United States v. Arizona

Reference is made to the opinion filed' in the above entitled cause on June 30, 1954, 214 F.2d 389 .

The government petitions for a rehearing. It claims that this court has-turned its back on its own case of Gil- *249 man v. United States, 9 Cir., 206 F.2d 846 , which was affirmed, 347 U.S. 507 , 74 S.Ct. 695 .

In the Gilman case, the United States had to respond with money damages under the Federal Tort Claims Act, 28 U. S.C.A. §§ 1346, 2671 et seq. for the negligence of its employee. The United States then sought to recoup its loss from the employee, Gilman. There, of course, state law as to indemnity was laid aside, the Supreme Court taking the view that absent congressional action it would not within the government house create a liability over against the government employee.

This court in its original opinion herein referred to the argument in 3 Moore’s Federal Practice (2d ed., 1948, 507 et seq.) that the courts should lay aside Erie R. Co. v. Tompkins, 304 U.S. 64 , 58 S.Ct. 817 , 82 L.Ed. 1188 , when considering contribution and indemnity and build up on such matters vitally affecting government fiscal affairs and internal policy its own body of law.

But as one reads…