's
claims against Zeigler must be sustained under this Court's controlling
decision in Smith.
2. Nor does Matsushita's claim against Zeigler survive the Westfall Act
substitution on the ground that it falls within the statutory exception
for a claim "for a violation of a statute of the United States under
which such action against an individual is otherwise authorized." 28
U.S.C. 2679(b)(2)(B). Matsushita is simply mistaken in contending that its
action against Zeigler "was and is now predicated upon two United States
statutes [19 U.S.C. 1499 and 28 U.S.C. 2006] which set forth a United States
Customs' Officer's rights and responsibilities." Pet. 11. Rather, as
this Court explained in Kosak, 465 U.S. at 860, and as Matsushita's own
history of the cause of action acknowledges (Pet. 6-7), a claim against
an individual customs official for negligently damaging goods is based on
common law negligence principles. The court of appeals in this case correctly
so held. Pet. App. 8a.
As the court of appeals properly observed, neither Section 1499 nor Section
2006 creates any rights in individuals. See Pet. App. 8a-9a. Section 1499
(reprinted at Pet. App. 10a-12a) authorizes customs officers to inspect
merchandise, and sets forth procedures for those inspections. Section 2006
(reprinted at Pet. App. 14a) authorizes the Treasury to pay certain judgments
against revenue officers. Neither statute creates any rights that can be
vindicated by individuals affected by customs officers' performance of their
duties. Indeed, if Matsushita were correct in suggesting that Zeigler should
be held individually responsible because he had a "statutory right
to inspect goods and [a] corresponding obligation to do so reasonably and
responsibly" (Pet. 11), then the exception provided in Section 2679(b)(2)(B)
would swallow Section 2679(b)(1)'s rule of individual non-liability. Under
Matsushita's view, every statute granting a federal employee the right to
perform a task would carry with it a right of action against the individual
employee for negligent performance, a result that squarely conflicts with
the structure and purpose of the Westfall Act.
3. Similarly misplaced is Matsushita's reliance on a footnote from this
Court's opinion in Gutierrez de Martinez v. Lamagno, supra. See Pet. 12-13.
In Gutierrez de Martinez, another case involving an exception to the FTCA
that shielded the United States from liability, this Court held that the
Attorney General's certification of employment under the Westfall Act is
subject to judicial review. 515 U.S. at 423-425. The Court's decision was
based in part on its recognition of the "fatal consequences" to
the plaintiffs of the "unrecallable substitution of the United States
as the party defendant," a substitution that "would cause the
demise of the action." Id. at 422. The Court acknowledged these consequences
even though the plaintiffs in that case had "filed a common-law tort
action," Gutierrez de Martinez v. DEA, 111 F.3d 1148, 1151 (4th Cir.),
cert. denied 118 S. Ct. 335 (1997), just as Matsushita did here. Because
this Court's decision in Gutierrez de Martinez expressly recognizes that
the Westfall Act can properly be applied to deprive a plaintiff of an effective
remedy in a common-law action, it hardly supports petitioner's contrary
claim.
Matsushita relies in particular on a footnote in Gutierrez de Martinez for
the claim that a tort action against an individual customs officer has survived
the Westfall Act (Pet. 12-13 (citing and quoting Gutierrez de Martinez,
515 U.S. at 427 n.5)), but that reliance is misplaced. The footnote explains
that certain FTCA exceptions "are for cases in which other compensatory
regimes afford relief," citing as an example Section 2680(c) (the exception
for claims arising out of the collection of tax or customs duties) and Kosak
v. United States, supra (construing that exception). 515 U.S. at 427. Kosak
in turn noted that alternative remedies for the negligence of a customs
officer were available in some cases at common law or under the Tucker Act,
28 U.S.C. 1346 et seq. See 465 U.S. at 860 & n.22. But Kosak's discussion
of common law remedies preceded the 1988 enactment of the Westfall Act,
which definitively eliminated individual liability of a federal employee
for most actions taken in the scope of employment. This Court's footnote
citation to Kosak in 1995 may simply refer to the continued existence of
other remedies under the Tucker Act; it cannot fairly be read as a considered
judgment that common law tort remedies survive the Westfall Act.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
DAVID W. OGDEN
Acting Assistant Attorney General
BARBARA L. HERWIG
ANNE M. LOBELL
Attorneys
MARCH 1999
* Petitioners subsequently settled their claim against the Hartsfield Warehouse
Company, and the Company is not a party in this Court.