RODNEY P. WESTFALL, ET AL., PETITIONERS V. WILLIAM T. ERWIN, SR., and EMELY ERWIN

No. 86-714

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 Rodney P. Westfall, Osburn Rutledge, and William Bell, 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, Osburn Rutledge and William Bell were defendants in the district court and are 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
Appendix B
Appendix C
Appendix D
Appendix E

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 1a-3a) is reported at 785 F.2d 1551. The opinion of the district court (App., infra, 4a-7a) is unreported.

JURISDICTION

The judgment of the court of appeals (App., infra, 8a-9a) was entered on April 8, 1986. A petition for rehearing was denied on June 2, 1986 (App., infra, 10a-11a). On August 20, 1986, Justice Powell issued an order extending the time for filing a petition for a writ of certiorari to and including September 30, 1986; on September 22, 1986, Justice Powell issued an order further extending the time within which to file a petition to and including October 30, 1986. The jurisdiction of this Court rests upon 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether the immunity recognized in Barr v. Matteo, 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 state law tort action in which respondents seek monetary damages from petitioners, all of whom are federal employees, for injuries allegedly caused by conduct that was within the scope of petitioners' official duties. Respondent William T. Erwin, Sr., is employed by the federal government as a civilian warehouseman at the Anniston Army Depot in Anniston, Alabama. He asserts that he was injured on February 9, 1984, when he "picked up a bag of soda ash and inhaled some of the soda ash dust that had spilled from the bag" (Erwin Affidavit filed June 4, 1985, at 1). He claims that as a result of his contact with the soda ash he sustained chemical burns in his eyes and throat that caused permanent injury to his vocal chords and impairment of his ability to speak (ibid.; Complaint at 4).

William Erwin and his wife, respondent Emely Erwin, subsequently commenced this action in Alabama state court. The complaint alleged that "bags or containers of soda ash were improperly and negligently stored at (William Erwin's) workplace," that "such bags or containers were negligently designed or manufactured or alternatively, that the manufacturers or distributors of such bags issued inadequate warnings concerning their use and storage" (Complaint at 3). William Erwin stated in a subsequently filed affidavit that "(t)he soda ash that I inhaled was improperly stored and should not have been routed to the warehouse where I was working. Further, someone should have known that it was there and provided me with some warning as to its presence and danger before I inhaled it" (Erwin Affidavit at 1).

Petitioners, three federal employees who are supervisors at the Anniston Depot, are named as defendants in the complaint. /1/ The complaint also lists as defendants 21 unnamed individuals or entities (Complaint at 1-3). William Erwin seeks damages in the amount of $500,000; Emely Erwin seeks $25,000 in damages for loss of consortium (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 ground that they were absolutely immune from suit. Respondents opposed the motion, asserting that a federal employee is entitled to immunity from tort liability only if the employee is engaged in policymaking activities. William Erwin filed an affidavit stating that petitioners "are not involved in any policy-making work for the United States Government. Their job duties are similar to mine, with the addition of their supervisory responsibilities. Therefore, (i)t is my understanding that their duties only require them to follow established procedures and guidelines. We all work at the operational level of the United States Government and are not at the policy and planning level" (Erwin Affidavit at 2).

The district court granted the motion and dismissed the action against petitioners (App., infra 4a-7a). The court first observed that petitioners' motion was accompanied by an affidavit stating that they were "acting under color of their office and within the scope of their official duties at the time of the acts or omissions made the basis of" respondents' tort claims; the court noted that respondents did not dispute those facts (id. at 5a). Relying upon Johns v. Pettibone Corp., 755 F.2d 1484 (11th Cir. 1985), the district court stated that "(t)he law of the Eleventh Circuit is clear that * * * any federal employee is entitled to absolute immunity for ordinary torts committed within the scope of their jobs"; it held that petitioners accordingly were "absolutely immune from suit on account of the matters alleged in the complaint" (id. at 5a).

2. The court of appeals reversed (App., infra, 1a-3a). It observed that "the opinion (in Johns v. Pettibone Corp., supra) relied on by the district court was subsequently withdrawn" (id. at 2a). The revised opinion "establishes the rule that 'a government employee enjoys immunity only if the challenged conduct is a discretionary act and is within the outer perimeter of the actor's line of duty'" (id. at 3a, quoting Johns v. Pettibone Corp., 769 F.2d 724, 728 (11th Cir. 1985) (emphasis in original; citation omitted)).

The court of appeals stated that the district court in the present case "erred as a matter of law in applying only one part of the immunity test -- whether the act was in the scope of the employees' duties -- without determining whether the challenged conduct was or was not discretionary" (App., infra, 3a). Finding that respondents had "alleged undisputed facts sufficient to create a material question of whether or not (petitioners') complained-of acts were discretionary," the court reversed the grant of summary judgment and remanded the action for further proceedings (ibid.). Although the court of appeals did not define the term "discretion" in its decision in the present case, another panel of the Eleventh Circuit subsequently stated that "'discretionary acts' involve planning or policy considerations and do not concern day to day operations" (Heathcoat v. Potts, 790 F.2d 1540, 1542 (11th Cir. 1986) (citation omitted)).

REASONS FOR GRANTING THE PETITION

This case presents an important question concerning the extent to which federal employees are subject to personal liability for their official acts. The Court held in Barr v. Matteo, 360 U.S. 564 (1959), that a federal employee was absolutely immune from tort liability for damage allegedly caused by conduct within the scope of his official duties. In recent years, the courts of appeals have developed a bewildering variety of standards to determine when a federal employee is protected from tort liability by the immunity principle recognized in Barr. One circuit has clearly adopted the view that all federal employees are immune from common law tort liability for their official acts, and many decisions from a number of appellate courts have used language consistent with the conclusion. Some circuits have restricted immunity to employees who exercise discretion, but they have defined that limitation in quite different ways. Thus, some courts classify only policymaking as discretionary, others include both policymaking and operational activities, and still others utilize a general inquiry under which the employee's entitlement to immunity depends upon the facts of each particular case.

In defining the scope of government employee's immunity from personal liability for constitutional violations, this Court has recognized that "officials can act without fear of harassing litigation only if they reasonably can anticipate when their conduct may give rise to liability for damages and only if unjustified lawsuits are quickly terminated" (Davis v. Scherer, 468 U.S. 183, 195 (1984)). Here too, immunity can insulate federal employees from the threat of litigation, and thereby promote "the effective functioning of government" (Barr, 360 U.S. at 573), only if employees know in advance that they will not be subject to tort liability for their official acts. Under the present confused state of the law, however, federal employees cannot determine whether they will be protected from monetary liability in the event they are forced to defend their official actions in a state law tort suit. Since the differing approaches of the courts of appeals thus thwart the accomplishment of the very purpose that immunity is designed to promote, review by this Court is plainly warranted. /2/

1. There is a sharp conflict among the courts of appeals with respect to the scope of federal employees' immunity from liability in state law tort actions. The Eighth Circuit recently concluded that every federal employee is absolutely immune from common law tort liability for his official acts, regardless of whether the employee exercises ministerial or discretionary authority. Poolman v. Nelson, No. 85-5401 (8th Cir. Sept. 30, 1986), slip op. 4-7. /3/ The First Circuit has intimated an inclination to reach the same conclusion, observing that the Court "has not yet put its imprimatur upon a 'ministerial duty' exception to absolute immunity" (Ricci v. Key Bancshares of Maine, Inc., 768 F.2d 456, 464 (1st Cir. 1985)).

Six courts of appeals have concluded that immunity from tort liability is available only to federal employees who perform "discretionary" activities; employees engaged in "ministerial" activities are not accorded any immunity. But these courts disagree among themselves with respect to the quantum of discretion that entitles an employee to immunity. The rule applied by the Third, Tenth, and Eleventh Circuits is that the federal employee must exercise policymaking authority. Heathcoat v. Potts, 790 F.2d 1540, 1542 (11th Cir. 1986) (immunity is available only for "discretionary acts," which are those acts that "involve planning or policy considerations and do not concern day to day operations"); Araujo v. Welch, 742 F.2d 802, 804 (3rd Cir. 1984) ("'immunity protects officers from liability only for actions having a policy-making or judgmental element'") (citation omitted); Jackson v. Kelly, 557 F.2d 735, 737-738 (10th Cir. 1977) (en banc) ("a duty is discretionary if it involves judgment, planning or policy decisions. It is not discretionary if it involves enforcement or administration of a mandatory duty at the operational level, even if professional expert evaluation is required").

The Fifth and District of Columbia Circuits follow a different immunity rule, applying an ad hoc functional analysis to determine whether the federal employee exercises sufficient discretion to warrant a grant of immunity. They "measure whether judicial scrutiny of a disputed official act might inhibit official policymaking and thus unduly interfere with the efficient operation of government." Gray v. Bell, 712 F.2d 490, 505-506 (D.C. Cir. 1983), cert. denied 465 U.S. 1100 (1984); see also Norton v. McShane, 332 F.2d 855, 859 (5th Cir. 1964), cert. denied, 380 U.S. 981 (1965). These two courts do not apply this standard in an identical manner. Compare, e.g., Dretar v. Smith, 752 F.2d 1015 (5th Cir. 1985) (supervisor immune in tort action in which subordinate sought damages for alleged battery) with McKinney v. Whitefield, 736 F.2d 766 (D.C. Cir. 1984) (supervisor not entitled to immunity in similiar situation).

The Sixth Circuit utilizes a broad definition of discretion, conferring immunity upon federal employees who exercise discretion at the operational level as well upon employees who formulate policy. Granger v. Marek, 583 F.2d 781 (6th Cir. 1978) (Internal Revenue Service agents); Estate of Burks v. Ross, 438 F.2d 230, 234 (6th Cir. 1971) (hospital administrator and doctor exercise discretionary authority and therefore are entitled to immunity; nurses not immune because they perform ministerial functions). The First Circuit, which has assumed without deciding that an employee must exercise discretion in order to obtain immunity, also defines discretion in this manner. Ricci v. Key Bancshares of Maine, Inc., 768 F.2d at 464-465 (conduct of FBI agents in the course of an investigation).

The law is unsettled in the remaining courts of appeals. The Seventh Circuit has rejected the ministerial/discretionary distinction and stated that immunity might be limited to federal employees engaged in policymaking. Lojuk v. Johnson, 770 F.2d 619, 626-628 (7th Cir. 1985), cert. denied, No. 85-5782 (Jan. 13, 1986); but see Carson v. Block, 790 F.2d 562, 564 (7th Cir. 1986) (intimating that all federal employees are entitled to immunity); Oyler v. National Guard Ass'n, 743 F.2d 545, 552-553 (7th Cir. 1984) (rejecting argument that immunity extends only to policymakers).

Some panels of the Second, Fourth, and Ninth Circuits have indicated that a federal employee's entitlement to immunity turns upon whether the employee exercises discretion. See Huntington Towers, Ltd. v. Franklin National Bank, 559 F.2d 863, 870 (2nd Cir. 1977), cert. denied, 434 U.S. 1012 (1978); George v. Kay, 632 F.2d 1103, 1105 (4th Cir. 1980), cert. denied, 450 U.S. 1029 (1981); Green v. James, 473 F.2d 660, 661 (9th Cir. 1973). However, more recent decisions of these courts have not reiterated the discretion requirement. See Wyler v. United States, 725 F.2d 156, 159 (2d Cir. 1983); Sprecher v. Graber, 716 F.2d 968, 975 (2d Cir. 1983); Wallen v. Domm, 700 F.2d 124, 125 (4th Cir. 1983); Augustine v. McDonald, 770 F.2d 1442, 1446 (9th Cir. 1985); Miller v. DeLaune, 602 F.2d 198, 200 (9th Cir. 1979). In any event, these courts' decisions indicate that if a showing of discretion is required, the applicable standard is the broad definition of discretion utilized by the First and Sixth Circuits. See, e.g., Wyler v. United States, supra (actions of Drug Enforcement Administration agents in performing their law enforcement responsibilities); Wallen v. Domm, supra (actions of supervisor); Augustine v. McDonald, supra (actions of government attorneys in garnishing the plaintiff's assets to satisfy judgments in favor of the United States).

The large number of recent appellate decisions addressing the question presented in this case is a reflection of the increasing frequency with which plaintiffs are utilizing actions under state tort law to challenge the official conduct of federal employees. A growing number of federal employees therefore face personal liability for their official acts, a circumstance that -- together with the confusion about the proper scope of immunity -- tends to inhibit the vigorous exercise of government authority, the very result that immunity is designed to prevent. Clarification by this Court of the standard governing official immunity from tort liability is necessary in order to eliminate this threat to the effective functioning of government. /4/

2. Moreover, the court of appeals' decision is incorrect. Petitioners are immune from tort liability in this case. /5/

1. This Court's first comprehensive discussion of the scope of federal employees' immunity from tort liability appears in its decision in Spalding v. Vilas, 161 U.S. 483 (1896). The plaintiff in that case sought money damages from the Postmaster General, asserting that the Postmaster General had issued a circular containing false statements in an effort to injure the plaintiff. This Court found that the Postmaster General's conduct was within the scope of his official duites and held that he was immune from liability even if he had acted with malice. The Court stated that (161 U.S. at 498-499)

         (i)n exercising the functions of his office, the head of an
      Executive Department, keeping within the limits of his
      authority, should not be under an apprehension that the motives
      that control his official conduct may, at any time, become
      subject of inquiry in a civil suit for damages.  It would
      seriously cripple the proper and effective administration of
      public affairs as entrusted to the executive branch of the
      government, if he were subjected to any such restraint.

The Court again addressed this immunity question in Barr v. Matteo, 360 U.S. 564 (1959). Barr was a libel action brought by former employees of the federal Office of Rent Stabilization against the acting director of that office. The plaintiffs alleged that they had been defamed by a press release issued by the acting director; this Court held that the acting director was immune from suit. A plurality of four Justices concluded that "the principle announced in Vilas can (not) properly be restricted to executive officers of cabinet rank, and in fact it never has been so restricted by the lower federal courts" (360 U.S. at 572 (footnote omitted)). It found that "(t)he privilege is not a badge or emolument of exalted office, but an expression of a policy designed to aid in the effective functioning of government" (id. at 572-573), and concluded that the privilege was available to "officers of lower rank in the executive hierarchy" (id. at 573).

The plurality stated that it is "the duties with which the particular officer * * * is entrusted -- the relation of the act complained of to 'matters committed by law to his control or supervision,' -- which must provide the guide in delineating the scope of the rule which clothes the official acts of the executive officer with immunity from civil defamation suits" (360 U.S. at 573-574) (citation omitted)). It fould that "(t)he fact that the action here taken (by the defendant) was within the outer perimeter of (his) line of duty is enough to render the privilege applicable" (id. at 575). /6/

Barr was the last decision in which this Court squarely addressed the scope of federal employees' immunity from non-constitutional tort liability. /7/ The courts of appeals uniformly have concluded that the immunity recognized in Barr is available to federal employees in connection with all types of state law tort claims, from negligence actions to actions seeking damages for intentional torts. /8/ As we have discussed, the courts of appeals are sharply divided with respect to whether the privilege protects all federal employees as long as they do not exceed the bounds of their governmental authority, or only protects employees in the performance of particular sorts of functions. In our view, federal employees are protected from personal financial liability under state tort law as long as they act within the scope of their official duties. Moreover, even if all federal employees are not protected by immunity, employees who exercise operational discretion -- such as the discretion exercised by petitioners in their capacities as supervisors -- should be protected by immunity. /9/

b. Although Barr itself involved "an official of policymaking rank" (360 U.S. at 575), the plurality in Barr plainly did not restrict immunity to federal employees who exercise a particular quantum of discretion. /10/ The plurality's only discussion of the fact that the defendant in Barr did exercise discretion was in connection with its determination that the challenged conduct was "within the outer perimeter of (his) line of duty" (ibid.). Indeed, the plurality took pains to point out that the discretionary nature of the defendant's responsibilities did not divest him of the protection of immunity (ibid. (emphasis in original; footnote omitted)).

         That (the defendant) was not required by law or by direction
      of his superiors to speak out cannot be controlling in the case
      of an official of policy-making rank, for the same
      considerations which underlie the recognition of the privilege
      as to acts done in connection with a mandatory duty apply with
      equal force to discretionary acts at those levels of government
      where the concept of duty encompasses the sound exercise of
      discretionary authority.

Barr thus did not restrict immunity to employees who exercise discretion. Accord Poolman v. Nelson, slip op. 4-7; Lojuk v. Johnson, 770 F.2d at 626-627; Ricci v. Bancshares of Maine, Inc., 768 F.2d at 463-464. /11/

Further, the policies underlying the decision in Barr support a rule immunizing all federal employees from common law tort liability for acts within the scope of their official duties. The Barr plurality stated that immunity is designed "to aid in the effective functioning of government" (360 U.S. at 573). Thus, "(i)t has been thought important that officials of government should be free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties -- suits which would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government." Id. at 571; see also Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949) (L. Hand. J.), cert. denied, 339 U.S. 949 (1950). /12/

Any federal employee, regardless of his duties, undoubtedly will be affected by the prospect of litigation and personal liability for harms that allegedly result from the performance of his job. Forcing employees to bear these risks must itself have a price, which will necessarily be reflected in either higher wages and salaries for government workers or a reduction in the quality of the federal workforce. /13/ And few if any jobs are so purely ministerial in nature as to leave no room for the shading of decisions and the hedging of conduct to take account of the risk of personal liability. /14/ Even if an employee's duties are solely ministerial, moreover, the federal government may bear the loss of productivity due to the time that the employee was required to devote to defending the lawsuit.

These consequences will disrupt the effective functioning of the government whether or not the employee's duties involve the exercise of a particular quantum of discretion. The Barr plurality observed that "(t)he complexities and magnitude of government have become so great that there must of necessity be a delegation and redelegation of authority as to many functions, and we cannot say that these functions become less important simply because they are exercised by officers of lower rank in the executive hierarchy" (360 U.S. at 573 (footnote omitted)). Indeed, a rule restricting immunity to policymakers or some other group of high-level officials would encourage tort plaintiffs seeking monetary damages to focus their efforts upon the vast majority of lower ranking federal employees who are responsible for carrying out the routine day-to-day functions of government. These lower level employees are the individuals least able to shoulder personal monetary liability and, accordingly, the federal employees whose official actions are most likely to be inhibited by the threat of liability.

Perhaps most importantly, restricting immunity to federal employees who exercise discretionary authority undercuts the very purpose that immunity is designed to serve by creating great uncertainty about when and to whom it applies. The fact that an employee ultimately may be found to be entitled to immunity is irrelevant if the employee cannot determine in advance that he will receive that protection. Davis v. Scherer, 468 U.S. at 195. A rule limiting immunity to acts involving a particular quantum of discretion is simply too vague and uncertain to satisfy this requirement.

This Court has observed in other contexts that a distinction cannot easily be drawn between discretionary and ministerial functions. See United States v. S. A. Empresa De Viacao Aerea Rio Grandense (Varig Airlines) 467 U.S. 797, 811 (1984); Owen v. City of Independence, 445 U.S. 622, 648 n.31 (1980) (observing with respect to the immunity rule protecting a municipality from tort liability for discretionary acts that "a clear line between the municipality's 'discretionary' and 'ministerial' functions was often hard to discern, a difficulty which has been mirrored in the federal courts' attempts to draw a similar distinction under the Federal Tort Claims Act"). Indeed, one court of appeals candidly has observed that "(a)lmost any wrong can be characterized as discretionary or nondiscretionary for purposes of exception from liability under either the FTCA or the common law" (Sami v. United States, 617 F.2d 755, 771 (D.C. Cir. 1979)). An immunity rule that turns upon whether an employee exercises discretion would make it difficult for the employee to ascertain in advance whether his conduct was protected by immunity and, therefore, would force the employee to act as if he had no immunity at all. The discretion requirement would thus eviscerate the benefits to the government that the immunity rule is designed to provide. Cf. Coleman v. Frantz, 754 F.2d 719, 727-728 (7th Cir. 1985). /15/

The rule for which we contend may prevent some plaintiffs from obtaining compensation for their injuries, although the limited financial resources of most federal employees engaged in non-discretionary duties suggest that few plaintiffs lose any genuine opportunity for compensation under a rule of absolute immunity for common law torts. See Sami v. United States, 617 F.2d at 722. /16/ The conclusion of the plurality in Barr regarding this point is equally applicable here: "as with any rule of law which attempts to reconcile fundamentally antagonistic social policies, there may be occasional instances of actual injustice which will go unredressed, but we think that price a necessary one to pay for the greater good. And there are of course other sanctions than civil tort suits available to deter the executive official who may be prone to exercise his functions in an unworthy and irresponsible manner" (360 U.S. at 576). /17/

c. Even if the Court disagrees with our submission that immunity should be extended to all federal employees acting within the scope of their duties, and concludes that only employees with discretionary authority are protected by immunity, petitioners exercise sufficient discretion to be entitled to immunity in this case. The basis of respondents' tort claim is that petitioners negligently stored, designed, manufactured, or labeled the soda ash containers. Where and how to store the soda ash and whether warnings should have been given to persons handling the soda ash containers all are questions involving the exercise of discretion in the operation of the Depot warehouse. /18/ Since petitioners -- if they in fact were responsible for these decisions -- were required to exercise discretion, their decisions with respect to these issues must be insulated from the threat of liability.

Respondents' allegations are quite similar to the allegations of the plaintiffs in Dalehite v. United States, 346 U.S. 15 (1953), that the United States was liable for negligently manufacturing, storing, and labeling a fertilizer that had explosive properties. This Court concluded in that case that recovery was barred by the discretionary function exception to liability under the Federal Tort Claims Act (see 346 U.S. at 38-44). It specifically observed that "acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable. If it were not so, the protection of (the discretionary function exception) would fail at the time it would be needed, that is, when a subordinate performs or fails to perform a causal step, each action or nonaction being directed by superior, exercising, perhaps abusing, discretion" (id. at 36 (footnote omitted)). Petitioners -- individual federal officials charged with negligently carrying our similar policies -- should be protected from tort liability under the same rationale. Whether petitioners made the relevant discretionary decisions or simply carried out discretionary decisions made by others, they should not be subject to personal liability for damage resulting from those actions.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

CHARLES FRIED

Solicitor General

RICHARD K. WILLARD

Assistant Attorney General

DONALD B. AYER

Deputy Solicitor General

ANDREW J. PINCUS

Assistant to the Solicitor General

BARBARA L. HERWIG

LARRY L. GREGG

CARLENE V. MCINTYRE

Attorneys

OCTOBER 1986

/1/ Petitioner Rodney P. Westfall is the chief of the Receiving Section at the Depot, Osburn Rutledge is the chief of the Breakdown and Bulk Delivery Unit, and William Bell is the chief of Unloading Unit No. 1 (Fomby Affidavit filed March 4, 1985, at 1).

/2/ The Court has recognized that the question presented in this case -- the scope of federal officials' immunity from liability under state tort law -- is wholly separate from the scope of these officials' immunity from liability for constitutional violations. Butz v. Economou, 438 U.S. 478, 495 (1978). Thus, even though certain general principles are relevant in both contexts, the Court's decision in this case will not affect the standard for immunity from liability for constitutional violations established in Harlow v. Fitzgerald, 457 U.S. 800 (1982), and its progeny.

/3/ The court observed that "the discretionary or ministerial nature of an activity" may be relevant in determining whether an official's acts were within the scope of his authority, noting that "th(e) outer perimeter (of this authority) fluctuates in relation to the degree of discretionary authority afforded an official" (Poolman, slip op. 6).

/4/ Three Members of the Court previously recognized the existence of differing approaches to the immunity issue. See Martinez v. Shrock, cert. denied, 430 U.S. 920 (1977) (White, J., joined by Brennan and Marshall, JJ., dissenting).

/5/ The Court has made clear that a federal employee's entitlement to immunity from tort liability for his official acts is "judged by federal standards, to be formulated by the courts in the absence of legislative action by Congress" (Howard v. Lyons, 360 U.S. 593, 597 (1959)).

/6/ Justice Black concurred in the result in Barr, emphasizing the importance of federal employees' freedom to communicate with the public (360 U.S. at 576-578). Justice Stewart agreed with the plurality's analysis of the standard governing the availability of immunity, but concluded that the defendant was not entitled to immunity because he was not acting within the scope of his official duties (id. at 592). Three Justices dissented because they disagreed with the plurality's conclusion regarding the scope of immunity (id. at 578-592).

/7/ In Doe v. McMillan, 412 U.S. 306 (1973), the Court considered whether the Public Printer and the Superintendent of Documents were entitled to immunity in an action in which the plaintiffs sought damages for both constitutional violations and common law torts allegedly committed by these officials in connection with the production and distribution of a congressional committee's report. The Court concluded that these officials did not have "an independent immunity," but instead were immune from damages liability to the extent that employees of the government entity for which they performed printing services would have been entitled to immunity in connection with the production and distribution of the printed material; the officials' immunity in Doe therefore turned upon the scope of legislative immunity (412 U.S. at 323).

The Court in Doe did discuss Barr and at one point stated that "(j)udges, like executive officers with discretionary functions, have been held absolutely immune regardless of their motive or good faith. But policemen and like officials apparently enjoy a more limited privilege" (412 U.S. at 319 (citations omitted)). However, the Court did not indicate whether this statement referred to immunity from constitutional claims or immunity from tort claims; indeed, it supported the reference to a "more limited privilege" by citing Pierson v. Ray, 386 U.S. 547 (1967), a case that addressed a police officer's immunity from liability for violations of the Constitution. In view of this ambiguity, and the fact that limiting the scope of immunity under Barr was not necessary -- or even relevant -- to the ground of decision in Doe, the Court's brief reference to the scope of immunity cannot be viewed as announcing a restriction upon official immunity in the common law tort context.

/8/ See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 807-808 (1982) (characterizing Vilas and Barr as according "absolute immunity from suits at common law"); Norton v. McShane, 332 F.2d at 859-860 & n.5.

/9/ Although the standard for which we contend is a rule of absolute immunity, it operates in the context of non-constitutional torts in a manner similar to the qualified immunity standard adopted in Harlow v. Fitzgerald, supra, for constitutional wrongs. In both situations, the immunity rule is designed to protect a federal official from personal liability when his conduct remains within the scope of his governmental authority.

A qualified immunity rule in the absence of a constitutional claim presumably would turn upon the defendant's subjective good faith (see Barr v. Matteo, 360 U.S. at 586-588 (Brennan, J., dissenting)), but the Court rejected such an approach in Harlow on the ground that an immunity standard that depends upon the official's actual state of mind "may entail broad-ranging discovery and the deposing of numerous persons, including an official's professional colleagues. Inquiries of this kind can be peculiarly disruptive of effective government." (457 U.S. at 817 (footnotes omitted)).

/10/ The plurality's legal analysis of the scope of immunity is particularly significant because it was adopted by Justice Stewart (360 U.S. at 592) and therefore represented the views of five Members of the Court.

/11/ Some courts have seized upon the statement in Barr that "the occasions upon which the acts of the head of an executive department will be protected by the privilege are doubtless far broader than in the case of an officer with less sweeping functions" (360 U.S. at 573). But the plurality simply was referring to the fact that the greater of official's authority, the "broader the range of (his) responsibilities and duties," and, therefore, the wider the outer perimeter of his line of duty (ibid.). The statement in no way indicates that lower level officials are not protected by immunity.

/12/ The rule of immunity adopted in Barr also protects against "state interference" with federal officials' execution of their duties under federal law. Butz v. Economou, 438 U.S. 478, 495 (1978); Ricci v. Key Bancshares of Maine, Inc., 768 F.2d at 463; cf. In re Neagle, 135 U.S. 1, 61-63 (1890).

/13/ As one court of appeals recently observed (Carson v. Block, 790 F.2d at 564),

         (p)rivate firms may buy insurance for their employees, or
      give them bonuses or shares of the enterprise to induce them to
      take risks.  The United States does not offer (government
      officials) a "share of the profits" from federal programs * * *
      and a system under which officials face risks of substantial
      liability for error without any corresponding prospect of reward
      for good work is doomed.  Only the addled and the foolhardy
      would disregard these incentives, and the addled and foolhardy
      do not execute statutes very well.

/14/ A ministerial duty is a mandatory duty expressly imposed by and specifically delineated in a statute, regulation, or other directive. See Davis v. Scherer, 468 U.S. at 197 n.14 ("(a) law that fails to specify the precise action that the official must take in each instance creates only discretionary authority").

/15/ A further partical difficulty with a discretion requirement is that discovery may be necessary to determine whether the defendant exercises sufficient discretion to qualify for immunity. See, e.g., Heathcoat v. Potts, 790 F.2d at 1543 ("detailed but abstract" job descriptions not sufficient; court remanded the case for "a fuller development of the facts" through discovery). When discovery is required to sustain a claim to immunity, it is no longer "an immunity from suit rather than a mere defense to liability" (Mitchell v. Forsyth, No. 84-335 (June 19, 1985), slip op. 14 (emphasis in original)). In this case, for example, the court of appeals remanded for further proceedings regarding the immunity issue (App., infra, 3a).

/16/ Of course, immunity would not necessarily leave the plaintiff without a remedy; compensation may be available from the United States under the Federal Employees' Compensation Act, 5 U.S.C. 8101 et seq., or the Federal Tort Claims Act, 28 U.S.C. 1346 (b). And federal employees' immunity would, of course, be limited to acts within the scope of their official duties.

/17/ This rule of absolute immunity is particularly appropriate, and should at a minimum be recognized, in situations such as the present case where both the plaintiff and the defendant are federal employees and the lawsuit relates to the defendant's execution of his official duties in the employees' common workplace. Suits between employees are especially likely to affect adversely the functioning of the government because they tend to preclude the cooperation among federal employees that is necessary to the successful execution of the employees' official duties. Such actions also may become vehicles for personal vendettas rather than legitimate efforts to obtain compensation for damage incurred by the plaintiff.

Further, Congress expressly established a remedial system for injuries incurred by federal employees in the course of their duties when it enacted the Federal Employees' Compensation Act (FECA). The Act provides for administrative, no-fault compensation for certain injuries incurred by federal employees in the course of their duties. See 5 U.S.C. 8101-8151. The presence of this alternative remedy for many of the injuries that form the basis of co-employee tort actions weighs in favor of the recognition of immunity in this context. (We have been informed by the Department of the Army that William Erwin was reimbursed under the FECA for his medical costs and received disability pay for the period that he was unable to work. He did not receive compensation for the alleged permanent harm to his vocal chords on the ground that the FECA does not authorize compensation for that injury.)

/18/ In the course of overseeing the operation of the warehouse, petitioners must issue literally hundreds of instructions on a daily basis to the employees of that facility. Petitioners' performance as supervisors plainly would be chilled, and the overall operation of the facility thereby adversely affected, if they were threatened with personal liability in connection with each and every one of these instructions.