UNITED STATES OF AMERICA, PETITIONER V. DONNA HYLIN, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF DONALD HYLIN, DECEASED No. 83-1818 In the Supreme Court of the United States October Term, 1983 The Solicitor General, on behalf of the United States of America, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Seventh Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit TABLE OF CONTENTS Opinions below Jurisdiction Statutory provisions involved Statement Reasons for granting the petition Conclusion Appendix OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-25a) is reported at 715 F.2d 1206. The opinion of the district court (App., infra, 30a-40a) is unreported. JURISDICTION The judgment of the court of appeals was entered on August 23, 1983 (App., infra, 28a-29a). A petition for rehearing was denied on December 7, 1983 (App., infra, 26a-27a). On February 22, 1984, Justice Stevens extended the time within which to file a petition for a writ of certiorari to and including May 4, 1984. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED 28 U.S.C. 1346(b) provides, in pertinent part: (T)he district courts * * * shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, * * * for 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 provides, in pertinent part: 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 * * *. 28 U.S.C. 2680 provides, in pertinent part: The provisions of this chapter and section 1346(b) of this title shall not apply to -- (a) 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. QUESTIONS PRESENTED 1. Whether the United States is liable under the Federal Tort Claims Act, 28 U.S.C. 1346(b), 2674, as a "private individual under like circumstances" for the allegedly negligent enforcement of the Mine Safety Act by inspectors of the Mine Enforcement and Safety Administration (MESA). 2. Whether a suit arising out of a MESA inspector's allegedly negligent enforcement of the Mine Safety Act is barred as a claim based upon the performance of a "discretionary function" within the meaning of 28 U.S.C. 2680(a). STATEMENT 1. Under the Federal Metal and Nonmetallic Mine Safety Act of 1966 (Mine Safety Act), Pub. L. No. 89-577, 80 Stat. 772 et seq., /1/ the Secretary of the Interior was authorized to issue "mandatory standards" concerning "conditions or practices of a kind which could reasonably be expected to cause death or serious physical harm" to mine workers, Pub. L. No. 89-577, Section 6(b), 80 Stat. 774. The "mandatory standards" relevant to this case were set forth in 30 C.F.R. Pt. 55 (1976) and were enforced by the Federal Mine Enforcement and Safety Administration (MESA) under the authority of the Secretary. MESA was also empowered to inspect and investigate mines covered by the Mine Safety Act. section 8, 80 Stat. 775. See Donovan v. Dewey, 452 U.S. 594, 596 (1981). If a MESA inspector discovered a condition that "could reasonably be expected to cause death or serious physical harm immediately," the inspector was authorized to order the immediate withdrawal of persons endangered by the condition. Section 8(a), 80 Stat. 775. If an inspection revealed a failure to comply with a mandatory standard that did not create "a danger that could reasonably be expected to cause death or serious physical harm * * * immediately," the MESA inspector was empowered to issue a notice requiring abatement of the condition within a specified reasonable time. Section 8(b), 80 Stat. 776. Notwithstanding MESA's authority, however, the mine owner at all times retained "the primary responsibility to prevent the existence of (unhealthy and unsafe) conditions and practices in such mines." 30 U.S.C. (1976 ed.) 801(e). Acting pursuant to this statutory authority, MESA inspectors on February 10 and 11, 1977, inspected a clay mine owned by the Ristokrat Clay Products Company, an Illinois corporation that mined clay for the manufacture of bricks (App., infra, 3a). Ristokrat's mine used an open conveyor belt, which carried clay first to a grinding area and then to dust bins in a separate room (id. at 24a). Along each side of the belt was a narrow walkway, which the employees used to enter the mine or the dust bin room. On the east wall of this passageway was an electrical junction box that was in a damaged condition. The cover of the box could not be closed and the wires entering the box were not adequately insulated at the point where the conductors entered the box. Id. at 2a-3a. It is not clear from the record how long the junction box had existed in this defective condition (id. at 39a). It is undisputed, however, that the box was in violation of mandatory standards established by the Secretary under the Mine Safety Act (id. at 3a n.1). During the February 1977 inspection, MESA inspectors noticed that mine employees customarily walked along the west side of the conveyor belt and then crossed the belt in order to get to the dust bins located on the east side of the belt. Apparently, employees preferred to walk along the west side of the belt because the east side walkway was partially obstructed by chutes. App., infra, 4a-5a. Noting the unguarded condition of the belt, the inspectors cited the mine owner for a violation of 30 C.F.R. Pt. 55.9-7, the mandatory standard requiring that all unguarded conveyor belts be equipped with emergency stop devices (App., infra, 3a-4a & n.2). Because the continuous processing of the clay into dust made it impractical to install stop devices on the belt, the inspectors permitted the mine owner to abate the Notice of Violation by the construction of two-by-four handrails along both sides of the belt (id. at 21a). No Notice of Violation was issued for the defective junction box (id. at 33a). The construction of the handrails narrowed the walkway along both sides of the belt and ended the employees' practice of walking along the west side of the conveyor system and crossing over the belt to get to the dust bin on the east side. The handrails also reduced by four inches the passageway adjacent to the electrical junction box, resulting in a clearance between the junction box and the rail of approximately 14 inches. App., infra, 2a, 4a-5a. On September 1, 1977, respondent's husband, while walking along the east side of the belt, came into contact with the defective junction box and was electrocuted (id. at 2a). 2. Respondent filed suit against the United States under the Federal Tort Claims Act, 28 U.S.C. 1346(b), 2671 et seq., in the United States District Court for the Northern District of Illinois, claiming that the MESA inspectors had been negligent in failing to observe and cite for correction the defective electrical junction box (App., infra, 5a). Alternatively, respondent claimed that, in requiring the construction of the handrails, the MESA inspectors had negligently "created or increased the risk of injury from the defective junction box" (ibid.). After a trial limited to the issue of liability, the district court entered judgment for the government (App., infra, 30a-40a). The court held that the mine owner's negligence in allowing the defective junction box to remain unrepaired was the proximate cause of the death of respondent's husband (id. at 38a-39a). The court concluded that "the cause of the injury was entirely the result of a defective electrical junction box that was in that wall and not seen by anybody, including Donald Hylin's fellow employees" (id. at 39a). The court of appeals reversed (App., infra, 1a-25a). Before considering the district court's finding on proximate causation, the court of appeals rejected the government's alternative grounds for affirming the judgment that were based directly on the Federal Tort Claims Act. First, the court of appeals held that even though respondent's claim arose out of MESA's regulatory responsibilities, which involve a "uniquely governmental" function, the private person limitation in 28 U.S.C. 1346(b) and 2674 did not bar recovery (App., infra, 6a-7a). Instead, the court held that the United States could be liable as a "private individual under like circumstances" under the good samaritan doctrine of Illinois law embodied in the Restatement (Second) of Torts Section 324A (1965) (App., infra, 7a-8a). /2/ The court of appeals remarked that respondent's first theory of liability under the Restatement -- negligent failure to inspect -- was "more troubling" (App., infra, 8a). The court concluded that it did not have to address that issue, however, because Illinois "would permit a finding of negligence here under (respondent's) second theory of liability -- the increase in risk of injury created by the MESA inspectors' effectively non-optional instruction to build a handrail which had * * * the foreseeable effect of diverting worker ingress to the dust bin past the dangerous junction box through a passageway which was further narrowed by the erection of the handrail" (id. at 7a). The court of appeals also rejected the government's contention that respondent's claim was barred by the discretionary function exception to the Federal Tort Claims Act, 28 U.S.C. 2680(a). Relying on the Ninth Circuit's decision in United Scottish Insurance v. United States, 692 F.2d 1209, 1212 (1982), cert. granted, No. 82-1350 (May 16, 1983), the court reasoned that the issuance of a Notice of Violation requiring the erection of the handrail was compelled by the MESA regulations and therefore did not involve "'policy judgment and decision'" (App., infra, 14a, quoting Dalehite v. United States, 346 U.S. 15, 35-36 (1953)). Finally, the court of appeals held that the district court's finding that the inspectors' negligence was not the proximate cause of the injury was "clearly erroneous" (App., infra, 16a-23a). The court of appeals noted that under state law more than one act of negligence may be the proximate cause of injury. Thus, the fact that Ristokrat's failure to repair the junction box "was 'closer' to the injury" (id. at 22a) did not preclude a finding of liability for the antecedent negligence of the inspectors, so long as the ultimate injury was still probable and foreseeable. On that issue, the court of appeals concluded that an inspector "left the mine knowing that the handrail would be installed and consequently that the workers would be forced to pass closely by the junction box whose dangerous and defective condition the inspectors observed" (id. at 23a). /3/ Judge Bauer dissented (App., infra, 24a-25a). Noting that the majority had found respondent's first theory of liability to be "troublesome," Judge Bauer found respondent's second theory of liability to be indistinguishable, stating (id. at 24a): The risk, if any, that rose from the inspector's order that handrails be installed was not inherent in the handrails. Rather, the risk was that by reducing the free access past the junction box by four inches there was an increased probability that a worker would make physical contact with the defective junction box. And this risk, the risk of physical contact with the junction box, could only have been avoided by inspection and correction of the junction box itself. REASONS FOR GRANTING THE PETITION This case presents important questions of the government's liability under the Federal Tort Claims Act that are essentially identical to those pending in United States v. S.A. Empresa De Viacao Aerea Rio Grandense (Varig), cert. granted, No. 82-1349 (May 16, 1983), and United States v. United Scottish Insurance, cert. granted, No. 82-1350 (May 16, 1983). /4/ Accordingly, this Court's decision in those cases is likely to have a substantial effect on the validity of the court of appeals' decision in this case. The Court therefore may wish to hold this Petition pending its decision in those cases. /5/ At issue in Varig and United Scottish is the liability of the United States under the Federal Tort Claims Act for the alleged negligence of the Federal Aviation Administration (FAA) in issuing type certificates for airplanes that subsequently crashed. In our brief in those cases, we argue that the private person limitation in the Federal Tort Claims Act, 28 U.S.C. 1346(b), 2674, indicates that Congress did "not waive sovereign immunity in situations where there is no liability for private individuals 'even remotely analogous to that which (plaintiffs) are asserting against the United States.'" (U.S. Br. 23, quoting Feres v. United States, 340 U.S. 135, 141 (1950)). Our statement there is equally applicable here: "The actions of a government agency in enforcing health and safety legislation pursuant to a program of inspection and certification have no counterpart in the private sector" (U.S. Br. 25). Thus, respondent's attempt to impose liability on the United States for the alleged negligence of MESA inspectors performing law enforcement functions is impermissible under Sections 1346(b) and 2674. With regard to the good samaritan doctrine, we argue in Varig and United Scottish (U.S. Br. 29-34) that the doctrine is not satisfied in cases involving federal regulatory agencies that merely oversee private industry's efforts to comply with mandatory health or safety standards, because such federal agencies do not "render services to another * * * necessary for the protection of a third person," as required by Section 324A of the Restatement (Second) of Torts (1965). Neither the FAA in Varig and United Scottish nor MESA in this case purported "to render a direct service to the person who was harmed, or to persons of that class." Roberson v. United States, 382 F.2d 714, 720 (9th Cir. 1967) (emphasis added). Instead, both agencies enforced their respective statutory mandates for the public good. Similarly, neither the FAA nor MESA performed a necessary service, because the private employer in both situations retained the primary and nondelegable responsibility to comply with the health and safety requirements of the relevant statute. 49 U.S.C. 1425(a); 30 U.S.C. (1976 ed.) 801(e), 801(g). See Raymer v. United States, 660 F.2d 1136, 1143 (6th Cir. 1981), cert. denied, 456 U.S. 944 (1982). /6/ Finally, we argue in Varig and United Scottish (U.S. Br. 39-46) that the discretionary function exception in 28 U.S.C. 2680(a) precludes liability for claims against federal agencies arising out of their regulatory enforcement activities, because review of an agency's law enforcement decisions in the guise of tort litigation will inevitably "change dramatically (the agency's) regulatory function from that of a policeman to" (in this case) that of a mine operator (U.S. Br. 46). The court of appeals' analysis here may be even more disruptive to the law enforcement efforts of MESA than the Ninth Circuit's decision in Varig and United Scottish is to the FAA because it may tend to deter inspectors from vigorous enforcement of suspected violations. The court characterized MESA's role as "intermeddle(rs)" who "create new dangers" in contrast to "actors how, without some assumption of total responsibility, refrain from changing the status quo they observe" (App., infra, 13a). While this comparison may be apt in a case such as Arney v. United States, 479 F.2d 653 (9th Cir. 1973), where the inspector's modification by itself created a danger, it seems completely misapplied where, as here, the ordered modification (the handrail) was not in itself dangerous, the "new dangers" were not apparent to anyone and the inspectors were otherwise ordering the elimination of an existing safety hazard. CONCLUSION The petition for a writ of certiorari should be held pending the Court's decision in United States v. S.A. Empresa De Viacao Aerea Rio Grandense, No. 82-1349, and United States v. United Scottish Insurance, No. 82-1350, and then disposed of as appropriate in light of that decision. Respectfully submitted. REX E. Lee Solicitor General RICHARD K. WILLARD Acting Assistant Attorney General KENNETH S. GELLER Deputy Solicitor General CARTER G. PHILLIPS Assistant to the Solicitor General ROBERT S. GREENSPAN MARK W. PENNAK Attorneys MAY 1984 /1/ The Mine Safety Act was repealed in 1977 and replaced by the Federal Mine Safety and Health Act of 1977 (1977 Act), Pub. L. No. 95-164, 91 Stat. 1290, codified at 30 U.S.C. 801 et seq., which became effective 120 days after November 9, 1977, the date of the 1977 Act's passage. Section 307, 91 Stat. 1322. Since the accident that gave rise to this lawsuit took place on September 1, 1977, this case technically involves the Mine Safety Act. The 1977 Act, however, preserved many of the features of the Mine Safety Act, including the duty (now imposed on the Mine Safety and Health Administration, under the supervision of the Secretary of Labor) to issue regulations and make inspections and investigations for the purpose of enforcing the Act. See 30 U.S.C. 811, 813. The 1977 Act also provided that the regulations issued under the Mine Safety Act "shall remain in effect as mandatory health or safety standards." Section 301(b)(1), 91 Stat. 1317. The regulations involved in this case are still in effect. 30 C.F.R. Pt. 55. /2/ Section 324A of the Restatement (Second) of Torts (1965) provides: One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking. /3/ The court of appeals stated that the inspectors "observed (the junction box) and saw its dangerous condition" (App., infra, 3a; see also id. at 21a). However, the court did not cite any evidence to support this assertion, which is directly contrary to the findings of the district court (see id. at 39a). See page 6, supra. In fact, the court of appeals' statement is not supported by anything in the record; there is no evidence that the inspectors either examined or were cognizant of the condition of the box at the time they issued the Notice of Violation with regard to the conveyor belt. /4/ The only factual difference between this case and Varig and United Scottish is that here the inspectors ordered a modification that created an unforeseen hazard that was not ordered abated by the inspectors, whereas, in the other cases, the inspectors simply failed to discover any defect. This case, however, is not like Arney v. United States, 479 F.2d 653 (9th Cir. 1973), where the inspector ordered a fuel line modified in a way that caused it to become dangerous. The handrails that were installed pursuant to the Notice of Violation were not inherently dangerous and did not by themsleves cause any injury. Thus, as Judge Bauer correctly concluded, there is no difference "between 'mere negligent failure to inspect the junction box and order correction' * * * and * * * mere negligent failure to inspect the junction box in conjunction with its environs and order correction" (App., infra, 25a (citation omitted)). /5/ A copy of our brief in Varig and United Scottish is being sent to counsel for respondent. /6/ We also argue in Varig and United Scottish (U.S. Br. 34-37) that the plaintiffs in those cases could not reasonably have relied upon the FAA's enforcement efforts, as required by Section 324A(c) of the Restatement (Second) of Torts (1965). That contention does not apply here because respondent and the court of appeals based liability on Section 324A(a) of the Restatement, which provides for liability where the alleged negligence "increases the risk of * * * harm." Reliance is not an element of that tort. But the requirement that the defendant render a service that is necessary to protect a third person applies to all three varieties of good samaritan liability. We do not seek review here of the decision below that the district court clearly erred in finding that the inspectors' actions were not the proximate cause of respondent's injury. This determination is essentially factbound and presents no issue in common with any contention in Varig or United Scottish. APPENDIX