Summary
In Devlin Lumber Supply Corp. v. United States, 488 F.2d 88 (4th Cir. 1973) (per curiam), the Fourth Circuit held that since a violation of the Miller Act "can have no counterpart in private activity, and cannot give rise to liability under the common law," 488 F.2d at 89, it follows that "a violation of the Miller Act does not create liability... under the Federal Tort Claims Act."
Summary of this case from United Scottish Ins. Co. v. United StatesOpinion
No. 73-1530.
Argued November 7, 1973.
Decided December 6, 1973.
Jerome P. Friedlander, II, Arlington, Va. (Mark P. Friedlander, Jr., Friedlander, Friedlander Brooks, Arlington, Va., on brief), for appellant.
Karen K. Siegel, Atty. (Harlington Wood, Jr., Asst. Atty. Gen., Kathryn H. Baldwin and Morton Hollander, Attys., U.S. Dept. of Justice, and Brian P. Gettings, U.S. Atty., on brief), for appellee.
Appeal from the United States District Court for the Eastern District of Virginia.
Before HAYNSWORTH, Chief Judge, and BUTZNER and WIDENER, Circuit Judges.
This case involves the liability of the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2674, for the loss suffered by a materialman because the government's contracting officer failed to require a payment bond from the contractor, as required by the Miller Act, 40 U.S.C. § 270a.
The Federal Tort Claims Act makes the United States liable, "* * * relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances * * *," 28 U.S.C. § 2674. The Miller Act is a direction to federal contracting officers, and applicable only to them.
A violation of the Miller Act, unlike, for example, the negligent operation of a lighthouse, Indian Towing Co., Inc. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955), can have no counterpart in private activity, and cannot give rise to liability under the common law. Therefore, a violation of the Miller Act does not create liability on the part of the government under the Federal Tort Claims Act. United States v. Smith, 324 F.2d 622 (5th Cir. 1963).
Affirmed.