e-Journal Summary

e-Journal Number : 77442
Opinion Date : 05/18/2022
e-Journal Date : 06/02/2022
Court : U.S. Court of Appeals Sixth Circuit
Case Name : Adkisson v. Jacobs Eng'g Group, Inc.
Practice Area(s) : Negligence & Intentional Tort
Judge(s) : Gilman, Sutton, and Rogers
Full Text Opinion
Issues:

Federal Tort Claims Act; Derivative immunity for a government contractor; Whether the Tennessee Valley Authority (TVA) would be immune from liability under Thacker v Tennessee Valley Auth; The “inconsistency inquiry”; Whether the court could consider an issue raised solely in an amicus brief; Whether a suit against the TVA would be inconsistent with & precluded by the Supremacy Clause & the Comprehensive Environmental Response, Compensation, & Liability Act (CERCLA); The “grave-interference inquiry”

Summary

The court held that because nonparty-TVA would not be immune if it had been named as a defendant in this tort case, defendant-Jacobs Engineering, the TVA’s prime contractor on a project, was not entitled to immunity. Plaintiffs (workers on the TVA’s coal-ash cleanup, removal, and recovery project or their families) sued Jacobs for various common-law torts. The district court bifurcated the case. Phase I concerned whether Jacobs should be held generally liable to plaintiffs. This appeal involved the district court’s denial of Jacobs’s claim of derivative immunity as a government contractor. Applying de novo review, the court considered whether the TVA itself would be immune from liability under Thacker, where the Supreme Court ruled that the TVA is “not immune from suit and is just ‘as liable as [private companies] for choices and judgments’ that it makes when it operates in a purely commercial context.” The TVA’s amicus brief raised the issue whether the lawsuit would interfere with state workers’ compensation programs. Jacobs had never raised this issue. The court noted it had “not definitively held that we can consider an argument raised solely in an amicus brief.” Other circuits have held that courts of appeals have the discretion to do so, but only in two “‘exceptional circumstances.’” The court concluded that the TVA failed to establish either of those exceptional circumstances warranted it doing so here. It also rejected the TVA’s argument that plaintiffs’ suit was “inconsistent with and precluded by the Supremacy Clause and CERCLA,” and Jacobs’s argument that this lawsuit going forward “would gravely interfere with the TVA’s governmental function . . . .” It noted that since the grave-interference test was announced in 1940, “‘the Supreme Court and the majority of Courts of Appeals presented with this issue have concluded that the federal agency had not demonstrated grave interference.’” The court affirmed the district court’s denial of derivative contractor immunity.

Full Text Opinion