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[Vol. 54 differences of state law. A federal statutory or common law of intentional torts would avoid the "law of the place" and the "private person" problems inherent in the FTCA as presently structured. It would insure that tortious behavior by the FBI in California would receive similar treatment to such behavior in Maine. The justification for a local standard of behavior in the negligence area does not carry over to the realm of intentional torts.

Secondly, liability should not be restricted merely to "law enforcement officers." A deliberate battery is no less outrageous if inflicted by a mailman or a welfare official than if inflicted by an FBI agent. Although law enforcement officers more often have occasion for unfettered abuse of the public trust, the modern social welfare state offers so many potential conflicts between officials and individuals that there is little justification for denying citizens redress for any governmental wrongs. Anxiety about the number of claims can be met with several responses. Any "flood of litigation" would presumably mean that the new law would have uncovered grave and intolerable flaws in the operation of our federal government. The fear of spurious claims should be overcome by the realization that the judicial process has available to it means for detecting such false claims.208 And any fear that citizens might be awarded excessive damages should be overcome by the FTCA practice of non-jury trials. Additional safeguards, such as placing a ceiling on recovery, should be disfavored.209

Thirdly, more careful treatment must be given the question whether governmental liability should supersede individual liability in its entirety. While the Justice Department intended through its proposed bill to place all federal officers beyond the threat of personal liability,210 some provision for personal liability seems a healthy tonic to encourage respect for constitutional rights. Since the protection intended by the Justice Department proposal has to some degree already been extended to federal employees judicially by the rapid case law development of the

208. In the section 1983 area, for example, the federal courts, while faced with a staggering caseload, have utilized various preclusion doctrines and summary decision mechanisms to keep the cases under control. See generally McCormack, Federalism and Section 1983: Limitations on Judicial Enforcement of Constitutional Protections (pts. I & II), 60 VA. L. REV. 1, 250 (1974).

209. This is the solution in 18 U.S.C. § 2520 (1970), which provides for $1000 damages for each illegal wiretap. The danger of this approach is that federal officials may see these amounts as merely the cost of doing business and effectively buy up an individual's constitutional rights. Even the fear of an occasional large judgment may not provide admirable official caution in this respect.

210. See text accompanying notes 73-75 supra.

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"official immunity doctrine,"211 there may be little need to go beyond that defense. And since the rationale behind official immunity is similar to that expressed in the discretionary function exception, the FTCA currently reflects a form of immunity for government officials that, without discharging them from all responsibility, protects the independence and flexibility necessary for proper government decisionmaking. There are important competing values to be considered. Senator Charles Percy has warned, "we must not lose sight of the important deterrent value served by the threat of civil suits being brought against offending agents. Federal narcotics officers must realize that they will be held personally responsible for their intentional violation of constitutional rights... After the incident at Collinsville, Illinois, it was learned that several of the agents had been involved in other unpalatable and illegal incidents;213 attempts to exempt those individual officers from liability for assaults and batteries on private citizens seem an excessive means to guarantee flexibility for proper police functioning. The balance between these competing values is difficult but not impossible to strike. The development of legislatively specified defenses along the lines of those that have been developed judicially under section 1983 could be employed, or the government could be given the right of subrogation against individual officials in extreme cases involving fraud, corruption, or malice.214 Either solution would offer some further assurance that federal officials will find it in their interest to learn about and respect the individual rights of citizens.

Another effective method of deterrence might be employed by having Congress specify the sources from which government funds to pay an FTCA judgment should come. Professor Kenneth Culp Davis has expressed the belief that "[w]hat is needed is a deterrent that operates not only against the agents but also against the superiors. The superiors will respond to big money judgments, because the superiors have the responsibility for protecting their budgets. "215 It would indeed

211. See, e.g., Doe v. McMillan, 412 U.S. 306 (1973); Barr v. Matteo, 360 U.S. 564 (1959); Berberian v. Gibney, 514 F.2d 790 (1st Cir. 1975); Bivens v. Six Unknown Named Agents, 456 F.2d 1339 (2d Cir. 1972); Scherer v. Brennan, 379 F.2d 609 (7th Cir.), cert. denied, 389 U.S. 1021 (1967).

212. S. REP. No. 469, 93d Cong., 1st Sess. 36 (1973).

213. See text accompanying notes 22-23 supra.

214. This is the approach taken under California law, CAL. GOV'T CODE § 825.6 (West Supp. 1976). There is currently no right of subrogation under the FTCA. United States v. Gilman, 347 U.S. 507 (1954). See generally B. SCHWARTZ, ADMINISTRATIVE LAW § 201 (1976).

215. Letter from Kenneth Culp Davis to Robert Sloan, Committee on Government Operation, Nov. 26, 1973, copy on file in the University of North Carolina Law Library.

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[Vol. 54 seem helpful in curbing abuses in the future if the agencies themselves were required to have charged against their operating budgets judgments against the United States that were due to the fraudulent, corrupt, or malicious actions of their employees.

216

A fourth reform of the present law that should be considered is the inclusion within the FTCA of those torts that are still exempt from coverage under the amendment. This extension would reach certain torts that seem almost accidentally to have been excluded from the Act, 217 as well as others, such as libel and slander, that may be necessary to keep other equally egregious activities of government officials from going unchallenged.218

VII. CONCLUSION

In a statement made to the Senate Government Operations Committee, Senator Sam Ervin recognized that the amendment was only “a minimal first step in providing a remedy against the federal government for innocent victims of federal law enforcement abuses."219 While the step was a big one, there are clearly others to take. The amendment provides a useful means for obtaining financial compensation in the wake of certain grievous abuses by law enforcement officials, but Congress should not be led by this action to believe that it has dealt with the

216. While it may be difficult to plan an agency budget with contingencies like tort judgments unaccounted for, it would seem desirable to set up a method of calculating payments made because of tortious activity in prior years against an operating budget in future years.

217. Negligent misrepresentation, for example, has been held not to permit recovery under the FTCA. United States v. Neustadt, 366 U.S. 696 (1961); Fitch v. United States, 513 F.2d 1013 (6th Cir. 1975). Even if Congress were to determine that such an exception were necessary, it should modify or clarify the exception to make it clear that recovery remains proper for negligent acts and deeds by federal officials that have a verbal aspect. Compare DeLange v. United States, 372 F.2d 134 (9th Cir. 1967), with Rey v. United States, 484 F.2d 45 (5th Cir. 1973).

The consequences, both personal and financial, of negligent misrepresentation or deliberate deceit are often tragic, and the need to "protect" the government in all such activities is questionable. See generally Davis, Sovereign Immunity Must Go, 22 Ad. L. REV. 383 (1970); Note, Federal Compensation for Victims of the "Homeownership for the Poor" Program, 84 YALE L.J. 294 (1974).

218. The discovery by the Church Committee of FBI dirty tricks, such as mailing letters to employers with false information about so-called subversive employees in efforts to discredit them, would seem to make plain the need for libel and slander recovery. See Mondale Letter, supra note 148, enclosure 1. Moreover, the inclusion of these torts within the FTCA at this stage need not necessarily work a dramatic change in federal liability. In the years since 1946 the common law rules of absolute liability have given way to recoveries limited to situations of malice and aggravated intent, exactly those situations that the FTCA should reach.

219. S. REP. No. 588, 93d Cong., 1st Sess. 4 (1973).

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inequities of sovereign immunity, and the question of a citizen's right to redress for constitutional wrongs, in any final or comprehensive way. The time is ripe broadly to reassess government liability for the tortious and unconstitutional conduct of its officials;220 it should not pass without the much-needed and long-sought reforms outlined in this article.

220. Recently, Attorney General Levi has announced he will order the FBI to notify individuals who for 17 years were unwitting targets of COINTELPRO. This mass notification program will involve thousands of individuals, and could bring forth a "barrage of civil lawsuits." Raleigh News & Observer, March 31, 1976, at 1, cols. 2-5.

1

TORT CLAIMS PROVISIONS OF SWINE FLU BILL, 42 U.S.C. 2476

42 § 247b PUBLIC HEALTH AND WELFARE

Protection of agencies, organizations and individuals against non-negligent liability arising from administration of swine flu immunization program; exclusive remedy; procedure for claims for personal injury or death; report to Congress on conduct of settlement and litigation activities (k) (1) (A) The Congress finds that

(i) in order to achieve the participation in the program of the agencies, organizations, and individuals who will manufacture, distribute, and administer the swine flu vaccine purchased and used in the swine flu program and to assure the availability of such vaccine in interstate commerce, it is necessary to protect such agencies, organizations, and individuals against liability for other than their own negligence to persons alleging personal injury or death arising out of the administration of such vaccine;

(ii) to provide such protection and to establish an orderly procedure for the prompt and equitable handling of claims by persons alleging such injury or death, it is necessary that an exclusive remedy for such claimants be provided against the United States because of its unique role in the initiation, planning, and administration of the swine flu program; and (iii) in order to be prepared to meet the potential emergency of a swine flu epidemic, it is necessary that a procedure be instituted for the handling of claims by persons alleging such injury or death until Congress develops a permanent approach for handling claims arising under programs of this chapter.

(B) To

(i) assure an orderly procedure for the prompt and equitable handling of any claim for personal injury or death arising out of the administration of such vaccine; and

(ii) achieve the participation in the swine flu program of (I) the manufacturers and distributors of the swine flu vaccine, (II) public and private agencies or organizations that provide inoculations without charge for such vaccine or its administration and in compliance with the informed consent form and procedures requirements prescribed pursuant to subparagraph (F) of paragraph (1) of this subsection, and (III) medical and other health personnel who provide against or assist in providing inoculations without charge for such vaccine or its administration and in compliance with such informed consent form and procedures requirements.

it is the purpose of this subsection to establish a procedure under which all such claims will be asserted directly against the United States under section 1346(b) of Title 28, and chapter 171 of such title (relating to tort claims procedure) except as otherwise specifically provided in this subsection.

(2) (A) The United States shall be liable with respect to claims submitted after September 30, 1976 for personal injury or death arising out of the administration of swine flu vaccine under the swine flu program and based upon the act or omission of a program participant in the same manner and to the same extent as the United States would be liable in any other action brought against it under such section 1346 (b) and chapter 171. except that—

(i) the liability of the United States arising out of the act or omission of a program participant may be based on any theory of liability that would govern an action against such program participant under the law of the place where the act or omission occurred, including negligence, strict liability in tort, and breach of warranty:

(ii) the exceptions specified in section 2680(a) of Title 28 shall not apply in an action based upon the act or omission of a program participant: and

(iii) notwithstanding section 2401 (b) of Title 28, if a civil action or proceeding for personal injury or death arising out of the administration of swine flu vaccine under the swine flu program is brought within two years of the date of the administration of such vaccine and is dismissed because the plaintiff in such action or proceeding did not file an administrative claim with respect to such injury or death as required by