Tri-State Hospital Supply Corp. v. United States

TRI-STATE HOSPITAL SUPPLY

CORPORATION, Appellant, America,

UNITED STATES

Appellee.

No. 02-5045. of Appeals,

United States Court

District of Columbia Circuit.

Argued Feb. Sept.

Decided Lynam

Terence argued J. the cause for the appellant. John M. Joseph Dowd and P. Esposito were on brief. Goldfluss, Lisa S. Assistant United Attorney, States argued the cause for the appellee. Howard, Jr., Roscoe C. Lawrence, Attorney, States and R. Craig Assistant United Attorney, were on brief. ROGERS,

Before: HENDERSON and SILBERMAN, Judges, Circuit Senior Judge. Circuit Opinion for the court by filed Circuit Judge KAREN LeCRAFT HENDERSON.

Separate concurring opinion filed Judge Circuit ROGERS.

Separate concurring opinion filed Judge Senior Circuit SILBERMAN. HENDERSON, further action and remand the matter for KAREN LeCRAFT Judge: specif- to consider proceedings Tri-State’s Circuit allegations. ic FTCA Supply Corporation Hospital Tri-State (Tri-State) final reversal the seeks Background I. dismissing court district

judgment the the United for States complaint against small, privately-owned Tri-State is jurisdiction. Rely matter subject want of corporation hospital supplies that sells Tort Act Claims on the Federal In the throughout the United States.1 §§ (FTCA), 2671 et Tri seq., 28 U.S.C. 1980s, early importing began Tri-State recover million sought to $3.2 State scissors surgical forceps, instruments — “injury or loss proper for the suppliers and in Pakistan. the like—from six-year period de it incurred over ty” The instruments the Unit- surgical entered government’s the fending against itself Detroit, Port of where ed States at the importation into its multiple investigations the of a li- engaged Tri-State services from Pakistan. surgical instruments broker, Internation- censed customs LEP dis Granting the motion to al, (LEP), complete required the Inc. to miss, district court held it lacked the entry require forms. customs The forms authority sought by the relief award price actually paid to list “the importer the FTCA ex Tri-State because does not payable” goods entering for the coun- sovereign immunity pressly waive 1401a(b)(l). § try. 19 U.S.C. liability States from for attor Hosp. Corp. fees. ney’s Supply Tri-State the in- Although paid Tri-State fact F.Supp.2d 101-04 price imported it sub- goods, voice for the (D.D.C.2001)(Tri-State). its Paki- sequently received rebates from 1986, Tri- stani From suppliers. appeal, argues On Tri-State regarding State consulted with LEP erred in holding manner in which it declare the “money damages price “actually paid payable” for the 1346(b)(1), property,” 28 recover U.S.C. surgical imported it from Pak- instruments under the for claims able of abuse istan. LEP advised to declare Tri-State process prosecution, and malicious id. price that was reflected on the invoices 2680(h), do not include the accompanying imported As a supplies. expended defending fees Tri-State result, higher price declared Tri-State alleged the government’s torts. entry price customs forms than the agree hold that We and ultimately paid it after supplies qua are recoverable deducting subsequent rebates. Be- United States for abuse of cause goods imported from Pakistan if “the law of the however, duty-free, were place” where so provides. the tort occurred (Customs) 1346(b)(1). no Accordingly, Customs Service suffered we reverse the district court’s dismissal of a result practice.2 Tri-State’s revenue as of this 1. Because here we review the dismissal of 508 n. (2002)). complaint subject Tri-State's for lack of mat jurisdiction, accept ter "we 'must as true all fact, allegations declaring only higher factual contained in the 2. "In in- " complaint.’ Sys., paid price, Scandinavian Satellite AS voice more Ltd., (D.C.Cir. processing v. Prime TV Customs'in merchandise fees than 2002) N.A., paid if it a lower Sorema would have declared [had] Swierkiewicz entry require plies imported do not it had from customs forms Pakistan. Evi- id. any price rebate. See emerged disclosure dence likewise both before and during trial that indicated that Tri-State early Tri-State be- Beginning engaged had not in fact in any fraudulent in- subject came the of civil and criminal scheme. After the rested its allegedly falsifying vestigations ease, judgment Tri-State moved for as a forms it submitted to Customs. On March matter of law on two of the three counts. officials executed a Customs DOJ then decided to dismiss its fraud headquar- search warrant Tri-State’s claim against Tri-State. The ters, CIT subse- seizing relating evidence to the value quently granted Tri-State’s motion surgical imported instruments from for year, judgment the next as a matter gross Pakistan. Over Customs of law on the sought count, the indictment of and two Tri-State negligence finding “[no] evidence of its executives for criminal customs which rises to the level of willful or wanton ultimately proved ¶ fraud. These efforts un- Complaint conduct.” At 156. the successful, however, both the as trial, jury close of the deliberated on the Attorney for the Eastern District of remaining negligence sole count and re- Attorney Michigan and the United States turned a verdict in Tri-State’s favor. Virginia District of de- the Eastern Tri-State filed the instant lawsuit under prosecute clined to Tri-State. the FTCA on June 2000 to recover the Notwithstanding prosecu- the federal attorney’s million in it in- fees had $3.2 tors’ decision not to indict Tri-State for defending against curred itself govern- fraud, began criminal to customs Customs ment. I of the complaint alleged Count penalty issue a series of civil notices that in government engaged a mali- against Tri-State 1995 based alle- proba- lacked because gations fraudulently that it had overstated ble penalty cause to issue the notices paid imported surgical it had prices against Tri-State or to sue Tri-State engaged instruments and that it had an penalties collection of those in the It CIT. money laundering international scheme. also claimed that Customs officials know- Undaunted, steadfastly refused Tri-State ingly regulations by violated their own pay any alleged of the amounts seeking impose penalties civil Tri- on penalty various notices. In November II alleged govern- State. Count that the referred its case to the Customs in an engaged ment abuse of (DOJ) Department of for the col- Justice penalty connection with the .notices and penalties. lection of civil then DOJ enforcement trial. Tri-State, brought suit on behalf Customs, in the United States Court of government then moved to dismiss (CIT) on April International Trade subject for lack complaint Tri-State’s 1997. jurisdiction, arguing matter that Tri- jurisdictionally State’s claims were barred

On numerous occasions before and dur- trial, waived because the United States had not ing the enforcement Tri-State’s coun- immunity from suit. sovereign sel Grant- explained to both DOJ and Customs government’s motion to dismiss in that Tri-State had relied LEP’s advice in reporting prices surgical sup- part,3 the district court held that because dismissed, (after rebates)

price deduction of the for the 3. 'The district court likewise as barred, ¶ jurisdictionally claims Tri-State's Complaint at instruments.” arising alleged at- from the conduct of DOJ fact established express an not contain does for the re- Act as immunity [EAJA] Access to Justice sovereign Equal waiver of fees, authori- specifically it lacked statutory scheme separate covery immu- ty to award government’s waives the defending expended attorneyPs] fees.” Id. for awards of nity tortious alleged drawn, “a detailed Noting precisely Tri-State, at 101- F.Supp.2d conduct. remedies,” general more pre-empts statute “imply the court declined to attorneyPs] fees under the recognized availability district Although FTCA, more-pre- case—it general of Tri-State’s when the unique posture more qua damages, attorney’s fees appears express sought cisely drawn EAJA pursuing incurred in attorney’s fees concerning the Congress’s clear mandate district court concluded action—the Because, as Tri-State con- issue.” Id. that the same” as must be that “the result ceded, procedural it did not meet certain appellate court de- myriad in the obtained EAJA, the district court requirements fees are not that holding cisions to ... seek[ ] to “allow Tri-State refused the FTCA. Id. under recoverable different, more same relief under a cannot use artful “parties that Stating 104 n. 8. general statute.” Id. at the limitations of to circumvent pleading Nevertheless, the district court observed rejected Tri- statute,” court the district Tri-State,” may that “all not be lost for million of the characterization $3.2 State’s “ given “complaint [it] that its asserts ... ‘money damages as ” injury including but not property.’ (quot- ‘special Id. incurred injury or loss ” 1346(b)(1)). $3,239,153.60 damages.’ The district Id. limited to 28 U.S.C. had that Tri-State original). further observed The district court (emphasis court single case in which a court to cite a failed opportunity gave thus Tri-State attorney’s fees in an abuse of had awarded complaint clarify move to amend its prosecution action or injury’ it ‘special “what other suffered” the FTCA. Id. at 103. under brought government’s a result of the actions. Id. any it also was unaware of such Because so, however, to do Tri-State declined itself, single district court save cases for recon- choosing instead to file motion by the Ninth Circuit decision overturned sideration, court which the district denied. grounds, the district jurisdictional on other thereafter, 29, 2002, January Soon n. 7. to “be the first.” Id. & court declined judgment final in the district court entered ap- favor. now addition, In the district court reasoned by peals. “analysis supported is further Tri-State, 2680(h); F.Supp.2d at 98. it therefore held that Tri-State’s torneys. prosecutors alleged Concluding federal claims based on the torts of Customs "investigative or law enforcement officials were not barred. addition, Id. at 98-100. were not FTCA, gov- by rejected the defined the district the district court officers" as arising argument claims from their ernment's that Tri-State’s claims held that falsifying by 28 U.S.C. Customs officials for rec- were barred conduct ords, 2680(h), process/mali- lying violating FTCA's abuse of under oath and customs However, exception. regulations were the FTCA's dis- barred exception. cretionary Id. at 100- court also concluded that function us, rulings are before referenced in the com- 101. These other Customs officials however, "investigative as the chose not to plaint be considered could cross-appeal. section law enforcement officers” Analysis diction category

II. over a certain of claims for which the United States has ... ‘ren- review de novo district We liable,” Meyer, dered]’ U.S. at complaint of Tri-State’s court’s dismissal S.Ct. 996 Richards v. subject jurisdiction. matter for lack 1, 6, United 369 U.S. S.Ct. Technicians, See, e.g., Ass’n Civilian (1962)). Specifically, section (D.C.Cir.), Inc. v. FLRA 1346(b)(1) of the FTCA confers exclusive denied, cert jurisdiction to the district courts over (2002).

civil actions on claims A. Sovereign Immunity and the ...

Federal Tort Claims Act injury or property, personal negligent or death caused waiver, Absent the doctrine of sov wrongful act or omission of em- gov ereign immunity shields the federal ployee acting while Government Meyer, ernment from suit. FDIC v. employ- within the of his office or 127 L.Ed.2d ment, under circumstances where the (1994); see also United States Sher private person, if a would wood, be liable to the claimant in accordance (1941). im L.Ed. 1058 Because place with the law of the where the act nature, munity jurisdictional Meyer, is or omission occurred. 475, 996, 114 510 U.S. at S.Ct. “the terms 1346(b)(1). In Meyer in 28 U.S.C. government’s] of consent to be sued Su- [the preme jurisdiction recognized language Court that this any court define that court’s Sherwood, suit,” establishes six elements a claim en- must entertain 312 U.S. 586, to be actionable under Supreme compass 767. As the Court section 1346(b)(1), observed, namely, the claim must of be has often waiver immunity must be “unequivocally ex “[1] against the United States, ^[2] for pressed in the statutory text” and “strictly damages, ... ^[3] for injury or construed, in of in favor of scope, terms property, injury or personal Fox, Inc., sovereign.” Dep’t Army 255, 119 S.Ct. v. Blue 687, wrongful death ^[4] act or omission of caused negligent any employ- (1999) (internal quotations ee of the Government ^[5] while acting omitted). A party bringing against suit scope employ- office or within the his the United States bears the burden ment, ^[6] under circumstances where the unequivo that the has proving private person, if a would United See, cally immunity. e.g., waived its Gra be to the claimant accordance liable Mgmt. Agency, v. Fed. Emergency ham place with the law of the where the act (9th Cir.1998); 149 F.3d James or omission occurred.” (10th v. 970 F.2d United 477, 114 Meyer (quot- 510 U.S. at S.Ct. 996 Cir.1992); Reynolds Army & Air Force 1346(b)). ing 28 U.S.C. Tri-State’s Serv., (Fed.Cir. Exch. plainly claim satisfies four of the six ele- 1988). 5): (1, 2, 4, ments it is (which defendant), the named represents The FTCA a limited waiver States is $3,239,153.60 immunity, damages, government’s sovereign seeks (ma- Orleans, wrongful were conduct United States v. caused (1976), practice) 96 S.Ct. 48 L.Ed.2d 390 licious and abuse juris- of the States Justice “granting] employees the federal district courts United assault, battery, im Department proviso, out of false and Commerce Department arrest, prisonment, process, of their official false abuse acting within following prosecution”) (emphasis or malicious add duties. For enforcement ed); reasons, the claim also see also Smith v. United conclude and sixth and U.S. L.Ed.2d third elements satisfies the (1993) (“We ju- also have in mind possessed therefore the district immunity waives the [FTCA] over the claim under section risdiction 1346(b). the United States and that we should to extend the not take ourselves First, money damages sought —com beyond Congress waiver that which in Tri roughly million pensation for $3.2 Neither, however, tended. should we as defending pri- expended State authority sume the to narrow the waiver may properly be character proceedings intended.”) Congress injury “for damages ized as Kubrick, 111, 117-118, States v. meaning within the of the third property” (1979)). 1346(b)(1) of section statutory element —(cid:127) except When the wished to damages considered they whether be FTC, damages class of from the it had no than “injury” for —actionable difficulty doing specifically so and unam (here, injury” example, “personal being biguously. (except See 28 U.S.C. indictment, trial, subjected penalties, ing government liability pre-judgment etc.4) viewed as “loss of —or (discussed punitive damages) interest or (that is, necessarily the funds 578). p. infra expended wrongful to defend fact, legal proceedings). expenditures if an Even FTCA claim satisfies section make, 1346(b)(l)’s for legal traditionally up requirement yet defense third it may major component fail requirement jurisdiction recovera the sixth and prosecution malicious lacking. ble for and abuse of be therefore The section’s sixth (Second) process. requires See Restatement element alleged wrong that 671(b) Torts, §§ (damages unjustifiable have done been “under circumstances 681(c) litigation), States, criminal un (damages for where the United if a private per- son, justifiable litigation pro civil for abuse of would be liable in claimant cess); al., Page Keaton W. et Prosser and with place accordance the law of the where (criminal Torts, §§ Keeton on at 888 the act Meyer, or omission occurred.” In prosecution damages); malicious the Supreme Court clear that “[sec- made (civil 1346(b)’s prosecution damages) malicious tion] reference to the ‘law of the (5th ed.1984). unlikely It is place’ therefore means law of the State —the source intended liability to foreclose such of substantive under the FTCA.” in damages against government Meyer, actions S.Ct. 996. Thus, under expressly element, the FTCA which autho under the sixth state law rizes prosecution actions for malicious and particular establishes the elements of a 2680(h) process. abuse of See 28 U.S.C. tort that is otherwise actionable under the 1346(b) (“provisions of ... section of this FTCA. While the choice of law issue is us, apply title shall claim on or arising, not before we note that the District of after the date of the enactment of this Columbia not alone in allowing attor- is. action, Dynamics Corp. 4. See prosecution General v. United licious for statute of limi- (9th J„ Cir.1998) (O'Scannlain, 139 F.3d 1280 indictment”). purpose, tation as "the dissenting) (identifying "injury” in FTCA ma- Anderson, 1191-92; in damages a here. 127 F.3d at ney’s fees to be recovered Joe, suit. Our examina- 772 F.2d at 1536-37. prosecution malicious many law reveals that tion of state tort Moreover, as correctly ob- recovery attorney’s permit states serves, a reliance cases such as pat damages qua fees effectively Anderson and Joe reads a dam- and, single knowledge, to our suits— age-specific requirement waiver into the practice.5 Assuming, state forbids the i.e., FTCA; express absent the waiver of a then, deciding, without District of Co- specific category damages exam- —for case, Tri- applies law this lumbia tort ple, pain suffering category and —that will be able to seek such State damages may not be recovered under the here. view, In our FTCA. at least two ratio- sure, nales appellate reading. To be several courts have counsel such a First, attorney’s expressly precludes held that fees are not recovera the FTCA See, e.g., recovery prejudgment under the Anderson interest and pu- ble FTCA. only. nitive damages 127 F.3d 1191-92 28 U.S.C. (9th Cir.1997) (“Congress provision suggests has not waived The inclusion of this government’s sovereign immunity categories that other See, Qi-Zhuo attorney[’s] expenses precluded. e.g., fees and under the not'be v. Meissner, (D.C.Cir.1995) FTCA.”), denied, 70 F.3d cert. (“[A]n (1998); Joe item is omitted from a list of (11th presumed 772 F.2d exclusions is not to be exclud- Cir.1985) (“The ed.”); Pena, FTCA does not contain Detweiler v. (D.C.Cir.1994) (“Where express sovereign immunity nec a statute contains waiver essary explicit exceptions, to award attor the courts are reluctant permit ney[’s] implicit di to find other exceptions.”). fees United States Sec- act.”). ond, However, rectly given any damage- Tri the absence of itself, seeking specific reading is not fees it waiver the FTCA State the statute could bringing requirement incurred in its FTCA action but such into preclude any.category in the “damages rather form of already expended defending damages, including pain suffering, lost against underlying wages expenses. By adhering tortious conduct.” and medical ordinary meaning of section Appellant Br. 33. Because to the 1346(b)(1),however, Anderson, illog- avoid such an only and similar cases stand Joe Wilson, that a ical result. States v. proposition prevailing party for the See United (“ (D.C.Cir.) 347, ‘absurd re- may attorney’s not recover the fees in 290 F.3d 361 action, in disfavored” constru- prosecuting strongly curred in an FTCA sults’ are v. they provide denying no basis for Tri statute Oceanic Griffin 575, Contractors, Inc., 564, 102 damages simply of its State — (1982))), 3245, cert. attorney’s measured in the form of fees— S.Ct. 73 See, Chisholm, Miller, 271, 438, 557, Stevens v. 227 607 P.2d 447 e.g., 5. 179 Cal. Kan. Hanson, 370, 128, (1919); (1980); Computer Wheelerv. 37 Technical P. 161 Mass. 178 131 Klein, Servs., 1249, 382, (1894); Buckley, Reenan v. Inc. v. N.E. 386 3 Ohio 844 P.2d 1256 142, (1981); 63, Buch Cal. Fed. Sav. & Loan (Colo.Ct.App.1992); App.3d 65 444 N.E.2d 802, (S.D.1980); 1152, (Fla.Dist. Coley, Staley, er v. 806 Ass’n v. 593 So.2d 1153 297 N.W.2d 1992); Rudolph, also Davis v. see Ct.App. (Second) 671 243 Iowa of Torts Restatement c, 744, 15, (Iowa 1952); v. Nelson 20 & cmt. 52 N.W.2d 578 negligently federally- in 154 forest fires set

denied, U.S. 587 (2002).6 442 forests. Idaho ex rel. L.Ed.2d controlled See Trombley Dep’t Army Corps Engi government finds some that We note (9th Cir.), denied, neers, 444 cert. in Ninth a position its series support for that the FTCA holding decisions Circuit (1982); subject jurisdiction matter does not confer California (9th denied, Cir.1962), F.2d 941 cert. seeking court for claims upon the district 933, 9 L.Ed.2d 967 fighting in incurred states expenses discuss—much less reading the statute is lent fur Ninth Circuit did not 6. Tri-State's Dynamics interpretation of support by Corp. v. criticize—the district court’s ther General O’Scannlain, (C.D.Cal. 1346(b)(1), Judge WL 200255 section dis- 25, 1996), grounds, senting part, "identifying rev’d on other in observed that March (9th Cir.1998), Dynamics which held that injury F.3d 1280 for which General seeks "money recoverable simple: injury fees were relief is is the indictment. damages injury in against erroneously ... for or loss defending itself indictment, brought under the FTCA. negligence action premised Dynamics General Dynamics, plaintiff corporation $25,000,000 In General spent over fees.” against brought action an FTCA While he in the re- Id. at 1288. concurred alleging because, view, Defense Contract Au Dynamics's in his General sult (DCAA) profession Agency had committed dit claim was time-barred under 28 U.S.C. performing malpractice al an audit. Id. at 2401(b), Judge O’Scannlain considered the audit, of the DCAA the DOJ valid,” id., *1. As result claim to be "otherwise and fur- ultimately initiated —but dismissed'—criminal observed that "the ther Dynamics. litigation General and civil $25,880,752 have reimbursed action, subsequent In its Id. at *31-32. fees,” resulting attorney’s id. at 1289. Dynamics sought $25.8 General to recover that a Tri-State claims second district legal damages "representing the million in decision, F.Supp. Ware v. United litigation expenses” that the fees and (M.D.Fla.1997), po- supports likewise defending corporation incurred drug acquitted sition. Ware was of federal government's criminal and civil cases. charges and sued the United States for mali- Noting "[cjompensation Id. at *32. prosecution under the FTCA. Id. at expenditures the loss of or for is a Although the district court concluded proper in an measure of action for that Ware had failed to establish three of the professional malpractice” under California six elements of malicious law, (citing Equip. Electronic Ex id. *35 law, warranting judgment Florida thus Co., press, Inc. v. Donald H. Seiler & favor, 1460-72, id. at fur- (1981)), Cal.App.3d Cal.Rptr. ther observed in its discussion of "money the district court concluded that ex "[rjeasonable out-of-pocket expenses are pended attorney[’s] On fees due ato defen type compensatory damages one available negligence damage,” dant’s is a recoverable prosecution plaintiff,” to a malicious id. at Nixen, (citing id. Budd v. 6 Cal.3d 201- court-appointed 1471. Because Ware had (1971)). Cal.Rptr. 491 P.2d 433 prosecution, counsel at the time of his howev- "[Sjuch expenses 'money damages’ are er, the district he court concluded that had property within the context of "any out-of-pocket not incurred discernable FTCA,” held, the district court "because expenses” defending Seizing in himself. Dynamics expended money its General own upon passage, the aforementioned Tri-State protect injury resulting to itself from from the "holding” asserts that the district court's prosecution.” Id. clearly plaintiff paid indicates that "if the had reversed, however, counsel, did, The Ninth Circuit for his own Tri-State those hold expenses discretionary out-of-pocket have been FTCA's function would re- exception precluded Appel- the district court from coverable under the FTCA.” Br. for exercising subject jurisdiction lant 25. district court’s matter over at discussion however, Dynamics's Dynam out-of-pocket expenses, plainly General claim. General is ics, Although 139 F.3d at 1282-86. dicta. States, 943-44; ornia, at (1963); Oregon, 308 F.2d 307 F.2d Oregon v. United at (9th Cir.1962), denied, F.2d cert. (1963). 934, 9 L.Ed.2d 967 Citing New York v. United the Ninth Circuit rea expenses,” “Such (E.D.N.Y.1985), F.Supp. Tri-State soned, ‘money do not constitute “simply argues next the Ninth Circuit deci- property’ damages’ ‘for because, inapplicable sions are unlike the Idaho, 666 F.2d under the FTCA.” Idaho, state-plaintiffs in and California state-plain it that the Because concluded Oregon, alleged injury it has fact to firefight sought tiffs had property. argument ap- This has some damages person peal. York v. ing expenses and New district court held that the Ninth thrice held Circuit’s property, the Ninth Circuit 1346(b)(1) firefighting expenses eases did not control ju not confer that section does money damages New York’s claim for un- court to hear upon risdiction it der the FTCA for the costs incurred in 446; also such claims. See id. at see Cali removing jet fuel contaminants from a for- 944; fornia, Oregon, F.2d at 308 F.2d mer U.S. Air Force base. Id. at 375-79. at 569.7 Rejecting government’s argument attempts distinguish Tri-State damages really the state’s claim was an firefighting expenses Ninth deci Circuit’s claim equitable seeking restitution com- First, Tri sions on two distinct bases. pensation alleged cleaning for the costs of deci argues that the Ninth Circuit’s State areas, the up polluted district court because, unlike the inapposite sions are agreed with New York that “the cost of Idaho, and state-plaintiffs removing simply California the contaminants is it the commission of Oregon, alleged has damages measure of to its suggested prop- torts —abuse of intentional Similarly, erty.” Id. at 378. negli than it argues here that —rather argument fails to withstand gence. This defending represent incurred “‘the however, as none of the scrutiny, close damage property,” to its measure’ of i.e., turn appears Reply Ninth decisions Br. at 12. Circuit’s its financial assets. Although arguably of the cause of action al the New York decision on the nature Idaho, 446; prop- conventional loss of leged. See Calif involved more law, government under state does not constitute 7. The also relies Charles zable F.Supp. damages "injury Burton Builders United an action for (D.Md.1991), held that an FTCA property.” expenses plaintiff not recover the it observes, could correctly Id. at 162. As Tri-State testing property incurred in its for environ- however, nothing decision "stands for this damage government's al- mental where the proposition plaintiff than the that a who more leged tortious conduct had in fact caused no any damages suffered in the form of has not property. physical damage to the Charles property, may not recover harm to or loss of Builders, F.Supp. at Burton 161-63. Af- conducting expenses tests to determine its discussing firefighting the Ninth Circuit's ter Reply occurred.” Br. whether such cases, expenses in Charles the district court seeking is not com- at 13. Because Tri-State observed: Burton Builders i.e., expenses parable incurred — precedents] that in order all indicate [The pro- determining an whether has abuse there must to be covered the FTCA have prosecution claim cess or malicious impact type physical of some on the been ruling court’s district —the property. plaintiff A claim for dam- Burton Builders fails to undermine Charles only govern- ages sustained in reaction to Tri-State’s claim. activity, though possibly cogni- mental even “in manners.” underlying attorney’s the former fees two distinct erty groundwater — 2412(d)(1)(A), § “pre- contaminated —Tri- Under 28 U.S.C. was base Air Force at- degree vailing party” may recover reasonable carries a certain argument State’s York, if torney’s fees States F.Supp. at 375. United. New of force. un- government substantially takes a that the Ninth Circuit’s To the extent underlying civil justified position require decisions firefighting expenses attorney In order to recover litigation. “money dam- injury to recover physical 2412(d)(1)(A), however, fees under section FTCA, we to fol- decline ages” under eli- party satisfy must certain threshold appears requirement No such low them. requirements. 28 U.S.C. gibility 1346(b)(1) we section the face of 2412(d)(2)(B) claimant must (corporate conclude one. We thus engraft decline to $7,000,000 have net worth not in excess of adequately stated a has that Tri-State at time civil employees or more than 500 injury ... money damages claim “for filed). Alternatively, under 28 action within section 2412(b), may rea- a court award U.S.C. 1346(b)(1) that the state law to the extent attorney’s prevailing fees “to the sonable claims allows tort governing Tri-State’s any brought by civil action party attorney’s recovery qua fees dam- against the United to the same and malicious ages for abuse of any party would be liable extent 1346(b)(1). prosecution. 28 U.S.C. under the common law or under the terms specifically provides statute which Access to Justice Act Equal B. The for such an award.” court declined sanc The district attorney’s “un availability tion the fees upon relies our decision FTCA, when the general der the more Union, AFL- in American Postal Workers appears to more-precisely drawn EAJA Service, CIO v. United States Postal clear express Congress’s mandate concern (D.C.Cir.1991), argue F.2d 704 Tri-State, F.Supp.2d ing the issue.” effectively precludes EAJA Tri-State from appeal, contends at 103. On recovering attorney’s fees under the district court’s reliance Workers, FTCA. American Postal four misplaced because the statute EAJA was probationary employees former preclude recovery does not sought Postal Service to use the qua damages fees or loss of press retaliatory discharge pur claims for property again, under the FTCA. Once Reasoning suant to state law. Id. at 708. agree we with Tri-State. (PRA) Reorganization that the Postal Act “[Sovereign immunity protects type ‘narrowly employee “is the tailored liability compensation Supreme United States from scheme’ that to the ‘except government] ‘pre-empts gener [the extent has Court has held the more ” ” statutes,’ immunity recovery [from waived its al tort we ruled that suit].’ Wade, (D.C.Cir. F.3d provide States v. “the FTCA a basis for [did] 2001) Club, (quoting Ruckelshaus v. the asserted claim for relief.” Id. (quoting Sierra Admin., 77 Brown v. Gen. Servs. (1983)). 820, 834-35, recognized L.Ed.2d As (1976)). Hospital incorporated American Association v. Sulli Because the PRA van, (D.C.Cir.1991), system “an ‘elaborate remedial that has expressly waives the with careful step step, EAJA been constructed sovereign immunity attention to conflicting policy consider- ” prosecution. no Because the FTCA that “we have ations,’ concluded immunity use the appellants the waives claims of permit warrant circumventing it.” of process prosecu- as a means and malicious FTCA abuse Lucas, 2680(h), Bush tion, § Id. in light 28 U.S.C. and 2404, 76 L.Ed.2d 648 388, 103 S.Ct. statutory preceded the fact that the waiver (1983)).8 government’s perspec- the From years, the enactment of EAJA six com- tive, action “is no less FTCA Tri-State’s Act of Mar. Pub.L. No. 93- pare exquisitely- the attempt to ‘circumvent’ an (1974) (amending § sec- 88 Stat. limitations, and condi- procedures, detailed 2680(h)), EAJA, tion with Pub.L. No. 96- EAJA, the specifically, in” forth tions set (1980), § we have Stat. 2412(d)(2)(B). criteria of section eligibility agreeing little trouble with that Tri-State Appellee Br. for 33. ], modiffy], re- “alter[ EAJA does invalidate!], differently. peal], supersede!]” Be- views matters Tri-State explicitly provides pre-existing remedies afforded cause EAJA 2412(d) alters, “[n]othing section reliance on FTCA. invalidates, modifies, super- repeals, misplaced. therefore EAJA is of Federal law provision sedes fees,” an award of such

which authorizes III. Conclusion 96-481, EAJA, 94 Stat. Pub.L. No. reasons, foregoing For the we conclude (1980), argues that EAJA provides jurisdiction that the over FTCA right its to recover has no effect attorney’s qua an action to recover fees “money damages ... attorney’s fees—as for the —under process and malicious torts abuse “no It thus contends EAJA’s FTCA. if prosecution under the FTCA “the law of govern- renders the provision preclusion” pro- the tort occurred so place” where upon American Postal ment’s reliance 1346(b)(1). According- vides. 28 U.S.C. the FTCA’s inapposite Workers because judgment ly, we reverse sovereign immunity for claims waiver of further court and remand the matter for prosecution process abuse of and malicious opinion. with this proceedings consistent provision” of federal law is an “other So ordered. attorney’s award of fees. authorizes the 2680(h). See 28 U.S.C. ROGERS, Judge, concurring: Circuit correctly ob- Although attorney fees “hold[s] The court express lacks an serves that are recoverable fees, qua damages attorney’s for the waiver and process for abuse of United States ignores the crit- argument EAJA if ‘the laws of of this Tri-State does ical feature case: provides.” se, where the tort occurs so place’ per recover fees not seek to interpret I the court’s at 572. As damages— Op. qua rather but prop- “injury or loss opinion, mali- the terms torts of abuse of for the appellants trary, we viewed the exclusion Although employees Postal in American compensation as evi- scheme from the PRA’s could not seek redress under Workers par- Congress’s deny a intent to compensation they dence of the had not PRA’s scheme— employees protections of requisite year ticular class of completed the one of continu- which, available, pro- statutory if being scheme before terminated —this fact ous service only remedy. their postal workers Postal vided did not alter our decision. American Workers, 708-09. con- 940 F.2d at On the 582 Federal Tort Act hable to the claimant

erty” the Claims be accordance under 1346(b), (“FTCA”), § are de- U.S.C. the law of where place 28 with the the act of federal in deter- fined as a matter law or omission occurred. is out-

mining Tri-State’s claim whether 1346(b) (alterations § (quoting origi- Id. FTCA, scope of the side the intended nal)). The that a Court concluded federal by solely state law. This fol- not defined due constitutional claim was not following analy- from the my lows in view FTCA, cognizable holding under the sis. the the claim failed to meet sixth element 197, In 507 U.S. Smith v. United it an allegation because “could not contain” “ (1993), 1178, the 113 S.Ct. 122 L.Ed.2d 548 that the United ‘would be States liable to acknowledged Supreme Court that its de person’ the claimant’ as ‘a ‘in private ac- cisions the “contain interpreting FTCA place with the the cordance law of where ” varying statements as to how it should be or the act omission occurred.’ Id. at 203, 477-78, construed.” Id. 113 1178. It 1346(b)). § S.Ct. 114 (quoting S.Ct. 996 however, announced, embracing that it was noted, As the Court it had “consistently approach the that “we should not take it 1346(b)’s § held reference the ‘law to extend ourselves the waiver be place’ the means law State —the yond Congress that which intended. Nei liability source substantive under the ther, however, the assume au 478, Id. at FTCA.” 114 S.Ct. 996. Be- the thority to narrow waiver that cause, definition, “[b]y law, federal not ” law, intended.’ United States v. provides liability state the source of Kubrick, 111, 117-18, 444 100 U.S. S.Ct. deprivation for claim alleging a of a (1979)). 352, 259 Department 62 L.Ed.2d right,” federal constitutional federal con- Fox, Inc., Blue Army v. U.S. stitutional claim could the sixth .meet 255, 261, 1346(b) S.Ct. §of element as raised no claim (1999),on in describ law, court relies under state and the “United States review, stringent a more standard of simply has not rendered liable under Op. 575, 1346(b) involved the Administrative § for tort constitutional claims.” Act, Procedure not the FTCA. words, In Id. at S.Ct. Meyer the Court’s reference in to the im- year, following Meyer, The v. FDIC portance state tort law for defining the 114 S.Ct. 127 L.Ed.2d scope solely FTCA is directed at the (1994), Supreme Court described 1346(b), § sixth and last element of but a 1346(b) establishing of sov- waiver claim, notes, government as the can ereign immunity and a of action cause only by meeting be established all six ele- “six the federal if ele- ments. ments” are met. Id. at

Thus, a claim must be: analyzing the fourth element of

[1] ^[2] 1346(b), whether the harm complained damages, ^[3] or plaintiff has been “caused by loss property, personal injury negligent wrongful or or act omission of death ^[4] caused negligent any employee Government,” the Su- employ wrongful preme act or omission of Court has emphasized federal ee of the Government ^[5] while acting law controls definition the relevant Nelms, within employ of his office or In Laird terms.

ment, ^[6] circumstances where (1972), States, if private sought “recovery United would person, plaintiffs proper- (1976); Logue from a sonic 48 L.Ed.2d resulting allegedly ty damage by California-based caused boom (1973), over North and the intentional flying L.Ed.2d military planes 2680(h), training mission.” exception on a torts see United

Carolina Circuit, theory of relying Neustadt, 696, 705-06, on “a Fourth v. 366 U.S. States liability (1961). for ultrahazar- 1294, or absolute strict 6 L.Ed.2d 614 As 81 S.Ct. activities,” the district had reversed dous respect has said with to another the Court judgment for the summary of grant court’s prohibiting the FTCA the award section of negli- the absence of based on damages against govern the punitive of 798, 1899. The 92 S.Ct. gence. ment, meaning ‘punitive “the of the term reversed, noting that Supreme Court 2674, §in damages’ as used a federal stat rejected a claim based on previously had ute, by question.” is definition a federal States, liability Dalehite strict States, United 502 U.S. Molzof v. 44-45, 956, 15, 97 L.Ed. 73 S.Ct. 346 U.S. (1992). 711, 112 S.Ct. Cf. (1953), holding characterized its 1427 Towing v. Indian Co. United in Dalehite 61, 64-65, L.Ed. 48 U.S. 76 S.Ct. of whether question on the tumping] (1955). of some other State the law of Texas or The court notes that it is well-estab- liability recognize strict did or did not (whether that under state law or not lished ultrahazardous activi- for the conduct of provides of Columbia the cor- the District question instead on the ties. It turned case) apply law to in this rect substantive of the Federal language the of whether may be collected as dam- any under permitted Act Tort Claims Hence, the Op. at 576-77 & n.5. ages. liability of imposition the circumstances by of the sixth element is met requirement had where there upon the Government question claim. The remains Tri-State’s wrongful negligence nor been neither “injury claim is an or whether Tri-States’s necessary consequence of the act. The mali- theory under a property” loss of in Dalehite is that the holding Court’s only Supreme prosecution. The “negligent wrong- statutory language “injury terms case to discuss the Court any employee ful or omission of act unhelpful is for the Court Government,” is a uniform federal declined, resolving in the course types of acts committed . limitation on 2689(c) exception scope of by employees for which United im- wavier of Act’s broad “[t]he Re- has to be sued. consented 1346(b). munity,” scope to resolve the characterization, gardless state law v. Kosak United See pre- Act Federal Tort Claims 1519, 79 L.Ed.2d 860 & n. liability if there imposition cludes (1984). negligence no or other form of has been or nonfeasance.” “malfeasance that its claim falls contention Tri-State’s Congress what intend- within the Laird, 798-99, 92 406 U.S. at S.Ct. recovery by allowing ined the FTCA Dalehite, 346 U.S. at “injury proper- added). “damages” 956) Supreme (emphasis It at 579-80. persuasive. Op. is See ty” approach taken a similar Court has States, 620 York v. FTCA, relies on New United construing provisions other (E.D.N.Y.1985), where, in, ad- F.Supp. 374 excep independent contractor such as removing dressing a claim for costs see United States Or tion 807, 814-15, placed the soil leans, contaminants S.Ct. York, Force, involving physical damage claims F.Supp. New claims to States Air Rayonier, court cited plaintiffs property could possible, mean that no be Inc. v. United would (1957), which held example, prosecutions for civil by the Service was negligence Forest private corporations involving imprison- no recovery of the FTCA for actionable under physical intrusion on the ment or York, damage, see New property plaintiff, property right nor loss of a court in New at 378. The district F.Supp. definition) plaintiff (by who will accept posi New York’s proceeded York There no prior have won lawsuit. is clean-up “simply that its costs were tion to think that was un- reason damages measure of to its suggested meanings aware the traditional of vari- of po rejecting the United States’ property,” ous terms when it added malicious tort in York’s claim sition that New was by law officers to prosecution enforcement equitable a claim for restitution nature of 2680(h), § traditionally and that tort has up. for costs of the clean Id. So too recovery attorneys allowed for of fees. here, attorneys a mea Tri-States’ fees are (Second) Restatement Torts See it damages sure of the suffered as result Keaton, 681(c); § § Prosser and 119 at government’s prosecution malicious 888; 889-92, 895-96; § id. 120 at A.L. process. imposing and abuse Cases Azores, Annotation, Attorney’s Fees as El- injury” requirement, as “physical such Cal Damages ement in Action False for ifornia Arrest, Imprisonment or or Malicious (9th Cir.1962), distinguishable, are (1968). Prosecution, § A.L.R.3d 1068 hence the court has no need to hold that it legislative history indicates that them, 579-80, Op. declines to follow recovery allowing prosecution for malicious prosecution because in a malicious cause of or abuse and other intentional action, litigation it is the itself that is the “any torts intended to reach case (and injury go hence the court need no agent which a Federal law enforcement authority). in rejecting farther that line of acting committed the tort while within the unjustifiable “The interest freedom from scope employment of his or under color of litigation protected by is actions mali Rep. Federal law.” See S. No. 93-588 at 4 prosecution process.” and abuse of (1974), reprinted in 1974 U.S.C.C.A.N. Keeton, al., W. et Page Prosser and Kee 2789, 2791. (5th Torts, § ton on at 870 Ed. Horn- Ed.1984). Thus, Lawyer’s book Series analysis, Under this which clarifies the money spent fees is questions, federal and state-law the court’s spent rectifying correcting injury opinion properly holding is read as with York, and is recoverable. New 620 respect prosecution Cf. to claims for malicious notes, F.Supp. at 378-79. As the court process, specifically and abuse of claims seeking Tri-State is not to recover its recognized by Congress as viable under attorney’s fees for bringing its claim under 2680(h), that, law, § as a matter of federal at 577. Op. FTCA. recovery attorneys damages fees as is within the of what Congress meant Contrary Congress’s endorsement of by “injury or recovery prosecution, for malicious 1346(b). 2680(h), § if Only attorney’s U.S.C. fees are col- government’s pro- posed restriction of lectable as under state law will a for “injury plaintiff able to recover them under the property personal be injury or death” in FTCA because the sixth element of ” 1346(b)) 1346(b) injury satisfied. or death.... U.S.C. is then have been will awkward, ambiguous, rather even but both District of Co- references to The court’s (as I) reject law, judges do law, and the Re- other state lumbia (Second) Torts, interpretation excluding strained attor- Op. see at 577 statement ney’s fees from the definition of n.5, its conclu- only therefore relate & any so I that, property sixth ele- loss do not see differ- purposes of that sion actual ment, approaches. ence their attorney’s fees will be collectable. understood, I concur inasmuch as the So detect Nor do I differences between Act, esp. see Equal Access to Justice my colleagues understanding as to their 2412(d), is a bar to Tri- U.S.C. respective spheres of Federal and Op. claim. at 580-81. States’ state law. Therefore I do not understand why, collegiality, in the interest of one SILBERMAN, Judge, Circuit Senior opinion could not have been fashioned. concurring: Perhaps problem my stems from col- why my both apparent It is not me leagues’ writing style. generally Rich- See necessary to author colleagues Posner, found Judges’ Writing Styles ard A. is, sure, to be (And Matter?), in this case. There opinions They Do 62 U. Chi. L. Rev. in their stated difference perceptible (1995). review of the as to our views Judge Act.

Federal Tort Claims emphasizes that as statute

Henderson be sovereign immunity

waiving plaintiff,

strictly construed justifiably points to Judge Rogers

whereas

Smith (1993). There L.Ed.2d 548 S.Ct. Alphonso “Mike” In Re: Michael Court, opinion by in an Supreme (Haas Fee ESPY Justice, addressing specifically Chief Application). FTCA, adopted of the a more construction 94-2. Division No. of review. Id. at neutral standard Ku (quoting United States v. S.Ct. 1178 Appeals, Court of United States brick, 111, 117-18, District of Columbia Circuit. (1979)). Still, Judge Sept. Filed (although cites Henderson Smith and, amusingly, Chief wrong place), case, De subsequent himself in a

Justice Fox, Inc., Army v. Blue

partment of (1999), Judge relies, repeated the standard

Henderson immunity construction strict

maxim and cited FTCÁ cases. be- totally is not academic question statutory language

cause some damages ... (“money interpreting

are personal property,

Case Details

Case Name: Tri-State Hospital Supply Corp. v. United States

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Sep 2, 2003

Citation: 341 F.3d 571

Docket Number: 02-5045

Court Abbreviation: D.C. Cir.