Lead Opinion
delivered the opinion of the Court.
This case requires us to decide when a contractor providing military equipment to the Federal Government can be held liable under state tort law for injury caused by a design defect.
I
On April 27, 1983, David A. Boyle, a United States Marine helicopter copilot, was killed when the CH-53D helicopter in which he was flying crashed off the coast of Virginia Beach, Virginia, during a training exercise. Although Boyle survived the impact of the crash, he was unable to escape from the helicopter and drowned. Boyle’s father, petitioner here, brought this diversity action in Federal District Court against the Sikorsky Division of United Technologies Corporation (Sikorsky), which built the helicopter for the United States.
The Court of Appeals reversed and remanded with directions that judgment be entered for Sikorsky.
Petitioner sought review' here, challenging the Court of Appeals’ decision on three levels: First, petitioner contends that there is no justification in federal law for shielding Government contractors from liability for design defects in military equipment. Second, he argues in the alternative that even if such a defense should exist, the Court of Appeals’ formulation of the conditions for its application is inappropriate. Finally, petitioner contends that the Court of Appeals erred in not remanding for a jury determination of whether the ele
HH
Petitioner s broadest contention is that, in the absence of legislation specifically immunizing Government contractors from liability for design defects, there is no basis for judicial recognition of such a defense. We disagree. In most fields of activity, to be sure, this Court has refused to find federal pre-emption of state law in the absence of either a clear statutory prescription, see, e. g., Jones v. Rath Packing Co.,
The dispute in the present case borders upon two areas that we have found to involve such “uniquely federal interests.” We have held that obligations to and rights of the United States under its contracts are governed exclusively by federal law. See, e. g., United States v. Little Lake Misere Land Co.,
Another area that we have found to be of peculiarly federal concern, warranting the displacement of state law, is the civil liability of federal officials for actions taken in the course of their duty. We have held in many contexts that the scope of that liability is controlled by federal law. See, e. g., Westfall v. Erwin,
We think the reasons for considering these closely related areas to be of “uniquely federal” interest apply as well to
Moreover, it is plain that the Federal Government’s interest in the procurement of equipment is implicated by suits such as the present one — even though the dispute is one between private parties. It is true that where “litigation is purely between private parties and does not touch the rights and duties of the United States,” Bank of America Nat. Trust & Sav. Assn. v. Parnell,
That the procurement of equipment by the United States is an area of uniquely federal interest does not, however, end the inquiry. That merely establishes a necessary, not a sufficient, condition for the displacement of state law.
In Miree, supra, the suit was not seeking to impose upon the person contracting with the Government a duty contrary to the duty imposed by the Government contract. Rather, it was the contractual duty itself that the private plaintiff (as third-party beneficiary) sought to enforce. Between Miree
The present case, however, is at the opposite extreme from Miree. Here the state-imposed duty of care that is the asserted basis of the contractor’s liability (specifically, the duty to equip helicopters with the sort of escape-hatch mechanism petitioner claims was necessary) is precisely contrary to the duty imposed by the Government contract (the duty to manufacture and deliver helicopters with the sort of escape-hatch mechanism shown by the specifications). Even in this sort of situation, it would be unreasonable to say that there is always a “significant conflict” between the state law and a federal policy or interest. If, for example, a federal procurement officer orders, by model number, a quantity of stock helicopters that happen to be equipped with escape hatches opening outward, it is impossible to say that the Government has a significant interest in that particular feature. That would be scarcely more reasonable than saying that a private individual who orders such a craft by model number cannot sue for the manufacturer’s negligence because he got precisely what he ordered.
In its search for the limiting principle to identify those situations in which a “significant conflict” with federal policy or interests does arise, the Court of Appeals, in the lead case
There is, however, a statutory provision that demonstrates the potential for, and suggests the outlines of, “significant conflict” between federal interests and state law in the context of Government procurement. In the FTCA, Congress authorized damages to be recovered against the United States for harm caused by the negligent or wrongful conduct of Government employees, to the extent that a private person would be liable under the law of the place where the conduct occurred. 28 U. S. C. § 1346(b). It excepted from this consent to suit, however, \
“[a]ny claim . . . based Upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U. S. C, §2680(a).
We think that the selection of the appropriate design for military equipment to be used by our Armed Forces is assuredly a discretionary function within the meaning of this provision. It often involves not merely engineering analysis but judgment as to the balancing of many technical, military, and even social considerations, including specifically the trade-off between greater safety and greater combat effectiveness. And we are further of the view that permitting “second-guessing” of these judgments, see United States v. Varig Airlines,
We agree with the scope of displacement adopted by the Fourth Circuit here, which is also that adopted by the Ninth Circuit, see McKay v. Rockwell Int’l Corp., supra, at 451. Liability for design defects in military equipment cannot be imposed, pursuant to state law, when (1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States. The first two of these conditions assure that the suit is within the area where the policy of the “discretionary function” would be frustrated — i. e., they assure that the design feature in question was considered by a Government officer, and not merely by the contractor itself. The third condition is necessary because, in its absence, the displacement of state tort law would create some incentive for the. manufacturer to withhold knowledge of risks, since conveying that knowledge might disrupt the contract but withholding it would produce no liability. We adopt this provision lest our effort to pro
We have considered the alternative formulation of the Government contractor defense, urged upon us by petitioner, which was adopted by the Eleventh Circuit in Shaw v. Grumman Aerospace Corp.,
Ill
Petitioner raises two arguments regarding the Court of Appeals’ application of the Government contractor defense to the facts of this case. First, he argues that since the formulation of the defense adopted by the Court of Appeals differed from the instructions given by the District Court to the jury, the Seventh Amendment guarantee of jury trial required a remand for trial on the new theory. We disagree. If the evidence presented in the first trial would not suffice, as a matter of law, to support a jury verdict under the properly formulated defense, judgment could properly be entered for the respondent at once, without a new trial. And that is so even though (as petitioner claims) respondent failed to
It is somewhat unclear from the Court of Appeals’ opinion, however, whether it was in fact deciding that no reasonable jury could, under the properly formulated defense, have found for the petitioner on the facts presented, or rather was assessing on its own whether the defense had been established. The latter, which is what petitioner asserts occurred, would be error, since whether the facts establish the conditions for the defense is a question for the jury. The critical language in the Court of Appeals’ opinion was that “[b]ecause "Sikorsky has satisfied the requirements of the military contractor defense, it can incur no liability for . . . the allegedly defective design of the escape hatch.”
Accordingly, the judgment is vacated and the case is remanded.
So ordered.
Notes
Justice Brennan’s dissent misreads our discussion here to “inti-mat[e] that the immunity [of federal officials] . . . might extend . . . [to] nongovernment employees” such as a Government contractor. Post, at 523. But we do not address this issue, as it is not before us. We cite these cases merely to demonstrate that the liability of independent contractors performing work for the Federal Government, like the liability of federal officials, is an area of uniquely federal interest.
As this language shows, Justice Brennan’s dissent is simply incorrect to describe Miree and other cáses as declining to apply federal law despite the assertion of interests “comparable” to those before us here. Post, at 521-522.
We refer here to the displacement of state law, although it is possible to analyze it as the displacement of federal-law reference to state law for the rule of decision. Some of our cases appear to regard the area in which a uniquely federal interest exists as being entirely governed by federal law, with federal law deigning to “borro[w],” United States v. Little Lake Misere Land Co.,
Even before our landmark decision in Clearfield Trust Co. v. United States,
“It cannot be doubted that both the state and the federal [alien] registration laws belong ‘to that class of laws which concern the exterior relation of this whole nation with other nations and governments.’ Consequently the regulation of aliens is . . . intimately blended and intertwined with responsibilities of the national government.... And where the federal government, in the exercise of its superior authority in this field, has enacted a complete scheme of regulation and has therein provided a standard for the registration of aliens, states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations.” Hines v. Davidowitz,
Justice Brennan’s assumption that the outcome of this case would be different if it were brought under the Death on the High Seas Act, Act of Mar. 30, 1920, ch. Ill, § 1 etseq. (1982 ed., Supp. IV), 41 Stat. 537, codified at 46 U. S. C. App. §761 et seq., is not necessarily correct. That issue is not before us, and we think it inappropriate to decide it in order to refute (or, for that matter, to construct) an alleged inconsistency.
Dissenting Opinion
with whom Justice Marshall and Justice Blackmun join, dissenting.
Lieutenant David A. Boyle died when the CH-53D helicopter he was copiloting spun out of control and plunged into the ocean. We may assume, for purposes of this case, that Lt. Boyle was trapped under water and drowned because respondent United Technologies negligently designed the helicopter’s escape hatch. We may further assume that any competent engineer would have discovered and cured the defects, but that they inexplicably escaped respondent’s notice. Had respondent designed such a death trap for a commercial firm, Lt. Boyle’s family could sue under Virginia tort law and be compensated for his tragic and unnecessary death. But respondent designed the helicopter for the Federal Government, and that, the Court tells us today, makes all the difference: Respondent is immune from liability so long as it obtained approval of “reasonably precise specifications”— perhaps no more than a rubber stamp from a federal procurement officer who might or might not have noticed or cared about the defects, or even had the expertise to discover them.
If respondent’s immunity “bore the legitimacy of having been prescribed by the people’s elected representatives,” we would be duty bound to implement their will, whether or not we approved. United States v. Johnson,
Worse yet, the injustice will extend far beyond the facts of this case, for the Court’s newly discovered Government contractor defense is breathtakingly sweeping. It applies not only to military equipment like the CH-53D helicopter, but (so far as I can tell) to any made-to-order gadget that the Federal Government might purchase after previewing plans — from NASA’s Challenger space shuttle to the Postal Service’s old mail cars. The contractor may invoke the defense in suits brought not only by military personnel like Lt. Boyle, or Government employees, but by anyone injured by a Government contractor’s negligent design, including, for example, the children who might have died had respondent’s helicopter crashed on the beach. It applies even if the Government has not intentionally sacrificed safety for other interests like speed or efficiency, and, indeed, even if the equipment is not of a type that is typically considered dangerous; thus, the contractor who designs a Government building can invoke the defense when the elevator cable snaps or the walls collapse. And the defense is invocable regardless of how blatant or easily remedied the defect, so long as the contractor missed it and the specifications approved by the Government, however unreasonably dangerous, were “reasonably precise.” Ante, at 512.
In my view, this Court lacks both authority and expertise to fashion such a rule, whether to protect the Treasury of the United States or the coffers of industry. Because I would leave that exercise of legislative power to Congress, where our Constitution places it, I would reverse the Court of Appeals and reinstate petitioner’s jury award.
I
Before our decision in Erie R. Co. v. Tompkins,
In pronouncing that “[t]here is no federal general common law,”
Accordingly, we have emphasized that federal common law can displace state law in “few and, restricted” instances. Wheeldin v. Wheeler,
II
Congress has not decided to supersede state law here (if anything, it has decided not to, see n. 1, supra) and the Court does not pretend that its newly manufactured “Government contractor defense” fits within any of the handful of “narrow areas,” Texas Industries, supra, at 641, of “uniquely federal interests” in which we have heretofore done so,
A
The proposition that federal common law continues to govern the “obligations to and rights of the United States under its contracts” is nearly as old as Erie itself. Federal law typically controls when the Federal Government is a party to a suit involving its rights or obligations under a contract, whether the contract entails procurement, see Priebe & Sons v. United States,
In Miree v. DeKalb County, supra, for example, the county was contractually obligated under a grant agreement with the Federal Aviation Administration (FAA) to “ ‘restrict
Miree relied heavily on Parnell, supra, and Wallis v. Pan American Petroleum Corp., supra, the former involving commercial paper issued by the United States and the latter involving property rights in federal land. In the former case, Parnell cashed certain bonds guaranteed by the Government that had been stolen from their owner, a bank. It is beyond dispute that federal law would have governed the United States’ duty to pay the value bonds upon presentation; we held as much in Clearfield Trust, supra. Cf. Parnell, supra, at 34. But the central issue in Parnell, a diversity suit, was whether the victim of the theft could recover the money paid to Parnell. That issue, we held, was governed by state law, because the “litigation [was] purely between private parties and [did] not touch the rights and duties of the United States.”
Here, as in Miree, Parnell, and Wallis, a Government contract governed by federal common law looms in the background. But here, too, the United States is not a party to the suit and the suit neither “touch[es] the rights and duties of the United States,” Parnell, supra, at 33, nor has a “direct effect upon the United States or its Treasury,” Miree,
That the Government might have to pay higher prices for what it orders if delivery in accordance with the contract ex
B
Our “uniquely federal interest” in the tort liability of affiliates of the Federal Government is equally narrow. The immunity we have recognized has extended no further than a subset of “officials of the Federal Government” and has covered only “discretionary” functions within the scope of their legal authority. See, e. g., Westfall v. Erwin,
The historical narrowness of the federal interest and the immunity is hardly accidental. A federal officer exercises statutory authority, which not only provides the necessary basis for the immunity in positive law, but also permits us confidently to presume that interference with the exercise of discretion undermines congressional will. In contrast, a Government contractor acts independently of any congressional enactment. Thus, immunity for a contractor lacks both the positive law basis and the presumption that it furthers congressional will.
Moreover, even within the category of congressionally authorized tasks, we have deliberately restricted the scope of immunity to circumstances in which “the contributions of immunity to effective government in particular contexts outweigh the perhaps recurring harm to individual citizens,” Doe v. McMillan,
In short, because the essential justifications for official immunity do not support an extension to the Government contractor, it is no surprise that we have never extended it that far.
C
Yearsley v. W. A. Ross Construction Co.,
Even if Yearsley were applicable beyond the unique context in which it arose, it would have little relevance here. The contractor’s work “was done pursuant to a contract with the United States Government, and under the direction of the Secretary of War and the supervision of the Chief of Engineers of the United States, ... as authorized by an Act of Congress.” Id., at 19. See also W. A. Ross Construction Co. v. Yearsley,
In a valiant attempt to bridge the analytical canyon between what Yearsley said and what the Court wishes it had said, the Court invokes the discretionary function exception of the Federal Tort Claims Act (FTCA), 28 U. S. C. § 2680(a). The Court does not suggest that the exception has any direct bearing here, for petitioner has sued a private manufacturer (not the Federal Government) under Virginia law (not the FTCA). Perhaps that is why respondent has three times disavowed any reliance on the discretionary function exception, even after coaching by the Court,
Even granting the Court’s factual premise, which is by no means self-evident, the Court cites no authority for the proposition that burdens imposed on Government contractors, but passed on to the Government, burden the Government in a way that justifies extension of its immunity. However substantial such indirect burdens may be, we have held in other contexts that they are legally irrelevant. See, e. g., South Carolina v. Baker,
Moreover, the statutory basis on which the Court’s rule of federal common law totters is more unstable than any we have ever adopted. In the first place, we rejected an analytically similar attempt to construct federal common law out of the FTCA when we held that the Government’s waiver
Here, even that much is an overstatement, for the Government’s immunity for discretionary functions is not even “a product of” the FTC A. Before Congress enacted the FTC A (when sovereign immunity barred any tort suit against the Federal Government) we perceived no need for a rule of federal common law to reinforce the Government’s immunity by shielding also parties who might contractually pass costs on to it. Nor did we (or any other court of which I am aware) identify a special category of “discretionary” functions for which sovereign immunity was so crucial that a Government contractor who exercised discretion should share the Government’s immunity from state tort law.
Now, as before the FTCA’s enactment, the Federal Government is immune from “[a]ny claim . . . based upon the exercise or performance [of] a discretionary function,” including presumably any claim that petitioner might have brought against the Federal Government based upon respondent’s negligent design of the helicopter in which Lt. Boyle died.
Far more indicative of Congress’ views on the subject is the wrongful-death cause of action that Congress itself has provided under the Death on the High Seas Act (DOHSA), Act of Mar. 30, 1920, ch. Ill, § 1 et seq., 41 Stat. 537, codified at 46 U. S. C. App. §761 et seq. (1982 ed., Supp. IV) — a cause of action that could have been asserted against United Technologies had Lt. Boyle’s helicopter crashed a mere three miles further off the coast of Virginia Beach. It is beyond me how a state-law tort suit against the designer of a military helicopter could be said to present any conflict, much less a “‘significant conflict,”’ with “federal interests ... in the context of Government procurement,” ante, at 511, when federal law itself would provide a tort suit, but no (at least no explicit) Government-contractor defense,
IV
At bottom, the Court’s analysis is premised on the proposition that any tort liability indirectly absorbed by the Government so burdens governmental functions as to compel us to act when Congress has not. That proposition is by no means uncontroversial. The tort system is premised on the assumption that the imposition of liability encourages actors to prevent any injury whose expected cost exceeds the cost of prevention. If the system is working as it should, Government contractors will design equipment to avoid certain injuries (like the deaths of soldiers or Government employees), which would be certain to burden the Government. The Court therefore has no basis for its assumption that tort liability will result in a net burden on the Government (let alone a clearly excessive net burden) rather than a net gain.
Perhaps tort liability is an inefficient means of ensuring the quality of design efforts, but “[w]hatever the merits of the policy” the Court wishes to implement, “its conversion into law is a proper subject for congressional action, not for any creative power of ours.” Standard Oil,
Were I a legislator, I would probably vote against any law absolving multibillion dollar private enterprises from answering for their tragic mistakes, at least if that law were justified by no more than the unsupported speculation that their liability might ultimately burden the United States Treasury. Some of my colleagues here would evidently vote otherwise (as they have here), but that should not matter here. We are judges not legislators, and the vote is not ours to cast.
I respectfully dissent.
See, e. g., H. R. 4765, 99th Cong., 24 Sess. (1986) (limitations on civil liability of Government contractors); S. 2441, 99th Cong., 2d Sess. (1986) (same), See also H. R. 2378, 100th Cong., 1st Sess. (1987) (indemnification of civil liability for Government contractors); H. R. 5883, 98th Cong., 2d Sess. (1984) (same); H. R. 1504, 97th Cong., 1st Sess. (1981) (same); H. R. 5351, 96th Cong., 1st Sess. (1979) (same).
Not all exercises of our power to fashion federal common law displace state law in the same way. For example, our recognition of federal causes of action based upon either the Constitution, see, e. g., Bivens v. Six Unknown Fed. Narcotics Agents,
True, in this ease the collateral relationship is the relationship between victim and tortfeasor, rather than between contractors, but that distinction makes no difference. We long ago established that the principles governing application of federal common law in “contractual relations of the Government . . . are equally applicable . . . where the relations affected are noncontractual or tortious in character.” United States v. Standard Oil Co.,
“QUESTION: [Would it be] a proper judicial function to craft the contours of the military contractor defense . . . even if there were no discretionary function exemption in the Federal Tort Claims Act?
“MR. LACOVARA: I think, yes. . . . [I]t ought not to make a difference to the contractor, or to the courts, I would- submit, whether or not the Government has a discretionary function exception under the Federal Tort Claims Act. ...
“QUESTION: I think your position would be the same if Congress had never waived its sovereign immunity in the Federal Tort Claims Act. . . .
“MR. LACOVARA: That’s correct_
“QUESTION: Now wait. I really don’t understand that. It seems to me you can make the argument that there should be preemption if Congress wanted it, but how are we to perceive that’s what Congress wanted if in the Tort Claims Act, Congress had said the Government itself should be liable for an ill designed helicopter? Why would we have any reason to think that Congress wanted to preempt liability of a private contractor for an ill designed helicopter?
“QUESTION: . . . [Y]our preemption argument, I want to be sure I understand it — does not depend at all on the Federal Tort Claims Act, as I understand it. . . .
“MR. LACOVARA: That’s correct.” Tr. of Oral Arg. 33-35 (reargument Apr. 27, 1988).
“QUESTION: Does the Government’s position depend at all on the discretionary function exemption in the Federal Tort Claims Act?
“MR. AYER: Well, that’s a hard question to answer. ... I think my answer to you is, no, ultimately it should not.” Id., at 40-41.
Some States, of course, would not have permitted a stranger to the contract to bring such a tort suit at all, but no one suggested that this rule of state tort law was compelled by federal law.
But cf. Tozer v. LTV Corp.,
Dissenting Opinion
dissenting.
When judges are asked to embark on a lawmaking venture, I believe they should carefully consider whether they, or a legislative body, are better equipped to perform the task at hand. There are instances of so-called interstitial lawmaking that inevitably become part of the judicial process.
I respectfully dissent.
I recognize without hesitation that judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions. A common-law judge could not say I think the doctrine of consideration a bit of historical nonsense and shall not enforce it in my court. No more could a judge exercising the limited jurisdiction of admiralty say I think well of the common-law rules of master and servant and propose to introduce them here en bloc.” Southern Pacific Co. v. Jensen,
“[W]e decline to create a new substantive legál liability without legislative aid and as at the common law, because we are convinced that Congress is in a better position to decide whether or not the public interest would be served by creating it.”
“Congressional competence at ‘balancing, governmental efficiency and the rights of [individuals],’ Bush.,