BENJAMIN C. DAWKINS, Jr., Chief Judge.
The above-captioned cases are before this Court on a motion filed by the 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."
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.
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.
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).
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
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.
The Louisiana workmen's compensation statute describes liability of the statutory employer,
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:
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."
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
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.
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,
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 decision
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 72-121
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.
". . . Provided, however, That by the passage of this section the United States of America in nowise relinquishes its jurisdiction for any purpose over the property named, with the exception of extending to the several States within whose exterior boundaries such place may be only the powers above enumerated relating to the enforcement of their State workmen's compensation laws as herein designated: Provided further, That nothing in this section shall be construed to modify or amend the United States Employees' Compensation Act, as amended."
"(b) Subject to the provisions of chapter 171 of this title, the district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death 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, 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."
28 U.S.C. § 2674:
"The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.
"If, however, in any case wherein death was caused, the law of the place where the act or omission complained of occurred provides, or has been construed to provide, for damages only punitive in nature, the United States shall be liable for actual or compensatory damages, measured by the pecuniary injuries resulting from such death to the persons respectively, for whose benefit the action was brought, in lieu thereof."
"Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed."
"The rights and remedies herein granted to an employee or his dependent on account of a personal injury for which he is entitled to compensation under this Chapter shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations."