488 F2d 88 Devlin Lumber and Supply Corporation v. United States

488 F.2d 88

UNITED STATES of America, Appellee.

No. 73-1530.

United States Court of Appeals,
Fourth Circuit.

Argued Nov. 7, 1973.
Decided Dec. 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.

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. Secs. 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. Sec. 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. Sec. 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).