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financially the victims of abuse by federal officers. Several sources Ervin contacted, including John Laughlin, Chief of the Torts Section of the Civil Division of the Department of Justice, pointed out that the sovereign immunity bar, which precluded successful civil suits against the federal government for otherwise tortious activity, would limit the Giglottos and the Askews to suits for compensation against individual federal officers.**

Ervin learned, however, that the Justice Department had recently prepared legislation to alter this responsibility by accepting federal liability for tortious acts, in exchange for legal immunity for officers in their individual capacities. The proposed vehicle for the Justice Department-sponsored change was an amendment of the Federal Tort Claims Act.15 At that point Senators Ervin and Percy began to explore their own amendment to the FTCA.

(2) The Existing Legal Framework

The legal idiosyncrasies of "sovereign immunity," the general term for the issue around which proposals and counterproposals developed during the next several months, proved so complex that the parties involved, because of political exigencies, were unable to deal adequately with the manifold problems raised by their proposals. It would be helpful at this juncture, before continuing with a description of the development of the new legislation, to sketch briefly the principal laws, doctrines and cases which littered the field and with which the drafters had to struggle.""

Sovereign immunity was an English doctrine traditionally said to be rooted in the idea that "the king could do no wrong." It precluded suit directly against the crown, although modern scholarship has demonstrated that many devices were quite regularly employed to circumvent

44. Memorandum from Mark Gitenstein and Harvey Stuart, Staff Counsel, Constitutional Rights Subcommittee of the Senate Committee on the Judiciary, to Bob Smith, Chief Counsel, Senate Committee on Government Operations, at 3, copy on file in the University of North Carolina Law Library.

45. 28 U.S.C. §§ 1346(b), 1402, 1504, 2110, 2401-02, 2411-12, 2671-80 (1970). 46. For accounts and analyses of governmental immunity in the United States see generally Borchard, Governmental Responsibility in Tort: VII, 28 COLUM. L. REV. 577, 734 (1928); Borchard, Governmental Responsibility in Tort, 36 YALE L.J. 1, 757, 1039 (1926-27); Borchard, Government Liability in Tort, 34 YALE L.J. 1, 129, 229 (192425); Davis, Tort Liability of Governmental Units, 40 MINN. L. REV. 751 (1956); Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 HARV. L. REV. 1 (1963); James, Tort Liability of Governmental Units and Their Officers, 22 U. CHI. L. REV. 610 (1955).

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[Vol. 54 the injustice and unworkability of such a doctrine strictly construed.1 For various reasons, the American colonies, after fighting to overthrow English monarchy, did not reject sovereign immunity, however inconsistent such a course seemed with republican philosophy. Some have suggested that this survival in seemingly alien political soil had to do with the economic precariousness of the new union, but it is likely that some properly limited variant of the doctrine is a necessary aspect of government.48 Chief Justice John Marshall specifically embraced the idea in Cohens v. Virginia, a case in which the Supreme Court held that the United States was immune from suit unless it had given its consent to the action.50 The susceptibility of the states to suits by United States citizens also was the subject of a celebrated early case, Chisholm v. Georgia,51 in which the Supreme Court found the state of Georgia subject to suit by a citizen of South Carolina.52 Principally in reaction to Chisholm, the eleventh amendment was ratified to limit state liability. 53 In 1855, by passage of the Court of Claims Act, the federal government began to acknowledge that an absolute bar against suit was impractical.54 Later, in 1887, the Tucker Act55 was passed to expand jurisdiction over contractual issues. However, until 1946, most private grievances outside the contractual area were answered-if at all-only by the passage of private bills through Congress.58 In 1946, the federal government broadened its own liability considerably by passage of the Federal Tort Claims Act,57 which permitted recovery against the

47. Jaffe, supra note 46, at 1-19.

48. See notes 167-70 infra.

49. 19 U.S. (6 Wheat.) 264 (1821).

50. Id. at 411-12.

51. 2 U.S. (2 Dall.) 419 (1793).

52. U.S. CONST. amend. XI reads: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." While the amendment speaks only of suits by citizens of another state or of foreign states, the Supreme Court subsequently extended the exclusion to include suits by a state's own citizens in Hans v. Louisiana, 134 U.S. 1 (1890).

53. Act of Feb. 24, 1855, ch. 122, § 1, 10 Stat. 612 (codified at 28 U.S.C. §§ 17174 (1970)). Initially the act established the court only as an advisory body to Congress, which had power of approval over the court's recommendations. By Act of March 3, 1863, ch. 92, § 7, 12 Stat. 766, Congress gave the court the right to render final judgments (now codified at 28 U.S.C. § 2519 (1970)).

54. Act of March 3, 1887, ch. 359, § 1, 24 Stat. 505 (codified at 28 U.S.C. §§ 1346(a), 1491 (1970), as amended, (Supp. II, 1972)).

55. Act of Mar. 3, 1887, ch. 359, 24 Stat. 505 (codified in scattered sections of 28 U.S.C.).

56. See generally Holtzoff, The Handling of Tort Claims Against the Federal Government, 9 LAW & CONTEMP. PROB. 311 (1942); Note, Tort Claims Against the United States, 30 GEO. L.J. 462 (1942).

57. Act of Aug. 2, 1946, ch. 753, tit. IV, 60 Stat. 842. An analytical account of

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government for the negligent acts of its employees. 58 Certain subsequent congressional acts abrogating immunity 'defenses have created other pockets of exceptions to the general rule of federal nonliability. 59

It is important in this brief review to distinguish between the federal government's liability for the acts of its employees and employees' individual liability for the same acts. While federal "entity" liability developed pursuant to the doctrines and statutes sketched above, individual liability was generally determined under state statutory and common law.60 Thus, while the federal treasury could not be tapped for an illegal invasion of a citizen's privacy, the federal officer or employee involved could lose his private fortune if state law permitted. Federal laws were enacted in the post-Civil War period that allowed a federal recovery against state officials who exceeded their authority. The rediscovery since the 1950's of the Civil Rights Act of 1871,61 for example, has provided a meaningful federal remedy for a wide range of opprobrious action by state officials, but the concurrent growth of an individual immunity doctrine has clouded the ultimate effectiveness of that remedy.62

the enactment of the FTCA may be found in 1 L. JAYSON, HANDLING FEDERAL TORT CLAIMS: ADMINISTRATIVE & JUDICIAL REMEDIES § 60 (1974) [hereinafter cited as JAYSON]. For a bibliography on the FTCA see Gantt, Indexed Bibliography of the Federal Tort Claims Act (pt. 2), 24 FED. B.J. 226 (1964); Gerwig & Gantt, Indexed Bibliography to the Federal Tort Claims Act-1965-1969, 29 FED. B.J. 129 (1969-70). 58. Actually, the scope of the FTCA is somewhat broader than negligent tortsit permits suits for the intentional torts of trespass and invasion of privacy. See notes 98-99 and accompanying text infra.

59. For a comprehensive treatment of all compensatory remedies available under statute to litigants against the federal government, see JAYSON, supra note 56, §§ 1-21.

60. It is also important at the state law level to distinguish state governmental liability from municipal liability, and the liability of various governmental entities from that of state or local officers and employees. For an example of the bewildering complexity of state governmental tort law, one need look no further than to Illinois, the state in which the Giglottos and Askews resided. Recent Illinois experience with sovereign immunity issues is detailed in Kionka, The King is Dead, Long Live the King: State Sovereign Immunity in Illinois, 59 ILL. B.J. 660 (1971); Comment, Illinois Tort Claims Act: A New Approach to Municipal Tort Immunity in Illinois, 61 Nw. U.L. Rev. 265 (1966); Note, Torts-Local Governmental And Governmental Employees Tort Immunity Act, 49 CHI.-KENT L. REV. 221 (1972).

61. 42 U.S.C. § 1983 (1970). E.g., Monroe v. Pape, 365 U.S. 167 (1961).

62. In Pierson v. Ray, 386 U.S. 547 (1967), the Supreme Court declared that a judge sued under section 1983 had absolute immunity for judicial acts under wellestablished principles. Id. at 553-54. Furthermore, federal defenses of "good faith" and "probable cause" were declared available to law enforcement officials accused of prosecuting defendants illegally. Id. at 555-57. Recently, the Supreme Court has held that a section 1983 damage action against the Governor of Ohio and officers and members of its National Guard was not barred by any sovereign immunity principles lurking in the eleventh amendment, but that those defendants were entitled to immunity defenses that

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The irony of section 1983 was that federal law provided an aggrieved plaintiff a recovery against illegal actions by state officials even as it neglected federal relief for misdeeds of federal officials. A breakthrough in developing a federal remedy against individual federal employees came in 1971, not through legislative action but from the Supreme Court, in the case of Bivens v. Six Unknown Named Agents.63 In that case Mr. Justice Brennan accepted the argument that a cause of action for damages against federal officers could rest on the fourth amendment of the Constitution.64 Although Bivens did not spell out the nature and number of such "constitutional" torts, subsequent lower court cases have extended its logic to other types of constitutional injury.65

(3) Legislative Proposals and Counterproposals

The specter of broad Bivens liability, as well as the activities of Senators Ervin and Percy, seemed clearly to have been a major motive behind the Justice Department's willingness in 1973 to propose new legislation broadening federal governmental liability under the FTCA. The decision was reached that the federal government should absorb the impact of suits that might otherwise financially devastate individual federal law enforcement officers. The Justice Department proposal had four principal features. First, it was to have created new federal cause

of action "where the claims for money damages sounding in tort arise under the Constitution or statutes of the United States, such liability to be determined in accordance with applicable federal law." The Department's reference to torts arising "under the Constitution" was clearly an invitation for the federal courts to expand their "constitutional tort" theory, substituting (or at least supplementing) federal employee liability with federal governmental liability for constitutional torts. By this language, the Justice Department drafters apparently meant to refer to and create a federal statutory claim equivalent to those torts that had

became more generous as their responsibilities increased. Scheuer v. Rhodes, 416 U.S. 232 (1974). See also Wood v. Strickland, 420 U.S. 308 (1975).

63. 403 U.S. 388 (1971).

64. Id. at 389.

65. See Paton v. La Prade, 524 F.2d 862 (3d Cir. 1975) (Bivens extended to damage claims under the first amendment); Farber v. Rizzo, 363 F. Supp. 386, 398 (E.D. Pa. 1973) (first amendment); Johnston v. National Broadcasting Co., 356 F. Supp. 904 (E.D.N.Y. 1973) (sixth amendment).

66. Undated draft of a Department of Justice bill, copy on file in the University of North Carolina Law Library [hereinafter cited as Justice Draft].

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been judicially recognized in Bivens, 67 with the explicit intention that "the case law in federal actions following Bivens will become the applicable law."68 The drafters were following Justice Harlan's conclusion in Bivens that a uniform body of federal law was highly preferable to variegated liability under fifty different state laws.69

However, the Department's proposal to create a federal cause of action "when the claims . . . arise under ... statutes of the United States" was somewhat more ambiguous. A reasonable interpretation would have been that the Department merely meant by "statutes" to refer to the FTCA itself (or to other statutes explicitly permitting suit against the government)70 and that such intent was manifested in the phrase qualifying the "statutes" language, which read: "such liability to be determined in accordance with applicable Federal law.”

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67. Letter from Mike McKevitt of the Department of Justice to Robert B. Smith, General Counsel, Senate Committee on Government Operations, Sep. 27, 1975, at 1, copy on file in the University of North Carolina Law Library [hereinafter cited as McKevitt Letter].

68. Id.

69. Id. at 1-2. See 403 U.S. at 409 (concurring opinion).

70. In a conversation on August 30, 1973 with H. McLean Redwine, Legislative Attorney of the Justice Department, Mark Gitenstein directly raised the issue of the scope of the term "statutes." Neither party seemed to have considered a reading limited to the FTCA or other statutes waiving sovereign immunity. In a next-day recapitulation of the major points of their conversation, Gitenstein wrote: "Would the word 'statute' contained in sections 1 and 2 be interpreted to include Federal regulations? If that were the case, an agent who violated regulations promulgated by a Federal agency would also subject the Federal Government to liability, which would be an excellent added deterrent to irresponsible activity by Federal law enforcement agents." Letter from Mark Gitenstein to H. McLean Redwine, Legislative Attorney, Department of Justice, Aug. 31, 1973, at 2, copy on file in the University of North Carolina Law Library [hereinafter cited as Gitenstein Letter]. The Justice Department eventually responded to the query by stating, "[w]e doubt that the word 'statute' contained in Sections 1 and 2 would (or should) be interpreted to include Federal regulations, and we have serious misgivings as to whether the word 'regulation' should be added to the proposal." McKevitt Letter, supra note 67, at 4.

71. The effect of the qualifying language "in accordance with applicable Federal law" also received attention: "[W]hat is the meaning of the phrase 'such liability to be determined in accordance with applicable Federal law' found in sections 1 and 2 of the proposal? Would that language refer a court to the Bivens case, and to case law under 42 U.S.C. 1983? How does this phrase relate to earlier language in 28 U.S.C. 1346(b) suggesting that liability is to be determined by the law of the place of the tort?" Gitenstein Letter, supra note 70, at 1. In response to this query by Gitenstein the Justice Department stated in a followup letter:

Traditional ordinary types of tort actions will continue to be determined by state law. Actions sounding in tort which arise under the Constitution or statutes of the United States were judicially recognized as valid causes of action in Bivens.

This remedy was fashioned by the Supreme Court to provide relief in situations not provided for by state law. The proposed statutory language was selected for the reason that there is no such state law and the case law in federal actions following Bivens will become the applicable law.

McKevitt Letter, supra note 67, at 1.