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

   No. 86-714

   In the Supreme Court of the United States

   October Term, 1986

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

   Brief for the Petitioners

                       PARTIES TO THE PROCEEDING

   In addition to the parties listed in the caption, Osburn Rutledge
and William Bell were defendants in the district court and are
petitioners in this Court.

            TABLE OF CONTENTS
   Parties to the proceeding
   Opinions below
   Jurisdiction
   Question presented
   Statement
   Summary of argument
   Argument:
      Petitioners are entitled to immunity from personal
      liability in this state tort damage action for injuries
      caused by conduct within the scope of petitioners'
      official duties
      A. This Court's decisions indicate that a federal
         employee need not exercise more than minimal
         discretion in order to be accorded immunity in an
         action under state tort law
      B. Important policy considerations justify the
         rule conferring immunity from state law liability
         upon federal employees who exercise discretion
      C. There is no persuasive reason to limit the
         availability of official immunity where the state
         tort action challenges discretionary conduct
         within the scope of a federal employee's
         official duties
      D. Petitioners are immune from liability under
         state law
   Conclusion

                            OPINIONS BELOW

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

                             JURISDICTION

   The judgment of the court of appeals (Pet. App. 8a-9a) was entered
on April 8, 1986.  A petition for rehearing was denied on June 2, 1986
(Pet. App. 10a-11a).  On August 20, 1986, Justice Powell issued an
order extending the time for filing a petition for a writ of
certiorari to and including September 30, 1986;  on September 22,
1986, Justice Powell issued an order further extending the time within
which to file a petition to and including October 30, 1986.  The
petition was filed on that date and was granted on March 2, 1987.  The
jurisdiction of this Court rests upon 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether the immunity recognized in Barr v. Matteo, 360 U.S. 564
(1959), protects petitioners -- federal employees sued in their
individual capacities -- from liability under state tort law for
injuries allegedly caused by their official acts.

                               STATEMENT

   1. This is a state law tort action in which respondents seek
monetary damages from petitioners, all of whom are federal employees,
for injuries allegedly caused by conduct that was within the scope of
petitioners' official duties.

   Respondents William T. Erwin, Sr. and his wife, Emely Erwin,
commenced this action in Alabama state court, alleging that William
was injured while working as a civilian warehouseman at the Anniston
Army Depot when he came into contact with "bags or containers of soda
ash (that) were improperly and negligently stored" (Complaint 3).
Respondents assert that he "picked up a bag of soda ash and inhaled
some of the soda ash dust that had spilled from the bag" (Erwin
Affidavit filed June 4, 1985, at 1), that as a result of his contact
with the soda ash he sustained chemical burns in his eyes and throat,
and that "(s)ince that day * * * the general quality and volume of
(his) voice has been greatly diminished" (ibid.; Complaint 4).  They
further assert that the soda ash "should not have been routed to the
warehouse where (Erwin) was working," and that "someone should have
known that it was there and provided (him) with some warning as to its
presence and danger before (he) inhaled it" (Erwin Affidavit 1).  /1/

   Petitioners, three federal employees who are supervisors at the
Anniston Army Depot, are charged in the complaint with negligence "in
proximately causing, permitting, or allowing (William Erwin) to
inhale" the soda ash (Complaint 4).  Petitioner Rodney P. Westfall is
the chief of the Receiving Section at the Depot, Osburn Rutledge is
the chief of the Breakdown and Bulk Delivery Unit, and William Bell is
the chief of Unloading Unit No. 1 (Fomby Affidavit filed April 4,
1985, at 1).  The complaint (at 1-2) also lists as defendants 21
unnamed individuals or entities.  William Erwin seeks damages in the
amount of $500,000;  Emely Erwin seeks $25,000 in damages for loss of
consortium (Complaint 4, 5).

   Petitioners removed the action to the United States District Court
for the Northern District of Alabama pursuant to 28 U.S.C. 1442(a)(1)
and filed a motion to dismiss or, in the alternative, for summary
judgment on the ground that they were absolutely immune from suit.
Respondents opposed the motion, asserting that a federal employee is
entitled to immunity from tort liability only if the employee is
engaged in policymaking activities.  /2/ The district court granted
the motion and dismissed the action against petitioners (Pet. App.
4a-7a).  The court first found no dispute regarding petitioners'
allegation, made by affidavit, that they were "acting under color of
their office and within the scope of their official duties at the time
of the acts or omissions made the basis of" respondents' tort claims
(id. at 5a).  Relying upon Johns v. Pettibone Corp., 755 F.2d 1484
(11th Cir. 1985), the district court stated that "(t)he law of the
Eleventh Circuit is clear that * * * any federal employee is entitled
to absolute immunity for ordinary torts committed within the scope of
their jobs," and held that petitioners were "absolutely immune from
suit on account of the matters alleged in the complaint" (Pet. App.
5a).

   2. The court of appeals reversed (Pet. App. 1a-3a).  It observed
that "the opinion (in Johns v. Pettibone Corp., supra) relied on by
the district court was subsequently withdrawn" (id. at 2a).  The
revised opinion "establishes the rule that 'a government employee
enjoys immunity only if the challenged conduct is a discretionary act
and is within the outer perimeter of the actor's line of duty'" (id.
at 3a, quoting Johns v. Pettibone Corp., 769 F.2d 724, 728 (11th Cir.
1985) (emphasis in original).  Finding that respondents had "alleged
undisputed facts sufficient to create a material question of whether
or not (petitioners') complained-of acts were discretionary," the
court reversed the grant of summary judgment and remanded the action
for further proceedings (Pet. App. 3a).  /3/

                          SUMMARY OF ARGUMENT

   This action was brought under Alabama state law to recover damages
from several federal supervisory employees for personal injuries said
to have resulted from the alleged improper delivery and storage of
soda ash at an Army civilian warehouse.  There is substantial reason
to conclude, as have the Fourth and Eighth Circuits, that federal
employees are absolutely immune from personal liability under state
tort law for acts committed within the scope of their employment.  A
rule of absolute immunity for actions taken within the scope of
employment would eliminate uncertainty as to the scope of immunity
protection in state tort law actions, and would most effectively
assure that federal functions are performed in a manner free of
inhibition and without excessive cost to the government.

   This rule is especially important in cases such as this one, where
discretionary conduct is at issue.  This Court's recent decisions
involving the scope of government employees' immunity from
constitutional tort actions establish that the protection of the free
exercise of discretion is an important factor weighing on the side of
conferring immunity protection.  Whether or not the Court determines
to recognize the broader immunity for all acts within the scope of
employment, therefore, it should recognize immunity from liability
under state tort law for such acts as involve the exercise of
discretion -- that is, wherever the law fails to specify the precise
action that the official must take in such instance.

   Application of immunity to protect federal employees who exercise
even minimal discretion in performing their official duties is fully
supported by this Court's decisions, going back almost to the
beginning of the Republic.  Such protection from suit is necessary to
avoid the disruption of federal governmental functions by diverting
energy and resources into the litigation process, by inhibiting
vigorous performance of duties, and by influencing discretionary
decisions in a manner likely to avoid risk of personal liability.
Such immunity from state tort law actions also helps to assure that
the laws of the separate states will not interfere with the dictates
of federal law concerning the performance of federal governmental
functions.

   The rule adopted by some courts -- recognizing immunity from state
law tort actions only in instances of "policymaking" discretion --
does not provide the protection necessary to ensure the effective
functioning of the federal government.  Not only does such an approach
subject a broad range of discretionary federal decisions to liability
under state law;  it creates great uncertainty for large categories of
employees making plainly discretionary decisions in areas such as
personnel management, law enforcement, and benefit program
administration.

   The limiting of immunity protection to acts of policy level
discretion cannot be justified by analogy to the discretionary
function exception of the Federal Tort Claims Act (FTCA) (28 U.S.C.
2680(a)).  Congress's definition of the scope of that exception was
intended to address only the proper limits on governmental liability,
and was not informed by the additional concerns, including the impact
on the decisionmaking process, that are implicit in suits asserting
individual liability.  In any event, given the range of governmental
activities excepted from the FTCA's waiver of sovereign immunity -- by
a number of provisions of which the discretionary function exception
is just one -- a personal immunity for minimally discretionary conduct
within the scope of employment is essential to protect Congress's
determination that certain federal actions should not be tested in
court by reference to state tort law.

   The recognition of a broad immunity from state law tort actions
leaves in place substantial remedies both to deter improper conduct
and, in many instances, to compensate those injured.  It applies, of
course, only to actions within the outer perimeter of an employee's
duties, and thus in no way interferes with suits challenging wholly
unauthorized actions of federal employees.  Where the immunity is
applicable, the government retains a power, which has been regularly
exercised, to discipline or discharge employees who act improperly.
And in many instances, persons who are denied a right of action
against an individual defendant on the basis of immunity retain
meaningful avenues of relief under the Federal Employees' Compensation
Act or the FTCA.

   Recognition of immunity in this situation is also wholly compatible
with the immunity doctrine articulated by this Court in constitutional
tort cases.  The prerequisite to immunity in the latter category of
cases -- that the defendant not have violated a clearly established
constitutional right -- is justified by the favored position of
federal constitutional rights.  There is thus, by definition, no
justification for a parallel requirement in a state tort law case.
Further, if an additional requirement that there be no violation of
clearly established law were imposed, practical problems would render
ineffectual the resulting immunity protection.  Such an inquiry would
necessarily be concerned not only with state law, but with the
interaction of state law principles and the directives of federal law
concerning the federal functions being performed.  We submit that a
conclusion of liability in such a situation will almost never be so
clear as to justify denying immunity under such a test.  Thus the
test, if properly applied, would result in no meaningful limitation on
the availability of immunity.  Its primary effect would be to generate
uncertainty and provide a subject for pointless and harmful
litigation.

   In sum, federal employees acting within the scope of their
employment -- and most clearly those exercising a modicum of
discretion -- are entitled to immunity from state law tort suits.
Respondents' tort action was therefore properly dismissed by the
district court.

                               ARGUMENT

 PETITIONERS ARE ENTITLED TO IMMUNITY FROM PERSONAL LIABILITY IN THIS
STATE TORT DAMAGE ACTION FOR INJURIES CAUSED BY CONDUCT WITHIN THE
SCOPE OF PETITIONERS' OFFICIAL DUTIES

   This case concerns the extent to which a federal employee is immune
from personal liability in damages under state tort law for injuries
allegedly caused by the employee's official acts.  The scope of the
immunity afforded to federal employees is, of course, a matter of
federal law, "to be formulated by the courts in the absence of
legislative action by Congress" (Howard v. Lyons, 360 U.S. 593, 597
(1959).  /4/ And the basic elements of that federal standard were
established by this Court in the landmark decision in Barr v. Matteo,
360 U.S. 564 (1959).

   In Barr, a group of former employees of the federal Office of Rent
Stabilization alleged that they had been libeled by a press release
issued at the direction of the defendant, who was at the time acting
director of the office.  Justice Harlan, writing for a plurality of
four Justices, stated that the defendant was immune because "(t)he
fact that the action (that formed the basis for the libel suit) was
within the outer perimeter of (the defendant's) line of duty is enough
to render the privilege applicable, despite the allegations of malice
in the complaint" (360 U.S. at 575).  Justice Black concurred on the
ground that the tort action challenged the disclosure of information
about the functioning of government.  "(I)f federal employees are to
be subjected to such restraints in reporting their views about how to
run the government better," he stated, "the restraint will have to be
imposed expressly by Congress and not by the general libel laws of the
States or of the District of Columbia" (id. at 577 (footnote
omitted)).  Justice Stewart agreed with the plurality's analysis of
the "principles that should guide decision in this troublesome area of
law," but dissented from the judgment because he concluded that the
issuance of the press release was outside the scope of the defendant's
official duties (id. at 592).  In Howard v. Lyons, supra, a majority
of the Court -- the Barr plurality joined by Justice Stewart --
adopted the standard announced by the plurality in Barr, applying that
rule to immunize a federal employee from liability under state libel
law for damages allegedly caused by the federal employee's official
acts (360 U.S. at 597-598).

   In the years since Barr, the courts of appeals have considered the
scope of federal employees' immunity in the context of a wide variety
of tort claims, and have applied the immunity rule announced in Barr
not only to libel actions, but to all tort claims, and have applied
the immunity rule announced in Barr not only to libel actions, but to
all tort claims under state law.  McKinney v. Whitfield, 736 F.2d 766,
768-769 (D.C. Cir. 1984);  Miller v. DeLaune, 602 F.2d 198, 200 (9th
Cir. 1979) (per curiam);  Norton v. McShane, 332 F.2d 855, 859-860 &
n.5(5th Cir. 1964), cert. denied, 380 U.S. 981 (1965);  see also
Harlow v. Fitzgerald, 457 U.S. 800, 807-808 (1982) (characterizing
Barr as according "absolute immunity from suits at common law");  Butz
v. Economou, 438 U.S. 478, 494-495 (1978).

   This case brings before the Court a question on which the courts of
appeals have not been able to agree -- the issue of the types of
official actions for which federal employees may receive protection
from personal liability under the Barr immunity principle.
Notwithstanding the Barr plurality's statement that immunity from tort
liability "is not a badge or emolument of exalted office, but an
expression of a policy designed to aid in the effective functioning of
government," and its conclusion that immunity is available to
"officers of lower rank in the executive hierarchy," /5/ the courts of
appeals have reached a variety of conclusions regarding the class of
federal employees entitled to protection under Barr.

   Two courts of appeals have held that Barr extends immunity to all
federal employees, regardless of the nature of their duties or their
place in the federal hierarchy.  See General Electric Co. v. United
Staes, 813 F.2d 1273, 1276-1277 (4th Cir. 1987);  Poolman v. Nelson,
802 F.2d 304, 307 (8th Cir. 1986).  Other courts have restricted
immunity to federal employees who exercise discretion, but have
reached almost the same result by concluding that the authority to
exercise very limited discretion is sufficient to justify immunity.
/6/

   On the other hand, some courts have taken a restrictive approach,
extending protection from liability only to federal employees of a
particular rank.  The version of this approach applied by the court
below in the present case, and by other courts as well, limits the
benefit of immunity to federal employees who exercise policymaking
authority.  /7/ Other courts have utilized an ad hoc approach in
determining "whether judicial scrutiny of a disputed official act
might inhibit official policymaking and thus unduly interfere with the
efficient operation of government." /8/

   There is substantial basis for concluding, as have the Fourth and
Eight Circuits, that federal employees are protected by immunity from
suits for damages under state tort law whenever their conduct falls
within the scope of their official duties.  Protection of federal
employees from the risk of personal liability resulting from the
performance of their jobs is fundamentally necessary if those jobs are
to be performed in a manner free of inhibition and without excessive
cost to the government.  /9/ Moreover, there is much in the decisions
of this Court to suggest that immunity is appropriate in the instance
of state tort law actions, without regard to whether the conduct in
issue is discretionary or ministerial in nature.  /10/

   In any event, there can be no doubt, following several of this
Court's decisions in the context of constitutional tort actions, see,
e.g., Davis v. Scherer, 468 U.S. 183, 196 (1984);  Harlow v.
Fitzgerald, 457 U.S. 800, 807 (1982);  Butz v. Economou, 438 U.S. 478,
506 (1978), that the presence of discretionary conduct on the part of
the federal employee adds an important additional consideration -- the
protection of the unbiased exercise of that discretion -- on the side
of recognizing immunity.  We submit that this additional consideration
is wholly applicable in this case, where a clear form of discretionary
conduct is obviously in issue.  Whatever the Court might conclude in a
case raising the issue of immunity in a wholly ministerial context,
therefore, it is quite clear that a federal employee is entitled to
immunity whenever the conduct that is the basis for the state tort
claim falls within the scope of the employee's official duties and
involves the exercise of a minimal quantum of discretion.  That
quantum of discretion exists whenever the law "fails to specify the
precise action that the official must take in each instance" (Davis v.
Scherer, 468 U.S. at 197 n.14).  Petitioners plainly are entitled to
immunity under that standard.  /11/

 A. This Court's Decisions Indicate That A Federal Employee Need Not
Exercise More Than Minimal Discretion In Order To Be Accorded Immunity
In An Action Under State Tort Law

   Beginning with its earliest cases, this Court recognized that
federal employees are in some circumstances entitled to immunity from
liability in damages for injuries caused by their official actions.
This recognition of immunity has rested on an awareness of the need to
protect officials in the exercise of their governmental
responsibilities, especially where those responsibilities involve
choices between various actions that might be taken.  In Crowell v.
McFadon, 12 U.S. (8 Cranch) 94 (1814), for example, a customs
collector detained a vessel pursuant to an embargo statute providing
that he could do so "if, in his opinion, it was the intention to
violate or evade any of the provisions of the embargo laws, and his
conduct was approved and confirmed by the president" (12 U.S. (8
Cranch) at 98).  The Court rejected an action for resulting damages,
observing that "(t)he law places a confidence in the opinion of the
officer, and he is bound to act according to his opinion;  and when he
honestly exercises it, as he must do in the execution of his duty, he
cannot be punished for it" (ibid.).

   It follows that when an official properly performs an act
authorized by federal law, he may not be held liable in damages.
Erskine v. Hohnbach, 81 U.S. (14 Wall.) 613, 616 (1871);  Osborn v.
United States Bank, 22 U.S. (9 Wheat.) 738, 865-866 (1824);  cf. In re
Neagle, 135 U.S. 1, 75 (1890) (a federal officer who does an act
authorized by federal law that was "no more than what was necessary
and proper for him to do, * * * cannot be guilty of a crime under
(state) law") (emphasis in original);  see generally pages 27-30,
infra.  But this immunity was never limited to situations in which a
federal employee properly performed his duties.  In a number of early
cases, the Court made clear that liability was barred, at least in
some instances, even when the official act turned out to be improper.

   In Otis v. Watkins, 13 U.S. (9 Cranch) 339 (1815), for example, the
applicable federal statute authorized detention of a vessel by a
customs collector "whenever in (his) opinions the intention is to
violate or evade any of the provisions of the acts laying an embargo,
until the decision of the President of the United States be had
thereupon" (Act of Apr. 25, 1808, ch. 66, Section 11, 2 Stat. 501).
In an action in trespass, this Court found error in a jury instruction
authorizing liability if the defendant collector acted negligently in
detaining the vessel.  "(T)he law exposes his conduct to no such
scrutiny," the Court stated.  "If it did, no public officer would be
hardy enough to act under it" (13 U.S. (9 Cranch) at 355-356).  The
Court found that the collector was entitled to immunity from liability
so long as he "honestly entertained the opinion under which he acted"
(id. at 356), and there was no proof of "malice or other circumstances
which may impeach the integrity of the transaction" (ibid.).

   The Court reached a similar conclusion in Kendall v. Stokes, 44
U.S. (3 How.) 87 (1845), where the Postmaster General was sued for
"illegally (and) maliciously" (id. at 88) suspending a monetary credit
on the books of the Post Office Department to which the plaintiffs
were entitled under their contract with the Department.  The Court
held that the plaintiffs could not recover damages as long as the
Postmaster General had acted in good faith, observing that where the
action involved "is not merely a ministerial one," but requires the
"exercise (of) judgment and discretion," a public officer is not
liable because he "falls into error" (44 U.S. (3 How.) at 98).  The
Postmaster General "committed an error in supposing that he had a
right to set aside allowances for services rendered upon which his
predecessor in office had finally decided.  But as the case admits
that he acted from a sense of public duty and without malice, his
mistake in a matter properly belonging to the department over which he
presided can give no cause of action against him." Id. at 98-99;  see
also Dinsman v. Wilkes, 53 U.S. (12 How.) 390, 404 (1851);  Wilkes v.
Dinsman, 48 U.S. (7 How.) 89, 129-132 (1849).

   Thus, prior to Spalding v. Vilas, 161 U.S. 483 (1896), a government
employee could be required to answer in damages for his official
actions only where:  (1) he acted with malice;  (2) "the law
require(d) absolutely a ministerial act to be done by (the) public
officer, and he neglect(ed) or refuse(d) to do such act" (Amy v. The
Supervisors, 78 U.S. (11 Wall.) 136, 138 (1870));  or, (3) the
employee "acted outside of his federal statutory authority." Butz v.
Economou, 438 U.S. 478, 490 (1978);  see Bates v. Clark, 95 U.S. 204,
209 (1877);  Teal v. Felton, 53 U.S. (12 How.) 284, 291 (1851);
Little v. Barreme, 6 U.S. (2 Cranch) 170, 179 (1804).

   In Spalding, the Court eliminated malice as a condition giving rise
to personal liability.  The plaintiff there sought money damages from
the Postmaster General, alleging that the Postmaster General had
issued a circular containing false statements in an effort to injure
the plaintiff.  This Court found that the defendant's conduct was
within the scope of his official duties and held that he was immune
from liability even if he had acted with malice (161 U.S. at 498-499):

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

   The immunity doctrine as applied in Spalding was reaffirmed by a
plurality of this Court in Barr v. Matteo, supra.  /12/ Concluding
that the availability of immunity cannot be and never had been
restricted to executive officers of cabinet rank (360 U.S. at 572),
the plurality stated that it is "the duties with which the particular
officer * * * is entrusted -- the relation of the act complained of to
'matters committed by law to his control or supervision,' -- which
must provide the guide in delineating the scope of the rule which
clothes the official acts of the executive officer with immunity from
civil defamation suits" (id. at 573-574 (citation omitted)).  Thus,
although Barr itself involved "an official of policymaking rank" (360
U.S. at 575), the plurality in Barr did not restrict immunity to
federal employees who exercise a particular quantum of discretion.
See General Electric Co. v. United States, 813 F.2d at 1276-1277 &
n.3;  Poolman v. Nelson, 802 F.2d at 307;  Lojuk v. Johnson, 770 F.2d
619, 626-627 (7th Cir. 1985);  Ricci v. Key Bancshares of Maine, Inc.,
768 F.2d 456, 463-464 (1st Cir. 1985).  "The fact that the action here
taken (by the defendant) was within the outer perimeter of (his) line
of duty (was) enough to render the privilege applicable" (360 U.S. at
575).  /13/

   Indeed, the plurality's only discussion of the fact that the
defendant in Barr did exercise discretion was in connection with its
determination that the challenged conduct was within the outer
perimeter of his line of duty.  The plurality took pains to point out
that, because the defendant's responsibilities were discretionary in
nature, the absence of specific statutory authority for the challenged
conduct did not divest the defendant of the protection of immunity
(360 U.S. at 575 (emphasis in original;  footnote omitted)):

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

   The Court has not, since Barr, squarely considered, the scope of
federal employees' immunity from liability in a state law tort action.
 /14/ Accordingly, the rule announced in the Court's early decisions
-- that all federal employees who exercise discretion are entitled to
immunity in connection with acts within the scope of their official
duties -- remains good law today.

   This Court's recent discussion in Davis v. Scherer, supra,
concerning the types of official conduct entitled to immunity in an
action alleging constitutional violations, confirms the vitality of
that long-standing principle.  In Davis, a discharged state employee
sought damages under 42 U.S.C. 1983, asserting that state officials
had violated his right to due process by failing to provide him with
either a formal predetermination hearing or a prompt post-termination
hearing, as required by state regulations.  The defendants' claim of
immunity was opposed on the ground that, by failing to comply with the
state regulation setting forth the procedures to be followed in
connection with a discharge, the defendants had breached a
"ministerial" duty.  According to the plaintiff, the regulation
"deprived (the defendants) of all discretion in determining what
procedures were to be followed prior to discharge," and the defendants
were not entitled to immunity under the standard of Harlow v.
Fitzgerald, supra, which allows immunity for "discretionary
functions").

   This Court rejected that argument and held that the state
regulation "left to (the defendants) a substantial measure of
discretion" (468 U.S. at 197 n.14).  Invoking the definition of
discretion adopted in its early cases addressing federal employees'
immunity from tort liability, the Court concluded that the defendants'
duties were sufficiently discretionary to warrant the protection of
official immunity.  It stated that "(a) law that fails to specify the
precise creates only discretionary authority;  and that authority
remains discretionary however egregiously it is abused." Ibid. (citing
Kendall v. Stokes, 44 U.S. (3 How.) at 98);  see pages 16-17, supra;
cf. Kendall v. United States, 37 U.S. (12 Pet.) 524, 613-614 (1838)
(distinguishing between ministerial and discretionary duties in the
mandamus context).  /15/

   The definition of discretion applied by the Court in Davis has been
applied by the courts of appeals to resolve qualified immunity claims
under the Harlow standard.  See, e.g., Gagne v. City of Galveston, 805
F.2d 558, 559-560 (5th Cir. 1986);  Thorne v. City of El Segundo, 802
F.2d 1131, 1138 n.7 (9th Cir. 1986).  It should also be applied to
determine whether immunity is warranted in an action for damages under
state tort law.  There is no reason that these two kinds of immunity
should protect different types of conduct or different classes of
federal employees, especially in view of the fact that the Davis
standard is based upon the rule set forth in this Court's decisions in
the common law tort context.  See Ricci v. Key Bancshares of Maine,
Inc., 768 F.2d 456, 464 (1st Cir. 1985) (applying Davis test in common
law tort action).  Moreover, creating categories of conduct that are
protected by Harlow immunity but subject to tort liability under state
law would allow prospective plaintiffs to circumvent the Harlow rule
by framing their claims in state law rather than constitutional terms.
 /16/

 B. Important Policy Considerations Justify The Rule Conferring
Immunity From State Law Liability Upon Federal Employees Who Exercise
Discretion

   The immunity principle for which we contend is essential to the
ability of the federal government to carry out its responsibilities.
Immunity is necessary "to aid in the effective functioning of
government" (Barr, 360 U.S. at 573 (plurality opinion)) by eliminating
the intimidation and disruption of federal activities that might
result from actual or potential litigation under state tort law.

   1. The plurality in Barr observed that "officials of government
should be free to exercise their duties unembarrassed by the fear of
damage suits based on acts done in the course of those duties -- suits
which would consume time and energies which would otherwise be devoted
to governmental service and the threat of which might appreciably
inhibit the fearless, vigorous, and effective administration of
policies of government." 360 U.S. at 571;  see also Spalding v. Vilas,
161 U.S. at 498;  Wilkes v. Dinsman, 48 U.S. (7 How.) at 129-132;
Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949) (L. Hand, J.),
cert. denied, 339 U.S. 949 (1950).

   The job performance of any federal employee, whether his duties are
ministerial or discretionary, undoubtedly would be affected by the
prospect of litigation and personal liability for harms allegedly
caused by his official acts.  As this Court has stated more recently
in discussing immunity from liability for constitutional torts, "(the)
social costs include the expenses of litigation, the diversion of
official energy from pressing public issues, and the deterrence of
able citizens from acceptance of public office" (Harlow v. Fitzgerald,
457 U.S. at 814).

   When a federal employee's official duties involve any exercise of
discretion, the possibility of personal monetary liability is also
likely to influence the manner in which the employee performs his
duties, giving him an incentive to shade his decisions and hedge his
conduct so as to avoid the sort of confrontation or controversy that
might result in a lawsuit.  See Harlow v. Fitzgerald, 457 U.S. at 814;
 Nixon v. Fitzgerald, 457 U.S. 731, 752 n.32 (1982).  As one court
stated in upholding a claim of immunity, "(e)xcept for 'the most
resolute, or the most irresponsible,' a Government official * * *
would indeed find it difficult honestly and independently to (perform
his official duties) if he knew that (his conduct) * * * could subject
him to the risk, the inconvenience and the embarrassment of a public
trial and to possible personal liability, as a result of which he
might lose his home, his automobile, his savings and whatever other
property, real or personal, he might possess" (Ove Gustavsson
Contracting Co. v. Floete, 299 F.2d 655, 658 (2d Cir. 1962)).  /17/

   The Court has observed in the context of actions seeking damages
for alleged constitutional violations that "(i)mplicit in the idea
that officials have some immunity -- absolute or qualified -- for
their acts, is a recognition that they may err.  The concept of
immunity assumes this and goes on to assume that it is better to risk
some error and possible injury from such error than not to decide or
act at all." Scheuer v. Rhodes, 416 U.S. 232, 242 (1974);  see also
Butz v. Economou, 438 U.S. at 506-507;  Procunier v. Navarette, 434
U.S. 555, 562 (1978);  Wood v. Strickland, 420 U.S. 308, 319, 321
(1975).  Because the threat of liability is likely to cause government
employees to "exercise their discretion with undue timidity" (Wood v.
Strickland, 420 U.S. at 321), they are accorded immunity with respect
to their discretionary activities.  As the plurality recognized in
Barr, 360 U.S. at 571-572, the same policies justify immunity from
liability under state law for federal employees who exercise
discretion.  /18/

   2. In Butz v. Economou, supra, this Court observed that "(t)he
immunity of federal executive officials began as a means of protecting
them in the execution of their federal statutory duties from criminal
or civil actions based on state law." 438 U.S. at 489;  see also Barr
v. Matteo, 360 U.S. at 577 (footnote omitted) (Black, J., concurring)
(any restraint on expressions by federal officials "about how to run
the government better * * * will have to be imposed expressly by
Congress and not by the general libel laws of the States or of the
District of Columbia").  The rule immunizing federal officers from
liability under state law is thus also supported by the well-settled
principle that, absent a congressional determination to the contrary,
federal activities must be governed by federal standards, not state
law.

   It has long been clear that "the (C)onstitution and the laws made
in pursuance thereof are supreme;  * * * they control the
(C)onstitution and laws of the respective States, and cannot be
controlled by them" (M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316,
426 (1819)).  In the absence of affirmative acquiescence by Congress,
"the activities of the Federal Government are free from regulation by
any state." Mayo v. United States, 319 U.S. 441, 445 (1943) (footnote
omitted);  see also Hancock v. Train, 426 U.S. 167, 178-179 (1976);
Arizona v. California, 283 U.S. 423, 451 (1931).

   And the states may not accomplish that forbidden end indirectly by
regulating the conduct of federal employees.  In general, state
statutes or regulations may not be invoked to bar or punish the
performance of official federal duties.  In In re Neagle, supra, for
example, the Court held that a United States marshal could not be
prosecuted under state criminal law for a murder committed in the
course of performing his official duties.  135 U.S. at 75-76;  see
also Johnson v. Maryland, 254 U.S. 51 (1920);  Ohio v. Thomas, 173
U.S. 276, 283-284 (1899);  Osborn v. United States Bank, 22 U.S. (9
Wheat.) at 847-849, 865-866;  cf. Tennessee v. Davis, 100 U.S. 257,
263 (1879).  /19/

   Recognition of a generally available damage remedy against federal
employees for violations of state tort law standards would shape
official conduct to conform to those standards as effectively as a
criminal statute.  San Diego Building Trades Council v. Garmon, 359
U.S. 236, 247 (1959) ("(t)he obligation to pay compensation can be,
indeed is designed to be, a potent method of governing conduct and
controlling policy");  see also International Paper Co. v. Ouellette,
No. 85-1233 (Jan. 21, 1987), slip op. 16 n.19;  Chicago & North
Western Transportation Co. v. Kalo Brick & Tile Co., 450 U.S. 311,
317-318 (1981).  The availability of defamation actions, for example,
would undoubtedly engender reluctance to come forward with information
about malfeasance in office, despite the strong federal interest in
exposing such wrongdoing.  See Nietert v. Overby, No. 84-1049 (10th
Cir. Apr. 22, 1987), slip op. 9-13.  Federal standards regulating
construction or work place safety might well be effectively supplanted
if federal employees could be subject to personal liability under a
different and more stringent state tort law standard.  Immunity from
liability under state law for federal employees who exercise
discretion prevents this form of state influence over federal
activities.  See Butz v. Economou, 438 U.S. at 489;  Ricci v. Key
Bancshares of Maine, Inc., 768 F.2d at 463.  /20/

   3. Notwithstanding this Court's decision in Davis v. Scherer,
supra, some courts of appeals, including the court below, have
insisted that a federal employee is eligible for immunity from a state
law tort action only if he exercises discretion relating to
"policymaking" rather than to "day to day operations." Heathcoat v.
Potts, 790 F.2d 1540, 1542 (11th Cir. 1986);  see also pages 11-12,
supra.  This more limited immunity does not provide the protection for
federal employees needed to ensure the effective functioning of the
federal government.

   As a threshold matter, this Court's decision in Davis indicates
that the need to ensure the effective functioning of a government
justified immunity from liability for a constitutional violation as
long as a federal employee exercised a minimum degree of discretion.
The same policy therefore justifies immunity from liability under
state tort law in that situation as well.  Indeed, the case for
official immunity is, if anything, stronger in the state tort context
because there the immunity rule is supported by the policy barring
state interference with federal activities.  It certainly would be
anomalous to subject federal employees to greater liability for
violations of state law than for violations of federal constitutional
law.  /21/

   Moreover, a rule restricting immunity to policymakers would render
quite uncertain the proper resolution of the immunity claims of major
categories of employees whose entitlement to protection cannot
reasonably be doubted.  Government supervisors making individual
personnel decisions, /22/ law enforcement officers investigating
possible wrongdoing, /23/ and federal employees who determine whether
an applicant qualifies for benefits under a federal program /24/ all
have regularly received the protection of immunity.  That result is
appropriate because these employees' duties involve the exercise of
discretion, and the prospect of personal liability under state law
would hinder the proper performance of those duties.  Yet, in most
instances, the duties can easily be characterized as either
policymaking or operational, depending upon whether one focuses on the
range of choices the employees must make or on the guidelines and
standards by which those choices are constrained.  /25/ Drawing such
dubious distinctions among various kinds of discretion therefore
provides no assistance in identifying the situations in which immunity
is appropriate.  That approach also fails to recognize that the threat
of personal liability will bias any discretionary decision in the
direction of protecting the official's pocketbook, even though other,
less personal, considerations may merit dominant consideration.

   Some courts have relied upon the scope of the discretionary
function exception contained in the Federal Tort Claims Act (see 28
U.S.C. 2680(a)) in concluding that immunity should be limited to acts
of "policy" level discretion.  See, e.g., Jackson v. Kelly, 557 F.2d
735, 737-738 (10th Cir. 1977) (en blanc).  As a threshold matter,
reliance on the Federal Tort Claims Act to define the limits of
personal immunity seems quite unsound.  In addressing the appropriate
limits upon governmental immunity for discretionary acts, Congress had
no reason to consider the impact of the threat of personal liability
in distorting a decisionmaker's judgment.  The effect of the threat of
personal liability on individual employees broader immunity than that
available to a governmental entity.  Estate of Burks v. Ross, 438 F.2d
at 234;  5 F. Harper, F. James & O. Gray, The Law of Torts Section
29.14, at 717, 719-720 (1986);  cf. Owen v. City of Independence, 445
U.S. 622, 653-656 & n.37 (1980).

   In any event, the scope of the government's liability under the
Federal Tort Claims Act, taken as a whole, supports a broad definition
of discretion in the personal immunity context.  In addition to
adopting the discretionary function exception, Congress concluded that
certain federal activities should be wholly immune from suit under
state tort law, /26/ and that violations of certain tort standards
should not give rise to liability on the part of the United States.
/27/ Like the discretionary function exception, these provisions
embody a determination that certain government conduct "'should not be
tested through the medium of a damage suit for tort.'" Varig Airlines,
467 U.S. at 809-810 (quoting Hearings on H.R. 5373 and H.R. 6463
Before the House Comm. on the Judiciary, 77th Cong., 2d Sess. 28, 33
(1942) (statement of Assistant Attorney General Francis M. Shea));
see note 18, supra.

   A plaintiff should not be able to circumvent Congress's
determination that the propriety of some federal actions should not be
assessed by reference to state tort law by naming a federal employee
as the defendant rather than the United States.  Cf. Bush v. Lucas,
462 U.S. 367, 388 (1983).  Because the federal activities covered by
the exceptions are so varied, in order that federal employees engaged
in those activities may be insulated against liability under state
tort law, they must, at a minimum, be protected as to conduct fitting
within the broad definition of discretion set forth in Davis.  /28/
That approach will protect the class of employees who might otherwise
be encouraged to tailor their conduct to the requirements of state law
by the threat of personal liability -- those employees whose duties
are not fully enumerated in explicit federal standards.  /29/

   4. In defining the scope of government employees' immunity from
personal liability for constitutional violations, this Court has
recognized that "officials can act without fear of harassing
litigation only if they reasonably can anticipate when their conduct
may give rise to liability for damages and only if unjustified
lawsuits are quickly terminated" (Davis v. Scherer, 468 U.S. at 195).
/30/ Here too, immunity can insulate federal employees from the threat
of litigation, and thereby promote "the effective functioning of
government" (Barr, 360 U.S. at 573), only if employees know in advance
that they will not be subject to tort liability for particular
official acts.  The types of conduct entitled to immunity therefore
must be defined with clarity.  See Coleman v. Frantz, 754 F.2d 719,
727-728 (7th Cir. 1985).

   We are unable to formulate a definition of discretion narrower than
that adopted by the Court in Davis that also provides the certainty
necessary if the immunity is to have its intended effect.  As we have
shown, terms such as "policy" or "judgment" are too imprecise and thus
are certain to be applied by courts in ways that will leave an
employee wholly unsure about his entitlement to immunity for a
particular action of decision.  Cf. Varig Airlines, 467 U.S. at 811
(noting difficulty in defining discretion under the Federal Tort
Claims Act);  Ove Gustavsson Contracting Co. v. Floete, 2;9 F.2d at
659 ("(t)here is no litmus paper test to distinguish acts of
discretion").  This uncertainty itself will tend to defeat the purpose
of the immunity and is reason enough to adopt a clearer and broader
rule.  /31/

 C. There Is No Persuasive Reason To Limit The Availability Of
Official Immunity Where The State Tort Action Challenges Discretionary
Within The Scope Of A Federal Employee's Official Duties

   1. Denial of compensation for allegedly meritorious claims is, of
course, a feature of every immunity rule.  The Court has observed that
official immunity requires consideration of the competing policies of
"protection of the individual citizen against pecuniary damage caused
by oppressive or malicious action" of government officials, and
"protection of the public interest by shielding responsible
governmental officers against the harassment and inevitable hazards of
vindictive or ill-founded damage suits." Barr v. Matteo, 360 U.S. at
565 (plurality opinion);  see also Harlow v. Fitzgerald, 457 U.S. at
807.  However, the Court has never found the interest in deterring and
remedying inappropriate governmental conduct sufficient to override
the countervailing policies favoring immunity where immunity is
demonstrably necessary to the effective functioning of government.
Immunity is similarly appropriate here, in part because the remedial
and deterrence interests are furthered in several ways notwithstanding
the recognition of immunity.

   First, a federal employee is only immune from liability for damage
caused by acts that are "within the outer perimeter of (his) line of
duty" (Barr, 360 U.S. at 575).  The inquiry is whether the act has
"more or less connection with the general matters committed by law to
(the employee's) control or supervision," in which case it falls with
the scope of his duties, or whether it is "manifestly or palpably
beyond his authority." Spalding v. Vilas, 161 U.S. at 498;  see also
Butz v. Economou, 438 U.S. at 495;  Barr, 360 U.S. at 573-574.  The
immunity rule thus may not be invoked to bar a tort action seeking
damages for wholly unauthorized conduct by government employees.  See,
e.g., Wheeldin v. Wheeler, 373 U.S. 647, 650-651 (1963);  Otto v.
Heckler, 781 F.2d 754, 757-758 (9th Cir. 1986);  Bates v. Clark, 95
U.S. at 204;  Little v. Barreme, 6 U.S. (2 Cranch) at 179;  see also
Green v. James, 473 F.2d 660 (9th Cir. 1973).

   This limitation upon the scope of an employee's immunity assumes
greater significance as the employee's discretion narrows.  Cf.
Scheuer v. Rhodes, 416 U.S. at 247 (observing that scope of immunity
varies, "the variation being dependent upon the scope of discretion
and responsibilities of the office(r) and all the circumstances as
they reasonably appeared at the time of the action on which liability
is sought to be based");  Barr, 360 U.S. at 573 (plurality opinion).
Thus, employees who exercise relatively less discretion will be
entitled to immunity with respect to a narrower category of conduct.

   Second, alternate avenues exist to deter wrongful conduct by
federal employees.  The government has general authority to take
adverse action against an employee in order to "promote the efficiency
of the service" (5 U.S.C. 7503(a), 7513(a), and that authority is
routinely invoked to suspend, demote, or discharge federal employees
or to the public.  See, e.g., Brown v. Department of Justice, 715 F.2d
662 (D.C. Cir. 1983) (Border Patrol Agent suspended without pay
pending trial on criminal charges relating to violations of civil
rights);  Doyle v. Veterans Administration, 667 F.2d 70 (Ct. Cl. 1981)
(Psychiatrist employed by Veterans Administration dismissed after he
was found to have engaged in sexual misconduct with patients);
Johnson v. United States, 628 F.2d 187 (D.C. Cir. 1980) (law
enforcement officer discharged for improper use of his weapon);
Horney v. United States Forest Service, 29 M.S.P.R. 543 (1985)
(employee demoted for negligent testing of ignition device that
resulted in fire on private land);  Harris v. United States Dep't of
Justice, 29 M.S.P.R. 332 (1985) (employee suspended for failing to
follow accepted nursing practices in administering care to prisoners);
 Watkins v. Department of the Navy, 29 M.S.P.R. 146 (1985) (employee
suspended for exposing himself and co-worker to excessive radiation);
Super v. Department of the Air Force, 24 M.S.P.R. 221 (1984) (employee
demoted for negligent performance of duties that resulted in
possibility of serious damage to persons and property).  /32/

   Third, compensation for injuries caused by activities of the
federal government is available, in many instances, through avenues
other than a state law tort suit against a federal employee in his
personal capacity.  With respect to injuries incurred by a federal
employee in the course of performing his official duties, Congress has
adopted the Federal Employees' Compensation Act (FECA), 5 U.S.C. 8101.
 The FECA, which resembles state worker's compensation statutes,
provides for administrative no-fault compensation when a federal
employee incurs an injury on the job.  The statute authorizes medical
benefits, vocational rehabilition and compensation for permanent
disabilities (see 5 U.S.C. 8102-8115).  Thus, the Department of the
Army informs us that William Erwin was reimbursed under the FECA for
his medical costs and received disability pay for the period that he
was unable to work.  He did not receive compensation for the alleged
harm to his vocal chords because the FECA does not authorize
compensation for that injury.  /33/

   Further, the Federal Tort Claims Act (FTCA) embodies the
government's waiver of sovereign immunity with respect to tort claims
generally.  /34/ While, as we have indicated (see pages 34-35, supra),
the FTCA contains substantial explicit exceptions from its coverage,
neither the discretionary function exception nor all of the exceptions
taken together are as broad as the immunity properly available to an
individual defendant.  Where a federal employee's immunity from
personal liability extends beyond the FTCA's statutory exceptions,
compensation is available through an action against the United States
under the Tort Claims Act.  See Sami v. United States, 617 F.2d 755,
772 (D.C. Cir. 1979).

   Fourth, from a practical perspective, it is unlikely that a broad
definition of discretion, leading to a broadened application of
individual immunity, will appreciably reduce an injured person's
ability to obtain compensation.  The limited financial resources of
many employees who exercise the more modest sort of discretion which
Davis recognized as a sufficient basis for immunity, suggests that
plaintiffs will rarely lose genuine opportunities for compensation.
See Sami v. United States, 617 F.2d at 772 & n.30.

   In sum, as the plurality stated in Barr, while "there may be
occasional instances of actual injustice which will go unredressed, *
* * we think that price a necessary one to pay for the greater good.
And there are of course other sanctions than civil tort suits
available to deter the executive official who may be prone to exercise
his functions in an unworthy and irresponsible manner" (360 U.S. at
576).  The Court therefore should not limit the scope of immunity in
order to protect the right to compensation for wrongful government
action.

   2. Some judges and commentators have intimated that the immunity
standard applied by this Court in Barr is unsound because it confers
an immunity broader than that available to federal employees for
constitutional violations.  See, e.g., Granger v. Marek, 583 F.2d 781,
786-787 (6th Cir. 1978) (Merritt,J., dissenting);  5 K. Davis,
Administrative Law Treatise Section 27:22, at 116-117 (2d ed. 1984).
This criticism appears to rest on the fact that the employee loses his
immunity in the constitutional tort context if he is shown to have a
violated a clearly established constitutional right.  We believe that
this additional requirement for immunity for constitutional wrongs is
explained by two important differences between constitutional
violations and infringements of state tort standards.  First,
especially with respect to the official actions of federal employees,
rights guaranteed under the federal Constitution are entitled to
greater protection than those arising under state tort law.  See Butz
v. Economou, 438 U.S. at 495.  Second, as the Court suggested in Butz,
where a federal employee fails to comply with a clear constitutional
rule, he has also acted in a manner that is outside the scope of his
official duties.  See note 36, infra.  Thus, the scope of employment
requirement inherent in the Barr immunity test is the appropriate
analog to Harlow's clearly established constitutional right test.
There is accordingly no basis for further qualifying the availability
of immunity in the state law context.

   This conclusion is supported by the unworkability of the
supplemental provision that would have to be added to the Barr test to
parallel the Harlow rule that an official is divested of immunity in
the constitutional context if he violates a "clearly established
statutory or constitutional right() of which a reasonable person would
have known" (457 U.S. at 818).  Under Harlow, one looks to the clearly
established character of the constitutional right that is the subject
of the action, so in the state tort context the inquiry presumably
would look to the clarity and established character of the state law
right at issue.  Given the involvement of a federal employee, however,
the inquiry would necessarily be more complex.  Regardless of the
clarity of a given violation as a matter of state law, a federal
employee must view any state law duties through an overlay of federal
law obligations.  Thus, the employee could be deprived of immunity
only where he (1) should have known he was violating a state law duty,
and (2) should have known that his affirmative obligations under
federal law incorporated that state law rule.  See pages 27-30, supra.

   This inquiry is, at best, an uncertain one.  It is no easy matter
for judges and lawyers to evaluate the interplay of state tort law and
federal law relating to the performance of governmental functions.
Because federal law is generally supreme, there is usually no basis
for liability in any event.  See note 19, supra.  To the extent that
courts find otherwise in specific cases, it will nonetheless be very
difficult to conclude that such a result should have been known in
advance to a non-lawyer, federal employee.  We think that it will
almost never be the case that a federal employee performing a
discretionary function within the scope of his employment will violate
state law duties that he should have known were binding on him in the
course of the execution of his official responsibilities.

   Moreover, when faced with this issue in divergent fact situations,
courts would predictably reach unpredictable results.  Insofar as they
would find liability they would, in most instances, undercut the
purpose of immunity by creating uncertainty for others.  Such
uncertainty cannot be justified given the very few if any instances
where a clear violation of interlocking state and federal provisions
might properly be found.  All things considered, the project is not
worth the candle.  Finally, such a mixing together of federal and
state standards and remedies is inappropriate.  By allowing the state
tort law action to go forward only where the conduct clearly violates
a separate, federal legal standard or a state standard incorporated
into federal law, the state tort law remedy essentially becomes a
private right of action for violations of federal provisions which
themselves embody no action for damages.  Remedies for federal law
violations are thus implied by a chain of reasoning which bears no
resemblance in logic or result to this Court's established approach to
the recognition of implied rights of action.  Cort v. Ash, 422 U.S.
67, 78 (1975).

   The Court considered an analogous situation in Davis v. Scherer,
supra.  The plaintiff in that case argued that the defendants' failure
to comply with a state regulation was sufficient to vitiate their
immunity from liability for a constitutional violation.  The Court
rejected that argument, holding that "(o)fficials sued for
constitutional violations do not lose their qualified immunity merely
because their conduct violates some statutory or administrative
provision" (468 U.S. at 194).  The Court further stated that
"officials sued for violations of rights conferred by a statute of
regulation * * * do not forfeit their immunity by violating some other
statute or regulation.  Rather, these officials become liable for
damages only to the extent that there is a clear violation of the
statutory rights that give rise to the cause of action for damages"
(id. at 194 n.12 (emphasis in original)).  /35/

   In sum, we submit that the Barr rule, requiring that the employee
act within the scope of employment, is the proper analog in the state
tort law context to the Harlow immunity standard for constitutional
torts.  There is neither a sound reason to impose any "clearly
established law" requirement in the context of an action under state
law, nor any practicable way in which to do so.  /36/

       D. Petitioners Are Immune From Liability Under State Law

   In rejecting petitioners' immunity defense, the court of appeals
found "a material question" as to whether petitioners' acts were
sufficiently discretionary to entitle petitioners to immunity (Pet.
App. 3a).  Although the court of appeals did not, in this case,
discuss at length the content of the discretion requirement, it has
subsequently stated that acts involving "planning or policy
consideration(s)" are sufficiently discretionary to warrant immunity,
while acts involving "day to day operations" are not (Heathcoat v.
Potts, 790 F.2d at 1542).

   The court of appeals thus applied the wrong standard in this case.
Moreover, there is no question that petitioners exercised sufficient
discretion to trigger immunity under the Davis standard.  The
complaint alleges that the soda ash was improperly stored, that
William Erwin should have been warned regarding the presence of the
soda ash, and that the soda ash was improperly bagged.  These actions
typically involve the exercise of discretion.  See Dalehite v. United
States, 346 U.S. 15, 38-44 (1953) (holding that the United States was
not subject to tort liability in connection with similar
determinations regarding the storage of chemicals because those
determinations fell within the discretionary function exception to the
Tort Claims Act).

   Indeed, respondents' factual allegations, upon which the court of
appeals relied in finding a disputed question of material fact, were
that petitioners "are not involved in any policy-making work for the
United States Government," that petitioners' duties required them "to
follow established procedures and guidelines," and that petitioners
"work at the operational level of the United States Government and are
not at the policy and planning level" (Erwin Affidavit 2).
Respondents thus implicitly acknowledge that petitioners exercised
"operational" discretion with respect to the conduct challenged in the
complaint, and contend only that petitioners were not engaged in
policymaking.  Because petitioners are not charged with exceeding the
outer perimeter of their discretionary authority, they are certainly
entitled to immunity.

                              CONCLUSION

   The judgment of the court of appeals should be reversed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   RICHARD K. WILLARD

      Assistant Attorney General

   DONALD B. AYER

      Deputy Solicitor General

   ANDREW J. PINCUS

      Assistant to the Solicitor General

   BARBARA L. HERWIG

   LARRY L. GREGG

      Attorneys

   JUNE 1987

   /1/ The complaint also alleges that the bags containing the soda
ash were "negligently designed or manufactured," or, alternatively,
"that the manufacturers or distributors of such bags issued inadequate
warnings concerning their use and storage" (Complaint 3).

   /2/ William Erwin filed an affidavit stating that petitioners "are
not involved in any policy-making work for the United States
Government.  Their job duties are similar to mine, with the addition
of their supervisory responsibilities.  Therefore, (i)t is my
understanding that their duties only require them to follow
established procedures and guidelines.  We all work at the operational
level of the United States Government and are not at the policy and
planning level" (Erwin Affidavit 2).

   /3/ Although the court of appeals did not define the term
"discretion" in its decision in the present case, another panel of the
Eleventh Circuit subsequently stated that "'(d)iscretionary acts'
involve planning or policy considerations and do not concern day to
day operations" (Heathcoat v. Potts, 790 F.2d 1540, 1542 (1986)).

   /4/ As the Court stated in Howard, "(t)he authority of a federal
officer to act derives from federal sources, and the rule which
recognizes a privilege * * * is one designed to promote the effective
functioning of the Federal Government.  No subject could be one of
more peculiarly federal concern, and it would deny the very
considerations which give the rule of privilege its being to leave
determination of its extent to the vagaries of the laws of the several
States" (360 U.S. at 597).

   /5/ 360 U.S. at 572-573 (footnote omitted);  see also id. at 587
n.4 (Brennan,J., dissenting)(observing that "(t)he opinion's rationale
covers the entire federal beureaucracy").

   /6/ Granger v. Marek, 583 F.2d 781 (6th Cir. 1978);  Green v.
James, 473 F.2d 660, 661 (9th Cir. 1973);  Estate of Burks v. Ross,
438 F.2d 230, 234 (6th Cir. 1971).

   /7/ Heathcoat v. Potts, 790 F.2d 1540, 1542 (11th Cir. 1986);
Araujo v. Welch, 742 F.2 802, 804 (3d Cir. 1984);  Jackson v. Kelly,
557 F.2d 735, 737-738 (10th Cir. 1977) (en banc).  The Eleventh
Circuit apparently has decided to reconsider its rule that only
policymakers are eligible for immunity.  In Andrews v. Benson, 809
F.2d 1537 (11th Cir. 1987), the panel applied that rule to hold that
the defendants were not entitled to immunity (809 F.2d at 1542).
Judge Hill concurred specially, stating that the Eleventh Circuit rule
was based on a misreading of Barr (809 F.2d at 1544).  The full court
of appeals granted the defendants' suggestion for rehearing en banc
and vacated the panel opinion.  See Andrews v. Benson, No. 86-7049
(11th Cir. May 11, 1987).

   /8/ Gray v. Bell, 712 F.2d 490, 505-506 (D.C. Cir. 1983), cert.
denied, 465 U.S. 1100 (1984);  see also Norton v. McShane, 332 F.2d
855, 859 (5th Cir. 1964), cert. denied, 380 U.S. 981 (1965).

   /9/ For example, imposing personal liability upon the social
security officials whose actions were at issue in Schweiker v. Hansen,
450 U.S. 785 (1981), would certainly deter individuals from seeking
federal employment and chill incumbent officials from performing their
duties.  And adopting a uniform standard under which all federal
employees would be immune from liability under state law as long as
their actions fell within the scope of their duties would not only
enable courts to quickly rule on immunity claims, without the need for
a burdensome inquiry into the nature of an employee's duties, but
would greatly enhance the employee's sense of certainty in the
immunity protection afforded to him.

   /10/ The Court has explicitly recognized that employees performing
ministerial tasks are entitled to immunity in a variety of
circumstances.  Such immunity clearly applies "as to acts done in
connection with a mandatory duty" (Barr v. Matteo, 360 U.S. at 575
(plurality opinion);  see also page 15, infra), or in the
implementation of a discretionary determination made by a superior, as
long as that determination falls within the scope of his official
duties.  Doe v. McMillan, 412 U.S. 306, 323 (1973);  id. at 342
(opinion of Rehnquist,J.);  cf. Dalehite v. United States, 346 U.S.
15, 36 (1953).  Of course, these immunity principles are not limited
to situations in which the federal employee properly performs his
duties.  The protection provided to an employee would be quite
illusory -- it would go no further than the protection always
available based on the substantive law -- if his eligibility for
immunity were to depend upon whether he satisfied a standard of
perfection.

   Moreover, requiring the federal employee to answer in damages under
state law for failing to perform properly a ministerial duty appears
indistinguishable in practice from implying a private right of action
for the breach of the ministerial duty itself.  Accordingly, at least
where the standards set forth by this Court in Cort v. Ash, 422 U.S.
66 (1975), preclude the recognition of a private action under federal
law, a state law damage action might well be inappropriate.

   /11/ If, despite our submission, the Court is not inclined to apply
the immunity rule announced in Barr to all employees who exercise
discretion and act within the outer perimeter of their duties, it
should recognize a separate rule of immunity protecting all such
federal employees from liability for negligence.  An employee whose
actions are merely negligent has not, by definition, acted in a manner
that is "plainly incompetent" or "knowingly (in) violat(ion) (of) the
law" (Malley v. Briggs, No. 84-1586 (Mar. 5, 1986), slip op. 5).
Indeed, in describing the scope of qualified immunity in Butz v.
Economou, supra, the Court stated that "(f)ederal officials will not
be liable for mere mistakes in judgment, whether the mistake is one of
fact or one of law." 438 U.S. at 507;  see also pages 16-18, infra
(discussing immunity available to federal employees in the absence of
proof of malice).  An employee therefore should not be subjected to
liability in damages for negligently performing his official actions.
Because the complaint in this action alleges only negligence (see
pages 2-3, supra), petitioners are entitled to protection under this
more limited immunity standard.

   /12/ As we have discussed (see pages 9-10), the plurality's legal
analysis was endorsed by Justice Stewart (360 U.S. at 592) and
subsequently adopted by a majority of the Court in Howard v. Lyons,
supra.

   /13/ Some courts have seized upon the statement in Barr that "the
occasions upon which the acts of the head of an executive department
will be protected by the privilege are doubtless far broader than in
the case of an officer with less sweeping functions" (360 U.S. at
573).  But the plurality simply was referring to the fact that the
greater the official's authority, the "broader the range of (his)
responsibilities and duties," and, therefore, the wider the outer
perimeter of his line of duty (ibid.).  The statement in no way
indicates that lower level officials are not protected by immunity.

   /14/ In Doe v. McMillan, 412 U.S. 306 (1973), the Court considered
whether the Public Printer and the Superintendent of Documents were
entitled to immunity in an action in which the plaintiffs sought
damages for both constitutional violations and common law torts
allegedly committed by those officials in connection with the
production and distribution of a congressional committee's report.
The Court concluded that the officials did not have "an independent
immunity," but instead were immune from damages liability to the
extent that employees of the government entity for which they
performed printing services would have been entitled to immunity in
connection with the production and distribution of the printed
material;  the officials' immunity in Doe therefore turned upon the
scope of legislative immunity (412 U.S. at 323).

   The Court in Doe did discuss Barr and at one point stated that
"(j)udges, like executive officers with discretionary functions, have
been held absolutely immune regardless of their motive or good faith.
But policemen and like officials apparently enjoy a more limited
privilege" (412 U.S. at 319 (citations omitted)).  However, the Court
did not indicate whether this statement referred to immunity from
constitutional claims or immunity from tort claims;  indeed, it
supported the reference to a "more limited privilege" by citing
Pierson v. Ray, 386 U.S. 547 (1967), a case that addressed a police
officer's immunity from liability for violations of the Constitution.
In view of this ambiguity, and the fact that limiting the scope of
immunity under Barr was not necessary -- or even relevant -- to the
ground of decision in Doe, the Court's brief reference to the scope of
immunity cannot be viewed as announcing a restrictive view of the
class of federal officials exercising discretionary authority who are
entitled to official immunity in the state tort context.  See also
Doe, 412 U.S. at 342 (Rehnquist,J., concurring in part and dissenting
in part) (appearing to take a broad view of Barr by stating "(t)here
is no immunity (under Barr) when officials are simply carrying out the
directives of officials in the other branches of Government, rather
than performing any discretionary function of their own") (emphasis
added)).  Even if that portion of Doe is read as addressing the scope
of lower level federal employees' immunity from liability under state
law, it indicates only that such employees are entitled to a "more
limited privilige," dependent upon the employee's good faith, not that
they should be deprived of all immunity from personal liability.  See
also page 14 note 11, supra.

   For the same reasons, the Court's statement in Harlow v.
Fitzgerald, supra, that Barr applies to "high" government officials
(457 U.S. at 807-808) cannot be read as a limitation upon the scope of
the Barr rule.  Harlow concerned official immunity from damages for
constitutional violations;  any discussion regarding immunity from
liability for state law torts is therefore dictum.

   /15/ The Court rejected the plaintiff's argument for the additional
reason that "breach of a legal party created by the personnel
regulation would forfeit official immunity only if that breach itself
gave rise to the (plaintiff's) cause of action for damages.  This
principle equally applies whether the regulation created discretionary
or ministerial duties" (468 U.S. at 196-197 n.14).

   /16/ Plaintiffs seeking damages from federal employees frequently
allege that the employees' actions violated both the Constitution and
state tort law.  See, e.g. Williamson v. United States Dep't of
Agriculture, No. 86-4314 (5th Cir. Apr. 29, 1987), slip op. 3597-3601
(claims arising out of dealings with Farmers Home Administration);
Palermo v. Rorex, 806 F.2d 1266, 1269-1273 (5th Cir. 1987) (claims
against supervisors relating to employee disciplinary action);  Martin
v. D.C. Metropolitan Police Dep't, 812 F.2d 1425 (D.C. Cir. 1987)
(claims based on actions by law enforcement officers), reh'g en banc
granted on other grounds, No. 85-6071 (D.C. Cir. May 8, 1987);
Augustine v. McDonald, 770 F.2d 1442 (9th Cir. 1985) (claims
concerning efforts to collect debt owed to the government by the
plaintiff);  Wyler v. United States, 725 F.2d 156 (2d Cir. 1983)
(action for damages for entry and search of the plaintiff's apartment
by Drug Enforcement Administration agents);  Sprecher v. Graber, 716
F.2d 968 (2d Cir. 1983) (claims arising out of investigation by the
Securities and Exchange Commission);  Miller v. DeLaune, supra (suit
against an Internal Revenue Service agent concerning tax collection
efforts).

   /17/ As another court of appeals more recently observed (Carson v.
Block, 790 F.2d 562, 564 (7th Cir. 1986), cert. denied, No. 86-453
(Dec. 15, 1986)),

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

   It is also significant that, at least where a private employee acts
within the scope of his duties, his employer will almost certainly be
liable for the employee's actions.  See, e.g., Restatement (Second) of
Torts Section 219 (1965).  And, as a practical matter, the employer is
much more likely to pay any adverse judgment.  In the federal employee
context, by contrast, sovereign immunity may bar an action against the
government, leaving the employee as the only available defendant.  See
also 5 F. Harper, F. James & O. Gray, The Law of Torts Section 29.9a,
at 660-661 (1986).

   /18/ In the context of actions seeking damages under state tort
law, the immunity doctrine also furthers separation of powers
principles.  This Court has observed that at the time that Congress
enacted the Federal Tort Claims Act "(i)t was believed that claims of
the kind embraced by the discretionary function exception would have
been exempted from the waiver of sovereign immunity by judicial
construction" (United States v. S.A. Empresa De Viacao Aerea Rio
Grandense (Varig Airlines), 467 U.S. 797, 810 (1984).  That is because
"the exemption for discretionary functions * * * was derived from the
doctrine of separation of powers, a doctrine to which the courts must
adhere even in the absence of an explicit statutory command" (Canadian
Transport Co. v. United States, 663 F.2d 1081, 1086 (D.C. Cir. 1980)).
 Judicial scrutiny of discretionary Executive Branch determinations
would permit "'second-guessing' of legislative and administrative
decisions grounded in social, economic, and political policy through
the medium of an action in tort," and thereby implicate separation of
powers concerns (Varig Airlines, 467 U.S. at 814).

   In order to avoid the latter result, Congress enacted the
discretionary function exception to the Federal Tort Claims Act.  It
was "neither desirable nor intended that the constitutionality of
legislation, the legality of regulations, or the propriety of a
discretionary administrative act should be tested through the medium
of a damage suit for tort.  The same holds true of other
administrative action not of a regulatory nature, such as the
expenditure of Federal funds, the execution of a Federal project, and
the like.'" Varig Airlines, 467 U.S. 809-810 (quoting Hearings on H.R.
5373 and H.R. 6463 Before the House Comm. on the Judiciary, 77th
Cong., 2d Sess. 28, 33 (1942) (statement of Assistant Attorney General
Francis M. Shea)).  Granting immunity to federal employees in
connection with their discretionary acts ensures that state law tort
actions will not intrude upon separation of powers concerns in a
similar manner.

   /19/ At the same time, this Court has stated that "an employee of
the United States does not secure a general immunity from state law
while acting in the course of his employment.  * * * It very well may
be that, when the United States has not spoken, the subjection to
local law would extend to general rules that might affect incidentally
the mode of carrying out the employment -- as, for instance, a statute
or ordinance regulating the mode of turning at the corner of streets.
This might stand on much the same footing as liability under the
common law of a State to a person injured by the driver's negligence"
(Johnson v. Maryland, 254 U.S. at 56 (citations omitted)).

   The Court went on to observe, however, that "even the most
unquestionable and most universally applicable of state laws, such as
those concerning murder, will not be allowed to control the conduct of
a marshal of the United States acting under" federal law (254 U.S. at
56-57).  We note further that Congress has acted with respect to the
traffic law example referred to in Johnson, substituting the United
States as the defendant in any case in which a federal employee is
sued for injuries arising out of his operation of a motor vehicle when
acting within the scope of his official duties.  28 U.S.C. 2679(b) and
(c);  see also note 29, infra.

   /20/ It is true that the Federal Tort Claims Act adopted state tort
law as the standard for imposing monetary liability upon the United
States (see 28 U.S.C. 2674).  However, the FTCA also contains 13
separate exceptions to the waiver of sovereign immunity (see 28 U.S.C.
2680(a)-(n)), including the exception for claims arising out of the
performance of a "discretionary" function or duty by a federal agency
or employee (28 U.S.C. 2680(a)).  The United States has thus
explicitly declined to authorize the application of state tort
standards to a wide variety of federal activities.  See page 34,
infra.

   /21/ We recognize that the policies underlying official immunity
apply with greatest force when an employee exercises a substantial
amount of discretion, because the broader the discretion, the greater
the opportunity to alter conduct in response to the threat of suit.
Still, the threat of liability will intefere with a federal employee's
execution of his duties whenever the employee has a choice in how he
should act.  The Court's decision in Davis adopting a broad definition
of the type of discretion sufficient to trigger an entitlement to
immunity indicates its agreement with this analysis.  Otherwise, the
Court would have concluded that a narrower definition of discretion
would have been sufficient to ensure the effective functioning of
government.

   /22/ Palermo v. Rorex, supra;  Dretar v. Smith, 752 F.2d 1015, 1017
n.2 (5th Cir. 1985);  Oyler v. National Guard Ass'n, 743 F.2d 545 (7th
Cir. 1984);  McKinney v. Whitfield, 736 F.2d 766 (D.C. Cir. 1984);
Wallen v. Domm, 700 F.2d 124 (4th Cir. 1983);  Lawrence v. Acree, 665
F.2d 1319 (D.C. Cir. 1981);  Mir. v. Fosburg, 646 F.2d 342 (9th Cir.
1980);  Bradley v. Computer Sciences Corp., 643 F.2d 1029 (4th Cir.),
cert. denied, 454 U.S. 940 (1981).

   /23/ Wyler v. United States, supra;  Sprecher v. Graber, supra;
George v. Kay, 632 F.2d 1103 (4th Cir. 1980), cert. denied, 450 U.S.
1029 (1981);  Sami v. United States, 617 F.2d 755, 771-773 (D.C. Cir.
1979);  Miller v. Delaune, supra;  Granger v. Marek, supra;  Norton v.
McShane, supra.

   /24/ Williamson v. United States Department of Agriculture, supra;
Poolman v. Nelson, supra;  Johnson v. Busby, 704 F.2d 419 (8th Cir.
1983);  Owyhee Grazing Ass'n v. Field, 637 F.2d 694 (9th Cir. 1981).
The same result has been reached with regard to other duties performed
by federal employees.  See Nietert v. Overby, supra (reporting of
fraud, waste and abuse);  Spencer v. New Orleans Levee Board, 737 F.2d
435 (5th Cir. 1984) (weather forecasting);  Queen v. TVA, 689 F.2d 80
(6th Cir. 1982), cert. denied, 460 U.S. 1082 (1983) (evaluation of
product effectiveness);  Evans v. Wright, 582 F.2d 20 (5th Cir. 1978)
(monitoring expenditure of federal funds).

   /25/ In Chavez v. Singer, 698 F.2d 420 (10th Cir. 1983), for
example, the court found that a fire captain was not entitled to
immunity in an action brought by one of his subordinates for injuries
he received when he followed the defendant's orders.  The court noted
that the defendant "had no policy making authority.  Although he had
operational control at a fire scene, he was required to follow
established procedures.  At most, his discretion was minimal." 698
F.2d at 422;  see also Franks v. Bolden, 774 F.2d 1552 (11th Cir.
1985).  We find no grounds for distinguishing this sort supervisory
authority from the supervisory authority exercised in the personnel
context, as to which the court agree that federal employees are
entitled to immunity.  See also General Electric Co. v. United States,
supra (upholding immunity claim in analogous circumstances).

   /26/ See 28 U.S.C. 2680(b) (loss of postal material), 2680(c) (tax
and duty assessment or collection;  detention of goods by customs or
law enforcement officer), 2680(e) (claims arising out of the Trading
with the Enemy Act), 2680(f) (government-imposed quarantine), 2680(i)
(fiscal operations of the Treasury and regulation of the monetary
system), 2680(j) (combatant activities during time of war), 2680(k)
(claims arising in foreign country).

   /27/ See 28 U.S.C. 2680(h) (intentional torts).

   /28/ Indeed, the areas of governmental activity excepted from
coverage under the FTCA no doubt involve many mandatory duties
involving no identifiable discretion.  See note 26, supra.  To the
extent that is true, the legislative policy of excepting those areas
of activity from judicial scrutiny will be furthered most effectively
by a rule of absolute immunity for all actions within the scope of
employment.

   /29/ Congress has enacted statutes substituting the United States
as the defendant in suits against individual federal employees for
injuries allegedly resulting from medical malpractice of negligent
operation of a motor vehicle, committed in the course of the
employee's official duties.  See 10 U.S.C. (& Supp. III) 1089 (medical
and malpractice claims);  28 U.S.C. 2679 (claims asserted against
drivers), 38 U.S.C. 4116 (medical malpractice claims);  42 U.S.C. 233
(same).  The fact that Congress has specifically addressed these two
areas of recurrent liability is not dispositive as to the availability
of immunitiy for less common instances of official conduct.

   /30/ Thus, the immunity standard adopted in Harlow protects federal
employees from personal liability for constitutional violations unless
an employee "could be expected to know that certain conduct would
violate statutory or constitutional rights." 457 U.S. at 819;  see
also Malley v. Briggs, No. 84-1586 (Mar. 5, 1986), slip op. 5 ("(a)s
the qualified immunity defense has evolved, it provides ample
protection to all but the plainly incompetent or those who knowingly
violate the law").

   /31/ An additional factor weighing against an immunity test that
focuses on the quantum of discretion exercised by the federal employee
is that such a standard will more frequently be view as justifying
substantial discovery.  See, e.g., Heathcoat v. Potts, 790 F.2d at
1543 ("detailed but abstract" job descriptions found insufficient to
determine whether the defendants exercised discretion;  court held
that it was necessary to obtain a "fuller development of the facts"
through discovery).  The immunity rule accordingly will not protect
officials against the burdens of litigation, a result contrary to the
Court's recognition that an immunity standard should be formulated in
a way that will "permit the resolution of many insubstantial claims on
summary judgment" so as to avoid "subject(ing) government officials
either to the costs of trial or to the burdens of broad-reaching
discovery." Harlow v. Fitzgerald, 457 U.S. at 817-818;  see also
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis in original)
(official immunity serves as "an immunity from suit rather than a mere
defense to liability").

   /32/ See also Lappin v. Department of Justice, 24 M.S.P.R. 195
(1984) (employee removed from position as deputy United States
Marshall because he performed his official duties in a manner that
endangered the safety of others);  Poarch v. Department of the Navy,
22 M.S.P.R. 34 (1984) (employee removed for making threats of bodily
harm);  Riley v. Department of Agriculture, 20 M.S.P.R. 32 (1984)
(employee suspended and demoted for setting forest fire);  Randall v.
Department of the Navy, 18 M.S.P.R. 485, 486 (1983) (employee removed
for reporting to duty while under the influence of alcohol;  Board
found that, because of the employee's duties, "his condition, if
undetected, would have constituted a danger to himself and other
employees");  Connolly v. Department of Justice, 18 M.S.P.R. 39 (1983)
(employee removed for willfully committing false arrest);  Johnson v.
Department of the Air Force, 11 M.S.P.R. 239 (1982) (employee demoted
from supervisory position because his actions did not comply with
agency directives and created a danger to property and fellow
employees);  Clark v. Department of the Navy, 6 M.S.P.R. 24 (1981)
(employees suspended for use of intoxicants while on duty);  Vick v.
Department of the Navy, 3 M.S.P.R. 364 (1980) (employee discharged for
endangering the safety of a ship by improperly performing his duties);
 Hardgrave v. Department of Interior, 1 S.P.R. 267 (1979) (employee
demoted because his poor iving had resulted in injuries to the
public).

   /33/ The FECA expressly precludes an employee who receives benefits
under the statute from asserting any further claim against the United
States (5 U.S.C. 8116).  It does not address the right of an employee
who receives benefits to assert a tort claim against his fellow
employees, and several courts of appeals have concluded that the
statute does not preclude such claims.  Heathcoat v. Potts, 790 F.2d
at 1543;  Bates v. Harp, 573 F.2d 930, 934-936 (6th Cir. 1978);
Allman v. Hanley, 302 F.2d 559, 563 (5th Cir. 1962).  We do not argue
that respondents' claims are precluded by statute.  The availability
of FECA benefits, however, goes some distance toward defeating any
argument that a narrowed concept of immunity is necessary to assure
that the injured party's interest in compensation and deterrence is
properly served.

   /34/ The Suits in Admiralty Act contains a similar waiver of
sovereign immunity with respect to maritime tort claims against the
United States (see 46 U.S.C. 742).

   /35/ Another alternative qualified immunity rule is the
pre-Spalding rule under which a federal employee lost his immunity if
the plaintiff could show that the federal employee had acted with
malice.  See Barr, 360 U.S. at 586-588 (Brenan,J., dissenting);  see
also pages 16-17, supra.  Such an approach might arguably have been
justified at the time of this Court's decision in Butz v. Economou,
supra, under which a federal employee lost his immunity if he was
shown to have acted in subjective bad faith -- i.e., with malice.  And
should the Court reject the general thrust of our argument, we believe
that immunity from actions alleging mere negligence should be allowed,
and could be implemented by imposition of an absence-of-malice
requirement.  See note 11, supra.

   In general, however, it appears that the basis for such a
requirement was eliminated by this Court's decision in Harlow v.
Fitzgerald, supra, which deleted the subjective portion of the Butz
immunity standard, stating that "(t)here are special costs to
'subjective' inquiries of this kind.  * * * "Judicial inquiry into
subjective motivation * * * may entail broad-ranging discovery and the
deposing of numerous persons, including an official's professional
colleagues.  Inquiries of this kind can be peculiarly disruptive of
effective government." The Court concluded that "bare allegations of
malice should not suffice to subject government officials either to
the costs of trial or to the burdens of broad-reaching discovery" (457
U.S. at 816-818 (footnotes omitted)).  A state-of-mind-based immunity
rule in the state tort law context would raise the very problems that
led the Harlow Court to reject such a rule, and is thus precluded by
that decision.

   /36/ This conclusion is supported by the Court's opinion in Butz,
which justified adoption of a qualified immunity rule for
constitutional violations by observing that "if (federal employees)
are accountable when they stray beyond the plain limits of their
statutory authority, it would be incongruous to hold that they may
nevertheless willfully or knowingly violate constitutional rights
without fear of liability." 438 U.S. at 495;  see also id. at 493-494.
 The Court thus suggested that Barr's scope of official duty
requirement filled the role, in the state tort context, of the rule
vitiating immunity from constitutional liability where an employee
violates a clearly established constitutional right.