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courts to the circuit courts of appeals. Review of the decisions of the Court of Claims may be had in the Supreme Court in the same manner as review of decisions of the circuit courts of appeals.

Such appellate jurisdiction is valid. In adjudicating claims against the United States under the Tucker Act, the district court sits as a court of claims. Sherwood v. United States, 312 U. S. 584 (1941). The Court of Claims exercises judicial power, although power not derived from article III of the Constitution. Williams v. United States, 289 U. S. 553. Since the Court of Claims exercises judicial power, appellate jurisdiction can be conferred on the Supreme Court to review its decisions, and concurrent jurisdiction can appropriately be conferred on the district courts (Williams v. United States, supra, at p. 565). For these reasons, appellate jurisdiction can appropriately be conferred on the Court of Claims to review decisions of the district courts sitting as courts of claims, with ultimate appellate jurisdiction in the Supreme Court.

The other major difference is that the present bill subjects the determination of the validity of the claim, the defenses thereto, and the distribution of the recovery, to the law of the place where the delinquent act or omission occurred. H. R. 7236 and H. R. 5373 may, as a matter of law, have embodied the first of these requirements to some extent, but the present bill states this explicitly, and leaves to the local law the determination of certain matters specifically treated in H. R. 7236 and H. R. 5373, such as the beneficiaries entitled to the 1 recovery in death cases, the defense of contributory negligence, and the like. Minor deviations in the present bill from the two House bills are more fully explained in appendix IV hereto, containing a comparison of H. R. 7236 and H. R. 5373 with the present bill. An analysis of the present bill follows:

Title I contains definitions of certain words and phrases, which make it clear that the act covers all Federal agencies, including corporate instrumentalities, and all officers and employees of Federal agencies, including members of the military and naval forces of the United States and persons acting on behalf of the Government temporarily or permanently, whether with or without compensation.

Title II provides for the administrative adjustment of tort claims against the United States. By section 201, the present administrative authority to settle property claims up to $1,000 is extended to include claims for personal injury or death. Awards are made final and conclusive upon all officers of the Government, except for fraud. Acceptance by the claimant of any award constitutes a complete release of his claim, both against the United States and against the delinquent employee.

Section 202 requires the head of each Federal agency to make an annual report of all claims settled or determined.

Title III sets up machinery for the judicial determination of tort claims against the United States. By section 301, the United States district courts are given exclusive jurisdiction of claims against the United States not exceeding $7,500, on account of property loss or damage, personal injury or death, caused by the negligent or wrongful act or omission of any officer or employee of the Government while acting in an official capacity. The liability of the United States in such cases is made the same as that of a private individual under like circumstances, except that no punitive damages, interest, or costs may

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be assessed against the Government. If a claim has been presented to a Federal agency for administrative settlement, suit may not be brought on the same claim until final administrative disposition has been made, unless the claimant withdraws the claim from consideration of the Federal agency.

Section 302 makes the Federal rules of civil procedure applicable to tort claims in the district courts. Section 303 authorizes the Attorney General to compromise or settle any claims after the institution of suit. Once suit has been started on a claim pursuant to title III, only the Attorney General would have the authority to compromise or settle that claim, and the Federal Agency concerned, could no longer adjust or determine it under title II.

Title IV contains provisions common to titles II and III. Section 401 prescribes a statute of limitations of 1 year, plus an extension of 6 months from the date of final disposition of the claim by a Federal agency, where it has been presented for administrative determination under title II.

Section 402 excepts from the operation of the act claims based upon an act or omission of an employee of the Government, exercising due care, performed in the execution of a statute or regulation, whether or not the statutory authority or the regulation under which the conduct in question occurred is valid. It also excepts from its operation 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 would be construed to authorize suit for damages 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, for example, application of the act to a claim against a regulatory agency, such as the Federal Trade Commission or the Securities and Exchange Commission and others, based upon an alleged abuse of discretionary authority by an officer or employee. It is neither desirable nor intended that the constitutionality of legislation, the legality of regulation, or the propriety of a discretionary administrative act, be tested through the medium of a damage suit for tort.

Since the language used in subsection 1 of section 402 exempts from the act claims against Federal agencies growing out of their regulatory activities, it is not necessary expressly to except such agencies as the Federal Trade Commission and the Securities and Exchange Commission by name, as did H. R. 7236. However, the present bill is intended, as H. R. 7236 was in all likelihood intended, to cover claims for common-law torts, such as those involving a motor-vehicle collision, against the Federal Trade Commission, the Securities and Exchange Commission, and other regulatory agencies. The other exemptions from the scope of the act relate to certain governmental activities which should be free from the restraint of damage suits, or in respect of which adequate remedies are already available. They include claims arising out of the loss or miscarriage of postal matter, the assessment or collection of taxes or customs, the fiscal or monetary operations of the Government, military activity

during wartime, or the detention of goods by a customs, excise, or law-enforcement officer; claims under the Trading with the Enemy Act or the Federal quarantine; claims arising in a foreign country; claims connected with vessels in the Panama Canal Zone waters; and such deliberate torts as assault, battery, false arrest, or imprisonment, malicious prosecution, libel, fraud, or interference with contract rights. Exempted claims for which due provision has already been made by law are the admiralty and maritime torts and claims under the Federal Employees' Compensation Act or the World War Veterans' Act.

Section 403 provides for a proportionate liability of the United States where the damage has been caused jointly by a Federal employee and someone else.

Section 404 permits the fixing of reasonable attorneys' fees by the court or by 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.

Section 405 terminates the liability of Federal corporations which have a right to sue and be sued in their own name, in respect to tort claims cognizable under the act. If the United States is to assume liability for the tortious conduct of its agents, there is no reason for distinguishing between agents employed in an executive department or independent establishment, and those employed in a modern governmental corporation. There is equally no reason for subjecting corporate agencies to any greater tort liability than an executive department. Section 405, while difficult to phrase, is intended to place torts of "suable" agencies of the United States upon precisely the same footing as torts of nonsuable agencies. In both cases, the suit would be against the United States; in both cases the limitations and safeguards of the act would apply; in both cases the exceptions of the act would apply, either by way of preventing recovery at all or by way of leaving recovery to some other act, as for example the Suits in Admiralty Act. Section 405 intends that neither corporate status nor "sue-and-be-sued" clauses shall, alone, be the basis for suits for money sounding in tort.

Section 406 repeals a number of existing statutes which authorize the administrative adjustment of tort claims, but only in respect of claims which are cognizable under the act. Thus, claims which accrue prior to the effective date of the act, and claims not cognizable under it for any other reason may be considered and determined by the Federal agencies under existing law.

The present bill is a necessary step in the gradual erosion of the archaic wall of the sovereign's immunity from responsibility for its agents' conduct. It will supply a well-defined, continually operating machinery to redress wrongs arising out of Government activity, in place of existing procedures which are inadequate and burdensome to the Government and the claimant. It will place the United States, in respect of torts committed by its agents, upon the same footing as a private corporate employer, with certain limitations required for the protection of important governmental functions. By removing a large number of private tort claims from Congress and the Claims Committees, it will give the National Legislature more time to devote to matters of wider importance, and will thereby benefit the public as well as claimants and Members of Congress.

It may be appropriate here to cite certain statements made by President Abraham Lincoln in his first annual message to the Congress, when he urged that the powers of the Court of Claims be increased and made more effective. After stressing the importance of providing "some more convenient means *, if possible, for the adjustment of claims against the Government," President Lincoln said:24

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It is as much the duty of Government to render prompt justice against itself in favor of citizens as it is to administer the same between private individuals. The investigation and adjudication of claims in their nature belong to the judicial department.

Early enactment of the present bill is recommended.
There are annexed hereto the following appendixes:

Appendix I: List of statutes to be repealed by the present bill. Appendix II: Criticisms by Congressmen of existing procedure of relief by private claim bills.

Appendix III: Private claim bills before several recent Congresses. Appendix IV: Comparison of present bill with H. R. 7236, Seventysixth Congress, third session, and H. R. 5373, Seventy-seventh Congress, first session.

24 First annual message to Congress, December 3, 1861; Congressional Globe, 37th Cong., 2d sess. pt. III, appendix, pp. 1, 2.

APPENDIX I

LIST OF STATUTES TO BE REPEALED BY THE

PRESENT BILL

The present bill would repeal, in respect of claims accruing after the date of its approval, and cognizable under the act, all provisions of law authorizing the heads of any Federal agencies to consider, ascertain, adjust, determine, or pay claims on account of damage to or loss of property, or on account of personal injury or death, caused by the negligent or wrongful act or omission of any employee of the Government acting within the scope of his office or employment. Specifically to be repealed are the following provisions of law:

1. Public Law No. 375, Sixty-seventh Congress, approved December 28, 1922 (ch. 17, 42 Stat. 1066; 31 U. S. C., secs. 215-217): Determination by heads of Government departments and establishments of claims for damage to or loss of privately owned property not exceeding $1,000 due to negligence of any officer or employee of the Government acting within the scope of his authority.

2. Section 16 of Public Law No. 163, Seventy-fifth Congress, approved June 28, 1937 (ch. 383, 50 Stat. 321; 16 U. S. C., sec. 584-0): Determination by the Director of the Civilian Conservation Corps, and heads of cooperating departments and agencies, of claims up to $500 for property loss or damage, or personal injury, caused by negligence of an employee in scope of employment.

Certain provisions appearing in the following statutes are also repealed, to the extent only that they authorize the administrative consideration, ascertainment, adjustment, or determination of claims cognizable under title II of the act:

1. Public Law No. 267, Sixty-sixth Congress, approved June 5, 1920 (ch. 256, 41 Stat. 1054; 33 U. S. C., sec. 853): Determination by Director of Coast and Geodetic Survey, upon approval of the Secretary of Commerce, of claims for damages not exceeding $500 for which the Coast and Geodetic Survey is found responsible.

2. Public Law No. 481, Seventy-fourth Congress, approved March 20, 1936 (ch. 159, 49 Stat. 1184; 5 U. S. C. sec. 300 (b)): Determination by Attorney General of claims for damages to any person or damages to or loss of privately owned property not exceeding $500 in any one case caused by the Federal Bureau of Investigation or officers thereof acting within scope of employment.

3. Section 4 of the River and Harbor Act, approved June 25, 1910, as amended by the act of June 5, 1920 (41 Stat. 1015, 33 U. S. C. sec. 564): Determination by the Chief of Engineers, upon approval by Secretary of War, of claims not exceeding $500 for damages to another vessel, pier, or other legal structure or personal property of a United States employee working on project, due to collision of vessels owned or used by the United States in river and harbor work.

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