Expeditions Unlimited Aquatic Enterprises, Inc., a Corporation, Norman Scott v. Smithsonian Institution

WILKEY, Circuit Judge.

LEVENTHAL, exploration of the issue whether Evans Judge: Circuit within the ambit of his acting employment.3 the issue of the considers opinion This However, agree we the district court public interest between conflict acting that if Evans was within the ambit responsible government shielding discretion, of his he would have absolute of vindictive or ill- the harassment immunity. We do not reinstate the view in law suits and the interest of those founded that there panel opinion might only the injured have been reputations may whose qualified privilege. We now state our rea- government officials. by statements sons. Matteo,1 struck Supreme the Barr the in favor of the officials. We do balance chilling legitimate It was the fear of offi- as ruling by not view that 1959 undercut cial conduct motivated the Supreme decisions, later and adhere to it. decision in the seminal Court’s case of Barr Matteo, Barr supra. also involved an

Plaintiff, Unlimited, Expeditions There, action for defamation. the Acting brought against an action for libel Clifford Stabilization, Director of the Office of Rent Evans, the Department Chairman of of An agency, by a federal was sued another at the Institution’s thropology Smithsonian government employee who claimed that the of Natural History, Museum Acting Director had maliciously issued a the Institution. The action is Smithsonian press injurious release employee’s to the based on a letter Evans in which he was reputation. The Court held that once it capabilities in had plaintiff’s critical of the field been established that the action taken archaeological of underwater excavation. “was perimeter within the outer line of granted summary judg The district court [his] duty,” Acting ment the Director was for defendant Smithsonian Institution entitled to grounds.2 on absolute governmental immunity immunity against liability in dam- granted summary judgment ages though district court even his action was a discre- grounds for defendant Evans on the of his tionary allegedly prompt- exercise and was privilege making absolute statements ed by malice. U.S. at within the as a scope govern of his duties 1341. Justice Harlan4 that an reasoned privilege ment We remand for further absolute was employee. required because opposed private 1. 360 3 L.Ed.2d 1434 as U.S. mental character of that duty. Although responsibilities Evans’ included re- judgment panel affirmed That the sponding inquiries foreign to information Judge Wilkey’s opinion. the reasons stated field, governments the record does not in his ordering sponte After sua the issue of the replies elucidate whether official had to be immunity Smithsonian’s- would be decided manner, channelled in a certain whether Smith- argument 11(e), without oral under Rule the en respond personal inquiries sonian officials banc court chose not to consider the matter. capacity, their official and if the letter was a portion panel opinion dealing of the personal proper letter whether is considered the Smithsonian is therefore reinstated as the independently to comment for several officials opinion panel and for convenience foreign queries. These considerations on reprinted appendix. relevant to the determination of whether Evans As to the defense raised responsibil- perimeter acted within the of his Evans, panel opinion, individual defendant whether, claims, plaintiff ities or he was Judge dissenting, Leventhal ordered a remand personal capacity. acting in a court district to determine whether appropriate for case was only justices 4. While three other concurred in qualified immunity. contemplated It an indi- opinion, Harlan’s his views on the doc- Justice inquiry vidualized into whether the added bene- trine of absolute did command a ma- from the award fits derived of absolute immu- jority Justice Stewart dissented of the Court. nity outweighed the to the official loss of liti- particular because he felt that under the gant rights. It set out a number of factors for acting beyond facts of the official was consider, including na- the district court to perimeter outer of his duties. 360 U.S. at interest, expected litigant’s ture of the im- Lyons, 79 S.Ct. 1335. See also Howard differing pact per- immunities on the U.S. 3 L.Ed.2d 1454 duty govern- formance of the official’s and the discretion, public to further cise of should officials of unembar- interest. their duties to exercise free damage suits in the fear of rassed granted rehearing time we en At of those done in the course of acts respect of Economou v. we aware banc time which would consume duties —suits Agriculture, F.2d 688 Department otherwise be which would energies 1976).8 disagree We Econo- (2nd Cir. service governmental devoted indeed, it, view mou, illustrating might appreciably inhibit of which threat providing only quali- of a doctrine dangers fearless, vigorous, and effective ad- There, an administrative fied policies government. ministration accompanying press release complaint 571, 79 at 1339. Department Agriculture had al- audit, leged, on basis of an Econo- law rule of The federal had failed to maintain minimum mou for def sued capital required balance prescribed the of effective ad goal furthers amation commission merchant. registered futures public the in government ministration issued judge law a deci- An administrative would be qualified immunity interest.5 A a While the finding violation. adminis- sion factors a myriad a dependent upon pending on proceeding appeal, was trative facts of the particularistic assessment Economou, defamation and alleging wrong- hazard case,6 leaving an at to official each proceed- ful institution of administrative protected. he is whether or not anticipate of the ings, Depart- sued various officials a suit the immunity defeats “An absolute including the Agriculture, ment of adminis- outset, as the actions long so official’s judge, for million in dam- $32 trative immunity. The fate scope within the ages. with de an official motivations pends circumstances and upon recognized, the court if As Economou actions, decision, the evidence governed his established its inquiry Barr had Pachtman, 424 alleged stopped trial.” Imbler U.S. would have if “the conduct 984, 989, 47 n. 96 L.Ed.2d the . . . was defendants ‘within the their perimeter authority’ Even the need to find time the outer a have a involved the exercise of discretion.” money defense7 would court, Instead, rejecting at 691. if not effect on an offi F.2d chilling, paralyzing, Barr, out, “good that faith” willingness speak only qualified in the exer- held cial’s grounds of reasonable for belief formed at the 5. The need to whether an official is determine circumstances, light acting perimeter cou- within the outer of his duties time and of all purpose pled good will defeat the of absolute immuni- . . not belief faith case, example, ty. on the For facts of at 1692. 416 U.S. at acting determination of whether Evans was Although government counsel now often de- scope employment of his within personal against actions federal offi- fend even superi- the basis of his made on affidavits from duties, arising they out official are cers of their elucidating procedures his duties and the ors See, g., required e. to do so. 28 U.S.C. usually answering queries followed from for- (1970): eign governments. type inquiry This of limited may typically General, a motion any dealt with on or The Solicitor officer summary judgment. Even at trial the issue is Justice, may Department of be sent scope The for the court. official knows the Attorney any or State district General possibility his The of such an in- discretion. the United to attend to interests of States unlikely quiry any to deter official in pending the United in a suit in a court vigorous pursuit responsibilities. of his State, States, in a court of of the United attend interest of the or to Rhodes, In Scheuer v. States. held Subsequent argument en oral banc in executive officers sued under U.S.C. state December, 1976, Supreme granted Court only qualified immuni- 1983 were entitled to a Economou, certiorari, sub nom Butz v. ty, Supreme explained limit- 51 L.Ed.2d 534 privilege dependent upon “the ed was existence applicable, ordinary and remanded the and declare that rules of official yield must when the for further executive is proceedings. case charged exercising special power rejection This of Barr can exacer- government way prohibited official in a an already problem bate serious of modern by the Constitution. Scheuer tendency of bureaucrats —the Rhodes,11 far undercutting Chief tight to sit rather than take action likely to Burger Justice cited Barr and its anteced- rile the groups individuals or being regulat- ent, Vilas,12 as cases Spalding illuminat- ed. The nation’s dependent welfare is upon ing necessity the inherent of providing officials who are willing speak forth- protection to executive discretionary broad rightly disclose violations of the law in the context acts of defamation actions. and other activities contrary public noted, however, He that Barr Spalding interest.9 Their voices will be if they stilled arose “in a context other than a perceive or fear person involved (at 247, 1692.). suit” abso- disposition has the resources or to defend granted lute those cases to feder- with all affirmative tactics. When millions al executive officials was not extended to decisions, turn on regulatory there is a 1983; they state officials sued under § strong incentive to counter-attack. only qualified immunity. could claim Chief Economou, suggest- Second Circuit Justice Burger’s opinion makes the reason ed that Barr had been undermined gives clear: Since an action Supreme Court’s decisions in cases arising state officials when constitutional violations 1983. We disagree.10 U.S.C. § invoked, it is patently inconsistent with Supreme Court decisions that federal statutory apply action to a do not They eases overrule Barr. rather federal common law rule of absolute immu- establish the rule for cases where funda- nity subjected for executive officials to suit mental, involved, constitutional rights are by the statute.13 While 1983 retains Rhodes, 243, 9. See Federal Trade Commission v. Cinderella 13. See Scheuer v. 416 U.S. at 94 Schools, Inc., Finishing Career 131 U.S. S.Ct. at 1690: 331, App.D.C. 404 F.2d 1308 where this scope Final resolution of [the court, in a situation not unlike that in Econo- immunity] must take into account the func- mou, enjoin refused to the Federal Trade Com- responsibilities particular tions and of these press mission’s issuance aof release about a practices, capacities defendants in their as officers of proceeding for unfair trade even government, purposes the state as well as the though recognized petitioner might we that the of 42 U.S.C. neither of these prevail agency before the administrative inquiries do we write on a clean slate. It can remedy injury would then be unable to hardly argued, date, at this late that under by publicity. caused the adverse Our decision no circumstances can the officers of state only was based on the fact that the FTC could subject under this goal protecting by achieve its the consumer 167, Pape, statute. Monroe v. U.S. [365 informing taking him of the actions it was in 473, Douglas, S.Ct. 5 L.Ed.2d Mr. Justice 492] U.S.App.D.C. his behalf. 131 at 404 F.2d writing Court, for the held that in the section at 1314. question give remedy was meant “to a parties deprived rights, priv- of constitutional citing 10. For decisions of other circuits Barr ileges and immunities an official’s abuse see, Gorton, approval, g., e. Williams v. position.” Through of his Rights . . the Civil 1976); (9th 529 F.2d Nouse, Cir. Mandel v. statutes, Congress intended “to en- (6th Cir.), 509 F.2d cert. provisions force of the Fourteenth Amend- denied, 422 U.S. 95 S.Ct. against carry badge ment authority those who represent of a State and it in some capacity, they act in accordance 232, 246-247, 11. 416 U.S. 94 S.Ct. 1683 authority with their or misuse it.” Since the statute relied on thus included “ scope power, 12. 161 U.S. 40 L.Ed. S.Ct. within its possessed ‘[m]isuse (1896). Spalding held that the head of an exec- virtue of a state law and made department possible only utive wrongdoer has absolute for because the ” special pursuant law,’ id., authority communications made him clothed with the of state Congress (quoting to an act of within for matters at United States [81 473] authority. Classic, [61 by par- Doe involved a suit five exercising immunity of officials from the dis- privacy ents for invasion of quasi-judicial judicial within the or power that congressional report against suits semination of ambit,14 provision for plain derogatory in contexts. identified students precludes branch in the executive officials to the Public Printer and ruling as defense. an absolute only that Superintendent of Documents Wilson, 165 Apton U.S. Our decision not have they did (1974), extended App.D.C. 506 F.2d 83 legisla- greater than the qualified immunity rule of Scheuer print- who tors tendered the documents cases to an action although they The Court held that ing. involved one of our “most of their perimeter” acted “within the outer liberties,” arbi cherished the freedom from was ten- what statutory printing duties in U.S.App. trary arrest and detention. dered, immuni- they “independent had no 506 F.2d at 93. D.C. 2018. The ty.” 412 U.S. at the case at The defamation action in char- responsive Court’s decision was damage reputa bar involves business Office, Printing acter Government greater weight than tion —an interest of no for the organization acts as a service personal reputation the interest involved three government. branches of U.S. damage reputation is not in Barr. While concluded 93 S.Ct. 2018. The Court can, under some cir inconsequential, purposes judicially-fashioned that for cumstances, procedural qualify protec doctrine of the officials of clause,15it is not process the due tion under Printing Office immune from the suit were society as the Fourth as basic to a free acting they extent right arbitrary Amendment to be free from “sphere legitimate legislative within the seizure of person property, search and activity.” 412 U.S. that a right precious remedy damages so has been inferred from the Constitution premises Barr it is better to itself. Bivens v. Unknown Named Six leave unredressed some defamations16 Agents, zeal, acting officers out of malice or excess L.Ed.2d 619 subject than to the conscientious to the McMillan, every

Nor is Barr undercut Doe v. constant dread of retaliation. For po action governmental 412 U.S. 93 S.Ct. 36 L.Ed.2d 912 case of malicious Barr with a (1973). tentially by replacing That remedied essentially was a case involv- immunity, hundreds if not thou ing legislative immunity, speech clause, public of other actions in the interest or debate and the Court remanded sands omitted. There is too be deferred or legisla- for determination of the extent of officials, circumstances, (1941)), declaratory government L.Ed. 16. Under certain 1366] class, totally exempt, by injunctive as a could not be relief be obtained defamatory statements offi- virtue of some absolute from lia- Indeed, bility example, For in Joint Anti-Fascist Refu- cials. from terms. as the Court McGrath, gee Pape, supra, Committee v. 341 U.S. also indicated in Monroe v. Supreme history legislative 95 L.Ed. 817 indicates that there is no possible organiza- held it was for several they which claimed had been defamed to tions Pachtman, Imbler v. 424 U.S. 96 S.Ct. declaratory injunctive obtain relief (1976); Ray, 47 L.Ed.2d 128 Pierson v. Attorney strike their names from the General’s 87 S.Ct. 18 L.Ed.2d 288 organizations. subversive 341 U.S. at list of availability 624. The of this Roth, Regents 15. See Board of 408 U.S. equitable is consistent the rationale relief 33 L.Ed.2d 548 Wiscon- personal Barr involve since does not Constantineau, sin v. 400 U.S. official, unlikely liability of an and is therefore But see Paul v. L.Ed.2d 515 vigorous pursuance deter him in the Davis, Corporation B. Morton International duties. C. Deposit Corporation, Insurance v. Federal (1st 1962). F.2d Cir. in favor of defendant choice, judgment The there the Barr said for much to be is affirmed. Institution Smithsonian thought and hard hard work too much Evans is in favor of defendant judgment squarely by was faced problem when the whether his inquiry for limited remanded Learned Harlan and like John judges great of his perimeter the outer letter was within the detritus of Hand, sweep it aside duties. away sub nibbled has been doctrine ordered. So silentio.

A-l

APPENDIX dealing panel part opinion in with the case Smithsonian this' -p. panel. Majority op. opinion as the Institution is reinstated reprinted p. 291 of 566 F.2d. It is here for con- U.S.App.D.C., n. of 184 venience. No. 74-1899 AQUATIC ENTERPRISES, INC.,

EXPEDITIONS UNLIMITED CORPORATION, A APPELLANT NORMAN SCOTT INSTITUTION, AL. ET

SMITHSONIAN Appeal States District Court United District Columbia

(D.C. 54-71) Civil Action Argued September

Decided 28 June 1976 Pyne, appellant. John J. Demerath, Attorney, Jeffrey T. Assistant Earl J. United with whom States Attorney Terry Murphy, Silbert, John Suzanne A. D. Attorneys, appellee. United States were on the brief for Assistant Institu- against the Smithsonian WILKEY, petitioners Cir and Before LEVENTHAL against Clifford Regents, its tion and SOLOMON,*United States Judges cuit of An- Evans, Department of the Chairman of for the District Judge District Senior His- Museum of Natural at the thropology Oregon. a letter writ-' arose out of The claim tory. views Evans, expressed he in which ten WILKEY, Judge: Circuit petitioner Expedi- capabilities as to the appeal from before us on This case comes of underwater field tions in the Unlimited entered 31 judgment merits of summary archaeological an order excavation. us, before brought by presently 1974,1 for libel libel claim are an action July * App. pursuant 1. at 6-8. by designation to 28 U.S.C. Sitting 294(d). § dimension,3 we

substantial conclude private as a national the nature of its function judgment for defendants summary since coupled scholarship, museum and center grounds on Smithsoni- granted governmental role the substantial immunity and Evans’ ab- governmental an’s make the institu- oversight,5 funding4 and making statements with- privilege in solute of the “independent establishment tion an scope of his duties as a States,” agency” “federal within the employee. definition.6 U.S.C., creates Title 1346(b) of Section THE IMMUNITY OF SMITHSONIAN of 28 U.S.C. provisions subject INSTITUTION 2671-80, the United remedy §§ court that the district holding caused injuries wrongfully not be sued Institution Be- government.”7 Smithsonian “employee any conclusion rests That libel is affirmed. agency, is a federal cause the Smithsonian Tort the Federal reading upon our employees “employee[s] Tort find that Because we Act. Claims 1346(b) action thus and the government,” § granting fed- read Act should be Claims 2679(a), the lie.8 Under U.S.C. § libel, from suit for agencies eral in cases exclusive 1346(b) remedy is made § of the Institu- the issue we do not reach even where an applies, that section where law. at common status tion’s to sue elsewhere be authorized agency may However, right.9 in its and be sued own Act, the finding immunity provisions of 2680(h), the under 28 § U.S.C. is to determine step initial Act, jurisdic- including the Tort Claims agen- is a “federal organization defendant 1346(b), inap- are made provision, tional § definition set forth within the cy” actions, as the one such plicable to libel has a Although Smithsonian statute.2 3. 2. 28 U.S.C. third of the 253. over operations funds Library eral The Smithsonian pendent partments, mentalities but does not include United States. “Federal 1346(b) As used in this (1970) $15 Hearings corporations primarily ^[******] million of (hereinafter establishments agency” includes the executive de- employees in 1970 totalled Memorials, 2671. Definitions Before the Sub-Committee on 2401(b) agencies Institution, military departments, private money has were non-federal. Hearings). chapter 91st of the United private contractor with the the United $33 and almost one- acting Cong., title, million. Gen- and sections went toward endowment as instru- 2d the term States, States, Sess., Id. at inde- year 6. 28 U.S.C. § 2671 tant factors by governmental v. United States, federal ing ter. Pearl (10th nificant to be F.Supp. F.D.I.C., government corporations,” outstanding more in United States v. 1962), and the “federal Cir. than like the agency). governmental common with L.Ed.2d 390 1956) (Civil important supervisory linking stock of the F.Supp. agencies,” F.D.I.C., Orleans, The substantial federal fund- corporations officials are the most (D.Colo.1974); it to the States, char- contact is a federal which have been found Air Patrol held not a the “mixed Davis v. Smithsonian, 230 F.2d While there is no government. Logue whose U.S.C. F.D.I.C., role Freeling (W.D.Okla. ownership v. United only sig- L.Ed.2d impor- played it has Cf. Approximately oper- 1346(b) (1970). of the Institution’s 28 U.S.C. 75% ating appropriations. funds come from federal 8. 28 U.S.C. 2671 Hearings, supra note remedy 9. 28 U.S.C. § 2679. Exclusiveness of Eight Regents of the seventeen of the Institu- (a) authority any acquire positions by agency The holding tion of their to virtue of high positions government. other sue and be sued in in the federal its own name shall not be remaining Regents against 20 U.S.C. 42 construed to authorize § The suits such fed- appointed by joint Congress. agency cognizable eral resolution of on claims which are title, 1346(b) 20 U.S.C. 43 The Institution is audit- under section § of this and the periodically by ed Accounting provided by the General Of- remedies this title such cases Hearings, supra fice. See note at 362-97. shall be exclusive. Company

the Panama Canal from the Act’s provisions. parallel provisions These inter- The difficult us.10 before presently (h) consistently been exception libel have to case is by this posed pretive problem immunity, but to any held not to create exceptions of this the effect determine organi- brought against allow to be suit clause. Act, sepa- just zations as before hand, clause exceptions On the one statutory authorizations.12 rate making the Tort Claims might be viewed as actions, libel entirely inapplicable Act to reading a consistent logic While event the common law sta- which would, themselves, thus lead by statute govern, would and an tus of a defendant start, to very us outside the Act at the jur- if might possible independent action inquire as to the Smithsonian’s common grounds isdictional could be found. On possible status and as to other hand, 2680(h) as im- other could be seen § jurisdiction, bases of factors cause us other suit, if the Tort Act posing a bar to Claims reject to approach. Legislative history, regarded systematic govern- is as a statute claims, great weight judicial precedent, exceptions with the ing all tort application forth the areas where suit is a desire to facilitate future setting clauses Act, 2680(h) to be barred. convince us that should § grant be read as an affirmative of immuni- significant arguments There are to be ty agencies” types made in favor of the view. to “federal in the first The lan- guage of the deliberate tort cases which it describes. exceptions section makes no or, any reference to creation more properly, We conclude from the structure of the long continuation of govern- established Act, Tort Claims and from the legislative mental immunity categories of cases reports accompanying passage, that Con- Rather, it sets forth. the exceptions section gress probably did not intend to leave unaf- only states that the provisions of the Tort by categories fected Act the suits Claims Act “shall not It apply”.11 excepted 2680(h). by While primarily § that, not illogical to conclude in these seeking expand governmental cases, categories of the Act neither creates torts, it appears Congress to us that nor removes immunity ques- but leaves the sought systematize and centralize the Act, suability tion of as it was before the ap- laws.13 One evidence of this be determined statutes and statute, pears 2679(a) which in § common law interpretation rules. This essence renders ineffective other laws further bolstered construction which allowing suit given 2680(7) (m), creating has been remedies except Valley the Tennessee Authority agency, cogniza- where the actions “are Exceptions does, appears 10. 28 U.S.C. conclude that but the answer simple no means as as has been assumed. provisions chapter and section of this 1346(b) apply not to— of this title shall R.R., Panama Gardner v. i}; % % sfs sfc (1951) (dictum); L.Ed. 31 Brewer v. assault, (h) Any arising claim out of bat- Co., F.Supp. Sheco Construction arrest, tery, imprisonment, false false mali- T.V.A., (W.D.Ky.1971); 1018-19 Latch v. libel, prosecution, process, cious abuse of F.Supp. (N.D.Miss.1970); De deceit, slander, misrepresentations, or inter- Co., F.Supp. Scala v. Panama Canal rights. ference with contract (S.D.N.Y.1963). Congressional reports language 11. There is not accompanying explicitly the Act indicate that section, exceptions but its interrelation with exceptions some were included because 1346(b), jurisdictional section. The sec- already “adequate remedies were available.” “Exceptions” begins: provi- tion entitled “The Sess., H.R.Rep. Cong., No. 79th 1st 1346(b) this title sions of . section Sess., (1945); S.Rep. Cong., 79th No. 2d (h) Any apply claim shall libel, arising out slander . . .” conferring jurisdiction simply If the section Waterways Corp., 13. See Wickman v. Inland apply,” “not can the Tort Act have does Claims F.Supp. 284, (D.Minn.1948). any relationship to an action libel? We cases, In both the suits would

agencies. States, subject to be the United evi- Another 1346(b).”14 section under ble bill; safeguards the and of the limitations appears centralizing impulse of this dence the of the exceptions and in both cases clause exceptions of the context in pre- of way bill either apply would the cate- forth sets This section 2680(a).15 § way of venting at recovery all or for which activity, discretionary of gory act, as, for leaving to some recovery other granted. been traditionally immunity has Admiralty in Act. It example, suits the init the include to bothered Congress That status corporate is intended that neither with the is consistent section exceptions shall, alone, nor “sue be sued” clauses and within embody, to meant that it view money recovery be the for suits for basis immuni- in which instances all the of § sounding in tort. seems to It the statute. is to exist ty conclusion, least unreasonable us an inferred a be these statements From (h), that (a) and exceptions of instances agencies all treat federal intent general beyond go courts to intended Congress immunity, irrespective regards as alike law im- into common Act, inquire and status was what their jurisdictional alternative and status munity con- Congress likely it that We find law.18 grounds. codifying the of itself ceived ambiguous, affirmative, though still More necessity to look law, eliminating pre- itself Congress saw evidence law, concluded once it the common immunity ap- law of the common empting with- agency is a federal the defendant accompanied reports in the pears Act. in the definition In dis- House and Senate. through the bill the re- provision,16 exclusivity cussing the might take a view following perhaps We different make of both chambers

ports if this were a matter of legislative intent statement:17 give weight But we impression. first agencies of “suable” torts place This will enactment, fact that the time of has since precisely upon practice “nonsuable” been the consistent of the footing as torts same exception 2679(a) (1970). H.R.Rep. 14. 28 U.S.C. Sess., The Cong., No. 79th 1st dealing Pana- S.Rep. the T.V.A. Cong., clauses Sess., No. 79th 2d 2680(1) Company, 28 U.S.C. § ma Canal (1946) (emphasis added). clearly intended bar (m) not statutes, authorizing see separate suit under However, compelled inference is not weaken supra, thus these clauses note language reports. actual of the The re- argument Act in- that the somewhat ports’ statement, suability agen- clauses concerning federal all laws tended governmental centralize cy applicability charters do not affect the However, unique- Act, Tort Claims would not be in conflict with a coupled organizations, with the ness of these gov- view that common law doctrine amenability was well to suit fact that their erns cases thrown outside the Act exceptions were the time the established at adopted, language exceptions clause. Nor would that we us to conclude lead corporate the statement that status alone is not (1) by rigid parallelism to clauses bound suit, a basis for inbe conflict with a conclusion clause(h). (m) in our construction that the operative Smithsonian have no 15. Exceptions U.S.C. immunity arising law, light from common provisions chapter of this and section corporate unique pri- status and its mix of 1346(b) apply title to— of this shall not governmental operations, funding, vate and (a) Any upon claim based an act or omis- management. language and ception about the ex- Government, employee sion of cising exer- preventing recovery clauses either or care, due execution of statute leaving recovery presents to another Act also regulation, or regulation whether or valid, statute not such or inconsistency, no find since even if a court were to upon be or based the exer- operative juris- common law performance or cise or the failure exercise (“some act”) apart dictional statute the Act’s any perform discretionary duty or on the ee discretion involved function 1346(b) have found for part agency employ- of a federal or an entertained, suit to be at least in federal Government, or not the court. abused.” 16. Now 28 2679(a) (1970). U.S.C.

299 array of cases fo make a complex able speculative inquiry into common law immu- (a) (h) exceptions courts to read both We think nity legislature status.22 in- immunity to “federal defining grants of tended suability ques- courts to decide The courts’ consistent sense of agencies.”19 tions direct reference to the statute impressive is even legislative intention rather than by pursuit of the will-o’-the- acknowledge the decisions fail to though wisp prior of the law. We conclude that the literal text.20 difficulty presented by (h) exception clause should continue to be influenced, confess, we must We are also defining read as the existence immunity a contrary the consideration that read- in involving torts, suits deliberate and that lead to perplexing of the statute would ing the summary judgment in favor of Smithso- to the state of the common questions as nian should be affirmed. law, leading change while not to a clear imaginable in any result case. For there to ROBINSON, III, SPOTTSWOODW. Cir- result, any difference the defendant J. Judge, cuit whom SKELLY agen- have to be within the “federal would WRIGHT, Judge, joins, concurring: Circuit 2674, yet definition of be suffi- cy” plausibly This case cannot be distin- private as to lead to the inference ciently creating organization, guished surely from Barr v. Matteo1 Congress, that Were disregard intended not to render it immune.21 we are not at liberty to Su- met, conditions it would be both of these preme holding Court’s unmistakable there- further, subject that the matter necessary, Perhaps really in. that is all that needs to the suit be within one of the clauses of Frankness, however, compels be said. me presently which are construed to 2680 increasing difficulty reconciling to admit confer jurisprudence Barr with other strands of ser- evolving amenability public on the that more than a envisage We cannot damages.2 join vants to suits for I in the few, meet all of these any, if cases would case, then, any not out of disposition of this and thus be decided differ- requirements, to divine the ultimate schematism of reading ability a literal of the Act. ently under law, it might appli- to determine whether this area of the but because of the Yet require would the courts in consider- cable judge’s duty controlling precedent. to abide immunity status of how Redevelop discussions 21. For of Columbia v. District 19. Goddard law, 304, 306, see at common be determined U.S.App.D.C. would Agency, 109 Land ment 81, 84, 910, Corp., 61 denied, Menihan 345, 81 v. U.S. R. F.C. 366 cert. 287 F.2d Burr, (1941); v. F.H.A. (1961); L.Ed. S. 85 595 235 Ct. 242, 245, Inc., 724 F.Supp. 84 L.Ed. 936-37 60 S.Ct. 275 U.S. Delta Indus. v. F.D.I.C., R.F.C., 1966); U.S. v. (N.D.Ohio, James Keifer & Keifer Freeling (W.D.La.1964); F.Supp. 83 L.Ed. 784 (W.D.Okl. F.D.I.C., F.Supp. 1962). inquiry as to indicates that law 22. Case must focus on Redevel- District of Columbia In Goddard at the Congress to confer intended U.S.App.D.C. Agency, 109 opment Land See cases organization created. time (1961) asserts the court unlikely F.2d appears cited, supra. it Yet note cognizable under section “are claims that libel Congressional directly expressed in- that meaning exclusive- 1346(b)” within of a in the instance be found ever tent could 2679(a), remedy provision, even ness passage of the agency after the created flatly 2680(h) exceptions though clause Act, Congress certain- almost since Tort Claims 1346(b) “shall provisions §of states issue, ly gave no consideration Laboratories, apply Scanwell libel. Cf. to” the framework instead to deferred but Thomas, U.S.App.D.C. Inc. v. Act. observed, the court where F.2d completely or the Act falls outside “If the claim L.Ed.2d 1. 360 exceptions-to-liability embod- within one ” finding statute, it without . . ied negli- for necessary explain the claim how accompanying text. 6-20 infra venally maliciously or moti- would condone that, that measure of disservice. it was So or public functionaries their vated acts appreciation society’s weighty with full of If recom- consequences. appalling ofttimes injured interest in fairness to those im- no more than implicated victims pense to. of proper manipulation the levers bureaucrats, there of callous purses the government, Barr struck the bal- the Court immunity, no need for official would be ance on the of averting litigation side good sort of faith availability the of some claims, defamation ill-founded or separate sheep the defense would suffice not, arising from statements made in the goats. from may line of federal duty.3 be oc- “[TJhere problem nearly simple, is not so how- injustice instances of actual casional ever, deal than great because a more mone- unredressed,” said, may go “but is at stake. The ease with tary liability we price necessary pay think that one to charged open can leaves which malice And, greater good.”4 for the extension that even the possibility conscientious generally accepted today rule is public dogged by servant will be suitors. totally federal officeholder is im- prospect The mere of a lawsuit deter damages mune to suit for attributed to courageous even the otherwise official from emanating tort from non-min- discharge altogether the full and ardent isterial perimeter conduct within the outer duties, lawful lest he become enmeshed in authority.5 of his official vexatious, unfounded, though litigation. Developments quarters, in related how- an officer When thus deviates ever, whole-hearted conservation asymmetry of the common have introduced 571-576, 1339-1342, 2680(h) (Supp. 1974) exempts gen- 3. 360 U.S. at 79 S.Ct. at U.S.C. erally IV § L.Ed.2d at 1441-1444. opera- certain intentional torts from the accommodating tion Act. As a means of Id at 79 S.Ct. at 3 L.Ed.2d at 1442. antagonistic interests at stake in cases like bar, urged exemp- that at it has been that these See, Cohen, g., U.S.App.D.C. e. David v. repealed, enabling tions be thus the victim to 333, tion, (1969) (defama- 407 F.2d recover from the process prosecu- Government but not the offi- abuse of and malicious might tion) therein; susceptible then cer—who be the more and cases cited Berberian v. Gib ney, (1st 1975) (abuse damage 514 F.2d to sanctions for Cir. misbehavior since the process); Weinberger, coming superior’s Peterson v. 508 F.2d award would be out of his ndenied, (5th Cir.), Davis, 52 50, budget. cert. 423 U.S. See K. Administrative Law of (1975) (interference Seventies, 46 L.Ed.2d 47 with con Ross, supra, 26.03 at 584-597. See relations); tractual Estate of Burks v. Davis, Approach Legal An Control of (6th 1971) (negligence); F.2d 234-236 Cir. Police, 52 Tex.L.Rev. 720 n.47 Meyer, (8th Ruderer v. Cir.), 413 F.2d 178-179 Congress step has in fact taken a in that denied, cert. by amending direction the Federal Tort Claims (1969) (defamation conspir L.Ed.2d 235 acy); permit recovery exclusively against Act to Damron, Sowder v. 457 F.2d 1184— “assault, battery, Government on claims of (10th 1972) (intentional Cir. infliction of arrest, imprisonment, proc- false false abuse of Davis, distress). generally emotional See K. ess, prosecution” against or malicious Seventies, Administrative Law of the 26.00-2 investigative or law enforcement officers. Act Davis, at 580 K. Administrative Law of Mar. 50, Pub.L. No. 88 Stat. 26.01, (1970 Supp.). 26.04 at §§ 875-880 (Supp. 1975). 28 U.S.C. V §§ Act, Under the Federal Tort Claims 28 U.S.C. originally proposed The amendments as seq. (1970 Supp. 1975), 1346 et & V one §§ who employees, have extended to all federal but injured by negligent wrongful is “the act or ultimately present reduced to their form. any employee omission of of the [Federal] Verkuil, Boger, See Gitenstein & The Federal acting scope while Government within the Tort Claims Act Intentional Torts Amend- employment” his office or an action has Interpretative Analysis, ments: An 54 N.C.L. Government, 1346(b) 28 U.S.C. § Rev. obtains, remedy, and that where 2679(a) (1970). exclusive. 28 But 28 U.S.C. category-by-category approach More than of official field determinations, both to costs and is now 42 U.S.C. sensitive what century ago, by actions benefits, authorized civil 1983, Congress sharp stands in contrast rights federally secured deprived those which varies nei- Barr choice of of state law.6 under color through action value it con- premium ther with the notwithstanding recently, Much more for harm it potential fers nor with 1983, the Su- facial broadness Section leaves in its wake. immunities recognized has preme Court course, congressional specification Of there- damage civil suits officers from state right monetary relief 1983 of Section im- invariably Unlike under.7 of absolute judicial interposition rules out Barr attaches to non-ministe- munity which save where a court immunity,10 common law tort activity precipitating rial the stat- intend infer that did not Congress service, im- those in federal against actions hand, On the other dam- operate.11 ute to particu- inherent in the functions munity age against actions purposes offices for of Section lar state norms, such of common transgression qualified.8 either or 1983 Barr, do action that was as the defamation of formulat- importantly, process More legisla- manifestation of not encounter involved 1983 immunities has ing Section judicial implica- stifle might tive will that which the appraisal degree careful unqualified tion of unlimited and might impaired operations of the office this doctrinal consonance to brings What suit, groundless and a specter still-developing is the point of discord against of the assessment thereon weighing shaping suability This of federal purposes body of the statute.9 of law the remedial officers, high (1970) Scheuer v. other state executive is now 42 1983 § 6. What U.S.C. 247-248, 1683, Rhodes, 232, supplement preex- 94 enacted in 1871 in order to 416 U.S. S.Ct. penalties 1692, 90, isting (1974); police with civil remedies. criminal 40 103-104 L.Ed.2d 171, 167, 557, Pape, officers, Ray, supra, See Monroe v. 365 U.S. 81 S.Ct. U.S. Pierson v. 386 at 475-76, 492, 473, (1961); 1219, 5 L.Ed.2d 496-497 at 87 S.Ct. 18 L.Ed.2d at Developments in the Law—Section 1983 and Federalism, 1133, 1155 90 Harv.L.Rev. supra. 8. See note 7 jurisdiction to 1983 Federal entertain actions 1343(3) (1970). 28 U.S.C. § is conferred Pachtman, supra g., Compare, Imbler e. v. 424-A25, 7, 992, 47 note 424 U.S. at 96 S.Ct. at Tenney in 7. The Court first the issue addressed (threat suit “would under L.Ed.2d at 140 783, Brandhove, 367, 376, 341 U.S. 71 S.Ct. v. performance prosecutor’s] duties” mine of [a 1019, 788, (1951) (legisla- 1026-1027 95 L.Ed. frequency disgrun with which because of 'the damages immune from when tors his resent would “transform tled defendant legitimate legislative “acting sphere of improper ascription of into the ment . . . activity”). Earlier cases had not adverted motives), Strick with Wood v. and malicious” See, g., possibility immunities. e. of such 320, land, 7, supra U.S. at 95 S.Ct. at note 420 649, 757, Allwright, 64 Smith v. 321 U.S. S.Ct. 1000, (“absolute immunity 224 43 L.Ed.2d at [is Wilson, (1944); Lane 307 U.S. 88 L.Ed. 987 v. sufficiently justified since it would not] 268, 872, (1939); Nixon 59 S.Ct. 83 L.Ed. 1281 ability officials to exer of school increase the Condon, 73, 484, 52 76 L.Ed. v. 286 U.S. S.Ct. ... to warrant cise their discretion Herndon, 536, (1932); 273 47 984 Nixon v. U.S. Rhodes, remedy”), and Scheuer v. absence of a 446, 71 L.Ed. 759 The has S.Ct. 243, 1690, 7, supra 94 at note 416 U.S. at affording also construed 1983 as (“[fjinal resolution [the 40 L.Ed.2d at 100 judges. Ray, Pierson v. to state immunity] question must take into account 1213, 1217-1218, 547, 554-555, U.S. 87 S.Ct. particu responsibilities of these functions and 288, prosecutors, L.Ed.2d 294-295 ., pur as well as the defendants . lar 984, Pachtman, v. 424 U.S. Imbier 1983”). poses of U.S.C. qualified, “good A 47 L.Ed.2d 128 immunity under 1983 has been faith” extend- Rhodes, supra note 10. See Scheuer v. superintendent hos- of a state mental ed to L.Ed.2d at 100. at U.S. at 94 S.Ct. Donaldson, pital, 422 U.S. O’Connor 2486, 2494-2495, 95 S.Ct. See, Ray, supra g., Pierson v. note e. (1975); of a school board and members 295; officials, Strickland, 18 L.Ed.2d at 87 S.Ct. at U.S. school Wood Brandhove, Tenney supra 308, 321-322, note 341 U.S. 1026-1027. governor 95 L.Ed. at L.Ed.2d 224-225 between incongruity immunities damages charged to un- functionaries exercising the There, available the same officer depredations. constitutional functions, judicial depending only upon the same epitomizes, Barr the situation by which his legal com- standard legislature’s genesis unfettered hand is measured, at the to be strikes mand; since the 1983 immu- behavior is yet, Section if Many of the Barr rule. very authorita- foundations have been deemed nity decisions ana- that area constitutional torts have vogue not most tive,13 the Thus the offi- in the common law.16 logues or absolute.14 either may be with a tort charged cial finds himself judicially-fash- kind of who is that one upshot as- posture17 -may each sort —a common is available to federal offi- ioned — the common law claims damage suits founded sert fending off cials in litiga- the travail of claims, anoth- Barr but quite on constitutional designed such officials in re- tion —which -type er —the Barr —to remains since he still largely the common law.15 invoking spare suits pulsing him — allegations Agents, contain suffi- Named and seizures 12. See Bivens v. Six Unknown 1999, 2004, generate variety cient to of common law claims, (1971) (the entry, including trespass “Federal unlawful L.Ed.2d question” rights assault, process, imprisonment, whether Fourth Amendment abuse of false indepen- have been invaded involves claim intentional infliction conversion and even statute, necessary Powell,- and sufficient dent of “both distress. Dellums v. emotional U.S.App.D.C. Cf. action”). plaintiffs -, -, -, make out the cause of at 566 F.2d 167 Davis, Administrative Law of the Seven- (1977) therein; Cf. K. at 175-176 and cases cited 5, ties, (noting supra at note 26.00-2 583-584 Columbia, U.S.App. Payne v. District of 182 applies law that torts, Barr case to common “[t]he 188, 196, 809, (1977) (per 817 559 F.2d D.C. Supreme created and the Court in Bivens Turner, Robinson, J.); F.Supp. 427 Norton v. tort”). See also a new federal common law Dellinger, Rights 138, might (E.D.Va.1977). an actiona 140 So and Remedies: Consti- Of involve Powell, violation of the First Amendment ble Sword, 1532, 1540- tution as 85 Harv.L.Rev. similarly activity. Dellums v. tortious (1972). 1543 - U.S.App.D.C., supra, at 194 184 at outrageous F.2d n.80. An 566 & instance of See, Wilson, U.S.App. g., Apton 13. e. v. 165 may, practiced pris malpractice if in a medical 22, 31-33, 83, (1974); D.C. 506 F.2d 92-93 on, Eighth infringe the Amendment. Cf. Estelle States, 524, (2d v. United 534 F.2d 526 Black 97, 106-107, 285, Gamble, 97 v. 429 U.S. 1976); Bivens v. Unknown Cir. Six Named 251, (1977). 50 L.Ed.2d 261-262 1972); 1339, (2d Agents, 456 F.2d 1346 Cir. circumstances, a contract limited breach of Prade, 862, (3d Paton v. La 524 F.2d 871 Cir. Clause, may implicate the Due Process cf. Card Shultz, ; Lines, 1975) 498 States Marine Inc. v. Inst., Washington U.S. inale v. Technical 163 1146, (4th 1974); F.2d Tritsis v. Back 1159 Cir. 123, 128, 791, (1974) App.D.C. F.2d 796 as 500 , 1021, 1974); (7th er 501 F.2d 1022 Cir. Jones Davis, may Compare a libel. Paul v. 424 U.S. States, 269, (8th v. United 536 F.2d 271 Cir. 1155, 693, (1976), 47 96 S.Ct. L.Ed.2d 405 1976) ; Co-op Corp. v. Kir Midwest Growers Constantineau, 433, v. 91 Wisconsin 400 U.S. kemo, 455, (9th 1976); 533 F.2d 463-464 Cir. 507, 27 L.Ed.2d 515 Groff, 1376, (9th Mark v. 521 F.2d Cir. 1975). joined 17. law tort claims have been Common supra cases cited note 13 and infra note See with constitutional tort claims in a host of cases, Powell, including recent Dellums v. su 16, pra U.S.App.D.C., at- note at of 184 See, Davis, g., Law e. K. Administrative F.2d; Carlson, v. 144 U.S. of 566 Carter 175-176 Seventies, 5, 573; supra note at 26.00-2 388, 392-393, 358, App.D.C. 447 F.2d 362-363 Term, Note, 51 St. John Second Circuit 418, (1971), grounds, rev’d on other 409 U.S. 251, 275-276 But see Economou L.Rev. 602, (1973); David Co Dep’t Agriculture, 535 F.2d v. United States hen, supra U.S.App.D.C. at note 1976), granted, (2d cert. 429 U.S. Cir. 1270; Prade, supra F.2d at Paton v. La note 51 L.Ed.2d 534 97 S.Ct. 866; Williams, Roberts v. F.2d 524 F.2d 819, denied, (5th Cir.), by 828-829 cert. 16. As indicated such cases as Monroe Pape, 30 L.Ed.2d 110 Wil supra note 365 U.S. at 81 S.Ct. at Gorton, (9th Hood, 529 F.2d liams Cir. Bell v. 5 L.Ed.2d at Turner, 1976); supra note Norton v. 90 L.Ed. Ray, F.Supp. supra grounded also Pierson v. 140. See action in the Constitu- protections against unlawful searches note tion’s role. It major may far the be that defending the consti- further on has the burden will come from Court’s claim, quali- enlightenment on basis of albeit tutional forthcoming any runs Economou decisions.21 Friction with Barr privilege. fied the moment event, the same commonsense bounden is my since deeper, even duty holding sug- underlies its without assumption my follow view guard officials will far-sighted holding at reexamination of its or gests that effort its in the litigation rooted excep- vexatious For for the rationale. “[s]ave how may question One thus where the decisional re- proper Constitution. tional cases job performance clear, resoluteness Supreme much their is for the very sult assurance of Barr’s will bolstered Court, us, past error in its proclaim them protects absolute adjudications their erosion its rulings, annoyance same couched only from the since.”22 of the common law. principles WILKEY, du- (concurring Judge Circuit rights have a status That constitutional bitante): jurisprudence

in our which common never attain does not satisfacto- rights can judgment While I concur If explain the line drawn.18 rily presently court, I do so with doubts about the serious willing- our justification greater lies in Matteo,1 present validity Barr v. public servants exposure ness risk majority decision that Supreme when vindicating constitu- personal ex- controlling question as on the views enforcing pe- when more rights tional than reasons ecutive For the stated norms, one wonder legal destrian majority amplified by my discus- immunity ought ever to infra, I, I sion in Part do not doubt actions, in constitutional tort be conferred Barr v. Mat- immunity afforded it sometimes is.19 One indeed now represents teo sound as much policy, actions, than in suspect that in such no less However, it did when it was decided. suits, origins the constitutional Section the various that have inter- cases may effica- plaintiff’s of the claim be less Barr, the ap- vened since Court Supreme particu- cious than the historical stature of pears immunity gen- to have described the lar immunities in the determination erally available to executive officials in whether protection from suit is to be being only quali- common law actions a as qualified or absolute.20 fully As I more explain fied will II, infra, persist- in Part speak I below the Court’s acknowledge to these matters to in out first in dilemma, description, a ence this set and not in endeavor any Rhodes,2 public-servant orchestrate the field of liabil- Scheuer v. and ratified twice in ity, Supreme occupies by which the Court leads me whether thereafter,3 to doubt Davis, 13, 29-30, U.S.App.D.C. supra 18. Cf. K. Administrative Law of the Sev- note 165 at 506 enties, 5, (“the supra note 26.00-2 F.2d at 90-91. at 583-584 say yes court should not have to or no to such Agricul- Dep’t 21. Economou v. questions whether one as has a constitutional ture, supra 15. note by officer, right an not to be shot at not to be fist, jaw an hit officer’s not to have Columbia, 22. 143 Breakefield v. District of U.S. by officer, property damaged one’s not to 1227, (1970), App.D.C. 442 F.2d 1230 invaded, privacy have one’s not to have one’s 871, denied, 909, cert. 401 U.S. 91 S.Ct. 27 sullied”) reputation (emphasis original). (1971). L.Ed.2d 807 See, Apton Wilson, g., supra v. e. note 1. 360 U.S. 3 L.Ed.2d 1434 S.Ct. 29-33, U.S.App.D.C. 506 F.2d at 90-93. See, Pachtman, g., supra Imbler v. e. note 40 L.Ed.2d 90 416 U.S. 417-429, 988-994, U.S. at S.Ct. at 136-143; Rhodes, supra Scheuer L.Ed.2d at note 416 U.S. at at 1687- Pachtman, 409, Imbler v. 424 U.S. 98-103; Wilson, Apton Strick- Wood v. L.Ed.2d compensation In terms of denied means. to the absolute committed is still Court foreclosed, accountability absolute im- Barr. Since it is the Court’s immunity of seem munity may often distasteful decisions, if its own to overrule prerogative reasons, For these and other well- dubitante, rigidity. although wishes, join, I have called for an respected commentators upon in reliance this court judgment Barr, overruling of so that for common law Barr.4 already torts as is the case for constitution- I will have only al torts executive officials a qualified immunity.5 the doctrine exposure At first officials in com- the rule of im- government Recognizing for costs, be a harsh real appears munity imposes law tort actions relevant mon the benefits question who has incon- becomes doctrine indeed. Someone justify these a be derived from the doctrine testably been hurt as result of the tor- costs. The Barr Court openly confronted tious conduct of official decided that the contribu- question any compensation, regardless of be denied tion of absolute to “the effective Similarly, no magnitude injury. functioning outweighed the government” action matter how malicious an official’s litigant rights.6 loss of As Justice Harlan be, of absolute may appear operation concluded: in a civil immunity may preclude inquiry sure, damages into the reasonableness of To rule of law suit as behavior, appears attempts fundamentally even if it there to reconcile an- tagonistic policies, will be no review of his action social there land, Dept. L.Ed.2d 214 sion next Term in Economou v. U.S. 95 S.Ct. Cir.), Agriculture, (2d grant 535 F.2d 688 cert. nom., Economou, ed sub Butz v. 429 U.S. majority opinion explains p.-of 4. As the 51 L.Ed.2d 534 to recon U.S.App.D.C., p. 291 of 566 F.2d n. Barr, doubts, obliged express my sider I feel panel question had remanded the of official noted, although, my view is that the Barr immunity to the trial court for its choice be- represents policy. rule sound tween absolute and Davis, example, choice to be determined an individualized 5. Professor looks for “an Barr, balancing early overruling” citing of relevant factors. The remand di- as “undesir- panel upon reading rected based able” distinction be- “[un]workable” cases, Supreme particularly of Bair tween the absolute for com- requiring balancing. qualified immunity such an individualized mon law torts and the reflection, Úpon study however, Rhodes, further I Scheuer balancing engaged am now of the view that the (1974) 40 L.Ed. 90 for “constitutional” torts. Supreme Court was aimed at formu- Seventies, Davis, Administrative Law of the immunity lating categories rules of for of offi- concurring opin- In a 26.00-2 at 584 cials, by as defined function. The in- Court’s case, slip op. Judge Robinson ion in this quiry typically, into the facts of each case has explains “incongruity and criticizes the Barr, purposes deciding been for of between immunities available to the same offi- question acting whether the official was functions,” turning exercising cer the same scope authority within the of his and not for only on commits is charac- whether the tort he purposes making balancing of an ad hoc as to law, terized as constitutional or common al- appropriate the that for official though Judge suggest- Robinson refrains from words, establishing alone. in other was ing Vaughn, that Barr be overruled. See also the rule that executive officials at all levels Accountability Employ- Public Personal of were to be absolute accorded ees, quoting Aeschy- 25 Am.U.L.Rev. 85 discretionary civil suit for all actions of a na- righteous nothing lus: “For if what mortal is he perimeter” ture within “the outer of the offi- fear?” duty.” cials’ “line of 360 U.S. at 1335. Judge 6. 360 U.S. at 1335. As restudying intervening In Barr and the notes, maj. p.- of 184 U.S. Leventhal cases, however, I have also come to the view 4, p. App.D.C. 291 of 566 F.2d Justice n. logic language that the and the of the recent reasoning about Harlan’s absolute puts present validity cases the of Barr into majority although support won the of a doubt, even as to common law torts. Particu- plurality opinion for a was Court. larly Supreme have since the Court will occa- provisions. addition, review In injustice statutory of actual instances occasional unredressed, think the conduct of executive officials be but we gowill which subject range to a wide of alternative over- to one for necessary pay price that Congress, press, by by sight by greater good.7 — personnel. agency public, by internal struck Barr was by the balance to Critical course, tort And, absolute of liability personal of that the threat the view any possible of Barr does not foreclose “might officer over an individual hanging government of offi- prosecutions criminal fearless, vigorous, inhibit appreciably law.10 who violate the cials of policies of effective administration possible has these meth- Judge thought Leventhal If it is As government.”8 today inadequate out, oversight it a concern ods of are still to as- is as much pointed accountability will sure full fair on personal of possibility that the —and by misbehavior executive administra- occasion forthright government “chill” go Barr. If does year surely easy of unchecked—it not as it was in tion regulation courts about know what should do it. One anything, aspects possibility of American is that im- touching many more regulation corre- munity might turn on assessment and with the stakes life there is even in each the allegedly court case whether significant, more spondingly expect “counter-at- tortious action the officer indeed today reason more phrase, against subject scrutiny to review or tacks,” Judge Leventhal’s making not, or in charged with means another forum. If then are officials who damage of ad- the civil suit can be decisions allowed difficult and sensitive proceed, with the a qualified award of ministration. immunity, so the officer will called be however, be- precisely argued, It is for his answer conduct. the actions upon turn so much can cause there must civil officials, then be estimation my this is an unwise and executive hold in order to approach. damage suits available unworkable An assessment To their conduct.9 alleged whether misbehavior has been “ade- accountable them actions with, however, many reviewed corrected oth- quately” and/or begin officials, may er to involve which means often have further executive torts, findings, a subject proceedings possibil- and factual rise give ity purpose which undercuts the by courts and correction to review expressed in Imbler Pacht- immunity, as Act and other Administrative Procedure high-handed of this actions arose out Id. at piece oppression long regarded as a 571, 79 at 1339. Id. at major blow struck for the freedom of the governmental against individual the abuse of forcibly argument made has been most This long cheap conniving power; and so regard of basic civil liberties to the abuse with by government power, politicians continue to abuse that Dean con- Prosser officials. they forgotten. should tends, example, that: Prosser, Torts, (4th The Law of 132 at 992 ed. may seriously questioned availability 1971). plea, line with this possible deterrent effect of removal -type most 1983 and Bivens relief liability, oppres- tort least for individual’s of for violations of constitu- classes officials conduct, outrageous all would be at and sive special rights provide does a check on tional disrepu- thing. once There was a desirable Ap- of “our most cherished liberties.” abuses Wilkes, John whose character named table Wilson, U.S.App.D.C. F.2d 83 ton v. put newspaper and busi- was raided out of searched, ness, illegally premises his and his Pachtman, Imbler confiscated, property all for the seized and 47 L.Ed.2d 128 political The tort kind motives. worst legisla- then the should be factory, response at the outset protection provide man,11to for sovereign immunity Moreover, waiver a varia- tive—the liability. from trial intentional torts. adds a further as this such criterion ble uncertainty to the judgment element unjust very that it is complaint is If immunities, between choice process injuries from uncompensated that there “chilling” effect of importing thereby torts, solu- preferable then the common law a trial court How does liability. possible Federal Tort Claims to amend the tion is fact that there was example, the assess, for torts, like libel and Act to cover intentional inquiry into al- disciplinary no “official” excluded.13 slander, presently which are is because What if this wrongdoing? leged compensation, in terms of realistic Surely the rec- believed on supervisors various a more effective change provide this that no had wrongdoing them before ord of absolute remedy than the abandonment challenged conduct and that place taken relief leaving monetary brief, that it is suggest, I justified? Similarly, if the com- the officer. against doctrine, and in- inappropriate immunity resulting is is that absolute plaint practice,12to Supreme consistent unaccountability for com- widespread in a taken immunity awarded or have absolute again solution torts, preferable mon law was, whether there on depending away Act to the Torts Claims be to amend alternative review of the retrospect, seen regard With to in- intentional torts. cover in question. incident torts, by police abuses tentional such as officers, it has often been example, for then, assuring accountability, terms of imposition judgments that the thought drop is to the other alternative may induce the governmental units on altogether, law torts immunity for common that there is better higher to see every official so that the reasonableness wrongdoing training avoidance Yet need not can be tested. action oversight charges effective on the and more legal against action involve a direct of misconduct.14 And, personally. as noted executive official earlier, this net of civil liability Indeed, because changes with further the Torts wide, entrap will the innocent offi- Act, so could secure Claims guilty, wished, along policy prefer- collect power, cial if it from the in- for absolute egre- ence has been officer for malicious or wrongdoing fairly execu- if stead, ideally—encourages torts. This gious approach, which— fearless, administered, bring act in a could public-spir- consistently tive officials to accountability for the per- greater without the risk of immense measure of way ited imposing It seems to me that if the without liability. wrongdoer sonal individual “chill” from the aban- degree expected by Barr is deemed unsatis- balance struck 422 n. 29 L.Ed.2d 619 at 419 n. 96 S.Ct. 984. 11. Id. (1971) (dissenting opinion). This has rationale Imbler, example, the 12. In for Court considered suggested implying been as a reason for “amenability” prosecutors as a class as a directly -type against Bivens cause of action weighing for absolute but did factor municipalities under the Fourteenth Amend- inquire prosecutor into whether Note, ment, Damage Against Remedies Munici- subject inquiry particular was the of an official Violations, palities 89 Harv. For Constitutional alleged Id. into misconduct. (1976): “The threat of mone- L.Rev. judgments governmental tary units spur higher design 2680(h), . . officials to 13. 28 U.S.C. as amended. hiring disciplinary training programs, their urging Congress to assume procedures, rules so as to curb and internal officers, the Fourth Amendment torts of federal Davis, Administrative misconduct.” See also Burger respect pri- noted with Chief Justice Treatise, Supplement, Law 25.17 at 864— that, security guards “[djamage verdicts vate such acts are often sufficient in size to provide an effective deterrent and stimulate employers v. Six to corrective action.” Bivens 388, Agents, 403 U.S. Unknown Fed. Narcotics coverage intentional govern- torts the For with a of absolute donment a right for intention- ment should include to seek indem- sovereign immunity waiver govern- that the calls for torts, nity officer knows from the officers involved also al the judgment may judgment legisla- assume whatever the ment will an exercise of on an uncertain trial ensue from ture.16 liability, pri- damages. Personal responsibility of Con- Recognizing upon exercise source of “chill” mary of the Tort gress the basic structure discretion, depend would of unintimidated drop the Act, unwilling I am Claims screening by the disciplinary a upon instead leaving immunity thereby absolute recovery pursue about when to

government only quali- a federal executive officials with much how recov- from the officer about torts, in an for common law immunity fied screening will Presumably this ery to seek. Congress make further effort induce than capricious unpredictable be less Barr to the Torts Act. amendments Claims against an present jury trial and outcomes to effec- rightly has been viewed an aid a more fine- provide would thus officer and government and abandon- tive because its accountable those way holding tuned impair public-spirited ment thus ad- power. their maliciously abuse who branch, by the executive its ministration some the considerations Motivated should until be retained above, already has Congress suggested substitute, a such as a waiver of workable as to the Tort Claims Act so make changed sovereign immunity, place. is in financially government respon- the federal torts of some its the intentional sible for II With a 1974 amendment sover- officers. In 1959 v. Matteo17 Barr established claims eign was waived for aris- rule of common law that executive “assault, imprison- battery, false ing out of officials at all levels entitled to abso- arrest, ment, or mali- process false abuse of damage lute from civil suits for which are committed prosecution” cious those which involved action of a dis- torts lawor enforce- “investigative United States cretionary were taken nature Congress Whether ment officers.”15 scope authority. within the their Over Tort Claims Act further amend the should years appears to Supreme torts of to include the intentional and, have to the Barr rule18 most officers, adhered many of which would remains, course, judg- “not torts, notably, a did disturb matter of court, ment” a lower which had found Similarly, legislative judgment. the common formulate the Tort Claims act. tion generally mous al ee after it had been held liable under & Admin.News hollow port usually pensation, 1st Sess. In connection Tort Claims 28 U.S.C. Cf. United Emphasizing stated: “Of Pub.L. Supreme Court judgment proof remedy.” S.Rep.No.588, 3, reprinted recover from an as mentioned 98 L.Ed. could 93-253, law rule policies Act for pp. 2680(h), individual officer] Act, course, that it was for towards recover held Gilman, the Court declined to so this ^[1974] above, that an as amended 88 Stat. employee’s negligent availability Federal employee, in Gilman that the employees from an 347 U.S. U.S.Code [a the Senate Re- employer Even cause 93rd Congress is agents of com- employ- though Feder- unani- Cong., rather Cong. of ac- Mar. can 19. Doe v. 18. Wheeldin v. 17. 360 with Barr. In an examination of the With Barr’s actions example, scope cause the official was impose Supreme complex vant part, regard of his acceptance. its own solution on what it viewed as a the Court found Barr Court found McMillan, but did so in manner consistent Doe v. to other authority, significant 459 F.2d Public Printer and the McMillan, Wheeler, nonlegislative no L.Ed.2d 605 not issue. independent (1973), aff’g in rele- 373 U.S. acting no inapplicable be- question L.Ed.2d 1434. U.S.App.D.C. 327 n. within challenged Superin- as to 650- Barr for involved in police Pierson —local officers. acts with- discretionary performing Noting officials that the commonlaw had not grant subsequent immuni- In three duty. in their ed them an absolute immunity, Pierson v. Court, however, 1983, the ty under § cases Ray24 made available to them “the defense the common law described to have appears good faith probable cause.” affording only executive officials juncture At this expects one Scheuer immunity, even as to common law qualified the 1) Court to state next: what the immu- indication that no clear torts. With nity at common law would be for executive describing state common only Court these, charged like with some anal- law, common I am to federal opposed law as tort, death, ogous like wrongful 2) whether this undercuts the about concerned whether that common be it my obliged explain and feel Barr rule over, absolute or qualified, will be carried ambiguity inhering doubts. Because reasons, for whatever policy into § it becomes approach, in the Court’s recent actions. This was essentially analysis necessary descrip- to trace in some detail its and,Pierson in Tenney embodied and was law. tion of common expressly analysis employed in the later 1974, presented v. Rhodes20 Scheuer cases Wood v. Strickland25 and Imbler v. question of whether there should be Pachtman,26 which also transplanted their immunity in a suit for qualified absolute or respective common law immunities. But damages under 1983for the Governor and § paragraphs that expects one next state, high president other officials of a there; instead, Scheuer are not there are university of a state and members of the the next two sentences: Noting state National Guard. When a court police evaluates conduct was meant give remedy parties relating to an guideline arrest its “good deprived rights, of their constitutional probable faith and cause.” [Pierson ] Court also repeated that 1983 did not the case of higher officers of the execu- mean “to abolish wholesale all common law branch, tive however, inquiry is far immunities.”21 suggestion With this complex more since the range of decisions guide commonlaw would be a helpful and choices—whether the formulation of structuring immunities under policy, of legislation, budgets, or of Court turned past review of its three day-to-day virtually decisions—is infi- determinations. In 1951the Court had rec nite.27 ognized absolute immunity legisla for state What these sentences suggest is that the tors, noting history of the absolute im already decided, Scheuer Court had law, without munity Tenney Brandh setting out customary analysis, Similarly ove.22 in 1967 the Court had qualified immunity afforded would be to state available. In judges words, sued under the first again noting repeated the abso sentence law, lute of the common Pierson Pierson that a Ray.23 review, Lastly, in its the Scheuer means that a court inquire should into Court came to the other class of officials police whether a officer made an arrest Documents,

tendent 23. 386 U.S. found that 87 S.Ct. 18 L.Ed.2d 288. actions, authorized, although their involved the significant discretion, exercise of no thus tak- Id. at 87 S.Ct. ing them outside the ambit of Barr. See Doe v. McMillan, U.S.App.D.C.,---, 566 F.2d 25. 420 U.S. 95 S.Ct. 43 L.Ed.2d remand). (1977) (on 20. 416 U.S. 40 L.Ed.2d 90. 409, 424, 26. 424 U.S. 96 S.Ct. 1690, quoting Id. at 94 S.Ct. at Pierson Ray, L.Ed.2d 288 Scheuer, supra at 1691. 22. 341 U.S. 95 L.Ed. 1019. probable systematic ap- cause.” The discussion without faith “good sen- inquiry” second phrase proach in similar cases.31 found —in —“the to a court should what thus referred tence Scheuer, In various restatements of “higher determining into in inquire however, the Court has described that deci- also have of branch” officers the executive systematic ap- sion in terms of its usual standard of the reasonableness satisfied thereby casting on proach, light some what the remainder of immunity. In qualified common law it considered tradition with these sen- long paragraph begun immunity for the of executive officers. essentially established that the Court tences Strickland,32the Court said it Wood v. that immunity higher to applying qualified granted immunity had a qualified to the a court of executive branch officers defendants, “under prior precedent Scheuer the demands sensitive to of very must be in light- and of the obvious need to avoid office, need for g., e. occasional their discouraging effective official action the obvious need decisive action and prompt public charged officials with a considerable others. The supplied by on to facts rely range responsibility of and discretion op- because the also that emphasized Court quoting . .” After Scheuer’s formu- may be so broad high these

tions of qualified immunity, lation Wood contin- of subtle, of “range their discretion” so and ued: be read immunity had to of purposes for from concluded widely.28 tradition, Scheuer very recognized in Common-law qualified im- that the considerations these decisions, prior strong public-poli- our and of the execu- available to officers munity a also lead to construction of cy reasons vary had to tive branch qualified good-faith a extending 1983 dependent on being “the variation scope, to board members from immunity school responsibilities and scope of discretion damages for under that section.33 liability circumstances as office and all the quoted both these implication The from appeared at time they reasonably is that the Scheuer outcome of sentences sought be on which action qualified immunity executive officers sum, then, appears it that the based.”29 law precedent. accorded with common in Scheuer of the Court’s attention focus case, immunity Imbler v. next Pacht- quali- appropriate an definition upon man, in similar supra, described Scheuer immu- the choice between immunity;30 fied stating After that “the Governor have made with little terms. appears to been nities closing point, At 31. Before the discussion of immunities at S.Ct. 1690. this 28. Id. 96 quotes stated the criteria de- Justice Harlan’s counsel Court that “[u]nder Scheuer Court, scope veloped by precedents must be tai- of discretion this Barr meaning execu- to the broad or narrow duties of lored drained of all we Contrary governor high officers at different levels. tive or other hold that the acts of - characterization, majority’s p. at ...” were entitled executive officer F.2d, p. U.S.App.D.C., this at S.Ct. at 1692. absolute Id. proposition is not citation of Barr for the clear, meaning of is not for twice this there must be absolute for ex- granted immuni- before had absolute the Court discretionary ecutive acts in the context of officials, legislators ty to two classes of state developed, defamation actions. As will be in- significant part judges, because of their fra, appeared the Scheuer Court consider law. If the absolute at common qualified protec- as the common law regarded high had executive officials tion available to executive officers. having immunity at law, comported with the well have Scheuer, supra at at 1692. precedents of continued their § 1983 have immunity here. noteworthy stage of the case It is authority scope threshold issues of (empha- at 998 discretionary still remained for decision action added). sis remand, major issue of the on in addition to the good alleged faith of the reasonableness added). (emphasis Id. at 999 See id. at constitutional violations. S.Ct. 984. Parliament, ought officials of a not to impeached other executive State” questioned had Court or Place out of suits, Parliament,” M., Imbler character- 1 W. & Sess. c. 2. Scheuer See Hansard, E., 1, of choice between immuni- process ized that Stockdale Ad. & 113— Eng.Rep. (Q. follows: ties as B. 1839). course, The English experience, of Wood, and in as in the two In Scheuer guided the drafters of our “Speech or cases, Pierson], [Tenney earlier Tenney Debate” Clause. v. Brand See underlying the nature considerations hove, 341 372-375 U.S. S.Ct. respective the officials in [71 (1951); 95 L.Ed. United States v. essentially led to the 1019] suits at common law Johnson, 169, 177-178, 383 U.S. 181 same See 420 [86 749, 15 S.Ct. L.Ed.2d U.S., at 318-321 992]; S.Ct. 416 681] U.S. [95 Brewster, v. 408 501 U.S. S.Ct. at 239-247 and n. 4.34 S.Ct. [92 1683] [94 2531, 33 L.Ed.2d 507] Here, Wood, than in clearly even more the regard judicial Holds- saying to be that the appears Imbler Court worth notes: “In the ease of courts of in executive officials Scheuer would have held, record ... it was certainly as only qualified immunity been entitled to early as Ill’s reign, Edward that a liti- is the support at common law. What gant go record, could not the behind in in its this that the Court finds citations order to make a judge civilly or criminal- noted, already back ? As to Scheuer ly liable for an jurisdiction.” abuse of his point puts when the Court Scheuer 6 W. Holdsworth. A History of English as to these question executive officials Law 235 242, (1927). The (p. 1683) through concept 94 modern S.Ct. close of owes much to the 1683) elaboration and analysis (p. 94 there restate- S.Ct. ment of no indication of what the Coke judges of exec- and sixteenth early utive officials would be at common law. seventeenth centu- Id., conclusion, Imbler must ries. at drawing its 234 et seq. Floyd See v. then, Barker, from the earlier pages general Co.Rep. of dis- 77 Eng.Rep. 1305 (239-242, cussion B. 1683) (K. 1607). and from n. of the Crown portions which are the specifically cited has traditionally been of a more limited (see quote above). In the text of Scheuer nature. Officers of the Crown were at official immuni- first insulated from responsibility since ty is said to derive from the same considera- King could claim the act as his own. generated sovereign tions that This absolute insulation was gradually Scheuer continues: “While the latter doc- eroded. I, Statute of Westminster trine —that ‘King can do no wrong’ (1275) Edw. c. 24 (repealed); Statute of —did not protect all officers from II, Westminster (1285) Edw. c. 13 personal liability, the common law soon rec- (repealed). The development of liability, ognized the necessity permitting of especially the times during of the Tudors to perform their official functions free from Stuarts, slow; see, g., was e. Public the threat of personal liability.” suits for Act, Officers Protection 7 Jac. c. 5 Attached to that last sentence is the cited (1609) (repealed). With the accession of footnote which described the structure of William Mary, the liability of officers official immunity at common law. Due to saw what Jaffe has termed “a most re- significance its I have set out the entire markable significant extension” in note as follows: Ashby White, 62, 1 Eng.Rep. Bro.P.C. 4 England legislative immunity (H. 1704), reversing L. 6 Mod.

secured after a long struggle, by the Bill Eng.Rep. (Q. 1703). Jaffe, B. Suits Rights of 1689: “That the Freedom Against and Officers: Governments Sov Speech, and or Proceedings Debates ereign Immunity, 77 Harv.L.Rev. Imbler, supra 96 S.Ct. at 989.

3H Thus, estimation, Barr is still my law. The Law of Consti- (1963); Dicey, A. 1959) (footnotes (10th put ed. in doubt. tution Matteo, omitted). generally Barr See possibility The first is that the Seheuer 1335, 3 L.Ed.2d [79 Eng- describing Court was evolution performance Good-faith 1434] law, the American apart from lish common remained, duty has discretionary Contributing possibility to the experience. Jaffe, seems, Suits a defense. See para- placement is the footnote—in and Officers: Against Governments immuni- origins about the official graph Actions, Damage 77 Harv.L.Rev. about ty primarily well —as content— Vilas, Spalding See it is cases statutes. Yet English L.Ed. 780] [16 note, finishing that the stroke of clear seq. (1896). et immunity “remains” good-faith of this footnote The last two sentences law, pertain is meant the reference interest. With particular Justice significantly, English law. Most significant extension Imhler, cited Powell, supra, ex- writing in gives impression one support underly- to “n. 4” in pressly least, immunity of

that since “[t]he executive of- state ing proposition of more traditionally been the Crown has immunity “in ficials had nature,” supra, than limited law.”35 suits at common described, legislators for immunity supra, judges. And then the Court confirms then, is that possibility, The other last impression with the sentence: this the state common Court meant to describe discretionary aof performance “Good-faith of note finishing in its statement law seems, remained, it a defense.” has duty up the evo summing in addition to perhaps sentences, unqualified these the basis of On pos this Supporting law. lution of British would appear, it language, further of Wood v. Strickl analysis is the sibility Seheuer, law according that the common to law inquiry into common where the and36 qualified immunity for evolved a rule of has was what courts have into “state If, as to all torts. more- executive officials . recognized . state generally over, has described common Seheuer hand, v. Ray37 law.” On Pierson officials, then as it to federal applies law the common the search for directed immuni- whether the absolute one wonders view in prevailing for “the all of its force. of Barr retains ty take country,” presumably which below, be, will may explore It as I And, law. account the federal common into instead the state describing was footnote v. con recently, Pachtman38 most Imhler traditional, perhaps some common law or “majority rule” sidered both the law, then which would English, common cases as well as its own view the state leave intact the federal distinguish and law, Yaselli citing federal common must, Barr. These of neces- common law of Goff.39 because, as is obvi- possibilities be real sity, from these initial conclusionto draw One above, cites the footnote itself ous is that does not look cases the Court For various rea- apparent neutrality. law of defendant’s particular common sons, however, not that foot- it is conclusive starting point.40 law is state as the State describing federal common 4 was not note addition, supra. U.S. at 96 S.Ct. 984. 38. 424 See at n. 35. text accompany last cited to law review article 396, aff’d, was footnote Professor Jaffe sentence of F.2d 39. 12 general, discussing (1927) (per curiam). official 72 L.Ed. country. particular to this attention Seheuer, example, did not consider 40. say at 999. 36. U.S. at or even what was. state law Ohio otherwise, immunity might Were it vary state the same class of from state to 37. U.S. at 1213. to find the more settled consulted order law, but even the state majority common Major KNEHANS, Adolph H. by the federal common tempered

view is Jr., Appellant, deserving of law, weight. its own which distills the sources From these “tradition,” it then de- common law ALEXANDER, Secretary L. Clifford carry or not to over cides whether Army. then, drawing upon, Footnote No. 76-1126. e., law, Barr including i. Matteo, describing for ex- Appeals, States Court of And, qualified. as ecutive officials accord- District of Columbia Circuit. Jaffe,

ing to Professor whose articles were sources, cited in as important Scheuer41 Argued Feb. Barr had to considered the “leading Decided Oct. extending case in the field” absolute immu- nity to executives below Cabinet rank.42 Rehearing Denied Nov. While the Barr rule have been states,43 accepted by majority it was

still, noted, leading case assess

distilling the common law for purposes It analysis. have been that intact, entirely

Scheuer meant leave Barr untraditional, minority as an view. Foot- all, note after cannot be with com- read literalness; plete intend, it surely did not suggest example, Spalding v. Vilas44 longer was no law.45

Yet in description Scheuer’s of the com- affording only mon law as a qualified im- munity, at least as to inferior executive officers, I safely cannot assume that reflecting

Court was not some doubt about there, Barr. If the had said or in cases, later that the common law tradition in Scheuer was upon majority based view,

state estimation, then in' my could be with applied no hesitation. But unsettled, present Barr’s I status can concur dubitante. officials, surely inappropriate Scheuer, Spalding quoted outcome for a 45. Elsewhere in Rundle, apparent approval. cause of action. See Fidtler 416 U.S. at 242 n. 7 & 1974). (3rd Moreover, F.2d Cir. n. 94 S.Ct. 1683. Justice White, Imbler, concurring in said that Scheuer 41. 416 U.S. at nn. 4 and 94 S.Ct. 1683. granted only qualified immunity, “this not- that, withstanding respect fact least with Jaffe, Against Suits Governments and Offi high officers, executive Actions, Damage cers: 77 Harv.L.Rev.' damages applied suit have Vilas, Spalding common law. 161 U.S. 483 40 L.Ed. [16 780] Alzua Prosser, Torts, (4th Law at 989 ed. Johnson, 231 U.S. 106 [34 L.Ed. 1971). (1913).” Imbler, supra 424 at 142] at 997. (1896). Spalding 44. 161 U.S. 483 held that a Cabinet official had absolute for torts arising out of his official communications. notes 2. See might “fall outside misrepresentation gent completely.” Act weal, public interest is to that extent public officers be suggest Few damages good-faith made answerable disserved. The virtue of absolute when the result is even judgment, errors in functionaries, well public as its sole Fewer still exceedingly unfortunate. justification, safeguards

Case Details

Case Name: Expeditions Unlimited Aquatic Enterprises, Inc., a Corporation, Norman Scott v. Smithsonian Institution

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Sep 16, 1977

Citation: 566 F.2d 289

Docket Number: 74-1899

Court Abbreviation: D.C. Cir.