The “Robertson Rule” – When Federal Sovereign Immunity Mirrors State Workers’ Compensation Exclusivity

Introduction

Katrina Robertson v. United States (4th Cir. July 22 2025) squarely addresses the intersection of (i) the Federal Tort Claims Act’s waiver of sovereign immunity, and (ii) Virginia’s Workers’ Compensation Act (“VWCA”) exclusivity provision. Ms. Robertson, an independent contractor polygraph examiner, was injured when her vehicle struck a rising security barrier while exiting the Defense Intelligence Agency (“DIA”) compound. She alleged a DIA employee’s negligence and sued under the FTCA. The district court dismissed for lack of subject-matter jurisdiction, holding that the VWCA would bar a tort action against a private statutory employer in identical circumstances and, therefore, the United States had not waived its immunity. The Fourth Circuit affirmed, refining the “private party in like circumstances” inquiry and creating what this commentary labels the Robertson Rule.

Summary of the Judgment

Writing for a unanimous panel, Judge DeAndrea Gist Benjamin concluded:

  • The FTCA’s waiver of immunity applies only where a private party could be liable “in like circumstances,” 28 U.S.C. § 1346(b)(1).
  • Under Virginia law, a “statutory employer” enjoys absolute tort immunity because the VWCA provides the employee’s exclusive remedy.
  • A hypothetical private intelligence enterprise employing Robertson as an independent-contractor polygraph examiner would plainly be her statutory employer; therefore, Robertson’s sole remedy would be workers’ compensation.
  • That the federal government itself cannot be compelled to pay Virginia compensation benefits is irrelevant; the comparator analysis focuses on what would happen to a private analogue, not on the unique status of the United States.
  • Because the private analogue would be immune, the FTCA preserves the United States’ immunity and the courts lack subject-matter jurisdiction.

Analysis

Precedents Cited

  • United States v. Olson, 546 U.S. 43 (2005) – clarified that courts must “look further afield” to find a private party in “like circumstances,” cautioning against an unduly narrow comparator.
  • Indian Towing Co. v. United States, 350 U.S. 61 (1955) – seminal authority on identifying private analogues for governmental functions.
  • Cibula v. United States, 664 F.3d 428 (4th Cir. 2012) – emphasized that FTCA liability is co-extensive with that of a private party under relevant state law.
  • Demetres v. E.W. Const., Inc., 776 F.3d 271 (4th Cir. 2015) – applied VWCA exclusivity to bar tort actions by statutory employees.
  • Gibbs v. Newport News Shipbuilding, 733 S.E.2d 648 (Va. 2012) – held the U.S. Navy was not a statutory employer under the VWCA, but distinguished because it concerned the federal entity itself, not the FTCA comparator.
  • Landon v. United States, 816 F. App’x 853 (4th Cir. 2020) – reiterated that state law cannot expand or contract the federal waiver.
  • Craddock Moving & Storage Co. v. Settles, 427 S.E.2d 428 (Va. Ct. App. 1993) – explained the conclusive presumption that employers and employees accept the VWCA.
  • Coulter v. United States, 256 F. Supp. 2d 484 (E.D. Va. 2003), aff’d 90 F. App’x 60 (4th Cir. 2004) – earlier application of VWCA exclusivity to FTCA claims.

Legal Reasoning

The panel’s reasoning proceeds in three steps:

  1. Identify the Private Comparator. Following Olson, the court analogized the DIA to a “large private sector intelligence enterprise.” The comparator need not be perfect (private parties do not raise metal anti-ram barriers), but must share the operative characteristics: employing thousands, gathering intelligence, vetting sensitive-duty applicants.
  2. Apply Virginia Law to that Comparator. Under Va. Code § 65.2-302, an employer utilizing an independent contractor to perform work integral to its business is a “statutory employer.” Polygraph screening is essential to an intelligence entity’s trade or business, making the private comparator statutorily liable for—or, more accurately, immune from—injuries occurring in the course of such work.
  3. Transplant the Result into the FTCA. 28 U.S.C. § 2674 limits the United States’ tort liability to that of the private comparator. Because the comparator would face no tort liability (the VWCA remedy is exclusive), the federal government retains immunity. Whether the United States could itself be forced to pay Virginia compensation benefits is immaterial, as state law cannot dictate the scope of a federal waiver.

Impact of the Decision

The decision sets a clear precedent—dubbed here the Robertson Rule—for all FTCA litigation within the Fourth Circuit and potentially persuasive elsewhere:

  • Contractor Claims in Virginia. Independent contractors injured while supporting federal agencies in Virginia (and likely other states with similar exclusivity clauses) will find tort recovery barred if their work is integral to the agency’s mission.
  • Comparator Analysis Clarified. Courts must ignore idiosyncratic features of federal entities (e.g., immunity from state workers’-comp schemes) when defining “like circumstances.” The inquiry hinges on duties, not on governmental status.
  • Strategic Considerations for Plaintiffs’ Counsel. Potential claimants must explore administrative or contractual remedies (e.g., Defense Base Act coverage, contract indemnification) before resorting to FTCA litigation.
  • Legislative Pressure. The perceived “gap” where workers receive neither compensation benefits nor tort damages may spur congressional action or agency-level insurance schemes.
  • Ripple Effect Across States. Other circuits may adopt similar reasoning where state workers’ compensation statutes provide exclusive remedies for statutory employees.

Complex Concepts Simplified

  • Federal Tort Claims Act (FTCA). A statute that lets people sue the federal government for negligence—but only when a private person would be liable under the same state law.
  • Sovereign Immunity. The principle that the government cannot be sued without its consent; the FTCA provides limited consent.
  • Statutory Employer. Under the VWCA, a business can be deemed the “employer” of workers hired through contractors if the work is part of the business’s routine operations.
  • Exclusivity Clause. Workers’ compensation is the exclusive remedy for employees against their statutory employers; tort suits are barred.
  • “Private Party in Like Circumstances.” The FTCA comparison test: What would happen if a non-governmental entity did the same thing? If that entity wouldn’t be liable, neither is the United States.

Conclusion

Robertson v. United States crystallizes the doctrine that, for FTCA purposes, federal sovereign immunity aligns with any tort immunity that would shield a hypothetical private comparator—even if the federal government itself is exempt from the quid pro quo (payment of workers’ compensation benefits) underpinning that immunity. By refusing to narrow the “like circumstances” test to private parties that also lack workers’-comp liability, the Fourth Circuit ensures that FTCA coverage cannot be expanded indirectly through state law distinctions. The practical effect is to leave certain federal contractors without a remedy, highlighting a policy gap yet reinforcing a consistent, text-based application of the FTCA.