JERTBERG, Circuit Judge:
The issue of law involved in this appeal is whether Section 7(b) of the Federal Employees’ Compensation Act [5 U.S.C. § 757(b)], bars a third-party claim for non-contractual indemnity in an action where plaintiff is an F.E.C.A. beneficiary.
The facts are not in dispute. One Backlund, an employee of the Federal Aviation Agency, while in performance of his duties, was killed when an aircraft owned and operated by appellant and in which Backlund was a passenger, crashed. Backlund’s widow, suing as administra-trix of his estate on behalf of herself and the surviving children, brought a wrongful death action in the state court in the State of Alaska, alleging Backlund’s death was due to appellant’s negligent operation, maintenance and control of the aircraft.
Appellant impleaded the Federal Aviation Agency employee, one Narcisso, who had been on duty on the day of the crash. The third party complaint alleged that the crash had been caused, by Narcisso’s negligent performance of his duties as an Air Traffic Control Specialist, and sought full indemnity in the event Wien was held liable to the administratrix of Backlund’s estate. Appellant asked for full indemnity from Narcisso in the event it was held liable to the estate.
' The cause was removed to the United States District Court for the District of Alaska. Appellant amended its third-party complaint in Federal Court to add Narcisso’s employer, the United States, as a third-party defendant.
The United States filed a motion for summary judgment and attached to it certain exhibits which showed that Back-lund had been an employee of the Federal Aviation Agency at the time of his death and that the Federal Bureau of Employees’ Compensation had ruled that he was in the performance of his duties when killed, and that an award had been entered under which Mrs. Backlund was receiving monthly payments of $525.00 for herself and her children.
On the basis of these facts, which were not disputed by appellant, the Government contended that since Sec. 7(b) of the Federal Employees’ Compensation Act barred any tort claim by Backlund’s widow against the United States, the United States could not be liable to appellant for all or part of the administra-trix’ claim against appellant.
On hearing of the motion for summary judgment, the District Court granted the motion and dismissed with prejudice the amended third-party complaint filed by appellant. In so doing the District Court relied upon the holding of this Court in United Air Lines, Inc. v. Wiener, 335 F.2d 379 (9th Cir. 1964).
In Wiener, which appellant does not seek to distinguish from the case before us, we held, in substance, that a claim for noncontractual tort indemnity can be maintained only where there is tort liability on the part of the indemnitor to the person injured. See Wiener, supra, pp. 403-404.
In the instant case, under the provisions of Sec. 7(b) the United States is not liable in tort to the legal representatives, spouse, dependents, or next-of-kin of Backlund for damages on account of his death.
The judgment appealed from is affirmed on the authority of Wiener, supra.
. Sec. 7(b) of the Federal Employees’ Compensation Act [5 U.S.C. § 757 (b) ]:
“The liability of the United States or any of its instrumentalities under sections 751-756, 757-791, and 793 of this title or any extension thereof with respect to the injury or death of an employee shall be exclusive, and in place, of all other liability of the United States or such instrumentality to the employee, his legal representative, spouse, dependents, next of kin, and anyone otlierwise entitled to recover damages from the United States or such instrumentality, on account of such injury or death, in any direct judicial proceedings in a civil action or in admiralty, or by proceedings, whether administrative or judicial, under any other workmen’s compensation law or under any Federal tort liability statute: Provided, hoioever, That this subsection shall not apply to a master or a member of the crew of any vessel.”
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your task is to identify the state of the first listed state or local government agency that is an appellant.