Workers’ Case Alleging Harms By Government Contractor From Coal Ash Clean-up Still Alive
Earlier this week, the Sixth Circuit joined an existing circuit split when holding that a government contractor’s immunity as a corollary of the discretionary-function exception to the Federal Tort Claims Act (FTCA), based on the U.S. Supreme Court’s decision in Yearsley v. W.A. Ross Construction Co., 309 U.S. 18 (1940)), is not jurisdictional. In the case, following a coal ash spill at a coal-fired plant generating electricity in Tennessee, the Tennessee Valley Authority entered into a contract with a contractor to provide planning, management, and oversight of the clean-up efforts. Several of the workers who worked on the clean-up then brought suit against the contractor for inadequate training of the hazards of fly ash, improper monitoring of fly ash, inadequate monitoring of medical conditions, and alleged exposure to high concentrations of toxins. The U.S. District Court for the Eastern District of Tennessee granted the contractor’s motion to dismiss for lack of subject matter jurisdiction on the grounds that the contractor was entitled to government-contractor immunity as a corollary of the discretionary-function exception to the FTCA.
The Sixth Circuit reversed. In the Yearsley case, the U.S. Supreme Court held that a contractor who built river dikes for the U.S. government, as authorized by Congress, could not be held liable for a Fifth Amendment taking when the contractor was simply acting as agent under its validly conferred authority. The Supreme Court stated, “if [the contractor’s] authority to carry out the project was validly conferred, that is, if what was done was within the constitutional power of Congress, there is no liability on the part of the contractor for executing its will.” The Sixth Circuit explained this week that the U.S. Supreme Court failed to explain the basis of this protection. Circuit courts are mixed in determining whether Yearsley immunity is jurisdictional. The Fourth Circuit has held it is a jurisdictional bar, but the Fifth Circuit, for example, has explicitly reached the opposite conclusion. The Sixth Circuit agreed with the Fifth: “Although the FTCA is a jurisdictional statute, [the contractor’s] potential immunity derives not from the FTCA but from Yearsley, which the Fifth Circuit correctly notes does not address sovereign immunity.”
Rejecting the district court’s decision to dispose of the case on jurisdictional grounds, the Sixth Circuit remanded the case to decide whether the contractor is eligible for government-contractor immunity based on Yearsley and whether the contractor’s conduct would fall under the corollary of the discretionary-function exception to the FTCA.
