Adams v. Thomas Helicopters ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TIMM ADAMS; et al., 
Plaintiffs-Appellees,
THOMAS HELICOPTERS, INC.,
Intervenor-Appellant,
and No. 04-35129
E. I. DU PONT DE NEMOURS AND  D.C. No.
COMPANY, INC.; et al., CV-03-00049-BLW
Intervenors,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.

TIMM ADAMS; et al., 
Plaintiffs,
v.
E. I. DU PONT DE NEMOURS
COMPANY, INC., a Delaware
corporation; et al., No. 04-35247
Defendants,  D.C. No.
and CV-03-00318-BLW
DEANGELO BROTHERS, INC., a
Pennsylvania corporation,
Defendant-Appellant,
UNITED STATES OF AMERICA,
Respondent-Appellee.

11149
11150 ADAMS v. UNITED STATES
TIMM ADAMS; et al., 
Plaintiffs,
E. I. DU PONTE DE NEMOURS AND
COMPANY, INC.; et al.,
Intervenors, No. 04-35248
and  D.C. No.
DEANGELO BROTHERS INC., CV-03-00049-BLW
Intervenor-Appellant,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.

TIMM ADAMS; et al., 
Plaintiffs,
and
THOMAS HELICOPTERS, INC., an
Idaho corporation; et al.,
Petitioners-Appellants, No. 04-35154
v.
 D.C. No.
CV-03-00318-BLW
E. I. DU PONT DE NEMOURS AND
COMPANY, INC., a Delaware OPINION
corporation; et al.,
Defendants,
and
UNITED STATES OF AMERICA,
Respondent-Appellee.

Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, District Judge, Presiding
ADAMS v. UNITED STATES 11151
Argued and Submitted
June 9, 2005—Seattle, Washington
Filed August 23, 2005
Before: Robert R. Beezer, David R. Thompson, and
M. Margaret McKeown, Circuit Judges.
Opinion by Judge Thompson
ADAMS v. UNITED STATES 11153
COUNSEL
Steven F. Schossberger, Boise, Idaho, for intervenor-appellant
Thomas Helicopters, Inc.
John L. King, Boise, Idaho, for intervenor-appellant DeAn-
gelo Brothers, Inc.
David S. Fishback, Department of Justice, Washington, D.C.,
for defendant-appellee United States of America.
OPINION
THOMPSON, Senior Circuit Judge:
The Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§§ 1346(b)(1), 2671-2680, includes a certification process for
immunity from tort claims against employees of the govern-
ment. 28 U.S.C. § 2679(b)(1). Such employees are defined, in
part, as “persons acting on behalf of a federal agency.” 28
U.S.C. § 2671. We conclude that the word “persons” as used
in this portion of the FTCA does not include corporations,
notwithstanding the Dictionary Act’s provision that the word
“person” when used in an Act of Congress includes “corpora-
tions” “unless the context indicates otherwise.” 1 U.S.C. § 1.
Thus, we hold that a corporation may not obtain immunity
through the certification process of 28 U.S.C. § 2679, and we
affirm the district court’s order affirming the government’s
denial of FTCA certification to the corporate defendants,
Thomas Helicopters, Inc., and DeAngelo Brothers, Inc.
11154 ADAMS v. UNITED STATES
I
The Bureau of Land Management contracted with Thomas
Helicopters and DeAngelo Brothers to apply herbicide to
Bureau-managed land in Idaho to prevent weed growth.
Approximately 440 plaintiffs made up of farmers and land-
owners sued the manufacturer of the herbicide, as well as
Thomas Helicopters, DeAngelo Brothers, and the United
States, alleging that the improper application of the herbicide
caused it to drift onto the plaintiffs’ land resulting in damages
in excess of $700 million.
Thomas Helicopters and DeAngelo Brothers petitioned the
United States government to certify them as government
employees under the FTCA. Had they been so certified, they
would no longer be defendants and would be out of the case.
The FTCA allows the United States to substitute itself for the
government employee as the defendant “[u]pon certification
by the Attorney General that the defendant employee was act-
ing within the scope of his office or employment at the time
of the incident out of which the claim arose.” 28 U.S.C.
§ 2679(d)(1), (2). The United States rejected the petitions on
the ground that certification was not available to corporate
entities. Thomas Helicopters and DeAngelo Brothers then
sought review of that decision in the district court. The district
court affirmed the government’s denial of certification, and
this appeal followed.
II
The district court’s order that certification was properly
refused is immediately appealable, Arthur v. United States, 45
F.3d 292, 294 (9th Cir. 1995), and presents to us a question
of law that we review de novo. See Pelletier v. Fed. Home
Loan Bank of San Francisco, 968 F.2d 865, 875 (9th Cir.
1992). We have jurisdiction under 28 U.S.C. § 1291.
ADAMS v. UNITED STATES 11155
A
[1] The FTCA provides a waiver of the United States gov-
ernment’s sovereign immunity for tort claims arising out of
the conduct of government employees acting within the scope
of their employment. 28 U.S.C. § 1346(b)(1); United States v.
Orleans, 425 U.S. 807, 813-14 (1976). The FTCA defines
“employee of the government” in a way that creates five cate-
gories of employees:1
[1] officers or employees of any federal agency,
[2] members of the military or naval forces of the
United States,
[3] members of the National Guard while engaged in
training or duty,
[4] persons acting on behalf of a federal agency in
an official capacity, [and]
[5] officer[s] or employee[s] of a Federal public
defender organization, [with certain exceptions].
28 U.S.C. § 2671 (emphasis added). The fourth category lies
at the heart of this case. As used in that category, “federal
agency” includes
1
The actual text of the definition found in 28 U.S.C. § 2671 reads:
“Employee of the government” includes (1) officers or employ-
ees of any federal agency, members of the military or naval
forces of the United States, members of the National Guard while
engaged in training or duty under section 115, 316, 502, 503,
504, or 505 of title 32, and persons acting on behalf of a federal
agency in an official capacity, temporarily or permanently in the
service of the United States, whether with or without compensa-
tion, and (2) any officer or employee of a Federal public defender
organization, except when such officer or employee performs
professional services in the course of providing representation
under section 3006A of title 18.
11156 ADAMS v. UNITED STATES
executive departments, the judicial and legislative
branches, the military departments, independent
establishments of the United States, and corporations
primarily acting as instrumentalities or agencies of
the United States, but does not include any contrac-
tor with the United States.
Id.
[2] The FTCA leaves the term “persons” undefined. The
Dictionary Act, however, enacted approximately one year
before the FTCA, provides (as it did before the FTCA’s pas-
sage) that
In determining the meaning of any Act of Congress,
unless the context indicates otherwise —
....
the word[ ] “person” . . . include[s] corporations,
companies, associations, firms, partnerships, socie-
ties, and joint stock companies, as well as individu-
als . . . .
1 U.S.C. § 1.
The FTCA provisions for substituting the government for
the “employee of the government” as the defendant in an
FTCA action were adopted as an amendment to the FTCA in
1988 in reaction to the Supreme Court’s decision in Westfall
v. Erwin, 484 U.S. 292 (1988). In Westfall, the Court nar-
rowed the scope of official immunity by holding that individ-
ual federal employees were immune from personal liability
only when acting “within the scope of their official duties and
the conduct is discretionary in nature.” 484 U.S. at 297-98.
The Court left any further immunity of federal employees up
to Congress. Id. at 300 (noting that Congress is in the best
position to decide the scope of immunity and that “legislated
ADAMS v. UNITED STATES 11157
standards governing the immunity of federal employees . . .
would be useful.”). Congress responded by enacting what is
commonly known as the Westfall Act (the Federal Employees
Liability Reform and Tort Compensation Act of 1988, 28
U.S.C. § 2679), which conferred immunity to federal employ-
ees acting within the scope of their office or employment
regardless of whether their conduct was discretionary.
B
[3] Under the Dictionary Act, the FTCA’s “government
employee” definition, which uses the word “persons,” 28
U.S.C. § 2671, would include corporations unless “the context
[of the FTCA] indicates otherwise.” 1 U.S.C. § 1. The
Supreme Court’s decision in Rowland v. California Men’s
Colony, 506 U.S. 194 (1993), guides our interpretation of this
contextual proviso of the Dictionary Act.
In Rowland, the Court applied the Dictionary Act’s defini-
tion of “person” to the in forma pauperis statute, 28 U.S.C.
§ 1915, and held that the context of the in forma pauperis
statute indicated that its use of “person” referred only to indi-
viduals, not to artificial entities. Rowland, 506 U.S. at 201-11.
[4] The Rowland Court, in applying the Dictionary Act’s
definition of “person” to another Act of Congress, carefully
considered the Dictionary Act’s proviso that its definition
should not be applied if “ ‘the context [of the other Act] indi-
cates otherwise.’ ” Rowland, 506 U.S. at 199 (quoting 1
U.S.C. § 1) (emphasis added). The Court stated that context
in this clause means “the text of the Act of Congress sur-
rounding the word at issue, or the texts of other related con-
gressional Acts.” Id. Context does not extend to legislative
history: “If Congress had meant to point . . . to legislative his-
tory . . . it would have been natural to use a more spacious
phrase, like ‘evidence of congressional intent,’ in place of
‘context.’ ” Id. at 200.
11158 ADAMS v. UNITED STATES
[5] In determining what a statute’s context indicates, the
Court stated that the scope of “indicates” is “broader” than
that of “context” and while it is a “matter of judgment,” it
“imposes less of a burden than . . . ‘requires’ or ‘necessi-
tates.’ ” Id. Finally, to determine that the context of a statute
indicates that a definition set forth in the Dictionary Act is not
appropriate, a court need not conclude that the Dictionary
Act’s meaning would produce an absurd result. Id. at 200-01.
Applying this framework, the court in Rowland held that
the word “person” as used in the in forma pauperis statute
referred only to individuals. First, the in forma pauperis stat-
ute assumed litigants could appear pro se, which indicated
that Congress must have been thinking only in terms of natu-
ral persons. Id. at 203. Second, the in forma pauperis statute
required an affidavit supporting the person’s “allegation of
poverty,” but artificial entities do not suffer poverty. Id.
Third, the in forma pauperis statute required the person to
make an affidavit, but “[b]ecause artificial entities cannot take
oaths, they cannot make affidavits.” Id. at 204. Finally, the in
forma pauperis statute provided no resolution of the question
how to apply the statute’s “inability to pay” standard to corpo-
rations, and “congressional silence on the subject indicates
that Congress simply was not thinking in terms of granting in
forma pauperis status to artificial entities.” Id. at 207.
Turning to our case, and following Rowland to decide
whether the FTCA’s use of the term “persons” in 28 U.S.C.
§ 2671 includes only natural persons, we look to the sur-
rounding words and other related Acts. Rowland, 506 U.S. at
199. If extending the term “persons” to include artificial enti-
ties would “substantially frustrate[ ]” the FTCA’s purpose,
then the context would indicate “persons” is limited to natural
persons. Id. at 210.
C
[6] Several contextual features of the FTCA indicate Con-
gress meant “persons” to apply only to natural persons. Sec-
ADAMS v. UNITED STATES 11159
tion 2679(c), which describes FTCA coverage, refers to
actions brought against “any employee of the Government or
his estate . . . .” 28 U.S.C. § 2679(c). Corporations do not
have estates. See Black’s Law Dictionary 567 (7th ed. 1999)
(defining “estate” as it is used here as “the collective assets
and liabilities of a dead person”). By assuming employees
have estates, Congress must have been thinking only in terms
of natural persons. Cf. United States v. Middleton, 231 F.3d
1207, 1211 (9th Cir. 2000) (noting that the term “person” as
used in 18 U.S.C. § 1030(e)(8)(C), which defines “damage”
as “any impairment to a system ‘that causes physical injury to
any person’ ” does not include corporations because corpora-
tions “cannot suffer ‘physical injury’ ”).
[7] In addition, section 2679(b)(2) of the FTCA, which
excludes certain suits from coverage, states that immunity
does not extend to a civil action “brought for a violation of a
statute of the United States under which such action against
an individual is otherwise authorized.” 28 U.S.C.
§ 2679(b)(2)(B) (emphasis added). This section speaks in
terms of an individual, not a corporate entity.
[8] The general construction of the FTCA’s definitions sec-
tion also indicates that “employee” is meant to be limited to
individuals. The definition of “employee of the government”
is textually divided into two groups, but actually lists five cat-
egories of employees. See 28 U.S.C. § 2671 (officers or
employees of federal agencies; members of the military or
naval forces; members of the National Guard while engaged
in training or duty; persons acting on behalf of a federal
agency in an official capacity; and some officers or employ-
ees of a federal public defender organization). Each category,
save the one referring to “persons acting on behalf of a federal
agency” explicitly concerns employees that can be only
human beings — “officers or employees” or “members” of
armed forces. Given the principle of statutory interpretation
noscitur a sociis, that “several items in a list shar[ing] an attri-
bute counsels in favor of interpreting the other items as pos-
11160 ADAMS v. UNITED STATES
sessing that attribute as well,” see Beecham v. United States,
511 U.S. 368, 371 (1994), it seems likely Congress intended
the category of “persons acting on behalf of a federal agency”
to be limited to individuals so acting.
[9] The purpose of the FTCA also indicates that “persons”
is limited to individuals. Congress passed the Westfall Act to
amend the FTCA in response to the Supreme Court’s limita-
tion in Westfall of the scope of immunity available to federal
employees. The Congressional findings passed along with the
textual amendments in the Westfall Act demonstrate Congress
was concerned with federal employees being personally liable
for actions taken within the scope of their employment. Those
findings repeatedly refer to protecting the federal workforce
from personal liability. See Federal Employees Liability
Reform and Tort Compensation Act, § 2, 102 stat. 4563,
4563-65 (codified at 28 U.S.C. § 2671 n.). The findings
explain that the Westfall decision eroded the common law of
tort immunity available to federal employees, thereby creating
“an immediate crisis involving the prospect of personal liabil-
ity and the threat of protracted personal tort litigation for the
entire Federal workforce.” Id. Congress stated that the pur-
pose of the Westfall Act was, in part, to protect Federal
employees from personal liability. Id. Such a concern about
personal liability would not apply to corporations. See e.g.,
Federal Election Comm’n v. Beaumont, 539 U.S. 146, 154
(2003) (“State law grants corporations special advantages —
such as limited liability . . . .”). Thus, it seems clear that when
Congress enacted the Westfall Act, it intended the provisions
of that Act to protect natural persons whose personal fortunes
might suffer, not artificial corporate entities which have lim-
ited liability. Cf. Wilson v. Omaha Indian Tribe, 442 U.S.
653, 665-66 (1979) (holding that the statutory burden of proof
on a “white person” involved in a property dispute applied to
corporations because, to hold otherwise, would frustrate the
purpose of the statute), cited in Rowland, 506 U.S. at 209-10.
ADAMS v. UNITED STATES 11161
D
Thomas Helicopters and DeAngelo Brothers offer a num-
ber of district court cases to argue that contrary to the preced-
ing analysis, the Westfall Act’s use of the term “persons” in
amending the FTCA does include corporations. These cases
are unhelpful. They either assume “persons” includes artificial
entities without analysis of Rowland or the Dictionary Act’s
context proviso, or are simply not on point.
The only case decided by this court that is nearly on point
is United States v. Dooley, 231 F.2d 423 (9th Cir. 1955). In
Dooley, we remanded to the district court to determine
whether a corporate agent of the United States could be a gov-
ernment employee under the FTCA. Id. at 425. The opinion
indicates an affirmative answer. Id. That indication, however,
appears vaguely in dicta. We have never decided whether arti-
ficial entities are “persons” under the FTCA, which is the
question presented by the present case. Moreover, the West-
fall Act was signed into law 30 years after Dooley, a critical
fact which underscores that Dooley could not have considered
the issue we confront here.
III
[10] We conclude the phrase “employee of the govern-
ment” as used in 28 U.S.C. § 2671 does not include corpora-
tions. Because Thomas Helicopters and DeAngelo Brothers
are corporate entities, they are not eligible for immunity certi-
fication as government employees under the FTCA.
AFFIRMED.