ROELOFS v. LEWALS, INC.

BENJAMIN C. DAWKINS, Jr., Chief Judge.

OPINION

The above-captioned cases are before this Court on a motion filed by the plaintiffs1 to strike the Government's affirmative defense of non-liability under the Federal Tort Claims Act (28 U.S.C. §§ 1346, 2671 et seq.). The single question which now requires answering is: Does Louisiana Workmen's Compensation provide the exclusive remedy for plaintiffs?

Sperry Rand Corporation, pursuant to a contract with the Ammunition Procurement and Supply Agency of the United States Army, operates the Louisiana Army Ammunition Plant (LAAP), approximately 20 miles from Shreveport. Article II, Paragraph 1, of the contract (No. DA-11-173-AMC-80) authorizes the contractor to hire employees, obtain supplies, prepare and load products for shipment, and do other things required in running the plant. The United States reimburses all the corporation's allowable allocable costs plus a fixed fee. Sperry Rand is obligated, pursuant to the contract (Articles IV H(1) and S (a)) to obtain workmen's compensation insurance in accordance with Louisiana Statutory requirements. Premiums for that insurance are paid also by the Government according to the terms of the contract.

Each of the plaintiffs was an employee of Sperry Rand and was injured while allegedly in the course of his employment with that company. Prior to institution of the suits, one of the plaintiffs (Durham) filed a claim with the Department of Labor's Bureau of Employees' Compensation. The Bureau determined that Durham, and presumably, all the plaintiffs were not federal employees and, therefore, were not entitled to any benefits under the Federal Employees' Compensation Act (5 U.S.C. §§ 8101-8150).

The Government contends it is a statutory employer ("principal" or "remote," as is sometimes said) within the meaning of the Louisiana Workmen's Compensation Act (LSA-R.S. 23:1021, et seq.) which affords plaintiffs their exclusive remedy and as such is exempt from liability under the federal Act. Plaintiffs contend that the Louisiana Act is inapplicable and there is an available remedy against the United States through the Federal Tort Claims Act.

Legislatures in most of the States have enacted various workmen's compensation schemes to furnish employees a speedy and equitable salary replacement, and medical expenses, during convalescence, for injuries received while in the course of employment, or for payments to dependents, including funeral expenses, of an employee who dies in a job-connected accident. By Act No. 20 of 1914, the State of Louisiana enacted the Burke-Roberts Employers' Liability Act in keeping with the current throughout the country "so that the social obligations existing between the employee and employer might be readjusted to meet the modern trend. This act, with its amendments, has come in time to be referred to as the Workmen's Compensation Act."2 The Courts of Louisiana have given this Act a generous interpretation in order to effectuate the humane policies which it reflects. Green v. Heard Motor Co., 224 La. 1077, 71 So.2d 849 (1954); Brownfield v. Southern Amusement Company, Inc., 196 La. 73, 198 So. 656 (1940); Beard v. Wilson Wholesale Distributors, Inc., 215 So.2d 664 (La. App., 1st Cir., 1968). Federal diversity Courts under the direction of Erie Railroad v. Tompkins uniformly apply the Act liberally. Serpas v. W. Horace Williams Co., 160 F.Supp. 850 (E.D.La., 1958), aff'd 261 F.2d 857 (5th Cir.); Fontenot v. Stanolind Oil & Gas Co., 144 F.Supp. 818 (W.D.La., 1956), aff'd 243 F.2d 574 (5th Cir.).

Similarly, federal compensation systems were enacted for humane purposes. The legislation, in each instance, made limited inroads on sovereign immunity to damage claims. In United States v. Demko, 385 U.S. 149, 151, 87 S.Ct. 382, 383, 17 L.Ed.2d 258 (1966), the Court wrote:

The States' workmen's compensation laws were made applicable to federal properties by Section 290, Title 40 of the United States Code.3 The Third Circuit Court of Appeals in Capetola v. Barclay White Co., 139 F.2d 556 (3rd Cir., 1943), cert. den'd 321 U.S. 799, 64 S.Ct. 939, 88 L.Ed. 1087, clearly placed that statute in its proper perspective.

See also Wallach v. Lieberman, 366 F.2d 254 (2d Cir., 1966); Stacey v. United States, 270 F.Supp. 71 (E.D.La., 1967). The obvious intent of Congress was to protect employees of Government contractors injured on federal property. Nonetheless, Section 290 did not authorize the Government to avail itself of the rights or liabilities attendant to local workmen's compensation systems.

Plaintiffs assert that we have jurisdiction over their claims under the Federal Tort Claims Act.4 Plaintiffs object to the Government's defense on the ground that the Louisiana compensation system could make the United States liable as a statutory employer to suits by employees of private contractors. Plaintiffs contend that there is no legislative consent to be sued, unequivocally expressed, for a percentage of wages under the compensation system. Defendant suggests to the Court that it is precisely those statutes which, if read properly, require the application of Louisiana Workmen's Compensation laws and, consequently, would foreclose recovery against the Government here.

It is axiomatic that the United States cannot be sued without its consent, and this Court has no jurisdiction in a suit against the United States to which it has not consented. United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058 (1941); United States v. Shaw, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888 (1940).5 This consent can be given only by the Congress, must be specific and explicit, and cannot be implied by construction of an ambiguous statute. A district court's jurisdiction over the United States depends entirely upon the terms of the congressional enactment which waives sovereign immunity. See Stanton v. United States, 434 F.2d 1273 (5th Cir., 1970); Gnotta v. United States, 415 F.2d 1271 (8th Cir., 1969) (Blackmun, Circuit Judge) cert. den'd 397 U.S. 934, 90 S.Ct. 941, 25 L.Ed.2d 115. Though the FTCA waives tort immunity, it was not intended as a total abolition of over a century and a half's sovereign immunity of the United States. The language of the Act indicates that it is a limited measure under which the United States has consented to be sued for certain negligent acts of its employees.6 Moreover, the Act "since it is a relinquishment of a sovereign immunity, must be strictly interpreted." 312 U.S. 584, 590, 61 S.Ct. 767, 771. See also Bialowas v. United States, 443 F.2d 1047 (3rd Cir., 1971).

We think it helpful briefly to discuss the federal compensation system and, in doing so, distinguish the related cases. The Supreme Court in Johansen v. United States, 343 U.S. 427, 441, 72 S.Ct. 849, 857, 96 L.Ed. 1051, wrote: "As the Government has created a comprehensive system to award payments for injuries, it should not be held to have made exceptions to that system without specific legislation to that effect." In a footnote to the opinion of the Court in United States v. Demko, supra, the Court explained: "The lower federal courts have held, uniformly, that persons for whom the Government has supplied an administrative compensation remedy are precluded from seeking recovery against the United States for injuries received in the course of their work under the Federal Tort Claims Act, the Jones Act, the Suits in Admiralty Act, or the Public Vessels Act." (At n. 4, p. 151 of 385 U.S., at p. 384 of 87 S.Ct.) The emphatic meaning of this is that where there are two systems of liability against the Government it (administrative compensation) should be the exclusive one. See Davis v. Harrod, 132 U.S.App.D.C. 345, 407 F.2d 1280 (1969); Aubrey v. United States, 103 U.S.App.D.C. 65, 254 F.2d 768 (1958).

Of course, monies received by employees under Louisiana Workmen's Compensation are not paid out by virtue of a congressional act. Consequently, the possibility of recovery against the United States under the FTCA is not barred merely because there is an available remedy under the Louisiana Workmen's Compensation Act, even though written with an exclusivity clause.

Cases in which federal employees are presented with a governmentally created mode of recovery for injury but are required to accept payments under a federal compensation scheme are distinguishable from the case at bar where employees claim alleged tortious acts committed by Government personnel and have received benefits from a non-federal source.7

The Louisiana workmen's compensation statute describes liability of the statutory employer,8 and provides that the remedies under the Act constitute the employee's exclusive rights.9

In an article written for the Louisiana Law Review, Professor Wex S. Malone discusses the meaning of Section 23:1061 and its counterparts in different jurisdictions:

See also Arnold v. Shell Oil Co., 419 F.2d 43 (5th Cir., 1969); Jones v. Southern Tupelo Lumber Co., 257 La. 869, 244 So.2d 815 (1971).

The test for determining whether an activity is part of an employer's trade or business for purposes of the Louisiana workmen's statute is whether the particular activity is an essential or integral part of the employer's business. Arnold v. Shell Oil Co., supra; Thibodaux v. Sun Oil Co., 40 So.2d 761 (La.App. 1st Cir., 1949), aff'd 218 La. 453, 49 So.2d 852 (1950); Turner v. Oliphant Oil Corp., 200 So. 513 (La.App.2d Cir., 1940). For purposes of this motion, we conclude that manufacture of ammunition is essential to the United States's business of maintaining a peace-keeping defense establishment. The second prerequisite to qualification as a "principal" is proof, easily supplied here, of a contracting with another for the whole or any part of the work undertaken. Indeed, Durham concedes, for this motion, that "were the United States of America not a sovereign under the facts of this case it could qualify as a principal [or `remote'] employer, and the work being performed would be consideerd part of its trade, business or occupation."10 (Plaintiff's brief.) If the United States were a private individual, partnership or corporation, admittedly, it would qualify as a statutory employer within the meaning of the Act and the exclusive remedy of the employees of the contractor would be under Louisiana's Workmen's Compensation Act. Castille v. Liberty Mutual Ins. Co., 356 F.2d 509 (5th Cir., 1966); Roberie v. Sinclair Refining Co., 252 So.2d 488 (La.App. 3rd Cir., 1971). Recovery against the United States would be excluded if it were such a private entity; but, since it is not, there must be congressional action evidencing an intent to avail the Government of local compensation systems.

The Federal Torts Claims Act is a statutory waiver of immunity which provides a judicial remedy for tort claims against the Government. In Wiltse v. United States, 74 F.Supp. 786, 787 (W.D.La., 1947), the Court wrote:

See also Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). Section 1346(b) of the Act provides that the United States shall be liable for the negligent or wrongful acts of its employees "under circumstances where the United States, if a private person, would be liable to the claimant", and Section 2674 states that the United States shall be liable "in the same manner and to the same extent as a private individual under like circumstances." Obviously, actions ex delicto brought against the Government are maintainable only if the law of the locale under like circumstances would permit recovery. Despite the close connection between tort actions and actions under Workmen's Compensation, the FTCA refers to torts (a common law concept and remedy) and not to workmen's compensation, which is, of course, a statutory remedy.

We turn to the rather sparse jurisprudence to determine whether the FTCA has been interpreted to incorporate local compensation statutes. (The Third Circuit in Capetola v. Barclay White Company, supra, concluded that 40 U.S.C. § 290 permitted local State workmen's compensation laws to have effect only between private contractor-employer and employee.) Federal Courts in Louisiana, Idaho, and South Carolina have discussed the relationship between State workmen's compensation statutes and the Federal Tort Claims Act.

In Stacey v. United States, 270 F.Supp. 71 (E.D.La., 1967), Judge Christenberry wrote:

There, the plaintiff, an iron worker, brought suit against the United States, alleging jurisdiction under the Federal Tort Claims Act, on the theory that the United States was the owner of the premises at the Michoud facility, New Orleans. Welding and Manufacturing Company (W & M) contracted with the United States to undertake the job of modification of the roof tresses at the plant. Mason-Rust, a joint venturer, entered into a contract with the United States as a support service contractor. By virtue of the latter contract, Mason-Rust had the obligation and duty to supervise safety in the Michoud plant, and the Court found that it had failed and neglected to perform its duty in connection with safety supervision. The Court specifically found that "there has been no showing of any breach of duty or negligence on the part of any employee, agent or servant of the United States of America." (At p. 73.) Judge Christenberry concluded that NASA was a congressionally created civilian agency which was charged with control of aeronautical and space activities of the United States. By virtue of the acts of Congress, it was established as a matter of law that the work which was being carried on by W & M on behalf of the United States through NASA was part of the regular business activities of NASA and was within the function or "usual trade, business or occupation" of NASA within the meaning of the Louisiana Workmen's Compensation sections. The Court decided that the Louisiana Workmen's Compensation statute was applicable to federal properties, citing 40 U.S.C. § 290, and that

References to Louisiana Workmen's Compensation and the United States as a statutory employer of plaintiff are mere dictum in light of the specific finding in that case that the Government was not negligent. Suit under the FTCA will result in liability on behalf of the Government only where plaintiffs can prove negligence. The conclusion that the United States benefited under the exclusivity provisions of the Louisiana Workmen's Compensation statute was unnecessary to decision and as such is of slight precedential value. We hesitate to consider it even persuasive since there was no discussion of the gravamen of the objection to application of Louisiana's Workmen's Compensation Act made by plaintiffs in the case sub judice.

In Kirk v. United States, 124 F.Supp. 233 (D.Idaho, S.D., 1954), representatives of the deceased employee brought a tort action against the United States alleging that it was through the Government's employees' carelessness and negligent failure to perform their duties that William M. Kirk died. Plaintiffs there alleged that the Army Corps of Engineers was engaged in the construction of a dam on the Boise River, as authorized by statute and regulation of the United States of America and the Department of the Army. Kirk was employed as a carpenter by Bruce Construction Company which had contracted with the Government to do work on the project. Plaintiffs admitted receiving a substantial sum under the Idaho Workmen's Compensation Act, but commenced the suit in federal court relying on 28 U.S.C. § 2674. The Idaho Workmen's Compensation law fashioned this statutory remedy as the exclusive remedy of employees against their employers and further provided that:

The Court noted that the contractors were performing work for the United States and did comply with the Workmen's Compensation laws of the State of Idaho by obtaining that protection for their employees. Without extensive analysis, the Court unhesitatingly concluded:

The Ninth Circuit, in reversing the District Court's ruling,11 did not question the applicability of Idaho's Workmen's Compensation Law, Idaho Code, Sections 72-101, 72-1103, to the facts. The higher Court merely disagreed with the District Court's decision that the United States was an "employer" within the meaning of the statute in relation to the work that was under way.12 Therefore the Court reversed and remanded for determination of whether or not there was negligence on the part of the United States. The case appeared again in the Circuit Court13 and, as before, there was no questioning of Idaho Workmen's Compensation statute's applicability to the facts. The Court concluded that there was no duty on behalf of the United States and therefore a negligence cause of action could not be maintained.14

Doubtless the Ninth Circuit has concluded that local compensation systems can protect the United States from liability in circumstances where the Government qualifies as a statutory employer and compensation system is made the exclusive remedy of the employee. Nevertheless, their opinions shed no light on the intermediary steps they took in deciding the statute was applicable or whether the present problem was discussed.

In United States v. Seckinger, 397 U.S. 203, 90 S.Ct. 880, 25 L.Ed.2d 224 (1970), reh'g den'd 397 U.S. 1031, 90 S.Ct. 1255, 25 L.Ed.2d 546, the Court reversed an appellate decision15 which held that a provision common to fixed-price Government construction contracts could not be interpreted to allow the Government to recover from the contractor damages suffered by the Government on account of its own negligence. The Government had entered into a contract with defendant for performance of certain plumbing work at a Marine base in South Carolina. One of the private contractor's employees, Branham, was seriously injured when he came in contact with an electric wire that carried 2400 volts of electricity. The Supreme Court noted that the injured employee had recovered benefits under South Carolina's Workmen's Compensation Law, S.C.Code Ann. §§ 72-1 to 72-504 (1962), and then commenced a suit in the Eastern District of South Carolina against the United States under the Federal Tort Claims Act, on the theory that his injuries had been sustained as the result of the Government's negligence. The South Carolina District Court held that the Government had been grossly negligent in failing to de-energize the wire in this particular case and awarded Branham $45,000 in an unreported decision by Judge Timmerman. No appeal was taken from the judgment of the District Court, so its holding was not subject to review by the United States Supreme Court. The decree in the unreported case, Branham v. The United States of America, (E.D.S. Car., Columbia Div., June 23, 1961) makes no reference to Branham's earlier recovery of an award under workmen's compensation. The South Carolina Workmen's Compensation law protects an employee who is engaged in an employment under any contract of hire when he is injured in the course of the trade, business, profession or occupation of his employer. Section 72-11. Section 72-111 describes the liability of an owner to workmen of a subcontractor in language strikingly similar to that found in Louisiana Workmen's Compensation statutes:

The purpose of this section is the same as found in Louisiana Workmen's Compensation statute as discussed by Professor Malone. See Blue Ridge Rural Electric Cooperative, Inc., v. Byrd, 238 F.2d 346 (4th Cir., 1956), reversed on other grounds 356 U.S. 525, 78 S.Ct. 893, 21 L.Ed.2d 953 (1958); Adams v. Davidson-Paxon Co., 230 S.C. 532, 96 S.E.2d 566 (1957). Section 72-12117 specifically excludes all rights and remedies of an employee against his employer except as provided in the Workmen's Compensation Act. Adams v. Davidson-Paxon Co., supra; Gainey v. Coker's Pedigreed Seed Co., 227 S.C. 200, 87 S.E.2d 486 (1955). Despite a South Carolina compensation system which exclusively restricts employees of private contractors to a statutory remedy, the Federal District Court sitting in South Carolina permitted an injured employee to bring suit against the United States; after trial the Court determined that the Government was grossly negligent and should pay plaintiff a substantial amount without reference to the sum he had recovered through workmen's compensation.

Consequently, we are unable to discern an unqualified line of jurisprudence compelling us to a single conclusion; we know of none, nor have we been cited to any decisions of the Fifth Circuit which would be controlling in this area. Our decision rests, therefore, on an interpretation of the Federal Tort Claims Act, mindful that "[i]t is not our right to extend the waiver of sovereign immunity more broadly than has been directed by the Congress." United States v. Shaw, 309 U.S. at 502, 60 S.Ct. at 662; see also Gardner v. United States, 446 F.2d 1195 (2d Cir., 1971).

We hold that Congress in passing the FTCA referred only to the common law tort cause of action. Were we to permit the Louisiana Workmen's Compensation Statute to be incorporated into the Federal Tort Claims Act, it would drive a greater breach into the doctrine of sovereign immunity than the Congress intended. We are cognizant of the fact that the United States pays workmen's compensation premiums according to its contract to protect Sperry Rand Corporation. Nevertheless, only tort immunity has been waived and that only in a strictly interpreted manner. Application of the Louisiana Workmen's Compensation statute to this situation would permit an employee of a private contractor, theoretically, to sue the Government for an award according to the Louisiana system's wage levels. Nowhere in congressional legislation, nor conclusively in the jurisprudence, is there the specificity required for authorization to extend our jurisdiction to entertain that cause of action.

A local compensation system which permits recovery against a statutory employer cannot be used to seek workmen's compensation relief from the Government, nor may the Government avail itself of the exclusive benefits thereunder, unless there has been consent by an unambiguous statute passed by the Congress.

It is ordered that the motion to strike the defense asserted here is granted.18