Aaron Schwarder Donna Eubanks Kathleen Schwarder v. United States
974 F.2d 1118
9th Cir.
1992
Check Treatment

*1 1118 of the dis- judgment don’s conviction. The consideration jury’s the

relevant is affirmed. trict court requi- possessed person that whether intent,5 the circumstances subjective site AFFIRMED. light most favor- case, viewed jury’s support government, to the

able intended his state- Mr. Gordon

finding that had Mr. Gordon a threat.6 to be

ments Rea- President former

managed to enter being apprehended.

gan’s home before stated, among other custody, he Once Eubanks; SCHWARDER; Donna Aaron is the anti-Christ. Reagan things, “Ronald Schwarder, Plaintiffs- Kathleen kill him.” I must and killed He must be Appellees, present Furthermore, agents he told Reagan for get trying he had been that he would be back. that years, and ten America, UNITED STATES that agents present testified Service Secret Defendant-Appellant. and his de- coherent appeared

Mr. Gordon No. 91-55273. circum- Under these serious. meanor was find that stances, jury Appeals, could a reasonable States Court threats,” and “true Ninth Circuit. were the statements section 879. violated Mr. Gordon that 7,May 1992. Argued and Submitted Sept. 1992. Decided IV. CONCLUSION the district court sum, that we hold motions to Gordon’s Mr.

properly denied Rafeedie, in- to dismiss the Judge

recuse state-

dictment, suppress Mr. Gordon’s doc-

ments, Secret Service discover Furthermore, that we hold

uments. support Mr. Gor- sufficient

evidence was 1399, 1401, history section 879 notes legislative 5. Mitchell, curiam); (1969) (per de- are relevant in objective L.Ed.2d circumstances that termining Merrill, speaker 1255; a true made F.2d at 462. F.2d at threat: States v. in United The district court decision upon bear Objective would circumstances (E.D.Pa.1990), Kosma, aff’d, objective F.Supp. subjective intent and proof of both Cir.1991), example, person (3d acquitting if a were the defen- For perceptions. F.2d 549 imprisonment without serving life violating a term of con- is not to the section 879 dant of objec- parole therefore court, possibility case, sitting as trary. district In that presently perceived as able tively not be could fact, that the determined trier week, protectee next kill a a threat to to effect beyond a reasonable had not demonstrated upon whether a bear should this circumstance his statement intended doubt that defendant person be con- by the communication testimony of threat. It considered to be a willfully" “knowingly made. as sidered examining psychiatrist as well as the fact words, objective circumstances can In other when he incarcerated that the defendant was intent, subjective upon question of bear Contrary threatening to Mr. letter. mailed would be a threatened act in a situation where assertion, does not stand for case Gordon’s patently infeasible. act is a threatened proposition that when (1982), Cong., 2d Sess. 4 H.R.Rep. No. 97th term," F.Supp. at in the "infeasible short (cita- reprinted in 1982 U.S.C.C.A.N. requisite subjective speaker lacked omitted). consistent with is' tions This law. as a matter of intent jury noting must consider cases Watts v. United factual context. entire

1H9 Truscott, Dept, of Michael T. Jus- tice, D.C., defendant-ap- Washington, pellant. Shore,

Samuel Law Offices of Samuel Cal., Shore, Angeles, Jerry Berger, Los S. leg in his had Linda because the tumor Berger, Bev- Jerry Solomon Law Offices time, he was first Hills, Cal., plaintiffs-appellees. grown back. At that erly he had a cancerous lesion advised that leg. discovered that the Doctors also *3 inguinal to his cancer had metastasized lungs. Mr. one of his lymph nodes and NORRIS, ALARCON, and Before: amputation surgery, underwent Schwarder .O’SCANNLAIN, Judges. Circuit therapy in an chemotherapy, and radiation attempt progress of the cancer. to halt the NORRIS, Judge: Circuit A. WILLIAM unsuccess- at treatment were These efforts judgment appeals a States The United ful, March and he died of cancer on damages to $330,000 compensatory for 1987. Eubanks, and Schwarder, Donna Aaron Schwarder, death, along Mr. Before his Schwarder, (referred to collective- Kathleen Schwarder, wife, filed his Mariis with children”) for the ly “the Schwarder damages against the United for claims father, Harry N. their wrongful death they had sustained as a States contends The Government Schwarder. physicians at the failure of the result of was children’s action that the Schwarder diagnose his can- Act, Linda to and treat 28 Loma Tort Claims by the Federal period negotia- Harry promptly. After a Schwarder cer because U.S.C. § $285,000. into an tion, entered previously they these claims for and his wife settled the Govern- settlement, settlement executed a they administrative part As of this $285,000 and received they ment in which Payment Under Federal Tort For Voucher aris- any future claims relinquish agreed to Act. This voucher contained Claims injury. The Government ing his out of Claimant(s)” provision “Acceptance children’s the Schwarder contends that stated: which Civil Code California award violates claimant(s), hereby accept I, (We), do dam- 3333.2, limits non-economic award, compromise, or the withinstated negligence ac- professional age awards on me as final and conclusive settlement $250,000. affirm. We tions to (us) agree acceptance con- that said (us) by me complete stitutes a I against States and any claim the United 10, 1984, Harry Schwarder August employee of the Government On Lin- at the Loma attention sought medical gave rise to the omission whose act or Hospital and Administration da Veterans claim, subject by reason of the same Linda) lump right his (Loma for a Clinic matter. biopsy surgery, physi- knee. As a result added). exception of With the (Emphasis that the determined cians at Loma Linda language in the phrase, underlined might tumor which malignant lump was a agreement tracks section settlement diagnosis This metastasize. recur or FTCA, provides, in relevant of the the Armed by the staff of confirmed part, that: Pathology recom- who Institute of Forces claimant of acceptance by area surround- mended wide excision award, compromise, was dis- or settlement Mr. Schwarder ing the tumor. such August Linda on charged from Loma and conclusive on the claim- shall final nature of his serious Despite ant, complete re- constitute and shall of the re- not informed he was prognosis, the United lease year than one until more biopsy sults his employee against the States later. gave act or omission Government whose the same by reason of rise to the Mr. Schwarder September On subject matter. Loma attention at again sought medical

H21 damages court’s determination of due to 2672.1 28 U.S.C. § the Schwarder children under California Mr. On November after Accordingly, death law. the dis- death, son, Aaron Schwarder’s $80,- trict court awarded Aaron Schwarder Schwarder, wrongful death action filed a support $150,000 for loss of pursuant to against the United States non-economic including the loss of (FTCA), Act 28 U.S.C. Federal Tort Claims comfort, affection, his father’s society, pro- 1346(b), seq. On October et §§ tection and advice. Kathleen Eubanks and daughters, Don- two Mr. Schwarder’s Donna Schwarder each received an award Schwarder, also na Eubanks and Kathleen $50,000 damages. for non-economic against the wrongful death action filed a the FTCA. Both pursuant to We the district review de novo court’s *4 negligent medi- complaints alleged that the ruling that 28 U.S.C. 2672 does not bar § by to Mr. Schwarder administered cal care wrongful the Schwarder children’s death prox- Linda was the physicians at Loma the States, action. Earles v. United 935 F.2d 19, his death. On March imate cause of 1028, (9th Cir.1991). We also review 1990, ac- court ordered these the district interpretation the district court’s de novo purposes. for all tions consolidated McLinn, of California law. In re 739 F.2d (9th Cir.1984) banc). (en summary for The Government moved proper in- arguing that under a judgment, II 2672, the settle- terpretation of 28 U.S.C. § Harry began wrongful and This case as a agreement by entered into ment against the any subsequent death suit United States. Ab barred Mariis Schwarder sovereign immunity, a of a damages brought by their chil- sent waiver actions wrongful against suit the United denied the Govern- death dren. The district court sovereign 27,1990, the be under the November States would ment’s motion. On does judgment immunity in doctrine. The FTCA court entered a final district sovereign immunity against all children. The dis- waive favor of the Schwarder arising paid death claims from the money ruled that the trict court government negligence of of United States Harry Mariis Schwarder as result Rather, officials. the FTCA waives sover agreement with the United their settlement eign immunity only under circumstances considered in the could not be States however, consistent, language of the section alone. As the phrase in the The underlined is 1. Finley original Supreme language version of Court stated in in the with the provided L.Ed.2d that: 109 S.Ct. 2672 of the FTCA which (1989): any acceptance by such the claimant of statutory con- Under established canons award, compromise, be or settlement shall struction, that Con- "it will not be inferred claimant, and and conclusive on the final laws, consolidating revising gress, the in complete shall constitute effect, change unless such their intended to the United claimant of Concerning clearly expressed.” is intention employee States and Code in of the Judicial the 1948 recodification gave or omission rise whose act Government changes particular, that "no we have stated claim, by subject the same reason of to the presumed policy are to be law or matter. changes language unless an in the revision 2, 1946, August ch. 60 Stat. 812 et Act of changes clearly ex- is intent to make such Thus, added). ver- seq. (emphasis the current pressed.” identical to the 1946 of section 2672 is sion omitted); (citations at "by except claimant” that the words version — U.S. -, -, Wilson, United States of the the 1948 recodification were omitted after cf. (1992) 117 L.Ed.2d of June ch. Judicial Code. See Act ("We acknowledge do not candidly that we government con- No. 773. As the Pub.L. to the happened to the reference what cedes, know surrounding legislative history sec- during revision Attorney [to General sparse does not address the 2672 is tion interpretation any other [B]ecause change statute].... any, lan- purpose, behind this if meaning of the require to stretch the us provision. guage exclusion of the settlement includes, we think now [the statute] words that Congressional intent to the absence of a clear to the Attor likely former reference may that the meaning it ney change of section shuffle.”). simply lost in the change revisionary purpose General from a not infer a plus years law re- person would liable to FTCA case has not private where a with the in accordance law single the claimant vealed case which the United place the act or omission oc- urged apparently interpre- novel Thus, curred. 28 U.S.C. § tation of section 2672. to look to the law of the us FTCA directs appears government rely primari- government official com- ly language on the of section scope mitted the tort determine says agreement a settlement consti- shall sovereign immunity. If the law “any tute a release of claim ... reason private parties state makes liable subject (Emphasis of the same matter.” deaths, then the United States is added). Invoking plain language theory same. liable for the construction, statutory government case, applicable In this law argues phrase “any claim” refers private which makes a tort- California subject claim reason of the same of the feasor to the children deceased liable regardless identity matter of the parent. of their As claimant. acknowl- 377. Because Civ.Proe. See Cal.Code however, edges, parameters “the of the bar provides for a California law ‘by created reason of the sub- same against private of action tort- cause *5 ject language governed by is the matter’ feasors, sovereign immu FTCA waives the employee act omission of the and/or nity against the Schwarder children’s initially gave rise to the If claim.” we wrongful against the death United adopt government’s theory, the were to States. little would have choice but to conclude contest government The does not agreement by that a settlement one claim- Rather, argues government this. the that arising ant bars claim from the same the children’s otherwise valid Schwarder act omission the employee death the FTCA claim gave the rise to initial claim. In other by is the United settlement words, government if a vehicle were agreement executed the between United passen- crash into an automobile with four Mr. & Mrs. Schwarder. The States and gers personal injuries and who sustained agreement, quot- settlement which we have above, language passenger one settled an administrative ed tracks section government, reading 2672 of the FTCA. claim with such a preclude of section 2672 would the other any legislative citing history or Without passengers filing Similarly, if a suit. law,2 government relevant reads case by child run mother were see her over proposition standing 2672 as driver, negligent government the settle- agreement may an settlement that FTCA ment of the child’s action for by FTCA bar an otherwise valid destroy an action for emotion- claimant someone other than the who exe- forty- by government review al The cuted the settlement. Our distress mother. wrong impression government relying in all 2. This a case of first circuits. The is is States, (9th governments' reliance on cases such as Monaco v. United Cir.1981), 661 F.2d (5th denied, Cir.1989); Rodriguez Handy, 873 cert. U.S. 102 S.Ct. v. F.2d 814 Woods, (9th Cir.1987) (1982) and 811 F.2d 487 73 L.Ed.2d 1284 Van Sickel Arevalo v. Pichardo, (6th States, (9th Cir.1960). Cir.), 786 F.2d United F.2d Serra denied, by 93 Monaco and Van Sickel involved claims cert. Serra, (1986) misplaced. re Rodri heirs of individuals who were barred from covering damages against L.Ed.2d 53 by guez un all involved further claims United States and Arevalo States, previously doctrine of v. United who had obtained dam der the Feres individuals (hold (1950) ages FTCA 95 L.Ed. 152 actions U.S. ing awards Serra, Rodriguez the United States is not liable under States. Because Arevalo that injuries exclusively brought serviceperson claims where those are FTCA concerned military already out are who have arise of or incident to individuals obtained service). doc United States Those cases held that the Feres award of from the under FTCA, apply precludes just as it holdings claims the heirs their do not to the trine precludes servicepersons. claims children’s action. Schwarder

H23 however, concedes, that such re- law the rule that a readily claim is bizarre. personal injury sults would be derivative of the decedent’s claim. distinguishes the hypothetical cases present case from those essence, government argues ground the claim here is deriva on the meaning a release of the claim that was settled. The tive of question section 2672 of the A a FTC is claim,” statute, however, says “any not federal, state, rather than law. Our inter Regardless claims.” just “derivative is, course, pretation of section 2672 ini read the term “deriv whether we decide to tially a matter of federal law. McInnes v. statute, crystal it is ative claim” into the California, F.2d Cir. theory finds no government’s that the clear 1991). provisions FTCA, Some how language theory of statu support plain in a ever, incorporate See, e.g., law. tory construction. U.S.C. 2674. We must determine to case, purposes of this we need not For what extent intended make whether a settlement under sec- consider depend effect of a section 2672 settlement operates as a bar to derivative tion 2672 upon ent state law. brought by claimants who are not claims In Montellier v. United 315 F.2d agreement. settlement Even parties (2d Cir.1963), the Second Circuit exam- arguendo that derivative if we assume pre-injury ined the effect of barred, government’s argu- claims are specifically governed by any federal stat- wrong- children’s ment that the Schwarder injury, Prior ute. to his deceased had parents’ their ful death claim is barred signed agreement a release which he personal injury claim settlement of their agreed to “release ... Government of applicable California fails. Under *6 the United States and all its officers ... wrongful death claim Schwarder children’s claim, any from and all claims ... on account of separate and a derivative but a is not any injury death or on account of to independent claim.3 [his] property_” Id. at 184 n. or [him] [his] consider the arguing that we should determining 2. In the effect of this release wrongful children’s death claim Schwarder wrongful brought by death action on a parents’ personal of their to be derivative children, to the Second Circuit looked state claim, government the contends that injury reasoned that the release law. of another a claim is derivative whether a circumstance which must be taken question is a federal that must be section which into account under to the law of the without reference decided to the ex- makes the United States liable the release was executed. state which person be liable “un- private tent a would Because, California, unlike some states Montellier, 315 like circumstances.” der wrongful de- death claim be consider release would F.2d at 185. Because the personal injury of a rivative private individual adopt not have immunized a government have us as federal that, of a cause of action continuation or revival contends even if state 3. The death, but governs scope existing before his of section 2672’s exclu- in the decedent law liability, original California law does not main- distinct cause of sion of is an and wrongful separate representa- granted personal death action is tain that a to the heirs injured party’s independent claim. We from the recover sus- tives of the decedent to government’s argument reject by by reason of tained them children's death action Schwarder death of the decedent. per- separate parents’ action for from their Sickel, not an extension of F.2d at 90. As Van law. The chil- sonal under California permit principle, does not "California Sec- death claim is created dren’s compromise contract his surviv- decedent to Code of Civil Proce- tion 377 of the California recovery. Any right limi- ors’ (West Civ.Proc. 377 § dure. See Cal.Code decedent, on with tation based therefore, contract Supp.1992). previously held that: We have & application against sur- have no can In re Aircrash in law." granted by vivors under California Section 377 to of action the cause Bali, April F.2d representatives Indonesia on personal of a heirs and omitted). (citations (9th Cir.1982) or a in character decedent is not derivative conclude, matter of federal as a We action under wrongful death from administrative settlement that an law, the Second Circuit state applicable 2672 bars fur pursuant to section reached an action such not bar held that it did settling party, without claims ther States. against the United it have as a to the effect would regard view of adopted a similar has circuit Our a construction matter of state law. Such release on an pre-injury aof the effect 2672, and meaning all of section gives Transport Associates Air claim. In FTCA Congressional in apparent effectuates Cir. 221 F.2d 467 v. United procedure, inde provide a tent uniform 1955), said: we law, by underlying pendent of specifical- Act Tort Claims The Federal tort claims government can settle place law of ly adopts the against it. law accordance as the occurs accident However, persuaded that section we are liability is to be determined. directly the effect of not control 2672 does proper state law adoption This persons other than a settlement the creation only as to applies infer a may not settling party. Because we as to but also lan- unexplained revisionary purpose from liability. 1948 reco- changes introduced in the guage added). (emphasis at 471 Code, Finley, 490 of the Judicial dification however, Transport, Air Montellier read at decision because control our do not only “by a release 2672 to effect not obtained cases were in those releases may he or she any claims the claimant” statutory specific federal pursuant supra note 1. state law. have contrast, Harry and Mariis By provision. per- of other respect to claims With set- an administrative Schwarder obtained sons, has a section 2672 settlement to 28 U.S.C. pursuant tlement it is a release: effect as other same provides that: specifically That section taken must be circumstance which relevant acceptance determining the claimant into account award, or settlement compromise, under state law. is liable such United States claim- on the and conclusive shall be final therefore, hold, that state law We complete re- constitute a ant, and shall *7 the effect of governs question of United any claim of lease per of on claims 2672 release section subject of the same by reason ... States settling claimant. Con than the sons other matter. the con to define plainly intended gress by reference to “tort claim” of a rules of statu tours the cardinal of One think 2674. We must, 28 U.S.C. possi if state § we law. is that tory construction Congress must follows that logically it parts of statute. ble, to all give effect the re necessarily to define intended De la have Loan v. & Ass’n Fidelity Fed. Sav. tort claims 3014, lationship between state Cuesta, 458 U.S. Moreover, if we state law. (1982); to reference 664 see also Unit L.Ed.2d government’s view adopt the Mehrmanesh, were 689 F.2d to ed States of is derivative one state law claim Cir.1982). explained in Montel- whether (9th As law claim is a federal state law another the United lier, agreement between any rule of decision would question, the federal party injured and the States the law of always to coincide have with bar suit which would circumstance relevant expansive view of most has the If the state that by state provided law. extent to the otherwise, claims; of entirely to be “derivativeness” is not quoted above provision in liable could itself find addi United States given it must be some superfluous, not.4 are private individuals states where effect. tional case, private indi- greater than government given to adopt in 4. If we were to provides state law states in those law, deriva- viduals claim X is not rule that federal Because claim Y. derivative Y, X is expose the that claim then we would of claim tive

H25 agreement, Injury violates the Medical relies on Ramirez government The (MI- (9th Reform Act of 1975 States, Compensation Cir. 567 F.2d v. United 3333.2, ought CRA), to 1977) that we Cal.Civ.Code which limits the proposition for FTCA, damages provisions of for non-economic interpret all the amount 2674, by refer negli- of section exception in on medical the sole losses based government $250,000. federal law. government ence to con- gence to ques broadly. The sole reads Ramirez too children’s award tends the Schwarder questions of $250,000 damages in tion Ramirez was for non-economic vio- provi the exclusion interpretation MICRA, Harry under and Mariis lated because the FTCA $285,000 already sions had received Schwarder found at 855- law. Id. federal are controlled settlement for medical their administrative Ramirez, however, they held are. negligence. 56. We interpretation speak questions did not argument. reject government’s We good For provisions. other FTCA under provides, 3333.2 California Civil Code § hold had extended its If Ramirez reason. part, that: relevant it provisions, remaining FTCA ing to the (a) action for In Supreme conflicted with would have profession- provider care based on health decision Williams Court’s injured plaintiff shall negligence, al 100, 100L.Ed. States, 350 U.S. loss- to recover non-economic be entitled Williams, curiam). our In (1955) (per pain, suffering, in- compensate es to for “acting language interpreted had convenience, disfig- physical impairment, duty” in section in line of dam- nonpecuniary and other urement federal law. FTCA5 reference age. F.2d v. United Williams (b) action shall amount In no Cir.1954). reversing, the (9th In 807-809 exceed for non-economic losses damages interpret us to Supreme Court instructed dollars fifty two thousand hundred law. to California phrase reference ($250,000). 100; Williams, 76 S.Ct. at 1992). 3333.2(a) (West (b)& Cal.Civ.Code§ States, 352 v. United see also Williams on This noneconomic limitation (5th Cir.1965). light of the In F.2d against the United States applies to suits Congress question left the wheth fact that negli professional under FTCA military member of the United er a U.S., F.2d gence. Taylor v. duty vagaries acting in line of denied, Cir.1987), (9th cert. 1431-32 impute to decline L.Ed.2d 510 992, 108 S.Ct. govern law federal the intent have States, 767 (1988); v. United tort relationship two state-created between Hoffman Cir.1985). 1431, 1437 F.2d Thus, winning under Ra far claims.

mirez, loses based an action *8 courts negligence, Williams. the California medical limit of 3333.2’s that section have held Ill recovery of non- $250,000 refers to the plaintiffs damages by all of argues that economic government The recovery not and to the aggregate, chil in to the Schwarder awarded the amount v. Pol- Yates plaintiff. each individual damages, com of when dren non-economic Cal.Rptr. lock, Cal.App.3d Harry to awarded the amount bined with injured each (1987). in settlement “[W]hile their Mariis Schwarder claim is that has held that contrary least plainly one would be such a result claim. of another derivative of the FTCA mandate minimum, that, provides at a liability the Unit- governs the any greater than a exposed 5. Section not be by a a tort committed individual, always the case of ed States in private we would have military forces of or naval member that a certain adopt law the rule as federal long United States. claim so of another claim is derivative wrongful joint, action is a death to seek non-economic plaintiff is entitled “[w]hile one, recovery permitted loss of consor- single maximum and indivisible damages, the malpractice is separate independent medical any single tium is $250,000, the number regardless personal injury.” spouse’s from a claim for (emphasis add- Id. plaintiffs involved.” ed). explained the reason- Yates Applying both Yates and Atkins to rule as follows: ing behind this matter, recovery hold that the instant obviously Legislature was Since by Harry and Mariis Schwarder obtained precedent has consist- that “case aware by him personal injury suffered ‘only ently held one action [can] recovery limit the of the Schward- does not wrongful per- of a brought for separate action for er children in their multiple actions thereby preventing son Accordingly, death. we conclude personal rep- heirs and the by individual separate had a that the Schwarder children “the cause of ...” and that resentative’ $250,000 was not exceeded limit of con- wrongful death has been action for damage by the district court in its award. one, joint sistently as ‘a characterized AFFIRMED. one’ ...” single one and an indivisible its use of the can but conclude

... we repre- in section 3333.2 ALARCON, word “action” Judge, concurring in Circuit to limit the conscious decision sents its part. part dissenting for non-economic loss recovery total case question we must decide $250,000. such suits Congress procedural- a narrow one. Has 200-01, (citations Cal.Rptr. at 386 Id. at maintenance of a ly barred the omitted). Thus, under California law death action the decedent’s survivors group could not children as Schwarder previously the deceased or his estate when $250,000in than non-economic receive more physical injuries with settled the claim for wrongful death of their fa- losses for respectfully the United States? I dissent ther. majority’s may that we from the conclusion assertion, government’s Contrary to the imply by Congress intent to waive the an require however, law does not California sovereign immunity of the United States $285,000awarded to any portion of the under such death actions be counted Harry and Mariis Schwarder contrary, To the in enact- circumstances. the limit on non-economic toward 2672, Congress precluded an ing section children’s limit on the Schwarder the de- wrongful death claim where heir’s horn, Stray action. Atkins estate entered into a cedent or his or her (1990), Cal.Rptr. Cal.App.3d agreement with settlement negligence for medical an action involved majority’s I concur in the conclu- States. injured plaintiff and a suit brought if children’s sion that the Schwarder plaintiff’s for loss of consortium proper under sec- wrongful death action is argued the com defendant wife. The by the dis- the amount awarded tion the wife recovery of the husband and bined the Medical trict court does violate $250,000, by section 3333.2 limited Act of 1975 Injury Compensation Reform single “a arose from both claims because (MICRA), 3333.2. Cal.Civ.Code § professional incident” of injury-causing *9 Cal.Rptr. at 273 negligence. Id. at Immunity— Sovereign I. Waiver of rejected argument this The 238. by Feder- Exclusions are Controlled each and wife were held that the husband al Law $250,000, up to because entitled to recover ap- of this discussing the merits Before of consortium action was the wife’s loss consider the law that peal, must first we physically the action of her independent of clear that federal applies to this case. It is Cal.Rptr. 273 spouse. Id. at injured aspects of a procedural all governs holding law distinguished its at 239. The court Act Tort Claims the Federal ground that claim under on the from that in Yates H27 plain- suit the United States. The (“FTCA”). federal district Under damages procedurally barred. court awarded under the FTCA. claims are tiffs Id. at 81 S.Ct. at 1297. The Govern- immunity, sovereign “Absent a waiver appealed judgment ment from the on the immune from is the Federal Government ground the claim was barred 28 Frank, 486 U.S. v. suit.” Loeffler 2680(h), precludes recovery U.S.C. § 1965, 1968, 100 L.Ed.2d 549 108 S.Ct. “ ‘[a]ny arising under the FTCA for Fidelity Savings, Meyer v. (1988); see also ” Id. misrepresentation.’ (quot- out of ... Cir.1991) (9th (quoting 944 F.2d 566 2680(h)). ing 28 U.S.C. Fourth Cir- § limited Loeffler). The FTCA constitutes award, holding cuit affirmed the immunity caused waiver 2680(h) plain- that section did not bar wrongful act or omission negligent or “the misrepresentation tiff’s claim because of the Government while any employee “merely this case was incidental” to the scope of his office or acting within (4th negligent appraisal. 281 F.2d 1346(b); see 28 U.S.C. employment.” Cir.1960). In holding, so the court relied Orleans, v. also United States 425 U.S. York decision New Court of 1971, 1975, 807, 813-14, 48 L.Ed.2d Shepard, v. Glanzer Appeals 233 N.Y. (1976) (noting that the waiver of immu- (1922). Id., at In 135 N.E. subject to various nity under the FTCA is Glanzer, weigher public was held liable limitations). determining In whether negligently weigh for a inaccurate certifi- engaged in tor- government employee has merely cate “not ... for careless words but for which the United States tious conduct performance of the act of careless suit, provides consented to the FTCA has Neustadt, weighing.” 281 F.2d at 601. that: Supreme judg- Court reversed the liable, shall be re- The United States ment the United States. 366 U.S. provisions of this title relat- specting the respect at 81 S.Ct. at 1302. With claims, in the same manner ing tort Glanzer, Fourth Circuit’s reliance on private and to the same extent as commented as follows: the Court under like circumstances. individual analysis accords Whether or this added). (emphasis “As 28 U.S.C. § have seen with the law States which clear, the extent provision makes ... analogous recovery fit to allow liability under the of the United States’ circumstances, ques- it does not meet the generally determined reference FTCA this claim is outside the tion of whether States, United to state law.” Molzof scope Federal Tort intended — U.S. -, -, S.Ct. Act, solely upon depends Claims (1992). L.Ed.2d 731 language it meant what governs scope of Although state law 2680(h). used in § substantive tort liability, the United States’ (foot- 705-06, 1299-1300 Id. at 81 S.Ct. at statutory and com- to federal we must look omitted). note a claim is mon law to determine whether Ramirez, Neustadt applied in our In excluded under the procedurally barred or Neustadt, 2860(h). 567 F.2d interpretation of section States v. FTCA. United determining a medical 1294, 1299-1302, In 696, 705-11, at 856. procedurally (1961); malpractice claim Ramirez L.Ed.2d 614 FTCA, guiding States, (9th Cir.1977) (en we stated under the F.2d “Questions inter- principle as follows: banc). provisions the exclusion pretation under Neustadt, plaintiffs were induced In (citing by federal law.” are controlled price in excess of purchase a home at a 705-06, 81 Neustadt, at S.Ct. value, negligent based on a the fair market 1299-1300). home made inspection appraisal of the F.2d v. United Woods Housing employee of the Federal by an Cir.1983), decid- *10 we stated (FHA). 1451 366 U.S. at 698- Administration constituted a conduct ing certain Plaintiffs filed whether at 1296-97. 1128 Tort II. Exclusion Certain Claims in the exclu- is used

battery, that term of Section Under 2680(h), we of section sionary provisions law, and apply federal compelled to were must look to Having determined that we battery a within “not what constitutes wrong- whether a federal law to determine n. at 1458 law.” Id. meaning procedurally of California ful death action is un- the decedent settled the FTCA because der plain we first consider lan- his that Ramirez and holds majority ambiguous, If it is guage of the statute. to the inter- limited must be cases similar legislative histo- must look to relevant we provisions in sec- the exclusion pretation of law, accepted prin- ry, federal common in order to avoid a FTCA of the tion 2680 statutory construction to deter- ciples of Supreme Court’s decision with conflict Congress. the intent of See Smith mine States, 350 U.S. v. United in Williams (9th States, F.2d United (1955) (per L.Ed. 761 Cir.1991) language of the (relying on Williams, the vacated a curiam). Court In statute, legislative case federal interpreting the of this decision meaning history of to determine duty,” line of found “acting in the phrase “foreign country” ambiguous term under FTCA, pursuant to 2671 of in section FTCA). 2680(k) of section remanded the The Court law. Id. federal determining a In interpret instructions case with by section 2672 action is death excluded doctrine according to the California phrase sovereign immunity by of from the waiver respondeat superior. States, must resolve the United we in favor of the ambiguity in the statute assertion, the majority’s Contrary to the “It is well established that United States. the instant mat- application of Ramirez immunity its sovereign a when surrenders a conflict with create ter does not statute, a statute by from suit such must issue Section Williams. strictly construed the surrender section Williams, purely is a definitional Rentals, immunity.” Bat Inc. v. of such immunity under sovereign waiver States, (9th F.2d Cir. United purport to exclude It does not the FTCA. States, 1973); Love v. United see also contrast, coverage under the FTCA. (same). (9th Cir.1991) If the F.2d express exclusion section 2672 contains an the surviv plain of section 2672 bar words where the dece- the FTCA liability cause of action be ors’ death agree- a settlement into has entered dent decedent, Schwarder, the set Harry cause ment. injury claim with the personal tled his clear, totally that are not For reasons Government, the district we must reverse Montellier v. United majority has cited hand, If, the other the words are court. on (2d Cir.1963),and Air States, F.2d 180 clear, determining intent of then v. United strictly construe Transport Congress Associates must Cir.1955) opinion. sovereign in its preclude waiver 221 F.2d 467 a concedes, by survivors immunity Montellier from claims follow majority both theAs phys by person whose ing a settlement concerned Transport were Air directly by caused ical were release of pre-injury a effect of employee of the United States. tort of an subsequent wrongful on the victim The FTCA his survivors. pertinent part provides Section 2672 gov- express provision not contain does agency or Federal head of each that “[t]he pre-injury releases erning the effect may settle claim designee ... ... In section the victim’s survivors. money damages claims United explicitly precluded or personal ... States the victim or act or negligent against the States caused agency.” any employee by United omission a tort committed that: provides Section employee settles claim.

H29 acceptance by any the claimant common law. See Insurance v. Co. final Brame, (5 Otto) 754, ... settlement shall be and conclu- 756, 24 L.Ed. claimant, sive on the and shall consti- (1877) (“[A]t the common law no civil complete tute a release claim action injury lies for an results against against the United States party injured.”) death of the Under this employee whose act doctrine, harsh a tortfeasor whose conduct gave or omission rise to the caused death was immune from civil liabili- subject reason the same matter. ty. survived, If the victim he or she had a added). (emphasis Section 2672 makes a damages. cause of action for against settlement “final and conclusive” remedy injustice, England enacted the brought by an action the claimant for his or Act, Fatal Accidents also known as Lord personal injury, her or a claim filed his Campbell’s Act which created separate a injury or her estate if the caused death. cause of action for the survivors of a dece- ambiguity prohibition There is no in the dent who was victim of a tort against brought by person a claim who caused his or her death. 9 & 10 c. Viet. 93. physically injured or his or her wrongful Similar death statutes were sub- estate. Section 2672 also bars claim sequently every enacted in American state. “by subject reason of the same matter.” Speiser, Recovery See Wrongful meaning of these is not clear. words Death, Appendix (2d 1975). A ed. “by subject reason of the same The words majority A of the state courts that have interpreted could be to bar the matter” question considered the have held a bringing of a cause. of action for the bring wrongful survivor cannot a death wrongful person physically in- death of a action if the decedent was jured by employee an of the United States. lifetime, doing wrong- so in his because the interpreted The same term could also be essentially ful death claim is derivative of only brought by a claim the estate of bar decedent. William decedent, preclude and not to Keeton, Page Prosser & W. Law Torts separate injury to members of (footnotes omitted) (“The 127 at 955 person’s family wrong- that flows from the ful death of the decedent. action for the death benefit of is, like survivors other actions based duty Mindful of our to construe the am- others, nature, injuries derivative aris- biguous against terms of section 2672 ing dependent upon wrong out of and sovereign immunity, must surrender injured person done to the and thus barred procedural regarding law first examine barred.”). when his claim would be “[A] the maintenance of a death claim in an judgment for or the decedent existed in 1948 at the time it during his commenced “any adopted the bar to the maintenance of lifetime, compromise his or the claim” the United States after a action, operate Act of such as a settlement has been effected. See will bar upon ch. Pub.L. No. 773. any subsequent June suit founded (footnotes omitted); death.” Id. see Wrongful III. Survivors’ Death Co., 447 F.2d v. Southern Walrod Pacific Procedurally are Claims Barred Cir.1971) (applying Arkansas by Decedent’s Settlement law); Puget Frescoln v. Traction, Co., Light Power Sound & law, a tort victim’s cause of At common (D.C.Wash.1915) Washing (applying F. upon extinguished his or her action was law); Iron ton Woodward Butcher, K.B. Higgins death. Ala. 53 So.2d 586 Craig, Co. Eng.Rep. English common Yelv. 61. (1951); Ab First Nat’l Bank v. Simmons recognize separate did not cause law (1986); bott, 288 Ark. 705 S.W.2d action in the decedent’s survivors for Torello, A. 987 87 Conn. Bolton, Kling v. wrongful death. Baker v. N.P. (1913); Philadelphia, Baltimore Perry v. Camp. Eng.Rep. Co., 24 Del. 77 A. Washington R.R. part These rules became a of American & *12 1130 Services, Hospital v. Id. But see Inc. v. (1910); Variety Sea-Land Children’s 725 Gaudet, 573, 806, Foun (Fla.1983); 39

Perkins, 1010 So.2d 445 (1974) (adopting minority Breed, 669, Ill.Dec. L.Ed.2d 9 rule for Ill.App.3d 74 tas v. 118 (Ill.App.Ct.1983); Per involving injured cases seamen in territori- 170, 200 455 N.E.2d waters). Nashville R.R. al v. Louisville & ry’s Adm’r Har (1923); Co., 396, 202 Ky. 251 S.W. 199 barring The rationale for a claim for Co., Ill Miss. R.R. ris v. Illinois Cent. if the decedent or his or v. Cen (1916); Schmelzer 623, 71 So. 878 her estate entered into a settlement is to Co., 12, Furniture 252 Mo. 158 S.W. tral recovery for the same tortious avoid double Sulpho Hindmarsh v. Saline (1913); 353 conduct. Harper, 4 F. F. James & O. Co., 168, 806 Bath 187 N.W. 108 Neb. Torts, Gray, The Law p. 24.6 at 473 York Cent. & Kelliher v. New (1922); 1986) (“The policy ed. vital behind [this Co., 207, 105 N.E. Hudson R.R. 212 N.Y. certainly part prevention ... rule] Chemi Edwards v. Interstate (1914); 824 wrong recovery.”). Allowing a of double 551, (1916); Corp., 170 N.C. 635 cal 87 S.E. proceed the dece ful death action to where (Okla.1972); Luethje, Haws v. P.2d 871 503 already dent has settled or for recovered Co., 33 556, v. Richmond & D.R. Price S.C. injuries, gives possibility that his rise to Louis (1890); St. Southwestern 413 12 S.E. damages already the heirs will receive ob 217, Ry. Hengst, v. Tex.Civ.App. 81 Co. 36 by the decedent: tained Britton, Legg v. (1904); 64 Vt. 832 S.W. If ... deceased recovers before [the] (1892); Virginia Electric & 652, 24 A. death, inju- recovery permanent Decatur, 153, v. Power Co. Va. based, prevailing ries will be under Roussalis, v. (1939); Parsons S.E.2d 172 rule, prospective on his earn- American (Wyo.1971). 488 P.2d 1050 ings expectan- of his life balance undimin- cy injury at the time of his majority precluding The rule by any shortening expect- that ished by the of a tort death action survivors ancy as a result The .... victim, record shows that where the danger recovery becomes clear double into a settlement for his decedent entered any monetary when it is recalled that adopted by the fed- injuries, has also been the survivors were benefits of which recovery under certain eral courts to bar probably deprived the death would have Goodyear, In Mellon v. federal statutes. very prospective of these earn- come out 72 L.Ed. 906 S.Ct. lived_ pre- if ings deceased had (1928), Supreme example, Court justi- vailing rules seem therefore release of all held that a settlement and fied, at least in absence of effective injured employee into claims entered prevent recovery. safeguards double Act, Liability Employers’ the Federal subsequent wrongful omitted) death action (footnotes (emphasis barred a at 475-76 Id. at by his original). survivors. explained its decision 544. The Court states have and six other California

follows: permits that survivors to adopted a rule overwhelming weight judicial By. the a cause of action for maintain authority, a statute of the nature death, notwithstanding the fact Campbell’s gives Act in effect of Lord decedent, settled the or his or her estate right damages for the Blackwell v. to recover benefit the tortfeasor. Co., depends upon dependents, remedy P. American Film 189 Cal. Davis, at the time Goodyear v. (1922); the existence the decedent 114 Kan. New (1923); Dougherty right action to recov- of his death of a P. 282 Co., Railway Light by the Orleans & injury. er for such A 133 La. settlement Sarno, person, (1913); 87 N.J. wrongdoer injured with the 63 So. 493 Alfone Hart v. mistake, (1981); pre- or 432 A.2d De the absence fraud Co., App. Fuel Gas personal repre- 84 Ohio Ohio any remedy by the cludes Kaczorowski v. Kalko (1948); the same N.E.2d 586 upon sentative based sinski, (1936); 438, 184 A. 663 321 Pa. act.

H3J preclude contrary that a conclusion Richards, 151 N.W. 35 S.D. Rowe v. persons physically injured who were courts have other (1915). ig- by from recover- minority rule “have either the same tortious conduct adopted this if entered ing damages the double one victims aside nored or brushed agreement. at 866. 432 A.2d The district Alfone, into settlement problem.” *13 hypothetical question. posed this court action under wrongful death permit a To Suppose persons injured are when a the facts show that FTCA where postal hits a bus. Would section truck physi- for or her claim settled his decedent interpreted by 2672 as the Government bar presume that to have injuries, we would cal recovery by passengers the other where majority reject intended Congress passenger already had settled? The one when it such actions precludes rule that persuaded that such a district itself accept- 2672 that in section stated “[t]he if it that result would follow held any ... settlement claimant of by the ance injured an by death claims the heirs of complete shall constitute ... person settled his or her claim were who sub- of the same reason any claim ... conclusion, the reaching this barred. words, in viewed These when matter.” ject confused a district court rule, appear majority light of the tort, which, although separate is a opposite conclusion. precisely the compel solely the tortious claim that arises from however, meaning of that Assuming, injured dece- physically conduct that Supreme ambiguous, the is these words dent, physical inju- claims for direct with strictly must that we has instructed Court simultaneously by more than ries suffered in statutory language favor construe person as a result of the same tortious one sovereign immunity of the preserving the country majority rule this conduct. United States. wrongful death if the recovery for bars in its inter law By applying California No settled his or her claim. decedent has majority has pretation of section however, purport- has jurisdiction, or requirement that a confused FTCA’s recovery persons for who were ed to bar applied, law substantive tort be state’s by the tortious con- physically injured same federal law must be requirement that sure that court would duct. I am determining a claim followed argu- if reject result ever that absurd Neu procedurally or barred. excluded from precluded We are ment were made. 705-06, 81 at 1299- stadt, S.Ct. 366 U.S. Congress so interpreting the words used ma 1300; Ramirez, at 856. The 567 F.2d meaning. Pub- a distorted give as to them the United holding exposes jority’s Justice, 491 Department lic Citizen requirements procedural to different tort the state which the depending on (1989). L.Ed.2d 377 This violates the result well-es- occurred. fash- policy procedural rules that majority tablished rule which Application uniformly must be by federal courts ioned sur- wrongful death claim precludes Ins. Mutual applied. Massachusetts settled the decedent has vivors where Life Russell, 157 n. v.Co. protect injury claim would personal (1985) 87 L.Ed.2d 96 3098 n. S.Ct. physi- paying United States twice (“ J., concurring) (Brennan, ‘Where ma- person. to one cal Under required themselves fashion courts are rule, tort victim survivors of a jority decision, that the source rule of federal lost be able recover would not ” (quot- and uniform.’ must federal law decedent, the dece- support Chemical, Inc. v. Columbus ing Wayne compensation already received dent had F.Supp. Corp., Agency Service contributed wages that would have any lost (N.D.Ind.), other or her survivors. support of his modified to the Cir.1977)). 567 F.2d grounds, expressly has not Because rule, required minority are adopted concluded section The district court not intend Congress did to conclude to file a permits survivors recovery in absence allow a double action, notwithstanding the settle- liability. of such express waiver decedent, on its based concern ment

Conclusion court’s con- the district

I would reverse permits the heirs

clusion that section his or previously settled

of a decedent who I wrongful death claim.

her to file a contained in the exclusion

would construe Congress’ reflection of 2672 as a procedures (1) the same to have

intention in each FTCA action uniformly

apply state, (2) of sover- to limit the waiver

every *14 (3) to bar double recov-

eign immunity, and by applying

ery against the United precludes an heir majority rule prosecuting his or her claim. To

if the decedent settled majority’s reflected in the

reach the result ignore

opinion, we must well-established construction, statutory governing

rules ambiguous language in construe favor of sovereign immunity by the Unit-

waiver of Congress in-

ed and conclude that adopt minority

tended silentio sub concerning the effect of a settlement

rule thereby

upon wrongful paying to the risk of

expose taxpayers I am the same tortious conduct.

twice for

unwilling presume folly.

intend such PERVELER,

Paul Samuel

Petitioner-Appellant, ESTELLE, Warden;

Wayne Board of Terms; Koenig, E.

Prison Ron

Respondents-Appellees.

No. 90-56314. Appeals, States Court

Ninth Circuit. Dec. 1991.*

Submitted Sept.

Decided * 34(a). Fed.R.App.P. appropriate panel for submis- Cir.R. 34-4 finds this case argument pursuant to 9th sion without oral