2005 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-21-2005

In Re: McAllister Towing

Precedential or Non-Precedential: Precedential

Docket No. 04-3938

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

Nos. 04-3938 and 04-4109

 

IN RE: PETITION OF MCALLISTER TOWING AND

TRANSPORTATION COMPANY, INC., AS

OWNER OF THE TUGS IONA MCALLISTER

AND JAMES MCALLISTER

McAllister Towing and Transportation Company, Inc.,

 Appellant No. 04-3938

 

IN RE: PETITION OF MCALLISTER TOWING AND

TRANSPORTATION COMPANY, INC., AS

OWNER OF THE TUGS IONA MCALLISTER

AND JAMES MCALLISTER

Owl International Inc. d/b/a/ Global Associates,

 Appellant No. 04-4109

 

Appeals from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 02-cv-00858)

District Judge: Honorable Bruce W. Kauffman

 
2

Argued September 26, 2005

Before: RENDELL, FUENTES and GARTH, Circuit Judges.

(Filed: December 21, 2005)

 

Jeffrey S. Moller

Jordana Cooper [ARGUED]

Blank Rome

130 North 18th Street

One Logan Square

Philadelphia, PA 19103

 Counsel for Appellant In Re: McAllister 

 Towing & Transportation Company, Inc.

Raymond T. Letulle [ARGUED]

Cozen & O’Connor

200 Four Falls Corporate Center

P.O. Box 800, Suite 400

West Conshohocken, PA 19428-0900

 Counsel for Appellant Global Assoc. Inc.

Stephen G. Flynn [ARGUED]

U.S. Department of Justice

Torts Branch, Civil Division

P.O. Box 14271

Washington, D.C. 20044-4271

 Counsel for Appellee United States of America

 
 1

McAllister also appeals the District Court’s dismissal of its

contract-based claims for indemnification. We conclude that the

District Court analyzed these claims properly, see In re

McAllister Towing & Transp. Co., No. 02-858, 2004 WL

2009330, at *6-8 (E.D. Pa. Sept. 9, 2004), and need not discuss

them in further detail here.

3

OPINION OF THE COURT

 

RENDELL, Circuit Judge.

In this case, we consider the impact of the exclusivity

provision of the Federal Employees’ Compensation Act

(“FECA”), 5 U.S.C. § 8116(c), on third-party contribution

claims against the federal government. Pursuant to this

provision of FECA, a federal employee’s recovery against the

United States for injuries that he sustains on the job is limited to

the fixed benefits to which he is entitled under the statutory

compensation scheme. While the Supreme Court has twice held

that the exclusivity provision does not, by its terms, bar

contribution claims against the United States by third parties

who are sued by such a federal employee, we must determine

whether other principles apply to bring about such a bar in the

case before us. The District Court held that these contribution

claims against the United States were barred because the

substantive right to contribution in the maritime law is

unavailable where the party against whom contribution is sought

enjoys statutory immunity from liability to the injured plaintiff.

We agree with the District Court and will therefore affirm.1
4

I. Background

This case originates from a failed attempt to tow a retired

United States Navy vessel, the USS GUADALCANAL, from

the Navy Inactive Ship Maintenance Facility in Philadelphia to

another Navy facility in Virginia. The Navy contracted with

Owl Associates, Inc., doing business as Global Associates, Inc.

(“Global”), McAllister Towing and Transportation Company,

Inc. (“McAllister”), and various other private parties to assist in

the tow. The USNS MOHAWK was assigned to do most of the

towing. During the attempted tow, a portion of the

MOHAWK’s towing gear assembly broke off and struck Todd

Bruemmer, a civilian seaman employee of the United States

stationed aboard the USNS MOHAWK, in the side, causing

injuries.

Bruemmer and his wife filed a personal injury suit

against McAllister and other private parties involved in the tow

in the Pennsylvania Court of Common Pleas of Philadelphia

County. McAllister responded by filing a Petition for

Exoneration from or Limitation of Liability in the District Court

pursuant to Rule F of the Federal Rules of Civil Procedure

Supplemental Rules on Admiralty and Maritime Claims, which

stayed the state court proceedings. Bruemmer and his wife then

refiled their claims against McAllister and others in the District

Court. McAllister filed a third-party complaint against the

United States and Global, the private contractor that arranged

the tow, seeking contribution or indemnity for liability on the

Bruemmers’ claims. Global filed a cross-claim seeking

contribution or indemnity against the United States, contending

that the United States’s negligence contributed to Bruemmer’s
5

injuries.

The Bruemmers did not name the United States as a

defendant in either their state court or federal court complaint,

presumably because the exclusivity provision of FECA

immunizes the United States from tort claims by its employees.

Like most workers’ compensation statutes, FECA guarantees

injured federal employees “the right to receive immediate, fixed

benefits, regardless of fault and without need for litigation” from

their employer, i.e., the federal government, in exchange for

statutory immunity from personal injury claims. Lockheed

Aircraft Corp. v. United States, 460 U.S. 190, 194 (1983). The

relevant portion of the statute provides:

The liability of the United States or an

instrumentality thereof under this subchapter or

any extension thereof with respect to the injury or

death of an employee is exclusive and instead of

all other liability of the United States or the

instrumentality to the employee, his legal

representative, spouse, dependents, next of kin,

and any other person otherwise entitled to recover

damages from the United States or the

instrumentality because of the injury or death in a

direct judicial proceeding, in a civil action, or in

admiralty, or by an administrative or judicial

proceeding under a workmen’s compensation

statute or under a Federal tort liability statute.

However, this subsection does not apply to a

master or a member of a crew of a vessel.
 2

Although the provision’s last sentence appears to exclude

Bruemmer, the Supreme Court has twice held that FECA’s

exclusivity provision applies to civilian seamen, effectively

reading the last sentence out of the provision. See Johansen v.

United States, 343 U.S. 427, 441 (1952) (“All in all we are

convinced that the Federal Employees Compensation Act is the

exclusive remedy for civilian seamen on public vessels.”); see

also Patterson v. United States, 359 U.S. 495, 496 (1959) (per

curiam) (declining to reconsider Johansen). The parties do not

challenge this reading.

6

5 U.S.C. § 8116(c).2

The United States moved the District Court for Judgment

on the Pleadings on the contribution claims, arguing that

FECA’s exclusivity provision, described above, prohibited

claims for contribution or indemnity against the United States

that are based solely on the government’s status as a joint

tortfeasor. The District Court agreed and granted the

government’s motion. Analyzing the Supreme Court’s decisions

in Weyerhaeuser Steamship Co. v. United States, 372 U.S. 597

(1963), and Lockheed Aircraft Corp. v. United States, 460 U.S.

190 (1983), the District Court found that this provision of FECA

does not directly bar third-party contribution claims. Its inquiry

did not end there, however, because it noted that the substantive

law governing the underlying contribution claims may bar such

claims. In re McAllister Towing & Transp. Co., No. 02-858,

2004 WL 2009330, at *4-5 (E.D. Pa. Sept. 9, 2004). The

District Court concluded that, although the substantive law

governing McAllister and Global’s contribution claims, the

maritime law, recognizes a right of contribution between joint
7

tortfeasors, that right is unavailable where the tortfeasor against

whom contribution is sought enjoys statutory immunity from

first-party claims. Id. at *5 (citing Halcyon Lines v. Haenn Ship

Ceiling & Refitting Corp., 342 U.S. 282 (1952) and Cooper

Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S. 106 (1974)).

Because FECA’s exclusivity clause immunizes the United States

from Bruemmer’s personal injury claims, the Court concluded,

application of the substantive law would result in protection of

the United States from liability from third-party contribution

claims arising out of those claims. Id. at *6.

II. Discussion

The District Court exercised jurisdiction over this case

pursuant to the Suits in Admiralty Act, 46 U.S.C. § 741, et seq.,

and the Public Vessels Act, 46 U.S.C. § 781, et seq. Our

jurisdiction arises out of 28 U.S.C. § 1292(a)(3), which provides

for appellate review of interlocutory decrees in admiralty that

“determin[e] the rights and liabilities of the parties.” Our

standard of review of a dismissal under Fed. R. Civ. P. 12(c) is

plenary. Hayes v. Cmty. Gen. Osteopathic Hosp., 940 F.2d 54,

56 (3d Cir. 1991).

On appeal, McAllister and Global take issue with each

aspect of the District Court’s analysis. First, they dispute the

District Court’s reading of Weyerhaeuser and Lockheed,

arguing that those cases stand for the broad proposition that

FECA’s exclusivity clause was not intended to affect third-party

rights. To allow FECA to “indirectly” bar such claims, they

contend, violates the spirit of those decisions. Second, they

challenge the District Court’s analysis of the substantive
 3

Global also argues that the analogous liability provision of

the Federal Tort Claims Act (“FTCA”), which allows private

parties to hold the United States liable “in the same manner and

to the same extent as a private individual under like

circumstance,” 28 U.S.C. § 2674, allows it to recover here. As

we have previously held, however, a third party may not use the

FTCA “to accomplish indirectly what federal employees could

not accomplish directly.” Eagle-Picher Indus., Inc. v. United

States, 846 F.2d 888, 894 (3d Cir. 1988). We therefore decline

to even consider whether Global would prevail in an analogous

claim against a private party, as our case law precludes us from

reaching a different result on FTCA grounds here.

 4

We note at the outset that, although many comparisons

between FECA’s exclusivity provision and limitations on

employer liability in state workers’ compensation schemes

might be drawn, only federal case law is relevant to our task

here. See Newport Air Park, Inc. v. United States, 419 F.2d

342, 347 (1st Cir. 1969) (“In the case of the FECA the immunity

is federally created; its extent must be determined by the federal

courts, particularly when the issue is one of governmental

liability.”).

8

contribution claim, urging that the Supreme Court cases on

which the District Court relied in order to conclude that the

maritime common law right of contribution does not allow

recovery in this case do not apply.3

 We will address these

arguments by reviewing the case law on which they rely.4

In Weyerhaeuser, Weyerhaeuser, a shipowner, sued the

United States for damages that it suffered when its vessel
9

collided with a United States Army vessel. The district court

found that the collision resulted from the mutual fault of both

ships, and applied the “settled admiralty rule of divided

damages” in collision cases, which allows each party to recover

one-half of provable damages and court costs from mutual fault

collisions. 372 U.S. 597, 598 (1963). The issue before the

Supreme Court was whether FECA’s exclusivity provision

prevented Weyerhaeuser from including a settlement paid to a

federal civil service employee who was injured in the collision

as part of its damage calculation for purposes of the “divided

damages” rule. 

The government contended that the language of the

exclusivity provision foreclosing liability of the United States to

“any other person otherwise entitled to recover damages”

applied to preclude the shipowner’s recovery of these costs from

the United States in a divided damages case. The Court noted

that this language followed specific categories of people related

to the injured employee, and was not prepared to say that “any

other person otherwise entitled” opened Pandora’s box to

anyone who might have a claim. However, it thought the

language confusing enough to warrant an examination of the

legislative history. In so doing, it discovered that the purpose

behind the exclusivity provision was limited:

The purpose of s[ection] 7(b), added in 1949, was

to establish that, as between the government on

the one hand and its employees and their

representatives or dependents on the other, the

statutory remedy was to be exclusive. There is no

evidence whatever that Congress was concerned
10

with the rights of unrelated third parties, much

less of any purpose to disturb settled doctrines of

admiralty law affecting the mutual rights and

liabilities of private shipowners in collision cases.

Id. at 601. Accordingly, the Supreme Court found no bar

against the shipowner’s inclusion of the settlement paid to the

injured employee in calculating its damages for purposes of the

divided damages rule. Id. at 604.

Before Weyerhaeuser, we had held that the language of

FECA’s exclusivity provision barred a claim for contribution

against the United States by a joint tortfeasor for damages paid

to an injured government employee. See Drake v. Treadwell

Constr. Co., 299 F.2d 789, 790-91 (3d Cir. 1962) (“Contribution

of a joint tort-feasor toward the satisfaction of a covered

government employee’s judgment in tort seems as clearly within

the language of Section 7(b) as is total direct liability to the

injured employee.”). The Supreme Court vacated our judgment

and remanded the case for reconsideration in light of

Weyerhaeuser. Treadwell Constr. Co. v. United States, 372

U.S. 772 (1963) (per curiam). The Court’s remand order left us

uncertain as to what to do in the next case before us. We

explained our predicament in that case, Travelers Insurance Co.

v. United States, where a private party sought indemnity or

contribution from the United States for damages paid to an

injured government employee:

Federal courts are in hopeless conflict concerning

the proper interpretation of the Weyerhaeuser and

Treadwell decisions . . . . The principal source of
11

this conflict is the broad language in

Weyerhaeuser that “there is no evidence that

Congress was concerned with the rights of

unrelated third parties.”

493 F.2d 881, 885 (3d Cir. 1974) (internal citations omitted). 

To make sense of this conflict, we surveyed the ways that

other courts, faced with this confusion, had reacted. Id. at 885-

87. We noted that the Fourth Circuit Court of Appeals, in

Wallenius Bremen G.m.b.H. v. United States, 409 F.2d 994 (4th

Cir. 1969), had interpreted the Weyerhaeuser language about the

rights of third parties to mean that contribution claims are to be

affirmatively permitted. Travelers, 493 F.2d at 885-86. In

Wallenius, the court found the government’s personal defense

to suit by an injured worker to be “irrelevant” to the question of

its liability for contribution or indemnity claims. 409 F.2d at

998. Most courts, however, had read Weyerhaeuser more

narrowly, as saying merely that the exclusivity provision did not

create a bar. Under their reading, other principles might still

operate to bar contribution claims. We summarized this position

as follows:

[S]ince the United States had no underlying tort

liability to its injured employee, the exclusivity

provision of the FECA precludes a third party

action for contribution or indemnity unless there

exists a relationship between the third party and

the United States independent of the tortious

event, such as the contractual obligation in Ryan

. . . or the admiralty rule of divided damages in
 5

Although our analysis in Travelers relied primarily on

Wiener, we also referred to the opinions of a number of other

courts that had considered this issue and reached the same

conclusion. See, e.g., Newport Air Park, Inc. v. United States,

419 F.2d 342, 345, 347 (1st Cir. 1969) (reading Weyerhaeuser

as limited to cases where the third party has a “direct right of

action” against the government; holding that “contribution

cannot be had from the government when the government was

under no tort liability to the injured party”); Murray v. United

States, 405 F.2d 1361, 1364-65 & n.12 (D.C. Cir. 1968)

(acknowledging controversy over meaning of Weyerhaeuser and

Treadwell, but affirming district court’s dismissal of third-party

contribution claim against the government “since contribution

is an equitable doctrine imposing a duty on one tortfeasor to

another that is applicable only when the tortfeasors have a

concurring liability to the same victim”); Busey v. Washington,

225 F. Supp. 416, 421, 424 (D.D.C. 1964) (finding that the

Supreme Court “made clear that its decision in the

Weyerhaeuser case . . . was limited to admiralty cases involving

mutual fault collisions, relying in part at least on the antiquity of

the admiralty rule of divided damages”; entering judgment in

favor of the United States on third-party contribution claim).

12

Weyerhauser, . . . upon which recovery can be

grounded.

Travelers, 493 F.2d 886.

We found the opinion of the Court of Appeals for the

Ninth Circuit in United Airlines v. Wiener, 335 F.2d 379 (9th

Cir. 1964), particularly convincing.5

 There, the court rejected
 6

These cases were substantially abrogated by a subsequent

amendment to the LHWCA, but, as we noted in Travelers, “their

13

United’s argument that the Supreme Court’s remand in

Treadwell indicated a repudiation of the well-settled principle

that indemnity claims will fail where there is no underlying firstparty liability. Id. at 404. Applying that principle, it found that

the absence of an independent basis of liability from the

government to United, the third party, was fatal:

United’s claim for indemnity is not based upon a

duty owed by the government to United by virtue

of a contract, attenuated or otherwise, or by

operation of a rule of law such as the divided

damage rule of admiralty. There being no

underlying liability on the part of the government,

United’s claim for indemnity must fall.

Id. at 404, quoted in Travelers, 493 F.2d at 887. Finally, we

noted that our own jurisprudence prohibited indemnity actions

under the Longshoremen’s and Harbor Worker’s Compensation

Act (“LHWCA”). See Brown v. Am.-Haw. S.S. Co., 211 F.2d

16, 18 (3d Cir. 1954) (holding that “there can be no action of

indemnity” under the LHWCA “which is not based on the

violation of some contractual duty”); Crawford v. Pope &

Talbot, 206 F.2d 784, 792 (3d Cir. 1953) (concluding that

LHWCA’s exclusivity provision does not bar indemnity claims

based on the contractual relationship between the employer and

the third party because “in such cases the indemnity has a claim

which is independent of and does not derive from the injury to

the employee”).6

 Based on our analysis, we held that the
principles continue to retain vitality for purposes of analyzing

the effect of the exclusive remedy provision of the FECA.” 493

F.2d at 887 n.9.

14

Travelers plaintiffs could not recover from the United States on

“contribution or noncontractual tort indemnity” claims for

damages paid in a wrongful death and survival action brought

by the widow of a deceased government employee. 493 F.3d at

887.

Nearly a decade after we issued our opinion in Travelers,

the Supreme Court was asked to revisit the meaning of the

language of FECA’s exclusivity provision and clarify its

implications. In Lockheed, it essentially held that there were no

implications. Recounting its reasoning in Weyerhaeuser, it

reinforced that ruling and stated that nothing in the exclusivity

provision itself prevented or precluded recovery on any basis or

theory by third parties against the government: “To the extent

that the basis for the underlying cause of action could make any

difference, the indemnity theories on which Lockheed relies are

as well-established as the divided damages rule was in

Weyerhaeuser.” 460 U.S. at 198. Importantly, the Court

affirmatively noted that the district court had determined that

Lockheed did, indeed, have a right to indemnity under the

“governing substantive law.” Id. at 199. 

In essence, the Court in Lockheed explained that

Weyerhaeuser said only that the exclusivity provision was not

directed at the situation of the third-party contribution

claim–nothing more, nothing less. So we must look, instead, to

the underlying cause of action and determine whether it is viable
15

based on the state of the law, which can include general legal

principles as well as a particular statutory scheme. See EaglePicher Indus., Inc. v. United States, 846 F.2d 888, 892 n.6 (3d

Cir. 1988) (“[T]he viability of . . . third-party actions depend[s]

on the underlying substantive law.”). Just as the divided

damages rule in collision cases had established the principle

whereby the damages paid to the injured worker were included

in the calculation in Weyerhaeuser, so too the judicially

recognized indemnity claim in the fact pattern in Lockheed

provided the basis for Lockheed’s claim against the government.

Thus, the right to contribution or indemnity either does or does

not exist as a matter of law, separate and apart from the

exclusivity provision. 

The courts of appeals that have examined this issue have

reached a uniform conclusion, namely, that Lockheed did not,

as Appellants contend, establish that the exclusivity provision

never affects third-party rights; it merely directed courts to

examine the underlying substantive basis of the third parties’

claims. See, e.g., Walls Indus., Inc. v. United States, 958 F.2d

69, 71 (5th Cir. 1992); Eagle-Picher Indus., Inc. v. United

States, 937 F.2d 625, 634 (D.C. Cir. 1991); Bush v. EaglePicher Indus., Inc., 927 F.2d 445, 451 n.9 (9th Cir. 1991); In re

All Maine Asbestos Litig., 772 F.2d 1023, 1027 (1st Cir. 1985).

The substantive basis for Appellants’ claims in this case

is the right of contribution under maritime law. The Supreme

Court explained the contours of this right more than a halfcentury ago in Halcyon Lines v. Haenn Ship Ceiling & Refitting

Corp., 342 U.S. 282 (1952). There, an employee of Haenn Ship

Ceiling & Refitting Corporation sustained injuries while he was
16

repairing a ship owned by Halcyon Lines. The employee sued

Halcyon, and Halcyon impleaded Haenn as a third-party

defendant. We held that Halcyon had a right of contribution, but

that Haenn’s liability was limited to the amount that it would

have had to pay its employee if the employee had elected to

claim compensation under the applicable workers’ compensation

statute, the LHWCA. Halcyon, 342 U.S. at 283 (citing Baccile

v. Halcyon Lines, 187 F.2d 403 (3d Cir. 1951)).

Both parties contested our holding before the Supreme

Court. Halcyon argued that it had a right to contribution based

on the parties’ relative degrees of fault, while Haenn disputed

whether there was a right of contribution at all; at most, it urged,

the right should be based on an equal division of damages in

keeping with the admiralty law rule of divided damages that

applies in collision cases. Id. at 284. The Court declined to

recognize any right of contribution under the circumstances,

concluding, in light of the myriad issues involved, and wary of

upsetting the intricate schemes for apportioning liability that

Congress had developed in the LHWCA and related statutes,

that “legislative consideration and action can best bring about a

fair accommodation of the diverse but related interests” of the

carriers, shippers, employees, and insurance companies that had

stakes in the existing statutory compensation scheme. Id. at 286.

The Court accordingly concluded that “it would be unwise to

attempt to fashion new judicial rules of contribution and that the

solution of this problem should await congressional action.” Id.

at 285.

Later, however, in Cooper Stevedoring Co. v. Fritz

Kopke, Inc., 417 U.S. 106 (1974), the Supreme Court
17

recognized a maritime law right of contribution between a vessel

and a stevedore in a non-collision context. Cooper arose out of

injuries that a longshoreman sustained when he fell into a

concealed gap between crates on the vessel where he was

working. The longshoreman sued the vessel, and the vessel

filed a third-party complaint naming Cooper, the stevedore that

had negligently loaded the crates onto the vessel. Importantly,

Cooper was not the longshoreman’s employer. The issue before

the Supreme Court was whether the district court’s award of

contribution between the vessel and stevedore was cognizable

under maritime law. Cooper, 417 U.S. at 107-09. The Court

held that it was, but only after making certain to distinguish

Halcyon. Id. at 111-13.

Cooper argued that Halcyon precluded the Court from

recognizing a right to contribution in its case. Id. at 111. But

the Cooper Court construed Halcyon narrowly, finding that the

Court’s decision in Halcyon was premised on Haenn’s LHWCA

immunity from liability to the injured plaintiff. See id. at 112.

In Cooper, unlike Halcyon, neither party was immune from

liability to the plaintiff–the LHWCA did not apply because the

plaintiff was not an employee of the vessel or the stevedore.

Because the injured longshoreman in Cooper could have held

either party, or both, liable for his injuries, the Court held, it

only made sense to allow the vessel to recover part of the total

damage amount from the negligent stevedore. Id. at 113.

As the District Court here ably explained, In re

McAllister Towing & Transp. Co., No. 02-858, 2004 WL

2009330, at *5 (E.D. Pa., Sept. 9, 2004), the lesson of Halcyon

and Cooper is that the maritime law right to contribution among
18

joint tortfeasors in non-collision cases rests on a finding of

concurrent responsibility. Cooper, 417 U.S. at 115. Where, as

here, the party against whom contribution is sought cannot be

held liable to the plaintiff, the basis for mutual responsibility,

and thus for contribution, disappears.

McAllister argues that the District Court’s reliance on

Halcyon and Cooper was misplaced because the Lockheed

Court dismissed those cases as “irrelevant.” This argument

misses the point: Halcyon and Cooper were irrelevant to the

Court’s analysis in Lockheed because they bear only on the

parties’ substantive contribution claims. As discussed above,

that issue was not presented to the Lockheed Court because the

district court had decided that there was a valid indemnity claim,

and that determination was not contested on appeal. See

Lockheed, 460 U.S. at 198 n.8 (“Since the validity of the

substantive indemnity claim is not before us, [Halcyon and

Cooper] . . . are entirely irrelevant.”). Here, Halcyon and

Cooper are relevant and, indeed, controlling on the substantive

contribution law issue before us. 

Global argues that Halcyon and Cooper are

“inapplicable” to this case because they involve immunity from

tort liability under LHWCA, not FECA. As Global points out,

LHWCA specifically prohibits third-party claims, see Lockheed,

460 U.S. at 198, while FECA does not. But LHWCA was only

amended to prohibit third-party liability in 1972; Halcyon was

decided in 1952. The Supreme Court described LHWCA’s

exclusivity provision before the 1972 amendment as “nearly

identical” to FECA’s. Weyerhaeuser, 372 U.S. at 602. Thus,

the 1972 amendments to LHWCA do not provide a legitimate
19

basis for distinguishing Halcyon and Cooper from this case.

Post-Cooper case law reinforces our conclusion that

Halcyon and Cooper foreclose Appellants’ contribution claims

here. As the District Court noted, “[a]lmost every circuit that

has analyzed contribution law for joint tortfeasors . . . has

applied the reasoning in Cooper.” In re McAllister Towing,

2004 WL 2009330, at *5. In fact, two courts of appeals have

specifically held that the government’s FECA immunity from

suit by the underlying tort victim precludes third-party

contribution actions based on the applicable substantive law. In

Eagle-Picher Industries, Inc. v. United States, 937 F.2d 625

(D.C. Cir. 1991), the Court of Appeals for the District of

Columbia Circuit, applying the Halcyon / Cooper rule,

concluded that private third parties could not recover in

contribution actions against the government for damages paid to

federal shipyard workers covered by FECA because “under

maritime common law [FECA’s] statutory immunity from firstparty liability shields the government . . . as well from thirdparty actions.” Id. at 635. And the Court of Appeals for the

Fifth Circuit upheld a district court’s dismissal of a private

party’s contribution claim against the United States in a case

with facts strikingly similar to the one before us. In Walls

Industries, Inc. v. United States, 958 F.2d 69 (5th Cir. 1992), as

in this case, the private party’s contribution claim arose out of

its liability for injuries that a federal civilian employee sustained

while working on a United States vessel. Id. at 71-72. The

court there reasoned that “[c]ontribution and indemnity are

available only if the joint tortfeasors share a common liability to

the plaintiff,” id. at 71, and that no common liability existed in

that case because FECA rendered “the United States . . .
20

immune from suit by the first-party plaintiff.” Id. at 72. While

we have not had the opportunity to address the substantive

contribution issue since Cooper, our pre-Cooper analysis of the

issue (see Travelers, discussed above) actually anticipated

Lockheed’s directive to look to the underlying substantive law

and the precise approach to the substantive law question

employed by the Courts of Appeals for the D.C. and Fifth

Circuits in Eagle-Picher and Walls. 

Appellants have cited only one case, Wallenius Bremen

G.m.b.H. v. United States, 409 F.2d 994 (4th Cir. 1969), that

supports their view that liability for contribution claims does not

turn on the indemnitor’s first-party liability to the injured

person. We rejected that court’s reasoning in Travelers and

continue to find it unpersuasive now. First, as discussed above,

Wallenius runs counter to the weight of authority, both before

and after Cooper. See, e.g., Walls, 958 F.2d at 71-72; EaglePicher, 937 F.2d at 635; Travelers, 493 F.2d at 886-87; United

Air Lines, Inc. v. Wiener, 335 F.2d 379, 403 (9th Cir. 1964).

Second, and more importantly, Wallenius was decided five

years before Cooper. Although the Supreme Court in Lockheed

left the substantive indemnity law question open, it resolved that

question, at least with respect to maritime law contribution

claims, in Cooper. We are accordingly bound to apply Cooper

here. Where the substantive law makes the existence or nonexistence of the government’s liability to the first party relevant,

we cannot conclude, as the Fourth Circuit Court of Appeals did

in Wallenius, that it is “irrelevant.”

Finally, although the parties have not focused on the

policy implications of this decision, we note that the result urged
21

by the Appellants would undermine FECA’s objectives. Like

other workers’ compensation schemes, FECA serves a dual

purpose: “to provide for employees ‘a remedy which is both

expeditious and independent of proof of fault, but also for

employers a liability which is limited and determinate.’” Busey

v. Washington, 225 F. Supp. 416, 423 (D.D.C. 1964) (quoting

Bradford Elec. Light Co. v. Clapper, 286 U.S. 145, 159 (1932)).

To further this second purpose, FECA contains a recoupment

provision, 5 U.S.C. § 8132, which requires an injured employee

who receives damages from a third party to refund any benefits

he received under the statute to the United States. Allowing

third parties to recover on contribution claims against the United

States for damages paid to injured federal employees frustrates

the purpose of the recoupment provision, see Newport Air Park,

Inc. v. United States, 419 F.2d 342, 348 (1st Cir. 1969) (Coffin,

J., concurring), and undermines the entire statutory scheme by

subjecting the United States to unlimited and indeterminate

liability for injuries to its employees. Busey, 225 F. Supp. at

423. Cf. Stencel Aero Engineering Corp. v. United States, 431

U.S. 666, 673 (1977) (finding that to permit third-party recovery

on an indemnity claim against the United States for benefits paid

to an injured National Guard officer would circumvent the

limitation-of-liability provisions of the Veterans’ Benefit Act, a

“statutory ‘no fault’ compensation scheme” similar to FECA).

Appellants have advanced no compelling justification for

subverting the statutory scheme in this way.

Given the Supreme Court’s directive in Cooper that the

maritime law right to contribution is dependent on the

indemnitor’s first-party liability, the consensus among the courts

of appeals that have considered the issue and found that the
 7

At oral argument, the parties debated the equities of this

result in light of the fact that evidence indicates that the United

States was at least partly at fault for the accident that caused

Bruemmer’s injuries. We have not considered those arguments

because we conclude that, given the statutory scheme and case

law, and considering their application as we have reviewed

above, the equities to not play a role in the analysis before us.

22

United States’s immunity from first-party liability destroys

third-party contribution rights, our own, pre-Cooper analysis of

this issue, and our understanding of the purpose of FECA’s

exclusive liability provision, there is no basis on which we

would break new ground here. We agree with the District Court

that Appellants’ remedies against the United States depend on

the United States’s liability for the underlying injury. Because

FECA immunizes the United States from such liability, there

can be no claim for contribution as a matter of law.7

III. Conclusion

For all of the reasons discussed above, we conclude that

the District Court’s grant of the United States’ Motion for

Judgment on the Pleadings was proper. We will accordingly

affirm the District Court’s order.