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descendant of the Crown, enjoying its immunity; that suability of the Government would embarrass it in the performance of its duties.* The doctrine of immunity has also been attributed to a misunderstanding of the maxim that "the king can do no wrong," which may have meant that the king was not privileged to do wrong.5 Whatever the rationale may be, the rule was early established that the Federal Government is not answerable in the courts without its consent.

It was not very long, however, before this historic protection from suit began gradually to be renounced, either because Congress sensed the injustice of shielding the Government under a legalistic concept so devoid of sound reason or practical justification, or because the multiplicity of private claim bills to secure compensation for wrongs caused by Federal employees proved to be unduly burdensome. Accordingly, in 1855 Congress established the United States Court of Claims and permitted suits to be brought therein against the United States on claims founded upon laws of Congress, regulations of executive departments, or "upon any contract, express or implied." By the Tucker Act, the jurisdiction of the Court of Claims was enlarged in 1887 to embrace claims for "damages, liquidated or unliquidated, in cases not sounding in tort," and concurrent jurisdiction was conferred on the United States district courts in respect to claims for not more than $10,000.7

For possibly similar reasons, the ban upon suits against the Government in certain fields other than contract has likewise been lifted. In 1910, suits in the Courts of Claims were permitted against the United States for infringement of patents. In 1916, Congress extended workmen's compensation protection to Federal employees for disability or death resulting from a personal injury sustained while in the performance of duty. And in operating the railroads and other facilities during the last World War, Congress placed the Government's responsibility on the same plane as that of a private operator, in respect to property damage or loss, and personal injury or death.10

Shortly thereafter, the Government consented generally to assume a principal's liability for admiralty and maritime tort. By an Act passed in 1920, Congress authorized libels in personam to be brought against the United States in the Federal District Courts upon admiralty and maritime torts involving merchant vessels or tugboats owned or operated by the Government," an authorization extended in 1925 to damages caused by any public vessel of the United States.12 No limitation is imposed upon the amount of the claim cognizable under these acts.

3 Cf. Langford v. U. S., 101 U. S. 341, 343; Keifer & Keifer v. Reconstruction Finance Corporation, 306 U. S. 381, 388.

AU. S. v. Lee, supra.

Borchard, 11 A. B. A. Journal, No. 8, August 1925; p. 496. This doctrine has been said to be inapplicable in this country (Langford v. U. S., 101 U. S. 341, 343), but it has in fact been applied with considerable diligence by the courts. See Borchard, op. cit, supra.

Act of Feb. 24, 1855, 10 Stat. 612. Later legislation increased the effectiveness of the Court of Claims by authorizing it to render judgment against the United States instead of merely reporting its findings and recommendations to Congress. Act of March 3, 1863, 12 Stat. 765, 28 U. S. C., sec. 250.

7 Act of Mar. 3, 1887, 24 Stat. 505, 28 U. S. C., sec. 41 (20).

8 Act of June 25, 1910, 36 Stat. 851, 35 U. S. C., sec. 68; amended by the Act of July 1, 1918, 40 Stat. 705, to apply to infringements through manufacture for the United States (as by an authorized contractor) as well as by the United States. The Supreme Court has variously characterized this remedy as the recovery of just compensation for the taking of property (Crozier v. Krupp, 224 U. S. 290, 305, 306) and as a suit sounding in tort (Keifer & Keifer v. R. F. C., 306 U. S. 381, 396).

"Federal Employer's Liability Act," approved September 7, 1916, 39 Stat. 742; 5 U. S. C., sec. 751.

10 Act of March 21, 1918, 40 Stat. 456; act of September 7, 1916, 39 Stat. 728.

11 Act of March 9, 1920, 41 Stat. 525, 46 U. S. C., sec. 742.

12 Act of March 3, 1925, 43 Stat. 1112, 46 U. S. C., sec. 781.

The past 85 years have thus witnessed a steady encroachment upon the originally unbroken domain of sovereign immunity from legal process for the delicts of its agents. Yet a large and highly important area remains in which no satisfactory remedy has been provided for the wrongs of Government officers or employees, the ordinary "common law" type of tort, such as personal injury or property damage caused by the negligent operation of an automobile. The only procedure presently available for the redress of a wrong of this kind, other than a special act of Congress, is a limited administrative authorization to "settle" the claim, generally subject to a maximum of $500 for personal injury and $1,000 for property damage, and without provision for judicial review.

Chief among such statutes is the act of December 28, 1922,13 which authorizes the heads of the executive departments and independent establishments to "consider, ascertain, adjust and determine" claims up to $1,000 against the Government for damage to or loss of private property, caused by the negligence of a Government officer or employee acting within the scope of his employment, and to certify the award to Congress as a legal claim for payment out of appropriations that may be made by Congress therefor. This excepts from its scope claims for personal injury or death, but several other statutes grant to a few specified departments and establishments a somewhat similar authority to settle such claims, as well as those for property loss or damage. Usually, the injury or death claims must be not in excess of $500.14

These measures tacitly recognize the Government's obligation to make redress for its agents' torts. While they are better than no remedy at all, they afford inadequate relief. Besides their availability to only a few agencies in respect of claims for personal injury or death and the meager maximum which they prescribe, this class of legislation requires the aggrieved person to rely entirely on administrative judgment, which may be based upon ex parte investigation or none at all. The claimant is given no right in court to test his dissatisfaction with the administrative disposition of his claim.

It is true that the claimant has his right of action against the delinquent employee, but this is generally easier to bring to judgment than to collection. Moreover, the immunity of the Government may induce resort to suit against the Federal employee in situations where the responsibility for his act should in all conscience be borne by the Government.

The ultimate recourse of a claimant who is denied relief, or who is ineligible for relief by administrative action, is to apply to his Congressman for the introduction of a private bill either directly appropriating a specified sum to meet his claim, or authorizing the Court of Claims or a Federal district court to consider and determine his claim.

Members of Congress, including those on the Claims Committees, have had occasion during the past two decades to direct frequent criticism against the existing system of redressing Government torts by private bill. In committee reports, in speeches and debates on the floor, they have urged that this remedy is unfair to the claimant

13 42 Stat. 1006, 31 U. S. C., sec. 215.

14 These statutes are collated in appendix I, annexed hereto, showing the laws which would be repealed by the present bill.

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and disproportionately burdensome to the Claims Committees of Congress. It has been variously characterized by several Claims Committees as unsatisfactory, as a medium of neither justice nor equity, and even as an outright failure.15 About 2,000 private relief bills are introduced in each Congress. Any single bill has little better than a 15 or 20 percent chance of being enacted into law, and even this may require the diligent pursuit of the matter for years. As their reports and statements show, the Claims Committees of Congress, within the limited time available for consideration of the multitude of private bills before them, have neither the time nor the facilities to grant a full hearing to each claimant, permit the examination and cross-examination of witnesses, receive evidence, or give careful judicial consideration to each claim. The result, they assert, is a hasty investigation, usually entrusted to a single committeeman and consisting in most instances of an ex parte presentation of the facts by affidavit. Yet even with so summary a procedure, the volume of work before the Claims Committees is so great that extended delays may occur in the recognition of meritorious claims.

After the bill is considered by the full committee, and if it receives approval, it must be considered and sometimes debated by the pertinent House of Congress. This process is then repeated in the other Chamber. Since a relatively short period of time is allocated to the Private Claim Calendar, it is impossible to accord full deliberation to each measure. In the pressure of matters of greater public moment, a private claim bill rarely passes both Houses in the same session, so that its reintroduction in the succeeding session is required. And with the shifting personnel in Congress and the committees comes an inevitable lack of uniformity in the disposition by different Congresses of claims of like nature or even of the identical claim. Not infrequently, these sources assert, consideration other than the strict merits of the claim, such as political factors or the popularity or influence of the supporting or opposing Congressmen, play a part in the disposition of the legislation.

The foregoing criticisms are without exception culled from public and official utterances of members of the Claims Committee, and other Congressmen.

The existence of the present inadequate and burdensome procedures for the redress of tortious acts by Government agents-specifically, the statutes authorizing administrative settlements, and the system of private relief bills-constitutes a recognition by the Federal Government that it should assume responsibility for such wrongs. This acknowledgment should be implemented by an effective and readily available remedy. This can best be done by making available a forum for the judicial consideration of tort claims against the Government, so that persons incurring property loss or physical injury through the wrongful act of a Government agent may be entitled to the same redress as if the principal for whom the agent acted were a private rather than sovereign entity.

Several attempts have indeed been made during the past two decades to accord such a remedy to tort claimants. On January 27,

15 Pertinent excerpts from the reports of Claims Committees and from speeches and debates in Congress are set out in appendix II following this memorandum.

16 Appendix III, annexed hereto, shows the number of private bills relating to tort claims in several recent Congresses.

1919, Congressman Burton L. French of Idaho proposed in the House that the heads of departments be authorized to adjudicate and settle all tort claims, with a right of appeal to the Court of Claims in respect of claims exceeding $2,000. Congressman French's objectives were partially realized in the act of December 28, 1922, providing for administrative settlement of property claims up to $1,000, but the acknowledged inadequacy of this statute and the limited relief afforded by it both to claimants and to Congress resulted in the introduction of a bill in the House early in 1926 by Congressman Charles L. Underhill of Massachusetts, then chairman of the House Committee on Claims. This bill, as passed by the House, increased to a maximum of $5,000 the property claims which were subject to administrative settlement under the act of 1922, vested in the United States district courts and the Court of Claims jurisdiction over claims in excess of that amount, and committed claims for personal injury or death up to $5,000 to the United States Employees' Compensation Commission. The bill was not approved by the Senate, presumably because that body preferred its own version of a Federal tort claims bill which it had passed 3 months before.17

Three years later, the Seventieth Congress passed the Federal Tort Claims Act, authorizing the General Accounting Office to settle claims up to $50,000 for property loss or damage, subject to review by certiorari in the Court of Claims, and empowering the United States Employees' Compensation Commission to consider claims for personal injury or death up to $7,500, and to make a report and recommendation to the General Accounting Office for audit and settlement.18 The Attorney General objected to the act because it placed the Comptroller General in charge of appeals to the Court of Claims from his own decisions, and the act received a pocket veto by President Coolidge.1o There was apparently, however, only this procedural objection, for no question seems to have been raised by the President concerning the merits of the act. In the next two Congresses, similar bills without the objectionable procedural feature were introduced in the House but failed of passage. 20

The latest in this series of attempts to establish satisfactory machinery for the adjudication of tort claims was H. R. 7236, introduced by Congressman Celler of New York at the first session of the last Congress.21 This bill was drafted by representatives of the Department of Justice in collaboration with other Government agencies, and was supported by the American Bar Association and many State and local bar associations. The measure had the approval of the

17 Representative Underhill introduced H. R. 8651 in the 69th Cong., 1st sess., on January 30, 1926. On March 15, 1926, the Senate passed S. 1912, a somewhat similar tort claims bill which had been introduced by Senator Means on December 21, 1925. After the House committee reported S. 1912 (H. Rept. No. 667), it was debated and passed in the House on June 10, 1926, but with a number of amendments proposed by Representative Underhill, taken from H. R. 8651. The Senate did not act favorably upon the bill as revised in the House.

18 H. R. 9285, passed on March 3, 1929, by the 70th Cong., 2d sess. (70 Congressional Record, 5217). 19 70 Congressional Record, 295 (pt. 6, index); H. Rept. No. 2800, 71st Cong., 3d sess. (February 20, 1931). 20 The first was H. R. 17168, introduced in the 71st Cong., 3d sess. This bill entrusted to the Comptroller General the hearing and adjudication of tort claims up to $1,000, with a right of appeal to the Court of Claims, and gave the Court of Claims original jurisdiction of claims in excess of $1,000, with a maximum recovery of $7.500 for personal injury or death and of $50,000 for property loss or damage. It was reported favorably by the Committee on Claims (H. Rept. No. 2800, February 20, 1931, 74 Congressional Record, 5579), but progressed no further. The second bill patterned after the vetoed Federal Tort Claims Act was H. R. 5065, introduced in the 72d Cong., 1st sess. (75 Congressional Record, 263). This authorized the General Accounting Office to settle claims for property loss or damage up to $50,000, and claims for personal injury or death up to $7,500 with the aid of the Employees' Compensation Commission. Congress reserved the power to return awards over $1,000 to the Comptroller General for further examination and report, or to refer the claim to the Court of Claims under the act of March 3, 1911. The bill likewise failed to pass. 21 An identical bill was introduced in the Senate by Senator Ashurst as S. 2690.

Attorney General's three predecessors, and was recommended by many authorities on the subject in leading law schools. After being reported favorably by a unanimous Committee on the Judiciary, it passed the House on September 12, 1940, but the pressure of more urgent matters prevented its consideration in the Senate before the close of the session. H. R. 5373, a bill virtually identical with H. R. 7236 as it passed the House, was introduced by Congressman Celler at the first session of the present Congress on July 21, 1941, and is now pending before the Committee on the Judiciary of the House.

The survival of Government irresponsibility in the field of commonlaw torts is an anachronism, founded upon no sounder reason than a historical prejudice against tort claims. No acceptable justification has ever been cited for this immunity, and in an era of steadily growing Government activity, involving considerable use of automobiles and other mechanical equipment capable of causing damage to person and property, the absence of a satisfactory procedure for redressing such wrongs becomes a grave defect in our social policy. It has been observed by a Supreme Court Justice that Government responsibility should not be made contingent upon irrelevant procedural factors;22 and the antiquated distinction between a justiciable wrong arising out of contract and one not arising out of contract is scarcely a sounder basis for the continuance of the present tort immunity. Practically every country in western Europe and a number of the States in this country have already admitted to some extent their legal liability for the tortious misfeasance or neglect of their agents,23 and the Federal Government should not lag further behind in this respect.

Enactment of the bill now under consideration is highly desirable in order to supply the deficiency in the remedial procedure presently available for the redress of wrongs caused by Government agents acting within the scope of their employment. The present bill follows closely the pattern of H. R. 7236 and H. R. 5373, with two important exceptions. H. R. 7236 and H. R. 5373 vest concurrent jurisdiction over tort claims in the United States district courts and the Court of Claims. The present bill vests exclusive jurisdiction in the district courts sitting without a jury, with an appeal from their decisions to the Court of Claims. This modification is desirable in order not to burden the Court of Claims or its commissioners with the original determination of such purely factual questions as negligence, contributory negligence, causation, local traffic regulations and ordinances, and the like. The district courts have for many years considered and determined such question, with and without a jury; hence, they would not be confronted with a new area of jurisprudence. Moreover, the district court, which sits in only one State and is familiar with the local laws and decisions that are made pertinent to the determination of tort claims against the United States, would be a natural forum for the judicial cognizance of these claims in the first instance. However, inasmuch as these suits involve claims against the United States, and since a single tribunal of review is preferable in the interests of uniformity to a number of coordinate circuit courts of appeals, an appeal to the Court of Claims is provided for in the bill, in accordance with the practice and procedure which govern appeals from the district

22 See Frankfurter, J., in Keifer & Keifer v. R. F. C., 306 U. S. 381, 396.

23 Several such States are California (1893), Arizona (1912), Illinois (1917), and New York (1929). See Borchard, "Governmental Responsibility in Tort," 11 A. B. A. Journal 495 (August 1925); Holtzoff, "Tort Claims Against the United States," 25 A. B. A. Journal 828 (October 1939).

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