KARL POTTS, ET AL., PETITIONERS V. MAGGIE BELL HEATHCOAT, ADMINISTRATRIX FOR THE ESTATE OF LEONARD JAMES HEATHCOAT No. 86-862 In the Supreme Court of the United States October Term, 1986 Petition for a Writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit The Solicitor General, on behalf of Karl Potts, Charles Davis, Robert D. Mitchell, Ray Montgomery, Herbert Plyler, Kenneth Rhoden, and William Clyde Snoddy, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Eleventh Circuit in this case. PARTIES TO THE PROCEEDING In addition to the parties listed in the caption, Charles Davis, Robert D. Mitchell, Ray Montgomery, Herbert Plyler, Kenneth Rhoden, and William Clyde Snoddy are defendants in the district court and petitioners in this Court. TABLE OF CONTENTS Parties to the proceeding Opinions below Jurisdiction Question presented Statement Reasons for granting the petition Conclusion Appendix A Appendis B Appendix C Appendix D Appendix E Appendix F OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-10a) is reported at 790 F.2d 1540. The order of the court of appeals granting permission to appeal pursuant to 28 U.S.C. 1292(b) (App., infra, 11a) is unreported. The orders of the district court (App., infra, 12a-13a, 14a-15a) are unreported. JURISDICTION The judgment of the court of appeals (App., infra, 16a-17a) was entered on June 10, 1986. A petition for rehearing was denied on August 28, 1986 (App., infra, 18a-19a). The jurisdiction of this Court rests upon 28 U.S.C. 1254(1). QUESTIONS PRESENTED Whether the immunity recognized in Barr v. Mateo, 360 U.S. 564 (1959), protects petitioners -- federal employees sued in their individual capacities -- from liability under state tort law for injuries allegedly caused by their official acts. STATEMENT 1. This is a common law tort action, which was initiated in state court and removed to federal court by petitioners, all of whom are federal employees. Respondent seeks monetary damages for injuries allegedly caused by conduct that was within the scope of petitioners' official duties. Leonard Heathcoat, respondent's decedent, was employed by the Tennessee Valley Authority (TVA); his duties included dismantling a phosphorus furnace building at TVA's National Fertilizer Center in Muscle Shoals, Alabama. App., infra, 2a; Wood Affidavit, dated October 18, 1984, at 1-2. Petitioners are TVA employees "(e)ach of (whom) was in some fashion a supervisor of the removal operations" being performed by Leonard Heathcoat (App., infra, 5a). Thus, petitioner Karl Potts was the chief of the maintenance branch of the Office of Agricultural and Chemical Development (OACD) -- the component of the TVA that operates the Muscle Shoals facility -- and was responsible for planning and supervising all maintenance functions for that component of the TVA; Kenneth Rhoden was the assistant chief of the maintenance branch and served as Potts' deputy; William Clyde Snoddy was the general foreman of the maintenance branch, charged with supervising the activities of more than 200 employees; Charles Davis was an assistant manager of the OACD and director of the division of chemical development with responsibility for planning and administering the TVA's entire chemical research and engineering program; Robert Mitchell was an assistnat director of the OACD and assisted the director of chemical development in the overall planning of the work of the chemical development division; Ray Montgomery was a hazard control specialist charged with planning and coordinating safety programs for the OACD; and Herbert Plyler was a safety specialist with similar responsibilities. /1/ On the morning of September 16, 1983, Leonard Heathcoat was using a torch to cut the steel supports below the roof of the phosphorus furnace building. That afternoon "(h)e went upon the roof to help pry loose concrete slabs, and pried up one or two slabs, but the next slab collapsed beneath him and he fell approximately 50 feet to his death." App., infra, 2a; Wood Affidavit, dated October 18, 1984, at 1-2. Respondent subsequently commenced this action against petitioners in Alabama state court. She alleged that petitioners "had the duty to provide (Leonard Heathcoat) a safe place to work and/or a reasonably safe work environment" and that petitioners "negligently or wantonly breached this duty. Complaint at 2. Respondent demanded damages in the amount of $1 million (id. at 4-5). Petitioners removed the action to the United States District Court for the Northern District of Alabama pursuant to 28 U.S.C. 1442(a)(1); they filed a motion to dismiss or, in the alternative, for summary judgment on the grounds that (1) they were absolutely immune from suit under Barr v. Matteo, 360 U.S. 564 (1959); (2) the release in the personal service contract entered into by respondent's decedent bars respondent's claim for damages; and (3) respondent's damages claim is barred by the exclusive remedy provision of the Federal Employees' Compensation Act (FECA), 5 U.S.C. 8116(c). /2/ The district court denied the motion without opinion (App., infra, 12a-13a). It subsequently granted petitioners' motion to certify the contract and FECA issues for interlocutory appeal pursuant to 28 U.S.C. 1292(b) (App., infra, 14a-15a). 2. The court of appeals affirmed (App., infra, 1a-10a). The court concluded with respect to the immunity issue that "the governing principle is clear: a government employee enjoys immunity only if the challenged conduct is a discretionary act and is within the outer perimeter of the act or the line of duty. 'Discretionary acts' involve planning or policy considerations and do not concern day to day operations" (id. at 4a (emphasis in original; citations omitted)). The court noted that petitioners each were "in some fashion a supervisor of the removal operations being conducted by TVA's Office of Agricultural and Chemical Development" (App., infra, 5a). It observed that the summary judgment record contained petitioners' job descriptions and answers to respondent's interrogatories, but characterized the job descriptions as "detailed but abstract" and the interrogatory responses as "defensive and unilluminating" (ibid.). It concluded that the district court properly denied petitioners' motion for summary judgment, observing that "whether, on a fuller development of the facts, an immunity defense might prove meritorious is for the district court" (id. at 6a). /3/ REASONS FOR GRANTING THE PETITION The question presented in this case is the same as the question presented in Westfall v. Erwin, petition for cert. pending, No. 86-714, i.e., whether a federal employee is subject to personal liability under state tort law for his official acts. /4/ The court of appeals in the present case concluded that petitioners were not entitled to immunity from tort liability because "a government employee enjoys immunity only if the challenged conduct is a discretionary act and is within the outer perimeter of the act or the line of duty" (App., infra, 4a (emphasis in original)), the same rule that was applied by the court of appeals in Westfall. As we argued in our petition in Westfall (at 9-18), this narrow application of immunity doctrine is inconsistent with the reasoning in Barr v. Matteo, 360 U.S. 564 (1959). We submit that a federal employee is entitled to immunity from liability under state tort law as long as he acts within the scope of his official duties. /5/ In addition, petitioners here, like the petitioners in Westfall (see 86-714 Pet. 18-20), would be immune from tort liability even if this Court were to determine that immunity is limited to federal employees who exercise discretion. Petitioners' planning, supervisory, and safety duties plainly require them to make a variety of sensitive judgments in determining whether to undertake particular projects and evaluating the effects of those projects upon the safety of the workplace. Even if the exercise of discretion is a necessary prerequisite to a federal employee's absolute immunity from common law torts, therefore, petitioners should be afforded immunity so that their exercise of discretion will not be affected by the fear of potential personal liability. CONCLUSION The petition for a writ of certiorari should be disposed of as appropriate in view of the disposition of the petition in Westfall v. Erwin, No. 86-714. CHARLES FRIED Solicitor General LEWIS E. WALLACE Acting General Counsel Tennessee Valley Authority NOVEMBER 1986 /1/ This discussion of petitioners' duties is based upon the job descriptions that are included in the summary judgment record (see App., infra, 5a). /2/ Respondent is receiving benefits under FECA as a result of the death of Leonard Heathcoat (Hester Affidavit, dated October 16, 1984, at 1-2). /3/ The court of appeals also rejected petitioners' arguments that respondent's claim is barred by the Federal Employees' Compensation Act and the release clause in the employment contract entered into by respondent's decedent (App., infra, 6a-10a). /4/ We have served counsel for respondent with a copy of the petition in Westfall. /5/ Since petitioners and respondent's decedent all were federal employees, and respondent's claim related to their common workplace, immunity would be appropriate here if the Court adopts an immunity rule that applies to common law law tort actions brought by one federal employee against a fellow employee (see 86-714 Pet. 18 n.17). 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