Logue v. United States

PETITIONER:Logue
RESPONDENT:United States
LOCATION:Paris Adult Theater

DOCKET NO.: 72-656
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 412 US 521 (1973)
ARGUED: Apr 24, 1973
DECIDED: Jun 11, 1973

ADVOCATES:
James Deanda – for petitioners
Mark L. Evans – for respondent

Facts of the case

Question

Audio Transcription for Oral Argument – April 24, 1973 in Logue v. United States

Warren E. Burger:

We’ll hear arguments next this morning in number 72-656, Logue against the United States.

Mr. DeAnda.

James Deanda:

Mr. Chief Justice and may it please the Court.

This is a case arising under the Federal Tort Claims Act resulting from the suicidal death of a federal prisoner confined in a state facility.

The District Court, in this instance, found both the Marshal and the sheriff, the state official involved, negligent.

It found the marshal negligent in not making arrangements for a constant surveillance of the deceased and found the sheriff negligent for making inadequate– for having inadequate surveillance procedures.

The Circuit Court approved the findings of the Trial Court but held that, insofar as the Marshal’s negligence was concerned, that the Marshal had no authority to control jail functions and, therefore, no duty of safekeeping of the prisoner and that, insofar as the Sheriff is concerned, that he was an independent contractor as defined under the Tort Claims Act and, therefore, the government had no liability for his conduct which brings us to the issue in the case which is whether or not the United States can exempt itself from liability under the Federal Tort Claims Act for a negligent injury to a prisoner by simply turning him over to a local jail.

This is extremely important because if this were the law, first of all, you would have two standards insofar as the– as persons in detainment are concerned, that is federal prisoners in non-federal institutions, would have the benefit of the Tort Claims Act remedies, nor will they have the rights of the protection afforded by the– by Section 4042 and 4086 which requires the Bureau of Prisons to safely keep the prisoner and require the US Marshal to safely keep his prisoners.

It would also result in a situation where, actually, a– where, in the usual case where a man has been convicted of a crime is confined in a federal institution has really more rights than one who is simply charged with a crime that has not yet been tried because, I believe as statistic shows that are in the record in this case, the persons that are confined in state institutions for the most part are persons who have not yet been convicted of crime.

As a matter of fact, I believe the record was that there were approximately 4,000 federal prisoners in one day that are confined in state institutions of various types and, for the most part, awaiting trial on different offenses.

The dissenting– there was a motion filed in a hearing involved before the circuit which was denied by the circuit, but there was a dissent filed in that matter, and the basis of the dissent was that the breach of the statutory duty on the part of the Marshal occurred when the prisoner was confined in the jail under circumstances that the Marshal knew were dangerous and without taking specific precautions.

In other words, the dissent stated that, really, whether or not the– that this contract between the government and the Nueces County Jail was really irrelevant and that the Marshal himself was guilty of acts of negligence in taking this man and turning him over to the Sheriff of Nueces County without making assurances that he would be cared for, knowing the very peculiar and special circumstances that surrounded the case.

William H. Rehnquist:

Mr. DeAnda, would that be negligence in selecting the contractor basically?

James Deanda:

No, sir.

I don’t believe– Mr. Justice, I do not believe that the negligence would be in selecting the contractor.

The negligence would be in, and the negligence that the Court found was in not making arrangements for the man to be– the arrangements that were necessary under the record to keep the man safely that is, the marital, for example, even though he took the man to jail could have, just as they had a guard for him at the hospital after his first suicidal effort could have gotten a guard for him to watching and maintain constant observation while the man was in jail and the– although the government places a great deal of weight on the inability of the Marshal to control the things in the jail.

The truth of the matter is that everything that occurred in that jail when this man was returned was done so with the blessings and at the suggestion of the Marshal.

Everything that the jailer did, the type of cell that the man was putting him was all done because the Marshal wanted it done that way, and the contract with the– between the government and the jail permits this.

The– there’s a real question in my mind that there’s anything approaching an independent contractor situation here in a situation of this type because the regulations of the Bureau of Prisons, as shown in the transcript, really live it up to the Marshal when a particular unusual situation occurs, specifically either a medical situation or one involving custodial problems.

That’s not the not the run and the mill case where the sheriff is just simply babysitting with somebody that’s in jail and charged with a crime, that he is to call the Marshal and find out what the Marshal wants done with the man and how he wants a particular situation handled.

William J. Brennan, Jr.:

Well, is this an argument that even if the state official– the relationship between the United States and the state jail or prison was one of independent contractor, even if it was, that under these circumstances it was negligent for the Marshal to have lodged the man there without first making certain that whatever the independent contractor did, he did to safeguard this fellow from committing– attempting suicide again.

Is that it?

James Deanda:

Yes, Your Honor.

That’s exactly my position.

In other words, in this particular case, the man was removed from the hospital over the protest of the doctors.

Now, the doctor did release the man, but he released the man because he thought he had been ordered to do so by a federal judge.

That was as circumstance under which the man was released from jail.

He was psychotic when he went in. he was psychotic when he went out.

There had been absolutely no improvement or change in the prisoner’s condition psychiatrically from the time he was put in jail to the time he was taken out.

He was only in– I’m sorry, in the hospital, Mr. Justice.

James Deanda:

The medical test only is that the man’s condition– mental condition was exactly the same.

He had been placed under some sort of a drug treatment and had been administered some medication which did help.

William J. Brennan, Jr.:

But did the Marshal had any choice but– when he was released from the hospital to put him in this very jail?

James Deanda:

Yes, he had every choice in the world.

William J. Brennan, Jr.:

What could he have done?

James Deanda:

Left him in the hospital.

He could’ve been moved in 24 hours according to– in an emergency situation, they could either– in fact, the federal judge already ordered that the man be confined in a medical facility, and he was returned to the jail awaiting transfer to Springfield, I believe, when someone came to get him.

William J. Brennan, Jr.:

But, locally, were the choices either to leave him in the hospital or put him in this jail?

Did he have any other options, the Marshal?

James Deanda:

MAs– I do not believe he would have, Mr. Justice.

I guess he could have.

I guess he could’ve put him anywhere he wanted to put him, I would suppose.

But, I do not believe that, from a realistic stand point, I think his choices would have been a jail like the Nueces County Jail.

William J. Brennan, Jr.:

But there did exist a contract with this jail to take these federal prisoners, didn’t they?

James Deanda:

Yes, the jail did have a contract to accept federal prisoners.

William J. Brennan, Jr.:

Well, then that did rather limit the Marshal’s options, did it not?

James Deanda:

Well, it would limit him either to the– well, that’s what I said.

I think, from a practical standpoint, that that’s correct and it may be from a legal standpoint as well.

Byron R. White:

Well, you’re saying that the specific conduct of this federal Marshal in these circumstances was, itself, negligent.

James Deanda:

Yes, Mr. Justice, in taking in not–

Byron R. White:

And this could be true even if the conduct of the jailer that he– into whose custody he delivered the man was not negligent.

James Deanda:

This would be true.

Byron R. White:

And is it true in this case?

James Deanda:

No, it is not, because– the reason it is not, well, this Trial Court found that it wasn’t.

He found that both were negligent in the matter.

Byron R. White:

But absent this conduct of this particular federal Marshal.

You weren’t asserting that the United States would automatically be liable just because the jailer was negligent, are you?

James Deanda:

Yes, that would be my second position, Mr. Justice, that, here– this is I think what we’re talking about non-delegable duties which I haven’t discussed yet but, in other words, it’s our position that the statute places a mandatory duty on the Marshal to safely keep his prisoner and that he cannot delegate that responsibility–

Byron R. White:

But you don’t need to get to that if the Marshal’s duty– Marshal’s specific conduct here was negligent in itself.

James Deanda:

That, I believe, that’s correct, Mr. Justice, that you would not necessarily reach that point if we were correct in what I’ve said here that the– and the Trial Court did find– the Trial Court found that the Marshal–

Byron R. White:

Himself was negligent.

James Deanda:

Himself was negligent in not making arrangements for constant surveillance of the man.

Warren E. Burger:

What did the District Court find with respect to the Marshal’s decision to move in from the hospital to the local jail?

James Deanda:

The Court found that that was a discretionary function and we did not appeal from that finding, Your Honor.

Warren E. Burger:

A discretionary function for which there could be no liability on the part of the United States.

James Deanda:

Under the Tort Claims Act.

Yes, he found that and that– but, he did find that the marital, having made that discretionary decision, that then he had a duty to see that proper arrangements did made wherever he took the man, to see that he was safely kept in keeping– that he had a duty of reasonable care to see that the man was properly taken care of and the Marshal admits, in his testimony, the Marshal testified– the deputy marshals– the United States Marshal did not testify and had no actual knowledge of what transpired, but the people there admitted that it would have been wrong and unsafe to take this man and place him in jail without constant surveillance.

William O. Douglas:

Do you think that absent of some affirmative conduct by the Marshal involve your two positions that really run together, that the marshals of the United States nor the marshals could do his duty unless it participated in a custody of this prisoner after he was delivered to this jail?

James Deanda:

Well, it is our position, Your Honor, that under the contract and under the practices that were followed, as reflected by this record, that the Marshal did have a great deal to say with reference to the keeping of the man in the conditions under which he was kept.

Potter Stewart:

Mr. DeAnda, I’d rather understood your alternative position to be this.

The District Court found that Deputy Bowers was negligent, that he failed to make adequate specific arrangements for the care and surveillance of the decedent in the jail, and that was met in the Court of Appeals by the finding that he had no power to make any such specific arrangements for the surveillance inside the jail, and I thought that if one should accept that holding of the Court of Appeals that, in fact, the Marshal had no power whatsoever to control or to arrange or to provide for the proper kind of surveillance in the jail.

Then, indeed, it was negligence for him to turn him over to the jail–

James Deanda:

Your Honor–

Potter Stewart:

To a situation where he had no control to—over the proper kind of surveillance that the man was going to be given.

James Deanda:

Your Honor, the Circuit Court points out that the Marshal had no authority over the internal operations of the jail and, in the ordinary case, certainly that is true.

Potter Stewart:

And if that’s true, then it wasn’t negligence, in your submission, for him to turn him over to a jail where he had no control over what was going to happen inside of it.

James Deanda:

Yes, it’s my position, Your Honor, that he did have a duty, knowing the mass propensity for suicide that he could not just take him over and turn him over to someone.

It would be just as Judge Brown said in his dissent.

If this man was physically ill and was dying, he couldn’t just take him down to the jail and throw him in there and say he did no wrong because it wasn’t a hospital and he had no right to convert it into a hospital.

There is a place where the Marshal still has the duty and the control of the prisoner and the absolute control of the prisoner and that was, in this instance, certainly up until he returned him to the jail without– I may add, the jailer testified that all the Marshal told him to do was to keep an eye on the prisoner, or words to that effect, rather than a constant surveillance.

And, the record also shows that the cell that the Marshal selected was an isolation cell which was not surrounded by bars as you might expect but rather a sheik metal steel cell, through which holes had been punched the size of a half dollar and which was in a solitary area of the jail and surrounded by a wire mesh enclosure to boot, so that no one could really keep an eye on this man except the jailer when he made his rounds, and this is what the jailer testified and what the Court accepted because it found that the Marshal made no arrangements for the constant surveillance of the man, insofar as the situation in which the man was placed in this particular custodial type situation.

Potter Stewart:

So he was– if he did have the power to make arrangements, he was negligent on your submission in not making the proper arrangements, and that’s what the District Court found.

James Deanda:

Yes, sir.

Potter Stewart:

If on the other hand, as the Court of Appeals found, he did not have any power to influence what arrangements were made inside the jail, then he was negligent in putting this man, knowing his condition and his propensity to commit suicide, into that jail which he had no power to control.

Is that it, alternatively?

James Deanda:

Mr. Justice, that’s what–

Potter Stewart:

At least on this branch of the case as to other branches.

James Deanda:

That would be a way of putting it. Yes, sir.

William H. Rehnquist:

Isn’t your answer to the second question another way of stating a non-delegable duty?

James Deanda:

The non-delegable phase of it comes in, Mr. Justice, when you have a situation, and I believe Judge Brown pointed that in his decision– in his opinion, excuse me, where the Marshal has a specific statutory duty and he has a set of circumstances that he recognizes to be ultra dangerous, unusual.

James Deanda:

That in that situation, I believe, the judge stated that the jailer, in effect, becomes an employee of the government for the purposes of the Tort Claims Act.

In other words, that in accordance with the general law, you cannot contract someone to perform a statute– certainly, this is the law of Texas that you cannot perform– contract someone to perform a statute to a duty that you have.

And then, when that person does not perform and performs in a negligent manner and breaches a duty then, at that time, you can say “well, this man was an independent contractor and I have no– it’s not my problem anymore.”

That duty remains with a person upon whom it’s imposed until it is carried out.

Warren E. Burger:

Mr. DeAnda, what does your position leave of the statute, Section 2671 which reads, with some omissions, as used in this chapter, as used in this Title, the term “federal agency” does not include any contractor with the United States.

James Deanda:

Your Honor–

Warren E. Burger:

It doesn’t leave very much of it, does it?

James Deanda:

Well, Your Honor, if it were not a– if it were a– if it were not a non-delegable duty, Mr. Chief Justice.

Warren E. Burger:

Where does the statute speak about the non-delegable duties, what section?

James Deanda:

Your Honor, there’s nothing in the statute that speaks of non-delegable duties anymore than there’s anything in that statute that says the Marshal’s duty is to safely keep the prisoner.

It has been abrogated by this contract.

It is by the Marshal’s right to contract with the state authorities to keep the prisoners.

Warren E. Burger:

What would be the situation if he had– this man had committed suicide while in the hospital?

Was the hospital a contractor with the United States?

James Deanda:

No, Your Honor.

If the man was in the hospital and, at that time, the Marshal had taken over, there’s no question that at that time the Marshal was paying guards around the clock while he was in the psychiatric ward to take care of the man, except that he was only in there for about approximately a day or perhaps a little less, but in that situation, if there were any negligence involved, and of course you always have to have negligence, if there were any negligence involved, then of course I believe that the government would be liable.

Warren E. Burger:

That is, for example, if they had put him in the hospital and just drop the matter there, then you might argue that that would be negligence in it of itself.

James Deanda:

No, I don’t believe there’s any absolute– there’s no assu– the government is not an insurer of that man’s safety.

The government is required to use reasonable care under the circumstances to see that he is safely kept, and if taking him into the psychiatric ward of the hospital and providing him with physicians and other custodial people to take care of him would be considered reasonable care, well then the government would have discharged its duty, and the man’s suicide would’ve just been an unfortunate thing.

Harry A. Blackmun:

What is your argument situation in Texas so far as a lawsuit against the county is concerned?

James Deanda:

Your Honor, we have– Texas has passed a Tort Claims Act, but it does not encompass within it assurance.

It would not take care of this situation.

Your Honor, I feel that there is a– that this case, as it stands and as our brief indicates, conflicts with the Witt case which is a Second Circuit case.

In this sense, this was not a– there was no con– written contract between the military custodian and the contractor involved in that case.

This was a situation where the persons in custody of the military barracks were farmed out, so to speak, to do work for a private club there in the vicinity and one of the prisoners was injured to the negligence of the contractor, and the government tried to escape liability in that situation by claiming that the contractor was not an employee of the government.

And, the Circuit Court held in that case that there was a duty on the part of the government custodian to control and employ the offenders in his care and that the fact that he had– that he was being transported back and forth by a private individual did not permit the government to escape that responsibility and held that the government will have to answer for liability in that particular case.

Is there any other question, Your Honor?

Potter Stewart:

I’m interested in your comment about the government’s suggestion as between Deputy Bowers and Deputy Jones?

As I understand, there were two involved.

I think the government’s argument is that whatever Bowers did or did not do that Jones made up for it with specific and definitive instructions to the jailer.

Potter Stewart:

Do you have any comment about that?

James Deanda:

Your Honor, the– both of these men are marshals.

The– I do not believe that the record supports this position really, because the jailer testified that he did talk to Mr. Jones.

This situation was a three-way situation where Mr. Jones, the Chief Deputy, was talking to the jailer and Mr. Bowers, the Deputy, on the ground was talking to his immediate superior.

But, the marshals– there is a conflict in the testimony of Chief Marshal Jones and that of Mr. Lawrence, the county jailer.

In that, the county jailer testified that the only instructions he got were to keep an eye on the prisoner to watch out for him, this type of language.

I think that the very important point, and the Trial Court resolved that issue against the government because the Trial Court found that they had made no such arrangements, as did the Circuit Court.

But, the important thing and the reason that they found this I believe, Your Honor, is that Mr. Bowers, after talking to Mr. Jones, went to the jail and examined this place where this man was to be lodged and approved of everything.

And, there was only incidentally one bunk in the cell, so that common sense dictates that the Marshal knew there would be no one in there with this man.

That he was going to be isolated in this cell by himself.

William O. Douglas:

Does the record show how he committed suicide?

James Deanda:

He hung himself.

He had a– he was– he had tried to commit suicide the day before, on the 23th, Mr. Justice, by cutting his wrists.

He was taken to the hospital and a long bandage was applied to his arm to close that wound.

Potter Stewart:

He used the bandage?

James Deanda:

I beg your pardon?

Potter Stewart:

Did he use the bandage?

James Deanda:

Yes, he used the bandage.

The cell was so-fixed that it had these holes everywhere, on the ceiling and on the sides, and all he had to do of course was to affix the bandage to the– to one of the holes and it was in that way that he used the bandage to hang himself.

Potter Stewart:

The Kerlix bandage, whatever that means.

James Deanda:

Kerlix, it was a long– it was a very long bandage.

The doctors testified that the bandage would not have been dangerous in the hospital because he was under medication.

He was in a room where he could not hurt himself but, apparently, when the bandage was applied, it was not contemplated that he would be removed to the jail.

Potter Stewart:

Of course suicides take place in hospitals too.

James Deanda:

Well–

Potter Stewart:

I take it you’re not pinning your case on the removal to the jail.

You regard this as a discretionary act.

James Deanda:

Yes, Your Honor.

We have to live with that position.

The– I believe the Marshal testified that suicides or attempted suicides were the chief cause of hospitalization among federal prisoners in awaiting trial in state facilities.

James Deanda:

I believe there’s something in the record on that, but there’s no indication or inclining in the record anywhere that this man could’ve successfully taken his life had he been– had he remained in the hospital.

I don’t believe anyone does take that position at all.

If there no other questions, thank you.

Warren E. Burger:

Very well.

Mr. Evans.

Mark L. Evans:

Mr. Chief Justice and may it please the Court.

The government’s position, simply stated, is this.

First, although the United States would be liable under the Federal Tort Claims Act for injury to a federal prisoner caused by the negligence by a federal Marshal, the deputy marshals here acted reasonably, in accord with due care and they violated no duty owed to Regan Logue.

Second, because the United States had no right to control the physical conduct of the jailers employed by the county jail, the government cannot be liable under the Tort Claims Act for injury resulting from the negligent conduct of those employees.

I think, in light of Mr. DeAnda’s argument that it might be fruitful to start with a focus on the precise findings that the District Court made for the respect of both of these points.

They appear in Volume 2 of the appendix at pages 608 and 609.

The important point to make, I think, is that the only federal officer whom the District Court found to be negligent was Deputy Bowers, that is the deputy who was on the scene in Corpus Christi, and his negligence, in the Court’s view, consisted solely in the– of failing to make “specific arrangements” for Logue’ s surveillance while he was confined to the jail.

There is no finding that Bowers was negligent in removing Logue from the hospital and, as Mr. DeAnda stated here, the District Court found that to be a discretionary act and that matter was not argued on appeal.

Moreover, there’s no finding that any other federal officer was negligent in any way.

Warren E. Burger:

What page are you on, Mr. Evans?

Mark L. Evans:

This is page 608 and 609 of Volume 2.

Second, at the top of page 609, the District Court found that the jail’s employees were negligent in failing to provide adequate surveillance while Logue was confined in the jail.

The Court of Appeals did not disturb the District Court’s findings of fact.

That is, it did not disagree that Bowers had failed to make specific arrangements for Logue’s surveillance.

It held, however, that in the circumstances of this case, that failure did not violate any duty owed to Logue.

In our view, the record fully supports this holding because it shows that the specific arrangements for Logue’s surveillance, that is, the arrangements that Bowers failed personally to make were, in fact, made by Bowers’ supervisor, Deputy Jones.

I think a little background might be helpful.

Potter Stewart:

Do you think there would have been a duty to– for the federal government to have made some arrangements when they delivered the prisoner to the jail?

Mark L. Evans:

I think that knowing that a man is eminently suicidal as they did here, that they had a duty to take precautions to ensure that he did not commit suicide while he was in the jail.

Potter Stewart:

Yes, and they had at least a duty to stay in that to the contractee.

Mark L. Evans:

That’s right.

Potter Stewart:

If you’re saying that having a contractee insulates the United States from liability to the contractee, you are not saying that the United States must not tell a contractee what his duty is.

Mark L. Evans:

That’s right.

Thurgood Marshall:

There’s no question the Marshall knew he had this bandage.

Mark L. Evans:

It is not clear from the record whether the Marshall was aware of the type of bandage that have been placed on the man’s arm.

Thurgood Marshall:

But didn’t he see it?

Mark L. Evans:

Well, he saw it but the bandage–

Thurgood Marshall:

So he saw the bandage.

Mark L. Evans:

It could’ve been, so far as it can be told from the record that it wasn’t clear whether it was a gauze with tape or whether it was a wraparound bandage, as in fact it was.

Thurgood Marshall:

He did see that it was a bandage.

Mark L. Evans:

He knew that it was a bandage on the arm, yes.

Thurgood Marshall:

And he saw the room he was put in?

Mark L. Evans:

Yes, he did.

Thurgood Marshall:

And there’s no question about that?

Mark L. Evans:

That’s right.

Lewis F. Powell, Jr.:

Well, Mr.–

Thurgood Marshall:

And the question that he could’ve left him in the hospital?

Mark L. Evans:

He could’ve left him in the hospital.

The decision was made to remove him from the hospital because of the laps of time that would be necessary to– before he could be transported to the Springfield Missouri Medical Center for federal prisoners where the District Court in Loreto had ordered him to be sent or was about to order him to be sent.

The order had not yet been signed when he had been removed from the hospital.

Thurgood Marshall:

The record show that he was in the hospital.

Mark L. Evans:

That’s right.

Thurgood Marshall:

Being treated for a mental disorder?

Mark L. Evans:

No, sir.

He was not being treated.

He was being held there for his safety but he was not under medical treatment at the time.

Thurgood Marshall:

He was under medication.

Mark L. Evans:

He was under– he had been given a tranquilizer at the time of his admission.

Thurgood Marshall:

Because he was suicidal.

Mark L. Evans:

Because he was psychotic.

Thurgood Marshall:

Because he was psychotic.

Mark L. Evans:

Yes, sir.

Thurgood Marshall:

And he was going to be transferred to Springfield, right?

Mark L. Evans:

That’s right.

Thurgood Marshall:

Which, is another hospital.

Mark L. Evans:

That’s right.

Thurgood Marshall:

And so, what the Marshal did was in between.

The transfer from one hospital to another, he puts him in a jail.

Mark L. Evans:

Well, the–

Thurgood Marshall:

Is that right?

Mark L. Evans:

That’s right.

That’s correct, Mr. Justice.

Thurgood Marshall:

Does that make sense at all?

Mark L. Evans:

In the context of this case, it does.

The Marshal was very conscientious.

The deputy on the scene, Deputy Bowers, was very conscientious to find out what the purpose of Mr. Logue’s confinement and hospitalization.

He discussed it both with the admitting physician and with the physician who took over the case, a psychiatrist.

And, the information he was given was that the man was hospitalized because he was suicidal and there was some danger that he might hurt himself.

There was– he is not any longer hospitalized for any physical or medical treatment purposes.

At that point, the question came up when there was going to be a laps of time before he was going to be transferred to Springfield, what to do with him in the meantime.

The Marshal on the scene, Deputy Bowers, was concerned that the security in the hospital was inadequate and he communicated that concern to his superior.

His superior said “well, let’s see if we can make some kind of safe arrangements with the jail and, if we can and if the doctor will release him, let’s move him to the jail.”

Thurgood Marshall:

Was there any coordination of the marshals giving him the necessary protection in the hospital?

Mark L. Evans:

There was a guard fulltime while Mr. Logue was in the hospital but, I must add, the record shows that the, what marshals refer to as, key control was very loose and, of course, the man in a psychotic state is not inconceivable that he can take over a single guard.

The kind of surveillance, a man was sitting outside the room, as I understand it.

There was a window to the room and, every now and then, he’d look.

But, there was– if you have a situation where a key control is loose where a man is psychotic, there’s always a chance that he can be overtaken.

The judgment, as I understand it, of the Marshal’s superiors was that, where the security is adequate, it would be best if possible and if the doctor would release the man, to put him back in the jail.

Thurgood Marshall:

The primary responsibility was to make sure he was held and not his health.

Mark L. Evans:

No, his– the principal point, and the marshals reiterated this during the trial, was the man’s health and safety, but–

Thurgood Marshall:

Health and safety, and put him in a hole like that?

Mark L. Evans:

Well, it’s– the point was that there was no need for him to be in the hospital, safe to protect himself from injuring himself.

And, the marshals had, I think, reasonably assured themselves that he would be protected against injuring himself if he were placed back in the jail.

Warren E. Burger:

Mr. Evans–

Mark L. Evans:

There’s no other need for him to be in the hospital.

Warren E. Burger:

Didn’t the District Court review all that and hold, in effect, made a finding and a conclusion that even if it was a mistake in judgment, it was a mistake in judgment under the discretionary provisions if the Federal Tort Claims Act for which there could be no liability?

Mark L. Evans:

That’s exactly right, Mr. Chief Justice.

Warren E. Burger:

And I understand Mr. Dandridge to concede that that’s out of the case because he did not file a cross-petition.

Mark L. Evans:

I understood him to say the same thing.

Thurgood Marshall:

Exactly what?

Mark L. Evans:

That leads only to–

Thurgood Marshall:

That, by doing so, the Marshal took on the additional responsibility of seeing that the man did not commit suicide.

Mark L. Evans:

That’s right and, as I was suggesting before, I think that the marshals did undertake that duty and did satisfy it.

It turned out that they didn’t foresee every possibility but, in our view, they did satisfy that they had under the circumstances.

And, I think the circumstances are important to have clearly in mind.

It was at the suggestion of Logue’s physician in the hospital and with the help of Logue’s attorney that Bowers, that’s the deputy on the scene again, had arranged for the court order committing Logue to Springfield, Missouri for a competency determination and also for his safekeeping during this period of his psychosis.

As I indicated before, it was because of a laps of time that was to be involved that they determined that there– something had to be done with him in the meantime and the determination was made for reasons that I think were satisfactory in the record but are, in any event, are within the discretionary function aspect of the act, that they ought to keep him at the jail rather than at the hospital if the jail’s facilities could be adequately prepared for a man in this person’s condition.

Deputy Bower’s supervisor, Deputy Jones who was located in Loreto, telephoned the Chief Jailer of the Nueces County Jail.

He explained the situation in some detail, indicated that the man was suicidal, and asked whether there were–

William J. Brennan, Jr.:

Let me understand it, Mr. Evans.

Mark L. Evans:

Yes?

William J. Brennan, Jr.:

Is that a set of facts subject of any finding of the District Judge?

Mark L. Evans:

No, sir.

There were–

William J. Brennan, Jr.:

Well, is that important?

Mark L. Evans:

Well, it’s important only in the sense that he did not resolve those facts against us, as Mr. DeAnda suggested.

William J. Brennan, Jr.:

Yes, but he did find that there was no specific arrangement made by Bowers with respect to certain things, and you’re saying that if there was a deficiency that was made up by Jones, but we haven’t any findings about that.

Mark L. Evans:

Well this, in our view, is in the essence of what the Court of Appeals’ holding was.

In essence, what the Court of Appeals held was that, in light of all the circumstances in the record, the failure of Deputy Bowers by himself was not a bridge of any duty because the duty had already been satisfied, in effect, by his superior and satisfied by Bowers because Bowers was aware that the duty had already been satisfied by his superior.

Warren E. Burger:

Your position, I take it, is that this, being a non-jury case, the Court of Appeals was in as good a position as the District Court to make a finding on that subject?

Mark L. Evans:

I think that’s a reasonable interpretation.

William J. Brennan, Jr.:

I don’t follow this, Mr. Evans.

The specific finding of the district judge was that the failure of Bowers to make specific arrangements for constant surveillance constituted negligence.

Mark L. Evans:

That’s right.

William J. Brennan, Jr.:

Now– and you now say that, what, as to the telephone conversation between the jailer and Jones?

William J. Brennan, Jr.:

What’s the significance of that?

Mark L. Evans:

Well, the significance is that Bowers’ superior, supervisor Deputy Jones–

William J. Brennan, Jr.:

What’s the significance of his being supervisor?

Mark L. Evans:

Well, I’m just relating him as what his function was in the operation.

There’s no significance to his being a superior.

William J. Brennan, Jr.:

If Jones’ conversations had not taken place, you wouldn’t be here, I take it.

Mark L. Evans:

Well, we might be here anyway, but I wouldn’t be making the same arguments.

William J. Brennan, Jr.:

But, you would– you don’t concede then that– you don’t concede that whatever it was that Bowers did by himself was negligent?

Mark L. Evans:

Well, the reason that–

William J. Brennan, Jr.:

Absent of Jones’ conversation?

Mark L. Evans:

Absent Jones’ conversation, I might make an argument on the record, Mr. Justice, that he was not negligent but I think that we would be bound and the Court of Appeals will be bound by the findings made by the District Court.

But my point, Mr. Justice Brennan, to answer your question, is that the finding as to what Bowers did and did not do, in the Court of Appeals’ view, did not– the finding that the District Court made did not constitute negligence because there was no duty that was breached thereby.

In other words, the legal question is to what duty was required of Deputy Bowers.

It was what the Court of Appeals was addressing its attention to, as I understand it.

William J. Brennan, Jr.:

That everything that Jones did satisfy any duty and no matter what Bowers did was immaterial.

Mark L. Evans:

No, that’s– well, that’s not exactly right.

Bowers was made aware by Deputy Jones about the conversation with the jailer.

Jones directed Bowers, since he was on the scene, to inspect the cell and to assure himself that it was adequately prepared and that the arrangements that had been made with the jailer would be carried out, and he did so.

William J. Brennan, Jr.:

Well, are you now–

Mark L. Evans:

I’m not.

William J. Brennan, Jr.:

Then I don’t un– what are you doing with this finding that whatever Bowers did or failed to do constituted negligence?

Mark L. Evans:

No, Mr. Justice, I agree that we are not suggesting that Deputy Bowers made specific arrangements for the surveillance of–

William J. Brennan, Jr.:

Well, are you suggesting that Deputy Bowers was not negligent?

Mark L. Evans:

That’s right.

We are suggesting that Deputy Bowers was–

William J. Brennan, Jr.:

Even though the District Court found that he was?

Mark L. Evans:

Even though the District Court found that he had failed to make specific arrangements and that that was not negligent.

We agree that he had failed to make specific arrangement, but we do not agree that he was negligent and we think that the Court of Appeals properly held that there was no duty to make those specific arrangements into circumstances of this case.

Lewis F. Powell, Jr.:

Mr. Marks, was– Mr. Evans, I beg your pardon.

Was Bowers’ supervisor ever appointed to this case?

Mark L. Evans:

I don’t believe any of the marshals themselves were made part of it.

I think it was a suite that’s just against the United States under the Federal Tort Claims Act.

Lewis F. Powell, Jr.:

As I understood your argument, and I think your brief, you excuse Bowers primarily on the ground that he was entitled to rely on the advice and instructions from his supervisor.

Mark L. Evans:

That’s correct.

Lewis F. Powell, Jr.:

If the supervisor had been sued, would you defend him?

Mark L. Evans:

Certainly, because in the circumstances of this case, the supervisor made the necessary arrangements with the jailer of the county jail.

What he told the county jailer was the man was suicidal.

“You’d have to prepare a special cell.

Take out everything from that cell that a man could possibly use to hurt himself.

When he’s brought back to the jail, strip him down to his shorts and keep someone watching him.”

Now, he specifically suggested to satisfy the observation part of his suggestion that his one or two trustees, that his favored inmates be placed either in the cell with the prisoner or right outside where they could watch him continually.

Now in those circumstances, if his instructions had been carried out and, incidentally, the chief jailer expressly agreed and indicated that he would carry out those instructions and suggestions, if they had been carried out, it would have been, I won’t say impossible for the man to commit suicide because it’s never– you can try to say when a man is– truly intends to commit suicide, that it would have been possible for him to do it.

It would’ve been much more difficult under the circumstances.

Our point, basically, is that if there was a failure here, the failure was not on the part of any of the federal marshals involved, all them acted reasonably, but rather on the part of the county jailer.

Warren E. Burger:

Now that was Bowers who had that conversation, not Jones.

Mark L. Evans:

No, that was Jones.

Jones had the telephone conversation with the chief jailer in which he made these specific arrangements.

Bowers, at Jones’ instructions, personally visited the jail, inspected the cell, assured himself that all dangerous objects had been removed, determined that it was convenient for observation by the jail authorities.

And, later, when he brought Logue to the jail, he again inspected it, again determined it was safe, had a conversation evidently with the jailers there, instructed them again as to what need to be done in the way of surveillance, and left.

Warren E. Burger:

Was that evidence disputed anywhere?

Mark L. Evans:

The only dispute was that the Chief Jailer of the Nueces County Jail testified.

I characterize his testimony as somewhat hazy, but it made up maybe a subjective view of it.

His memory was only that he did what he thought he’d been told to do which was to have the man placed in his cell, but to check him only periodically.

What they had done is– the chief jailer and his staff, when they had business on the second floor of the jail where Logue was confined, would look in on him.

Warren E. Burger:

Was the district judge requested to address a finding to that subject at any time?

Mark L. Evans:

I’m not sure I could answer that–

Warren E. Burger:

You don’t?

Mark L. Evans:

There’s an easy answer, but it’s in– the proposed findings are in the appendix.

I’m not familiar enough with them at this point to answer your question.

William J. Brennan, Jr.:

Mr. Evans, what–from the beginning and again in this opinion of the Court of Appeals, Jones is nowhere mentioned, nowhere.

Mark L. Evans:

That’s right, I’m in total–

William J. Brennan, Jr.:

What– how do you– look at page 34, would you please, of the opinion.

Mark L. Evans:

I have–

William J. Brennan, Jr.:

I’m looking at the petition for certiorari.

Mark L. Evans:

Page?

William J. Brennan, Jr.:

Page 34.

Mark L. Evans:

Yes, sir.

William J. Brennan, Jr.:

rThe paragraph that begins with “United States is subject to suit” and so forth.

Then, it gets down, “we interpret this section as fixing the status of the county jail as that of the contractor.”

Mark L. Evans:

That’s right.

William J. Brennan, Jr.:

“This insulates the United States from my ability under the FTCA for the negligent acts or omissions of the jail’s employees.

We find no support in the record for holding that Deputy Marshal Bowers had any power or authority to control any of the internal functions of the county jail.

The deputy marshal, accordingly, violated no duty of safekeeping.”

Now, where’s any of that rested on any conversation with Jones or any participation or whatever that results from this?

Mark L. Evans:

Well, it’s– I agree that it’s not explicitly rested on that, Mr. Justice, but in my view, the final sentence of the paragraph you’ve just read is the sentence I’m focusing on and I’m supporting that by the reasoning that the Court of Appeals didn’t make explicit.

William J. Brennan, Jr.:

— what it says is it disposes of the finding of the District Court about Bowers by just saying he couldn’t have been negligent because he had no duty.

Mark L. Evans:

Well, I think–

William J. Brennan, Jr.:

Rather than he had a duty but it was satisfied by Jones.

Potter Stewart:

By Jones.

Mark L. Evans:

That’s right.

Well, that may be the way that the Court of Appeals did it.

I think what–

Byron R. White:

Well, that’s the– but you conceded a moment ago, I thought that Bowers had a duty.

Mark L. Evans:

Yes, we agreed that Bowers had a duty.

Byron R. White:

Yes.

Mark L. Evans:

I think what the Court–

Byron R. White:

Well, then the Court of Appeals hasn’t considered the case on the legal basis that you now are talking about.

Mark L. Evans:

Well, the case was presented to the Court of Appeals.

It’s not clear from this opinion that they– the reasoning that underlies its decision is the same reason that I’m urging on this Court, but I don’t think that we are foreclosed for making the argument to support the judgment of the Court of Appeals.

William J. Brennan, Jr.:

Right, but it does involve a factual assessment.

William J. Brennan, Jr.:

It’s normally not made here.

Mark L. Evans:

I would say that it, in a sense, involves a factual assessment that is–

William J. Brennan, Jr.:

But not a constitutional factual assessment.

Mark L. Evans:

Pardon me?

William J. Brennan, Jr.:

Not a constitutional–

Mark L. Evans:

No, it’s not a constitutional assessment.

William J. Brennan, Jr.:

Usually, they are the type we make.

Would it follow then the case should be remanded for a determination for that assessment of facts?

Mark L. Evans:

Well, I’m not sure that this– the assessment that his– it’s not clear, that’s been made wasn’t, in fact, made by the Court of Appeals.

I don’t know that it’s necessary for the Court of Appeals to have expressly stated that it was viewing the facts.

As I’m suggesting, the facts could be viewed.

The record is there.

It’s basically undisputed and, in my view, it can — the judgment of the Court of Appeals can be supported by viewing the record as it stands.

Warren E. Burger:

In other words, you say we must read that last sentence as a finding based on the totality of the record.

Mark L. Evans:

That’s correct.

I think that if the Court of Appeals had summarily affirmed or summarily reversed without opinion in a case like this, I think we could be here making the same argument.

I don’t think that the failure to express precisely the reason that we’re urging is fatal.

Warren E. Burger:

But once having gone into the subject and discussed the activities of Marshal Bowers, it does leave some problems hanging in midair a little bit, doesn’t it?

Mark L. Evans:

Well, I don’t see the problems, but–

Warren E. Burger:

If indeed they were relying upon the conversation between Jones and the jailer, we have surmised that the Court of Appeals was referring to that.

Mark L. Evans:

Well, I think we can surmise that the Court of Appeals was aware of what was in the record, and that was clearly in the record.

I don’t know that it’s–

Byron R. White:

What they said made it irrelevant, what was in the record.

Mark L. Evans:

No, I don’t–

William J. Brennan, Jr.:

They looked at it as a lack of duty case no matter what Bowers or Jones did.

You say it’s not a lack of duty case.

Mark L. Evans:

Well, I think the– that’s one way of looking at it.

I think what the Court of Appeals may have had in mind was that the– to their view, the District Court was suggesting that the specific arrangements that Bowers neglected to make or failed to make would’ve required him personally to stand in the jail and watch the prisoner and I think, in essence, what they were saying was he had no duty to do that.

But, as I said, I think that the judgment can be supported on the reason I’m urging even though they haven’t made it as explicit as I have.

I think the– to turn to the second point here which has to do with whether assuming the marshals themselves were not negligent, the United States is nonetheless liable for the torts of the jail’s employees.

Mark L. Evans:

In our view, the Federal Tort Claims Act forecloses that kind of derivative liability, and the government is liable because the government is liable under the Tort Claims Act only for the torts of federal employees.

The wisdom of that limitation is plain.

If the United States were held liable for the torts of the county jailers over whom the government can exercise no direct supervision, the government would face a potentially large financial burden and it would be unable to avoid it by its own conduct.

There are approximately 800 of these contract jails in the country, housing any given day some-4,000 prisoners.

The United States has no authority to place a federal officer in each of these jails to supervise the physical conduct of the jail’s operations, and I don’t think the states would permit it even if they had the authority to do it.

And even if there were such authority, the burden would be immense.

We’re informed that in order to man a jail round the clock with just one federal employee would require five employees per prison, taking into account vacations, holidays, and weekends, and so forth.

William J. Brennan, Jr.:

Mr. Evans, do they formalize these agreements?

Mark L. Evans:

Yes, the contract in this case is in Volume 3 of the appendix at page 38 in the following.

William J. Brennan, Jr.:

And that’s the standard for them?

Mark L. Evans:

That’s right.

William H. Rehnquist:

What about Mr. DeAnda’s argument that either under Texas law or under federal law the United States had a “non-delegable duty” here, that it couldn’t, in effect, turn over to the standard before them?

Mark L. Evans:

I think the argument is foreclosed by the language of the Tort Claims Act and by the decisions of this Court.

The Act itself, the provisions of which are set forth on page 41 of our brief and as Mr. Chief Justice Burger indicated, applies only to negligence committed by an employee of the government.

This Court, as recently as last term in Melvin– Laird against Nelms held that the requirement is of negligence of a government employee and it has to be of a government employee.

There’s no liability without fault in this case and that’s, in essence, what a– under the statute and that’s, in essence, what a non-delegable duty amounts to.

Even if a single federal employee could be stationed in each of these contract jails to ensure that federal prisoners are handled properly, it would be impossible, I think, for an officer who has no authority to hire, fire, discipline, or train the employees he was supervising to effectively deal with the problem and, in effect, the government would be what Mr. DeAnda said he was not urging and they would be namely ensured of the safety of the federal prisoners, and I don’t think that Congress intended that result under the Federal Tort Claims Act.

Thurgood Marshall:

This could be limited to where a person is in the hospital in result of a death in suicide and is said by the hospital to be psychotic.

You don’t have 4,000 to go with you, do you?

Mark L. Evans:

No, sir, but the argument is– at this point, quite different, not directed specifically to the decision to remove the man from the hospital.

That’s the tentative.

Thurgood Marshall:

That leads me to what really worries me.

The broad language of the Court of Appeals’ opinion that under no circumstances can the Marshal be responsible.

I assume, from your argument, that you urge us to go that far.

Mark L. Evans:

No, sir, I’m not.

Thurgood Marshall:

Well, that’s why I said there’s a middle ground that, in a particular case, there could be circumstances where you have to do a little more.

And, it’s your argument that, in this case, they did ask for more.

Mark L. Evans:

That’s right, Mr. Justice Marshall.

That’s right.

The Act itself provides for two possible grounds, under which the jail’s employees could conceivably be viewed as federal employees for purposes of the Act.

Mark L. Evans:

One is that the jail is, in effect, a federal agency for purpose of dealing with federal prisoners.

That, it seems to me, is foreclosed by the provision Mr. Chief Justice Burger mentioned a little while ago that excludes contractors.

It’s quite plain that this is a contractor that factions as an independent contractor over whose employees the federal government has no control.

That is the standard under Texas law for whether a master-servant relationship exists.

Second, they argue or they have an argument that, nonetheless, the jail’s employees are in effect employees of the Bureau of Prisons which is, obviously, a federal agency under the provisions of the Act that provide for– that define federal employees as those who act on behalf of the United States in official capacity, temporarily in the service of the United States.

But, in our view, that provision is only limited to those people who– over whom the United States does have a right to control, and an example of the kind of provision– the kind of situations it recover is where you have a dollar-a-year man serving without pay or where you have a loaned-servant from a state or where you have a member of a presidential commission himself, where all these people are under control of the government, but they’re not employees, so to speak.

Finally, I think I ought to address the point that Mr. Justice Blackmun alluded to.

A holding in our favor in this case would not foreclose a remedy for people in Logue’s situation.

At the time of Logue’s death, there was a sovereign immunity that would protected the county and the state, but the sheriff was personally liable as in– and is liable for the acts of his deputies, namely the county jailers, and it’s not an empty remedy because the sheriff is bonded in amounts between $5,000 and $30,000 under Texas state statutes.

And, the decisions in Texas have held that the surety must pay for the– for negligent acts of a sheriff’s deputy.

So in addition to the state remedy, there is a possibility of a remedy under the Civil Rights Act, Section 1983 of Title 42, which provides that anyone who is injured by a state officer acting under color of state law, to deprive of the man of his federal rights will be liable to civil cause of action.

Potter Stewart:

I thought, Mr. Evans, I understood Mr. DeAnda to say there was no remedy under state law. Perhaps you can–

Mark L. Evans:

I think Mr. DeAnda addressed himself to remedy against the county or the state.

Well, I’m addressing myself– I agree that there’s no– was no, I’m not claiming that the Tort Claims Act in Texas did not wave that immunity as to governmental units, but I’m addressing myself specifically to the sheriffs and his deputies who are personally liable under the Texas law.

Potter Stewart:

Perhaps he can clarify that on rebuttal.

Mark L. Evans:

Thank you.

Warren E. Burger:

Thank you, Mr. Evans.

Mr. DeAnda, you have a minute left but you might address to Justice Stewart’s question.

James Deanda:

Do you have any other questions?

Mr. Justice, you said something about–

Potter Stewart:

I understood you to say that you thought there was no adequate remedy under state law as against these county jailers.

James Deanda:

The question that was asked, I believe and I refer to, I may have misinterpreted the question, there was no remedy under the Texas Tort Claims Act.

We have a new Act which excludes certain activities of which this is on, and so there is no remedy under the Texas Tort Claims Act.

Potter Stewart:

Under that Act, but would there be–

James Deanda:

There may be a cause of action against the sheriff direct for negligence.

The counsel may well be right, although I’m not really prepared to make a statement on it.

Potter Stewart:

One way or the other. But, in any event, the Texas’ equivalent of the Tort Claims Act would exempt this kind of a contention.

James Deanda:

It would not fall within it, Mr. Justice.

Potter Stewart:

Thanks.

Warren E. Burger:

Thank you, Mr. DeAnda.

Warren E. Burger:

Thank you, Mr. Evans.

The case is submitted.