Carlton G. Springer, Sr., As Administrator of the Estate Ofbettie I. Springer, Deceased, Plaintiff-appellant, v. Charles Ray Bryant; and Tennessee Valley Authority,defendants-appellees, 897 F.2d 1085 (11th Cir. 1990)

This case commenced as a wrongful death action in Alabama state court against Charles Ray Bryant, and the Tennessee Valley Authority ("TVA"). The action arose out of an October 27, 1987 car accident in which plaintiff-appellant's decedent, Bettie I. Springer, died. The complaint alleged that Bryant caused the accident and that Bryant was driving a TVA truck in the course and scope of his TVA employment at the time of the accident. The suit was filed under the Alabama wrongful death statute, 1975 Ala.Code Sec. 6-5-410, and sought to recover punitive damages.

On November 17, 1988, Bryant and the TVA removed the state court action to federal court, and on February 17, 1989, they filed a motion to dismiss accompanied by a TVA certification pursuant to Section 9(b) (1) of the recently enacted Federal Employees Liability Reform and Tort Compensation Act ("FELRTCA"), Pub. L. No. 100-694, 102 Stat. 4563 (1988) [hereinafter referred to by section number]. The motion asserted that Bryant was acting in the course and scope of his TVA employment at the time of the accident, thus triggering the substitution of TVA and the removal of Bryant as the party defendant pursuant to Section 9(b) (1).¹  The motion to dismiss was based on the proposition that the TVA, the only remaining party in the litigation, was protected from an Alabama wrongful death action by virtue of the agency's sovereign immunity. The district court dismissed the action with prejudice on March 10, 1989.

DISCUSSION

The purpose of the FELRTCA is to create absolute immunity for federal employees who, within the scope of their employment, commit common law torts. Section 2(b). The legislation was enacted as a response by Congress to the Supreme Court's decision in Westfall v. Erwin, 484 U.S. 292, 108 S. Ct. 580, 98 L. Ed. 2d 619 (1988), in which the Supreme Court held that only officials whose actions were performed "within the outer perimeter of [the] official's duties and [were] discretionary in nature" were entitled to official immunity from tort actions. Id. at 299, 108 S. Ct. at 585. Believing that the Westfall decision seriously eroded the common law tort immunity available to federal employees thereby creating an immediate crisis in which all federal employees were confronted with the prospect of being held personally liable for actions taken within the scope of their employment and fearing that this potential threat of personal liability and protracted tort litigation could undermine the morale of federal employees and the effectiveness of the agencies in which they were employed, Congress enacted the FELRTCA to overrule Westfall.²  See generally Sowell v. American Cyanamid Co., 888 F.2d 802, 805 (11th Cir. 1989).

As originally proposed by Congress, the FELRTCA was solely designed to create a statutory mechanism through which tort actions against federal employees would be transformed into actions against the federal government to be channelled through the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2670-80. This objective was accomplished through the creation of the following provisions: First, the FELRTCA allows for the Attorney General to certify or the employee to establish that the employee's actions at the time of the alleged incident at issue occurred while the employee was acting within the scope of his or her employment. Once this fact is established, the United States must be substituted for the employee as a party defendant and the action proceeds as if it had originally been brought as an FTCA claim against the federal government.³  Section 6. Finally, the Act's provisions are to be applicable to any and all cases pending on the date of enactment, and the statutory remedy against the United States was to be the exclusive remedy for tort claims arising out of the employee's actions or omissions that gave rise to the claim. Sections 8 and 5.

Because the original draft of the legislation was designed only to amend the FTCA, the statutory protections accorded to federal employees would not have encompassed employees of the TVA. See 28 U.S.C. § 2680(l) (excluding the TVA from the scope of the FTCA's coverage); Painter v. Tennessee Valley Authority, 476 F.2d 943, 945 n. 3 (5th Cir. 1973) (per curiam).⁴  Recognizing this void in coverage and believing that TVA employees were equally in need of immunity from state tort law liability, the Senate proposed an amendment to the FELRTCA to include employees of the TVA within the Act's scope. 134 Cong.Rec. S15599 (daily ed. Oct. 12, 1988).

This amendment, which was adopted and integrated as Section 9 of the FELRTCA, mirrors the FELRTCA's protections for federal employees. Upon proper proof that the employee was acting within the scope of his or her employment at the time that the alleged incident took place, the TVA is to be substituted for the employee as the party defendant. Section 9(b) (1), 9(b) (3).⁵  Upon substitution of the TVA, the litigation is "to proceed in the same manner as any action against the Tennessee Valley Authority and shall be subject to the same limitations and exceptions applicable to those actions." Section 9(b) (4). And finally, as with the statutory framework governing claims against federal employees, this statutory remedy against the TVA is to be the exclusive remedy for tort claims arising out of the employee's actions or omissions that gave rise to the claim. Section 9(a).⁶ 

On appeal, plaintiff-appellant seizes upon a drafting error in Section 9(c) of the FELRTCA to challenge the district court's conclusion that sovereign immunity protects the TVA from an Alabama wrongful death action.⁷  This provision, as enacted, provides the following:

(c) RETENTION OF DEFENSES.--Section 2674 of title 28, United States Code, is amended by adding at the end thereof the following new paragraph:

"With respect to any claim to which this section applies, the Tennessee Valley Authority shall be entitled to assert any defense which otherwise would have been available to the employee based upon judicial or legislative immunity, which otherwise would have been available to the employee of the Tennessee Valley Authority whose act or omission gave rise to the claim as well as any other defenses to which the Tennessee Valley Authority is entitled under this chapter.".

Plaintiff-appellant argues that this provision, while purporting to provide the TVA with additional defenses actually has the opposite effect and strips the TVA of its preexisting sovereign immunity. In making this argument, plaintiff-appellant relies upon the fact that Section 9(c) purports to amend 28 U.S.C. § 2674 of the Federal Tort Claims Act. However, as noted earlier, the FTCA does not include the TVA within its scope of coverage.⁸  Thus, plaintiff-appellant contends that Section 9(c)'s provision that the TVA may raise "any other defenses to which the [TVA] is entitled under this subchapter" is a nullity and that the effect of this section is to limit the TVA's available defenses to only those defenses that could have been raised by its employees.

This argument is contrary both to the explicit language of the statute, Section 9(b) (4), and to the legislative history. Section 9(b) (4) provides:

Upon certification, any actions subject to paragraph (1), (2), or (3) shall proceed in the same manner as any action against the Tennessee Valley Authority and shall be subject to the limitations and exceptions applicable to those actions.

Under Section 9(b) (4), it is clear that the TVA retains the usual defenses it enjoys in "any action." Since Section 9(c)--which plaintiff-appellant interprets as purporting to provide defenses but actually providing none--does not purport to provide an exhaustive or exclusive list of defenses available to the TVA, it is not inconsistent to conclude that Section 9(b) (4) retains for the TVA all of its usual defenses, even if plaintiff-appellant's interpretation of Section 9(c) is correct. Moreover, the legislative history clearly establishes Congress's intent that the TVA retain its usual defenses.⁹  Thus, we conclude that in an action such as this where the TVA is substituted as the party defendant pursuant to Section 9, the TVA retains its usual defenses. In so holding, we agree with and follow the well-reasoned opinion of the Fifth Circuit in Lunsford v. Price, 885 F.2d 236 (5th Cir. 1989).

Given this conclusion, it is clear that the district court was correct in finding the plaintiff-appellant's wrongful death claim barred by TVA's sovereign immunity. The TVA is a federally owned corporation that acts as an agency or instrumentality of the United States. Thus, while it may sue or be sued in contract or tort, 16 U.S.C. § 831c(b), it may not be sued for punitive damages unless Congress has so provided. See Painter v. Tennessee Valley Authority, 476 F.2d at 944.

As we observed in Painter as well as in later cases,¹⁰  Alabama courts have treated the damages awardable under the Alabama Wrongful Death Statute as being solely punitive in nature.¹¹  We are bound by this judicial construction of the purpose and function underlying Alabama's wrongful death statute and, finding no evidence of Congressional intent to the contrary, are thus compelled to follow Painter and conclude that an Alabama wrongful death action may not lie against the TVA.

In so holding, we are cognizant of the fact that the result we reach may very well not be one that Congress anticipated. As we noted in Painter, Alabama is one of the few states in which the courts construe a wrongful death statute as permitting only an award of punitive damages. Our observations in Painter are equally appropriate here:

It is altogether anamolous [sic] that similarly situated survivors could maintain this action against the TVA under the law of practically any other state while those who have the misfortune of being relegated to the use of Alabama law are permitted no right of action at all. This lack of uniformity of tort responsibility of a federal institution based on the fortuity of geography is irrational. However, this inferior federal court has no power and declines to assume the temerity to so intrude in matters traditionally committed to the States as to declare the existence of a federal right in the survivors to recover for a decedent's death, even though the "policy ... [of recognizing such a right] has become itself a part of our law, to be given its appropriate weight not only in matters of statutory construction but also in those of decisional law." Moragne v. States Marine Lines, Inc., 398 U.S. 375, 390-91, 90 S. Ct. 1772, 1782, 26 L. Ed. 2d 339 (1970).

The aberration in such cases must find its remedy through an appropriate Congressional waiver of the TVA's immunity to punitive damages or by the creation of some uniform federal right of action, or by Alabama's amendment or reinterpretation of its law.

Id. at 944-45 (footnotes omitted).

If anything, our concerns expressed in Painter are heightened after the enactment of the FELRTCA. In amending the statute to include the TVA within its scope, Congress expressed its concern that "the same protections enjoyed by Federal employees should be enjoyed by TVA employees." 134 Cong.Rec. S15599 (daily ed. Oct. 12, 1988). Through what appears to be an oversight, the actual statute enacted by Congress has left the survivors of individuals killed by the negligent acts or omissions of TVA employees in a far worse position than the survivors of individuals who are killed as a result of the tortious conduct of federal employees. In both cases, if it turns out that the employee was acting within the scope of his or her employment at the time of the accident, the employee is absolutely immune from liability and the employee's employer--either the TVA (in the former instance) or the United States (in the latter)--will be substituted for the employee. If the employer were the United States, however, then an action such as the one here would proceed under the FTCA, notwithstanding the fact that Alabama law characterizes the action as being one for punitive damages. See 28 U.S.C. § 2674 (providing that, in tort actions where death was caused, " [i]f ... the law of the place where the act or omission complained of occurred provides, or has been construed to provide, for damages only punitive in nature, the United States shall be liable for actual or compensatory damages, measured by the pecuniary injuries resulting from such death to the persons respectively, for whose benefit the action was brought, in lieu thereof").

At present, there is no such counterpart for the same claim brought against the TVA. We can imagine no rational justification why different results should be reached depending solely upon whether the individual is employed by the federal government or by the TVA. However, until Congress acts to remedy this situation by waiving the TVA's immunity or enacting a provision comparable to Sec. 2674, we are constrained to conclude that plaintiff-appellant's action may not lie against the TVA.¹² 

Accordingly, the judgment of the district court is

AFFIRMED.