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Section 402 contains certain exemptions from the bill. The first subdivision of section 402 exempts claims based upon an act or omission of an employee, exercising due care, in the execution of a statute or regulation. It also exempts claims based upon the conduct of an employee of the Government involving discretion, whether or not the discretion has been abused. This is a highly important exception, designed to avoid any possibility that the act may be construed to authorize damage suits against the Government growing out of a legally authorized activity, such as a flood control or irrigation project, where no wrongful act or omission on the part of any Government agent is shown, and the only ground for suit is the contention that the same conduct by a private individual would be tortious, or that the statute or regulation authorizing the project was invalid. It is also designed to preclude application of the act to a claim based upon an alleged abuse of discretionary authority by a regulatory or licensing agency-for example, the Federal Trade Commission, the Securities and Exchange Commission, the Foreign Funds Control Office of Treasury, or others. It is neither desirable nor intended that the constitutionality of legislation, the legality of regulations, or the propriety of a discretionary administrative act, should be tested through the medium of a damage suit for tort. The same holds true of other administrative action not of a regulatory nature, such as the expenditure of Federal funds, the execution of a Federal project, and the like.

On the other hand, the common-law torts of employees of regulatory agencies, as well as of all other Federal agencies, would be included within the scope of the bill. Thus, section 402 (5) and (10), exempting from the purview of the bill claims arising from the administration of the Trading With the Enemy Act or from the fiscal operations of the Treasury, are not intended to exclude automobile collisions resulting from the negligence of employees of these agencies.

The other exceptions in section 402 relate to certain governmental activities which should be free from the restraint of damage suits, or for which adequate remedies are already available. The exemptions include claims arising out of the loss or miscarriage of postal matter, the assessment or collection of taxes or duties, military or naval activity during wartime, the detention of goods by customs officers, deliberate torts such as assault and battery, and some others. The exempted claims for which due provision has already been made by law are admiralty and maritime torts, claims under the Federal Employees' Compensation Act, and the like.

Mr. ROBSION. On that point of deliberate assault that is where some agent of the Government gets in a fight with some fellow? Mr. SHEA. Yes.

Mr. ROBSION. And socks him?

Mr. SHEA. That is right.

Mr. CRAVENS. Assume a C. C. C. automobile runs into a man and damages him then under the common law, where that still prevails, is not that considered an assault and is not the action based on assault and battery?

Mr. SHEA. I should think not. I should think under old common law rather that would be trespass on the case.

Mr. CRAVENS. Trespass on the case?

Mr. SHEA. Yes.

Mr. CRAVENS. I do not remember those things very well, but it seems to me there are some cases predicated on assault and battery even though they were personal injury cases.

Mr. SHEA. No; I think under common-law pleading you have the same writ, but it makes a distinction between an assault and negligence.

Mr. CRAVENS. This refers to a deliberate assault?

Mr. SHEA. That is right.

Mr. CRAVENS. If he hit someone deliberately?

Mr. SHEA. That is right.

Mr. CRAVENS. It is not intended to exclude negligent assaults? Mr. SHEA. No. An injury caused by negligence could be considered under the bill.

I have come to section 403. It provides for proportionate liability of the United States, based upon the number of parties liable, where the damage has been caused jointly by a Federal employee and someone else. That is, if the tortious injury is committed by the Federal employee and two others, the United States will only be liable for one-third.

Section 404 permits the fixing of reasonable attorneys' fees by the court or the Federal agency making the award, with a specified maximum percentage. Criminal penalties are provided for charging or collecting legal fees in excess of the maximum.

Mr. CELLER. But the court could reduce that. That is the maximum, is it not?

Mr. SHEA. That is the maximum, yes.

Section 405 would terminate the liability of Federal corporations which now are subject to be sued in their own name, in respect of tort claims generally cognizable under the act. That is, it is intended there will be an end to liability for tort damage on the part of R. F. C. and on the part of other Government Corporations that may now be sued for such matters. This is rather a difficult provision to phrase, but it is intended to end any differences based on the presence of a "sue-and-be-sued" clause, or upon the fact that the corporate agency could be sued directly while no suit could be brought against the United States.

Mr. ROBSION. For instance, what agency?

Mr. SHEA. For instance, R. F. C., T. V. A., Home Owners' Loan Corporation. They are all to be treated alike now.

Mr. ROBSION. All of those come under this bill?

Mr. SHEA. That is right. They are all acting for the Government and the liability in tort is to be the same whether a man happens to be an employee of the Commerce Department under the Secretary of Commerce in one capacity, or an employee of F. R. C. under Mr. Jones in another capacity.

Mr. CELLER. Like, for example, the Defense Corporation or the Export-Import Bank; they are ordinary corporations and would be fully liable. And under these provisions the liability would be restricted.

Mr. SHEA. The liability would be restricted in the same way as it would be in the case of any other department.

Mr. ROBSION. And would there be any limitation as to the amount to be recovered?

Mr. SHEA. Yes.

Mr. ROBSION. I know this limits it to $7,500. Under the present law is there any limitation now, Mr. Shea, as to what one can recover? Mr. SHEA. No, there is no limitation at all if the Federal corporation is subject to suit.

Mr. ROBSION. This would apply to T. V. A. and Boulder Dam and all these dams?

Mr. CRAVENS. This is to equalize it and make it uniform.

Mr. SHEA. Yes; of course we are only talking about torts and only those claims which sound in tort and are of the type generally cognizable under this bill.

Mr. ROBSION. Of course, these dams employ many, many people engaged in activities like driving trucks and other things. So this bill would bring them all under it?

Mr. SHEA. That is right.

Mr. ROBSION. They could sue the Government and file claims with the several departments?

Mr. SHEA. Yes; but of course it would be paid out of their normal appropriations in the usual manner.

Mr. ROBSION. In other words, in a tort committed by an agent of the T. V. A. that tort could be handled and settled by the T. V. A. up to $1,000?

Mr. SHEA. That is right.

Mr. ROBSION. And above that there would have to be a lawsuit?
Mr. SHEA. Right.

Mr. ROBSION. And then the Attorney General could settle it?
Mr. SHEA. Right.

Section 406 repeals statutes which were covering the same grounds. Now, as to the differences between H. R. 6463 and H. R. 5373: H. R. 5373 does not contain the general exemption set forth in subsection 402 (1), but it is likely that the cases embraced within that subsection would have been exempted from H. R. 5373 by judicial construction. It is not probable that the courts would extend a tort claims act into the realm of the validity of legislation or discretionary administrative action, but at the same time it is desirable to make that explicit.

Claims arising in a foreign country have been exempted from this bill, H. R. 6463, whether or not the claimant is an alien. Since liability is to be determined by the law of the situs of the wrongful act or omission it is wise to restrict the bill to claims arising in this country. This seems desirable because the law of the particular State is being applied. Otherwise, it will lead I think to a good deal of difficulty.

Mr. ROBSION. You mean by that any representative of the United States who committed a tort in England or some other country could not be reached under this?

Mr. SHEA. That is right. That would have to come to the Committees on Claims in the Congress.

Mr. HOBBS. I would like to ask Mr. Shea and his associates to consider the question of adding exemptions removing liability against the Government for torts committed by those in the O. C. D. and the draft boards, and, generally, people like that.

You take a welfare home or welcome home, or whatever you call it, and they have a dance and a man is drunk, and the supervisor should have known he is too drunk to dance, but lets him injure somebody

in there. And the operation of those things, such as the U. S. O., I do not think our Government should be responsible in damages for such torts as people in those organizations might commit.

If we are foolish enough, as we have been, to have black-outs, which of course is absurd, as nobody makes an air raid without a light, we will have the same experience they had in England where the blackouts cost more than the bombing, and there are going to be innumerable suits. And it seems to me you might well consider the desirability of eliminating these temporary emergency set-ups which are really no part of the Government

Mr. SHEA. I have asked Mr. Landis if he would let us have his comments on these things.

The CHAIRMAN. Gentlemen, that concludes this hearing.

(Whereupon, at 12:30 p. m., the committee adjourned sine die.)

January, 1942

MEMORANDUM, WITH APPENDIXES, FOR THE USE OF THE COMMITTEE ON THE JUDICIARY

Explanatory of Committee Print of H. R. 5373

FEDERAL TORT CLAIMS ACT

This memorandum and its appendixes deal with the committee print of H. R. 5373 (herein referred to, for convenience, merely as "the present bill"). The bill would authorize the administrative adjustment of tort claims against the United States not in excess of $1,000, for property loss or damage, personal injury or death caused by the fault of a Government officer or employee while acting within the scope of his authority. It would also confer exclusive jurisdiction upon the United States district courts in respect to claims of this character not in excess of $7,500, with a right of appeal to the United States Court of Claims. The present bill is to a considerable degree patterned after H. R. 7236, which was passed by the House in the last Congress but was not acted on in the Senate before the close of the session, and H. R. 5373, which was introduced by Congressman Celler at the first session of this Congress (and is substantially identical with H. R. 7236).

The present bill would broaden the power under existing law to make administrative adjustment of claims for property loss or damage, by extending it to include claims for personal injury or death. It would also terminate to a certain extent the anachronistic immunity of the Federal Government from suit for the tortious conduct of its agents, thereby adding the broad field of common law torts to the important areas wherein the sovereign's freedom from suit has already been waived, such as breach of contract, patent infringement, and admiralty and maritime tort. To this extent, the present bill would make available an equitable and effective remedy for the redress of tortious acts committed by agents of the Government while acting in the course of duty, in lieu of the existing procedures which the judgment of the past two decades has shown to be inadequate, burdensome, and unproductive of substantial justice in many cases. The legal irresponsibility of the United States for wrongs perpetrated by its representatives has been subjected to a variety of explanations: That the sovereign cannot issue a writ to himself; that there can be no legal right as against the authority that makes the law upon which the right depends; 2 that the United States is the institutional

1 U. S. v. Lee, 106 U. S. 196, 206.

2 Kawananakos v. Polyblank, 205 U. S. 349, 353.

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