                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             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Precedential or Non-Precedential: Precedential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
                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




                             2
                  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


  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
                        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

                                4
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.



                                5
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

   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
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

                                7
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

  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
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

                                9
       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

                                10
       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

                               11
        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

    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
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 first-
party 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

   6
   These cases were substantially abrogated by a subsequent
amendment to the LHWCA, but, as we noted in Travelers, “their

                                13
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


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
based on the state of the law, which can include general legal
principles as well as a particular statutory scheme. See Eagle-
Picher 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. Eagle-
Picher 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 half-
century 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

                                15
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

                                16
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

                               17
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

                               18
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 first-
party liability shields the government . . . as well from third-
party 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 . . .

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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; Eagle-
Picher, 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 non-
existence 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

                                20
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

                               21
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.




   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.

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