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

   No. 86-714

   In the Supreme Court of the United States

   October Term, 1987

   On writ of Certiorari to the United States Court of Appeals for the
Eleventh Circuit

   Reply Brief for the Petitioners

   Respondents' answering brief demonstrates that the parties to this
case share a number of common premises.  There is agreement that
federal common law governs the immunity to be accorded a federal
employee sued on a state law tort theory.  There is further agreement
(Resp. Br. 5, 9, 12-13) that the question presented implicates the
absolute immunity doctrine set forth in Barr v. Matteo, 360 U.S. 564
(1959), rather than the qualified immunity rule developed in the
constitutional tort context (see Harlow v. Fitzgerald, 457 U.S. 800
(1982)), /1/ and that the availability of immunity must turn on what
is necessary "to aid in the effective functioning of government"
(Barr, 360 U.S. at 573 (plurality opinion)).  See Resp. Br. 5-6 n.2,
10.  The parties differ only on the contours of the immunity doctrine
necessary to accomplish the ends for which it was created.

   Our position is that, at a minimum, the Barr immunity protects
federal employees acting within the scope of their official duties
whenever they perform discretionary acts -- those acts concerning
which federal law "fails to specify the precise action that the
official must take in each instance" (Davis v. Scherer, 468 U.S. 183,
197 n.14 (1984)).  In disputing our submission, respondents offer an
alternative which is so limited in scope and so uncertain as to
provide plainly inadequate protection for the performance of
governmental functions.  Respondents would first allow immunity only
in situations in which a federal employee exercised discretion
"involving planning or policy considerations," as opposed to
"day-to-day operations" (Br. 3).  Respondents further state that
immunity should be limited to discretionary acts "worthy of being
called 'governmental.'" Br. 15;  see also id. at 11, 13-16.  These
vague standards find no support in either this Court's prior decisions
or the general principles of official immunity doctrine.  /2/

   1. Contrary to respondents' assertion that our submission
represents an alteration in the present scope of federal employees'
immunity from state law liability (Br. 3-6), it is respondents'
policy-and-planning/governmental discretion test -- insofar as it can
even be applied in any concrete way -- that would effect a dramatic
change in immunity protection.

   This Court has never held that a federal employee who exercises
some discretion may be denied immunity in an action under state law
because the quantum or nature of the discretion was insufficient.  See
Pet. Br. 15-21.  Indeed, the plurality in Barr v. Matteo, supra,
strongly indicated that the degree of discretion exercised by a
government employee was not the dispositive factor in determining
whether immunity was warranted.  The court of appeals in that case
would have distinguished officers with "'political functions'" from
inferior officers and left the latter to the protection of a qualified
immunity.  See Barr v. Matteo, 244 F.2d 767, 768-769 (D.C. Cir. 1957),
quoting Colpoys v. Gates, 118 F.2d 16, 17 (D.C. Cir. 1941).  The
plurality of this Court expressly rejected the court of appeals'
narrow view of the immunity principle, holding that immunity could not
"properly be restricted to executive officers of cabinet rank, and in
fact it never has been so restricted by the lower federal courts." 360
U.S. at 572;  see also id. at 573 (the functions of government do not
"become less important simply because they are exercised by officers
of lower rank in the executive hierarchy").

   The Barr plurality supported its conclusion by noting (360 U.S. at
572 n.9) lower court decisions that extended the principle of absolute
immunity to a prison psychiatrist (Taylor v. Glotfelty, 201 F.2d 51
(6th Cir. 1952)), a regional Veterans Administration supervisor (De
Busk v. Harvin, 212 F.2d 143 (5th Cir. 1954)) and the chief of a
Veterans Administration hospital dietetic service (Carson v. Behlen,
136 F. Supp. 222 (D.R.I. 1955)) -- persons who, though they exercise
discretion, typically are not confronted with broad policy choices.
Thus, Barr cannot fairly be read as restricting immunity to employees
who exercise a particular quantum of discretion.  See also Barr, 360
U.S. at 587 n.4 (Brennan, J., dissenting) (observing that "(t)he
(plurality's) rationale covers the entire federal bureaucracy").  /3/

   Moreover, the courts of appeals do not currently apply the narrow
interpretation of Barr advanced by respondents.  Three courts of
appeals have concluded that immunity protects all federal employees,
regardless of whether their duties require the exercise of discretion.
 See General Electric Co. v. United States, 813 F.2d 1273, 1276-1277
(4th Cir. 1987), petition for cert. pending, No. 86-2015;  Cross v.
Fiscus, No. 87-1548 (7th Cir. Sept. 25, 1987), slip op. 4-5;  Poolman
v. Nelson, 802 F.2d 304, 307 (8th Cir. 1986).  Others, while imposing
some requirements of discretionary action, have not drawn a
distinction between policymakers and other federal employees (Pet. Br.
11).  As we discuss in our opening brief (at 31-32), these courts have
extended immunity to low level federal employees -- such as law
enforcement officers, personnel supervisors, and others -- whose
duties are much closer to the day-to-day execution of preestablished
policy than to the formulation of broad policy objectives.

   This is hardly surprising in view of this Court's conclusion in
Davis v. Scherer, 468 U.S. 183, 196-197 n.14 (1984), that qualified
immunity from liability for constitutional violations is available to
all government employees who exercise discretion, a conclusion that
applies with equal force to the state tort law context.  See Pet. Br.
21-22;  Martin v. Malhoyt, slip op. 6-7 (Williams, J., concurring in
part and dissenting in part).  Respondents simply ignore Davis,
failing even to cite the case in their brief.  Moreover, respondents
likewise present no principled justification for the result that would
flow from their new immunity standard:  a lower level federal employee
could invoke qualified immunity in an action alleging a constitutional
violation, but would have no protection at all in an action seeking
damages for the very same conduct under state law.  /4/

   In sum, the immunity standard for which we contend is consistent
with this Court's decisions and the rule applied by most of the courts
of appeals.  It is respondents who are the parties seeking to use this
case to work a sea change in immunity doctrine:  what they urge is
nothing less than a wholesale reduction in the immunity that currently
protects federal employees from personal liability under state law.

   2. The consequence of respondents' standard would be a serious
disruption of governmental operations, since immunity would apparently
be unavailable in the great majority of cases where employees must
make judgment calls.  The plurality in Barr was concerned that the
threat of liability for official acts "might appreciably inhibit the
fearless, vigorous, and effective administration of policies of
government." 360 U.S. at 571;  see also Anderson v. Creighton, No.
85-1520 (June 25, 1987), slip op. 3 ("permitting damage suits against
government officials can entail substantial social costs, including
the risk that fear of personal monetary liability and harassing
litigation will unduly inhibit officials in the discharge of their
duties").  Respondents suggest (Br. 14) that these policies are
relevant only when government employees exercise broad discretion.
But whenever an official must use his own judgment in executing
official duties, even if that judgment relates to the application of
settled policy to the facts of a particular case, the course of action
that the official selects could be influenced by the possibility of
personal liability.

   Whether a law enforcement officer at the scene of a crime, a
federal personnel supervisor responsible for hiring, firing and
promotion, or a caseworker evaluating an applicant's eligibility for a
federal benefit program, federal employees frequently must make
choices.  And those choices often pit the interests of the federal
government -- fearless enforcement of criminal law, personnel
standards, or benefit criteria -- against the interests of an
individual who would be affected adversely by the government action.
In the absence of immunity, the government employee would
understandably perform his duties with an eye toward the possibility
of suit by disgruntled citizens affected by his official conduct.  The
easiest way to avoid such harassment would be to shade decisionmaking
in favor of the private party.  Immunity is necessary to protect
federal employees from this influence so that they may vigorously
perform their federal duties.  See also Pet. Br. 24-26.  /5/

   Indeed, we submit that it would be both unwise and unfair to single
out lower ranking federal employees for this burden.  Unwise because
government policy cannot be put into effect without the efforts of
lower level employees who perform the tasks that translate a policy
determination into government action.  See Dalehite v. United States,
346 U.S. 15, 36 (1953) ("causal step(s)" in effectuating policy
decisions protected under discretionary function exception to
liability under the Federal Tort Claims Act).  Failure to insulate
these employees from the chilling effect of potential personal
liability would undermine the functioning of government as surely as
subjecting high policymakers to such liability.  Respondents' standard
is unfair because it burdens the employees who are likely to be the
least able to absorb an adverse monetary judgment, have the least
control over their duties, and are charged only with carrying out
decisions made by others.  Compelling these individuals to pay for
damage caused by the activities of the federal government is a result
that finds no support in the policies underlying the immunity
doctrine.

   3. An additional serious flaw in respondents' proposed immunity
standard is its uncertainty of application.  Immunity will fulfill its
function of effectively insulating government employees from the
chilling effect of the threat of personal liability only if those
employees can reasonably anticipate, at the time that they execute
their duties, whether their conduct will be shielded by immunity.  See
Pet. Br. 36-37.  Just last Term, in Anderson v. Creighton, supra, the
Court invoked this principle in refusing to create a special rule
reducing the immunity accorded law enforcement officers in actions
seeking damages under the Fourth Amendment.  The Court observed that
such a rule "would not give conscientious officials that assurance of
protection that it is the object of the doctrine to provide." Slip op.
7;  see also id. at 4, 10;  Davis v. Scherer, 468 U.S. at 195-196.

   Respondents' standard similarly provides no "assurance of
protection." Because the availability of immunity in each case would
depend upon a difficult ad hoc balancing of interests (see Resp. Br.
14), a federal employee could never know in advance whether he would
be protected by immunity.  See Pet. Br. 31-34.  As a result, the
employee could not perform his official duties free of the chilling
effect of possible personal liability.  Even relatively high-ranking
government employees could not discount the possibility that a court
viewing the situation in hindsight would conclude that the balance of
policies weighed against immunity in a particular case.  And the fact
that immunity might later be accorded to the federal employee would
not suffice to "aid in the effective functioning of government" (Barr,
360 U.S. at 573 (plurality opinion)).  Because the employee could have
no reasonable certainty of his immunity at the time he performed his
official duties, he most likely would be influenced by the threat of
monetary liability.

   4. Respondents simply ignore two other considerations relevant in
defining the scope of Barr's immunity principle.  First, immunity is
important in preventing state interference with the operation of the
federal government.  As we discuss in our opening brief (at 27-30),
subjecting a federal employee to personal liability under state law
for his discretionary official acts would give the employee a strong
incentive to exercise his federal authority in a manner prescribed by
the relevant state tort standards.  An immunity rule that protects all
employees who exercise discretionary authority will prevent such state
interference with federal activities.  See generally Martin v.
Malhoyt, slip op. 25-26.  /6/

   Second, the immunity standard for which we contend will not deprive
injured persons of all opportunities for compensation.  As we discuss
in our opening brief (at 40-42), relief may be available under the
Federal Employees' Compensation Act or the Federal Tort Claims Act.
The existence of these alternate remedies, which respondents
completely ignore, undercuts respondents' argument that a narrowly
defined immunity standard is necessary to ensure that injured parties
will obtain relief.

   For the foregoing reasons, and the reasons stated in our opening
brief, the judgment of the court of appeals should be reversed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   OCTOBER 1987

   /1/ The District of Columbia Circuit previously found an
inconsistency between Barr and Harlow, and expressed some doubt about
the propriety of the absolute immunity rule set forth in Barr (see
Martin v. D.C. Metropolitan Police Dep't, 812 F.2d 1425, 1428 n.11
(D.C. Cir. 1987)).  That court recently recognized that the two rules
may be reconciled, however, and indicated that the absolute immunity
rule set forth in Barr is justified by the strong federal interest in
preventing state interference with the functioning of the federal
government.  Martin v. Malhoyt, No. 86-5561 (D.C. Cir. Sept. 29,
1987), slip op. 25-26;  see also Pet. Br. 27-30.

   /2/ Respondents tax us with changing our position, asserting (Br.
4) that we have abandoned the contention that a federal employee is
immune from personal liability under state law whenever his actions
fall within the scope of his official duties.  In our opening brief
(at 12-13) we expressly reserved the contention that a federal
employee is entitled to immunity for his official acts regardless of
whether the employee's duties involve the exercise of discretion.
Because petitioners' duties involved the exercise of discretion,
however, we concluded that the Court need not consider that broader
proposition in order to resolve this case.  Petitioners are entitled
to immunity under the well-settled principle that official immunity
protects employees who exercise discretion because the threat of
personal liability would otherwise skew the employee's conduct and
thereby impede the effective functioning of the federal government
(see Pet. Br. 21-23, 24-26).

   At the same time, respondents imply that we have not really changed
our position because providing protection for all conduct involving
discretion will in fact immunize all actions by government officials
(Br. 4).  This is also wrong.  We acknowledge that a large proportion
of the federal workforce exercises discretion in performing their
official duties and therefore would be covered by the immunity
standard that we propose.  But that is simply a consequence of the
fact that "(t)he complexities and magnitude of modern governmental
activity have become so great that there must of necessity be a
delegation and redelegation of authority as to many functions" (Barr,
360 U.S. at 573 (plurality opinion)).  There remain some federal
employees who perform duties that are wholly ministerial;  for
example, a clerk whose responsibility is to stamp a document with the
date upon which it is filed.  The conduct of these employees -- while
perhaps protected by immunity on other, related grounds (see Pet. Br.
13 n.10) -- would not be covered by the immunity principle that we
urge here.

   /3/ Respondents proffer a different interpretation of Barr (see Br.
6-7), but the passage of the opinion upon which they rely does not
limit immunity to policymakers;  it simply indicates that the scope of
an employee's official duties is defined partly by reference to the
extent of the discretion the employee exercises.  See Pet. Br. 18-20;
see also Martin v. Malhoyt, slip op. 6 (Williams, J., concurring in
part and dissenting in part).

   Respondents' discussion of Doe v. McMillan, 412 U.S. 306 (1973), is
similarly flawed.  We noted in our opening brief (at 20-21 n.14) that
Doe concerned the immunity accorded to federal employees operating
under the auspices of Congress.  The only issue relating to Barr was
whether these employees, who the Court had found to be entitled to
derivative legislative immunity, also were protected by a second type
of immunity by virtue of their status as federal employees.  Since the
question here is whether federal employees exercising only executive
authority are protected by immunity, Doe is simply inapplicable.
Respondents quote (Br. 7) a portion of the Doe Court's statement that
"(i)n the Barr case (360 U.S. at 573), the Court reaffirmed existing
immunity law but made it clear that the immunity conferred might not
be the same for all officials for all purposes." 412 U.S. at 319.  The
cited portion of Barr relates to precisely the point referenced above
-- that scope of authority is defined in part by the extent of a
particular official's discretionary power.  It thus appears that Doe's
reference to differences in the availability of immunity simply refers
to variations in the scope of various officials' authority.

   Indeed, in the constitutional tort context, the Court has rejected
the approach of varying the applicable immunity standard from official
to official or case to case.  It has instead applied the qualified
immunity standard announced in Harlow v. Fitzgerald, supra, to claims
against virtually all government officials.  Thus, in rejecting an
argument that policy considerations required a different immunity rule
where a plaintiff seeks damages for violations of the Fourth
Amendment, the Court recently observed that "(a)n immunity that has as
many variants as there are modes of official action and types of
rights would not give conscientious officials that assurance of
protection that it is the object of the doctrine to provide." Anderson
v. Creighton, No. 85-1520 (June 25, 1987), slip op. 7;  see also
Malley v. Briggs, 475 U.S. 335 (1986).  That conclusion is equally
applicable to claims against federal employees arising under state
tort law.  See Martin v. Malhoyt, slip op. 8-9 (Williams, J.,
concurring in part and dissenting in part).

   Respondents also claim that the Court's decision in Doe rested upon
a distinction between policymaking discretion and operational
discretion (see Br. 8-9).  However, as respondents themselves
acknowledge (Br. 8), the Court concluded in Doe that the
Superintendent of Documents and the Public Printer had no discretion
with respect to the conduct that formed the basis of the claims
against those officials.  Accordingly, to the extent Doe is relevant
at all (see Pet. Br. 20-21 n.14), it relates only to the situation in
which a federal employee seeks immunity for wholly ministerial acts.

   /4/ We demonstrate in our opening brief (at 42-46) that Barr's
absolute immunity rule is the appropriate analog in the state law
context to the qualified immunity standard applicable in actions
seeking damages for constitutional violations.

   /5/ Respondents themselves appear to recognize this fact.  They
acknowledge (Br. 12-13) that the immunity from liability accorded to
federal employees must be broader than the government's immunity under
the discretionary function exception contained in the Federal Tort
Claims Act (see 28 U.S.C. 2680(a)).  The difficulty is that the
standard proposed by respondents, which they derive in part from cases
interpreting that exception (see Resp. Br. 11), does not provide the
broad protection that even respondents agree is appropriate.

   /6/ Respondents suggest (Br. 14-15) that some federal activities
are not "governmental" and therefore do not merit the protection of
immunity.  Respondents presumably have the present case in mind, but
we can think of little that is more "governmental" than the standards
governing the operation of a federal military facility.  Military
interests may require that chemicals and other materiel be stored
according to standards different from those prevalent in civilian
facilities.  But subjecting employees such as petitioners to liability
under state tort law would have the effect of forcing the federal
government to adhere to state standards:  an employee cannot be
expected to comply with a federal directive when his actions might
result in personal liability under state law.  This problem is
compounded by varying state law standards.  With respect to the
handling of dangerous substances, for example, there are substantial
differences among the States.  Several States, apparently including
Alabama, impose a duty of ordinary care (see, e.g., Aretz v. United
States, 503 F. Supp. 260, 289 (S.D. Ga. 1977), aff'd, 604 F.2d 417
(1979), reaff'd, 660 F.2d 531 (5th Cir. 1981);  Pure Oil Co. v.
Cooper, 248 Ala. 58, 63, 26 So. 2d 249, 252 (1946)), while others
impose a duty of extraordinary care (see, e.g., Miller v. Lambert, 380
So. 2d 695, 698 (La. Ct. App. 1980);  Holt v. Dep't of Food &
Agriculture, 171 Cal. App. 3d 427, 436, 218 Cal. Rptr. 1, 6 (Cal. Ct.
App. 1985)) and yet other States impose a standard of care that varies
with the risk of danger (see, e.g., Custom Craft Tile, Inc. v.
Engineered Lubricants Co., 664 S.W.2d 556, 558 (Mo. Ct. App. 1983)).