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Winston v. United States

February 27, 1962

HENRY WINSTON, PLAINTIFF-APPELLANT,
v.
UNITED STATES OF AMERICA, DEFENDANT-APPELLEE.



Author: Hincks

Before CLARK, HINCKS and KAUFMAN, Circuit Judges.

HINCKS, Circuit Judge.

Appellant Henry Winston, since 1956 a prisoner in the United States Penitentiary at Terre Haute, Indiana, brought this action against the United States under the Tort Claims Act, 28 U.S.C. §§ 1346, 2674 (1958). Winston's complaint alleged that in April of 1959 he had contracted a brain tumor. Disturbed by his "dizziness, instability, and difficulty with his vision," his then attorney procured an examination by prison medical officers. Negligently failing to use reasonable care and skill in examination, says Winston, the medical officers made a diagnosis of "borderline hypertension" and prescribed a reduction in weight.

The complaint continues. Further attacks, reaching a frequency of "a number of times daily," severe headaches, inability to walk, and periodic loss of vision plagued Winston and caused him to complain to the prison authorities. No further examinations, however, were made; instead he was given dramamine. In January, 1960, Winston's attorney visited him at Terre Haute and, alarmed by his condition, secured examination by a consulting physician. Next month, an operation in New York City removed a benign tumor of the cerebellum. The delay in treatment has made Winston permanently blind.

On a motion to dismiss, the court below, which necessarily took the foregoing allegations of the complaint as true, dismissed the complaint on the ground that the Tort Claims Act does not permit suits by federal prisoners against the United States. The question is whether that judgment was right.

Prisoners have traditionally been able to sue their jailers as individuals for injuries caused by the jailer's negligence. See, e.g., Hill v. Gentry, 280 F.2d 88 (8th Cir. 1958), cert. denied, 364 U.S. 875, 81 S. Ct. 119, 5 L. Ed. 2d 96 (1960).*fn1 The doctrine of sovereign immunity, however, has insulated the state from liability for the acts of its agents, see Prosser, Torts, 770-80 (1955).*fn2

With the passage of the Tort Claims Act, which by its terms does not except prisoners, it would seem that the sole barrier to federal prisoners' suits against the United States had been removed. Nevertheless, argues the government, the result of allowing such suits would be deleterious to prison discipline and to uniform operation of the prison system. The evil consequences are so plain, it says, that Congress could not possibly have meant to allow them; therefore we should read the statute as containing an implied exception of prisoners' suits.

The argument is circular. The question for decision is what Congress thought and intended. Whether discipline would be impaired is a legislative judgment. To assert that because discipline would suffer Congress could not have intended the result is only to say that Congress thought one thing rather than another - which is the very question we seek to answer.

And, circularity apart, the assertions of dire consequences seem to us overdrawn. The results on discipline could hardly be worse when the government is sued than when individual prison employees or officials are defendants. And since the latter class of suits, though possible for some time, seem to have brought neither a multiplicity of suits nor an impairment of prison discipline, the assertion that suits directly against the government would have these results is at best dubious. The government argues that since under the Tort Claims Act the local law is made applicable there will be an undesirable loss of unformity in the decisions. But this argument adds little of weight. The resulting loss of uniformity is slight compared with that attendant on the Erie doctrine: it is justified by the same considerations. Bankruptcy is also a "uniform system of federal law," but it depends in many cases on state priority and contract law. Moreover, as plaintiff points out, the Tort Claims Act expressly envisions imperfect uniformity in its application by referring the determination of liability to "the law of the place where the act or omission * * * occurred." Considerations of "uniformity" did not disturb the Supreme Court when it held that the United States was liable for the acts of its Forest Service in Rayonier, Inc. v. United States, 352 U.S. 315, 77 S. Ct. 374, 1 L. Ed. 2d 354 (1957).

But, says the government, Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950), precludes recovery here. Feres denied tort recovery to members of the Armed Forces for injuries incurred in service. The government takes this case not only to establish that implied exceptions may be read into the Act, but to command such an exception here.

The analogy is not close enough to be persuasive. The first premise of Feres was that the Tort Claims Act, while terminating government immunity, created no new liabilities, and that no American law had "ever * * * permitted a soldier to recover for negligence, against either his superior officers or the Government he is serving," 340 U.S. at 141, 71 S. Ct. at 157 (emphasis added). Suits by prisoners against jailers and local governments, however, had been authorized prior to the passage of the Tort Claims Act. Further, the pertinence of Feres is at best questionable in view of Rayonier, where it was said (352 U.S. at 319, 77 S. Ct. at 377):

"It may be that it is 'novel and unprecedented' to hold the United States accountable for the negligence of its firefighters, but the very purpose of the Tort Claims Act was to waive the Government's traditional all-encompassing immunity from tort actions and to establish novel and unprecedented governmental liability."

This language, moreover, arose out of a case stronger for the government than the instant case: municipalities have traditionally not been held liable for acts of their firefighters, but have often been so held for acts of their jailers. Thus analogy to Feres' first premise does not help the government here.

The second premise of Feres was that uniformity in the "distinctively federal" relationship between soldiers and the government was an overriding need. If that is so, it is on considerations of military efficiency. But such considerations are irrelevant to the government-prisoner relationship.

The court's final reason, in Feres, for believing that soldiers were excepted from the Tort Claims Act was that Congress had provided a system of compensation, "simple, certain, and uniform," 340 U.S. at 144, 71 S. Ct. at 158, for injuries or death of members of the Armed Forces. The court spoke of this system, and its generous character, at some length. 340 U.S. at 145-146, 71 S. Ct. 153. And some courts - notably the Eighth Circuit in Lack v. United States, 262 F.2d 167 (1956) - have felt that the existence of a compensation system for prisoners injured in work activity similarly imports an intent to exclude them from the benefits of the Tort Claims Act.

But the prisoners' compensation system, 18 U.S.C. § 4126 (1958), as amended, P.L. 87-317, 75 Stat. 681 (1961), extends only to prisoners actually engaged in work in prison industry and maintenance. Many prisoners are not so engaged at any time, see Note, 63 Yale L.J. 418, 424 & n. 48. And those so employed actually work at such tasks for only a portion of the day. Like many workmen's compensation systems, § 4126 affords redress notwithstanding contributory negligence and even in the absence of negligence on the part of the government. Relief is entirely at the discretion of the Attorney General, and is given in any event only for injuries suffered on the job, see 63 Yale L.J. at 424. In comparison with the military compensation program, 38 U.S.C. § 700 (1958), [now § 101(13)], which affords relief for virtually all service-incurred injuries, see 340 U.S. at 145, 71 S. Ct. 153, the prison work-compensation plan is vastly less comprehensive and is in no real sense a substitute for tort liability.*fn3

If reliance on Feres is thus precluded, little remains to support an exception to the Act which Congress wholly failed to articulate. It is true that the Act equates government liability to that which would attach to a private person. And the government argues that no private person could be liable since none is authorized to hold another in servitude, But, as was said in Rayonier:

"* * * the test established by the Tort Claims Act for determining the United States' liability is whether a private person would be responsible for similar negligence under the laws of the State where the acts occurred. We expressly decided in Indian Towing that the United States' liability is not restricted to the liability of a municipal corporation or other public body and that an injured party cannot be deprived of his rights under the Act by resort to an alleged distinction, imported from the law of municipal corporations, between the Government's negligence when it acts in a 'proprietary, capacity and its negligence when it acts in a 'uniquely governmental' capacity," 352 U.S. at 319, 77 S. Ct. at 376. (Emphasis added.)

And see Indian Towing Co. v. United States, 350 U.S. 61, 76 S. Ct. 122, 100 L. Ed. 48 (1955). Moreover, a "private person" - i.e., the jailer himself - could be held liable for his negligence here, see Hill v. Gentry, supra. Thus the government cannot claim immunity on either facet of its argument that prisons are a "uniquely governmental" activity.

The government also claims that two later special Acts of Congress, providing compensation for individuals injured in prison, ratified a construction of the Act denying to prisoners inclusion in the Tort Claims Act. One answer to this argument is that later cognate legislation is not admissible on the intent of an earlier Congress, Rainwater v. United States, 356 U.S. 590, 593, 78 S. Ct. 946, 2 L. Ed. 2d 996 (1958). And in Jones v. Liberty Glass Co., 332 U.S. 524, 68 S. Ct. 229, 92 L. Ed. 142 (1947), when Congress had re-enacted unchanged a bill which since 1939 had been interpreted by lower federal courts in what the Supreme Court felt was a mistaken manner, the court said: "We do not expect Congress to make an affirmative move every time a lower court indulges in an erroneous interpretation." 332 U.S. at 531, 68 S. Ct. at 234. A second, more cogent, answer is that the bills to which the government adverts were private bills, traditionally regarded as the preserve of individual Congressmen, which are passed out of courtesy to the sponsoring Congressman without the deliberation attending the passage of a Public Law. And nothing in the legislative history of these two bills indicates approval of the construction then placed on the Act by the courts.

We are not unmindful of decisions elsewhere at variance with ours. See Jones v. United States, 249 F.2d 864 (7 Cir. 1957); Lack v. United States, supra; Berman v. United States, 170 F.Supp. 107 (E.D.N.Y.1959); Van Zuch v. United States, 118 F.Supp. 468 (E.D.N.Y.1954); Shew v. United States, 116 F.Supp. 1 (M.D.N.C.1953); and Sigmon v. United States, 110 F.Supp. 906 (W.D.Va.1953). However, our evaluation of the factors pertinent to the problem has convinced us that our decision is required not only by the intrinsic worth of the arguments which have been advanced but also by the rationale of Rayonier, Inc. v. United States, supra.

Reversed.

KAUFMAN, Circuit Judge (dissenting).

Although the majority is "not unmindful of decisions elsewhere at variance" with its own, apparently it ascribes little significance to the fact that without exception every court which has considered this issue has held that the government is not liable for the negligence of its prison officials under the Federal Tort Claims Act. See James v. U.S., 280 F.2d 428 (8th Cir.), cert. denied, 364 U.S. 845, 81 S. Ct. 88, 5 L. Ed. 2d 69 (1960) following Lack v. U.S., 262 F.2d 167 (8th Cir. 1958); Jones v. U.S., 249 F.2d 864 (7th Cir. 1957); Muniz v. U.S., 60 Civ. 1624, S.D.N.Y., Nov. 4, 1960, rev'd 305 F.2d 285 (2nd Cir. 1962) (this day); Berman v. U.S., 170 F.Supp. 107 (E.D.N.Y.1959); Golub v. U.S., Civ. No. 148-117, S.D.N.Y. Oct. 5, 1959; Collins v. U.S., No. T-1509, D.Kan., Jan. 29, 1958; Trostle v. U.S., No. 1493, W.D.Mo., Feb. 20, 1958; Van Zuch v. U.S., 118 F.Supp. 468 (E.D.N.Y.1954); Shew v. U.S., 116 F.Supp. 1 (M.D.N.C.1953); Sigmon v. U.S., 110 F.Supp. 906 (W.D.Va.1953); Ellison v. U.S., No. 1003, W.D.N.C., July 26, 1951.*fn1 However, what disturbs me is that not only does the majority opinion "interpret" the words of the Act in a manner which has been rejected by Circuit and District Courts repeatedly, but that it does this without the support of a shred of relevant legislative history. As a result, the Court has filled the vacuum created by Congressional silence with its own notions of public policy, but not a policy legitimately attributable to Congress. Not since Shadrach, Meshach, and Abednego has goodness triumphed with such ease. But I fear that the price of this triumph is too great, for with a sweep of the hand we disregard the traditional tools of adjudication.

Statutory construction of the nature indulged in by the Court in this case is hazardous business. The principal danger, realized in this case, is that courts will tread where Congress has not. Speaking of this very problem Justice Frankfurter perceptively notes:*fn2

"In the realms where judges directly formulate law because the chosen lawmakers have not acted, judges have the duty of adaptation and adjustment of old principles to new conditions. But where policy is expressed by the primary lawmaking agency in a democracy, that is by the legislature, judges must respect such expressions by adding to or subtracting from the explicit terms which the lawmakers used no more than is called for by the shorthand nature of language."

Justice Frankfurter recognizes that "there are not wanting those who deem naive the notion that judges are expected to refrain from legislating in construing statutes," cf. Clark, Federal Procedural Reform and States' Rights; to a More Perfect Union, 40 Tex.L.Rev. 211, 223-229 (1961), and he is not unaware that "judges may differ as to the point at which the line [between adjudication and legislation] should be drawn."*fn3 Nevertheless, this renowned jurist of undoubted experience in these matters warns that "the only sure safeguard against crossing the line * * * is an alert recognition of the necessity not to cross it and instinctive, as well as trained, reluctance to do so."*fn4

In the instant case the facts alleged in the complaint evoke great sympathy. But in the Court's eagerness to afford relief I believe it has too easily overcome its usual considered reluctance to abandon notions of judicial restraint. I understand its position; I appreciate its generosity; and I agree that there are occasions in which, as Justice Holmes recognized, "judges do and must legislate * * * interstitially."*fn5 But this decision does not reflect the "molar to molecular" motion which Holmes envisioned; and I cannot join the Court in making its "judicial leap."

"The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness * * * He is not to yield to spasmodic sentiment, to vague and unregulated benevolence * * *" Cardozo, The Nature of the Judicial Process, p. 144 (1921).

It is proverbial that hard cases make bad law. Perhaps it is but another way of stating the same idea to suggest that hard cases also induce courts to "make" law where it is plain under the circumstances that such is not their constitutional function.

It is particularly unfortunate that in the present case the unwarranted judicial legislation has been accomplished, as if by sleight of hand, through the majority's willingness to assume the very question presented for decision. Its opinion, which treats the question of government liability as if it were being considered for the first time by a federal court, assumes that the absence of any explicit provision excluding prisoner claims from the coverage of the Federal Tort Claims Act necessarily indicates a Congressional intent to include them. But, insofar as the scope of the waiver of immunity contemplated by the Act is concerned, the doctrine of expressio unius has been expressly rejected by the Supreme Court. Feres v. U.S., 340 U.S. 135, 138-139, 71 S. Ct. 153, 95 L. Ed. 152 (1950). Canons of construction cannot save us from "the anguish of judgment."*fn6 It is not enough that the statute "by its terms does not except prisoners"., our inquiry must be directed to the question whether Congress "intended" to include them. Or, stated more accurately under the circumstances of this case, in John Chipman Gray's often quoted words, it is up to this Court "to guess what it would have intended on a point not present to its mind, if the point had been present."*fn7

Would Congress have intended that a statute which waived sovereign immunity and subjected the government to varied liability to the general public for negligent operation of post office trucks, army airplanes, etc. also superimposed upon the closely regulated government-prisoner relationship*fn8 a liability to prisoners for negligent operation of our penal system? A majority of this panel of the Court says that "it would seem" that it does; I respectfully disagree. Instead I am constrained to agree with the Court of Appeals for the Seventh Circuit that "it seems unlikely that it ever occurred to any of the members of Congress that the claim would be made that the remedies under that Act would be available to an inmate of a federal correctional institution." Jones v. U.S., supra, 249 F.2d at pp. 865-866. This is not to say that Congress, if confronted with the particular issue of government liability for injuries sustained by prisoners through negligence of its agents might not devise a scheme of compensation.*fn9 However, I maintain that it is not for the Court to speculate whether such a remedy will be provided in the wisdom of that august body. Rather, it is whether Congress meant that the Federal Tort Claims Act should accomplish that purpose.

A number of arguments have been advanced by the government, and accepted by other courts in considered opinions, which suggest that this statute of general and undefined application was not "intended" to apply in the prisoner situation. The first, and most significant, relates to problems inherent in judicial review of action taken by prison authorities to enforce prison discipline. The case of Muniz v. U.S., supra, decided this day, is an excellent illustration of this point. Muniz claimed that he was beaten by other inmates during a prison riot and that he sustained permanent injuries of a grave nature. He contended that the prison authorities were negligent both in the general manner in which they ran the prison, and in the steps taken to control the riot. The guards, it was alleged, had locked the rioting prisoners in their dormitory; and this prevented Muniz from seeking assistance from the authorities or escaping from his tormentors.*fn10 In holding that Muniz may sue under the Act, the trial judge will have to examine almost every facet of prison administration. In addition, I should suppose that he will be required to substitute his conception of "reasonable behavior" for that of the persons charged by statute with the responsibility of running the prisons. In Feres v. U.S., supra, the Supreme Court thought that analogous problems relating to review of military decisions and soldier discipline suggested that the Federal Tort Claims Act could not reasonably be construed to permit soldiers' claims against the government. See U.S. v. Brown, 348 U.S. 110, 112, 75 S. Ct. 141, 99 L. Ed. 139 (1954); Jefferson v. U.S., 178 F.2d 518, 520 (4th Cir. 1959), aff'd sub nom., Feres v. U.S., supra; see also Healy v. U.S., 192 F.Supp. 325, 326-329 (S.D.N.Y.), aff'd, 295 F.2d 958 (2nd Cir. 1961). Whether the dire consequences which the government claims will result from imposition of liability are overdrawn or not, they are certainly not wholly fanciful; and they suggest that there is reasonable cause for investigation of facts, and evaluation of professional expertise on the subject before liability is assumed by the government. Congress has ample facilities for such investigation; we do not. And we do not know what Pandora's box we are opening by permitting government liability under these circumstances for the first time.

The majority argues that it is up to Congress to decide if imposition of tort liability will adversely affect prison discipline. I agree. But I would think that Congress, faced with these problems would take pains to discover whether the adverse circumstances prophesied by the government will result; and that only after weighing all of the information available to it would it decide whether it is more desirable to permit prisoner suits against the government or whether this is an area where in the public interest it is better to continue to retain the cloak of sovereign immunity.

The government has urged upon us other considerations which would suggest that Congress did not "intend" that the Act should extend to the prisoner situation. It directs our attention to the source of the liability contemplated by the Federal Tort Claims Act itself. Under that Act the law of the place where the injury is sustained determines the existence and measure of the government's liability. Therefore, under its provisions, the right of a prisoner to recover damages for his injury will depend upon the law of the place of his confinement. The Court dismisses an objection based on this result as being insubstantial, since the lack of uniformity in the treatment of the public and in the nature of the federal obligation was clearly intended by the framers of the Act. But this legislative design is of no significance unless we assume that such lack of uniformity is of approximately equal desirability in all instances in which the government may be held liable for the acts of its agents, an assumption which is demonstrably false.

It is some justification for dissimilar treatment of injured persons that they should be permitted to recover damages from the government only to the same extent as they might recover from any other tortfeasor in the state where the tort victim chose to be present. This is a large country; for purposes of tort law it is divided, in effect, into fifty jurisdictions. If a person chooses to live, work, or travel in Montana, he cannot claim that he is being unjustly treated because under Montana law, he cannot recover for injuries sustained there - although he might have been able to recover under the laws of New York or California, if he had been injured in those places. He cannot be heard to complain unless he is willing to challenge the nature of our entire federal system. Congress thought it reasonable to subject the federal government to liability within that multi-jurisdictional framework rather than to create a federal tort law which might afford remedial relief to either a greater or lesser degree than would otherwise be available to the injured person. The "justice" of this approach, from the view of the injured person, was thought to outweigh the need for uniform rules of federal liability.

It is quite another thing, however, to say that Congress "intended" to make an injured prisoner's right to recover damages depend on the wholly fortuitous circumstance of the location of his prison, chosen not by him but by the Bureau of Prisons. For example, a New York dope addict will be confined most likely in Lexington, Kentucky; or a dangerous criminal, convicted in Maine, may be imprisoned off the coast of California. There are 31 federal institutions in 24 states. Assignment of a prisoner to any one of them depends upon a multitude of factors, of which geographical proximity to his home is but one. It seems to me that it would be unfair to make a lottery out of the prisoner's right to recovery. Why should his recovery be dependent upon the chance that the Director of the Bureau of Prisons will choose the "right" state with the "right" law for the inmate's incarceration? Is the Director now to make his assignments by a roulette wheel, with the "lucky" prisoner being assigned to the "right" prison in the "right" state?

It quite escapes me how the force of this argument is weakened by the fact that the Act has been held to permit prosecution of a claim under Mississippi law for negligent operation of a local lighthouse which caused a ship to run aground in that state's waters, Indian Towing Co., Inc. v. U.S., 350 U.S. 61, 76 S. Ct. 122, 100 L. Ed. 48 (1955); or that negligent acts of the Forest Service in Washington create liability under Washington law for injury to property in that state. Rayonier, Inc. v. U.S., 352 U.S. 315, 77 S. Ct. 374, 1 L. Ed. 2d 354 (1957). In those instances the only question is whether local injuries ought to be compensated under local law or whether the principle of uniformity of federal obligations requires otherwise. As I have said, more closely akin to the facts in this case are those found in Feres v. U.S., supra. There, the Supreme Court believed it made "no sense" to predicate liability for soldiers' injuries "upon geographic considerations over which they have no control and to laws which fluctuate in existence and value," 340 U.S. p. 143, 71 S. Ct. p. 158. Once more the analogy is approximate because of different facts. But it is plainly relevant, and other courts*fn11 have considered it controlling, "for like reason doth make like law." Coke, First Institute, 10. Not only is Feres similar by virtue of the fact that neither the soldier nor the prisoner has any choice concerning the place in which he must reside, but because in each of these instances the relationship of the parties is of a peculiarly federal nature. Lack v. U.S., supra, 262 F.2d at p. 169.

Finally, the government argues quite forcefully that even Congress has indicated that it did not "intend" to allow prisoner claims against the government under the Federal Tort Claims Act.*fn12 Proceeding on the reasonable assumption that the significance of an enactment may be understood by examining its antecedents, its later history, and its relation to other enactments,*fn13 we observe that years before the passage of the Tort Claims Act Congress had provided a limited compensation scheme for injuries sustained by prisoners while engaged in activities sponsored by the Federal Prison Industries Board. See 18 U.S.C. § 4126. And years after that Act was adopted, in 1961 to be precise, when the Attorney General proposed new legislation intended to provide "equal treatment to all prisoners who may be injured in the course of employment while confined,"*fn14 the House Committee on the Judiciary noted that:

"Presently there is no way under the general law to compensate prisoners injured while so engaged. Their only recourse has been to appeal to Congress, and this Committee has reported numbers of private relief bills for such prisoners."*fn15

That proposed legislation became Public Law 87-317, 75 Stat. 681 on September 26, 1961. It seems to me that it is especially significant that although Congress was aware of the fact that prisoners could not recover damages for injuries "under the general law," and saw fit to provide an extension of compensation-type relief to certain additional prisoners, it did not undertake to provide them with a comprehensive remedy under the "general law," or to provide any remedy at all for other prisoners, such as Henry Winston, who are injured as a result of non-work activities. Is this not abundant indication that Congress is undertaking a gradual and selective program in dealing with the peculiar problem of compensation for injuries suffered by prisoners? Does this legislation not suggest that Congress prefers the use of administrative rather than judicial machinery for this purpose? Is it reasonable to suppose that Congress would be cautiously extending this compensation-type remedy, limited in scope, and dependent wholly upon the discretion of the Attorney General,*fn16 if it had already made available to all prisoners comprehensive relief under the Tort Claims Act? I am driven to a negative answer. In the clear absence of evidence of Congressional "intention" concerning the coverage of the Tort Claims Act, it is apparent that this recent enactment by Congress casts doubt upon the Court's interpretation of the Act. The majority opinion dismisses this argument by attempting to use another canon of construction, to wit, action taken by Congress several months ago "is not admissible on the intent of an earlier Congress." But, Justice Frankfurter gives us the answer to this: "to illumine these dark places in legislative composition all the sources of light must be drawn upon."*fn17

The majority dismisses as of little significance the fact that Congress has repeatedly considered and passed private legislation to compensate prisoners for injuries which result from negligent acts of prison officials. These private bills reflect complete awareness by Congress of the unanimous judicial opinion until today, that the Federal Tort Claims Act afforded no alternative relief.*fn18 It may be true that private bills such as these are regarded as the "traditional preserve of individual Congressmen." But this must be viewed in the light of our knowledge that "Congress has adopted a policy of not passing private bills where relief is available under the Tort Claims Act." Lack v. U.S. supra, 262 F.2d at p. 171.

I submit that before the Court takes such a bold step in this delicate area, concerning as it does the entire field of treatment of transgressors by the government and the methods to be employed in protecting society, the Court ought to be reasonably certain that its decision in fact reflects the policy of Congress. In the light of the past history of litigation in this area and subsequent Congressional action, I do not think the decision of the Court is founded upon Congressional policy or judicial precedent. The time may have come when it is deemed politically, socially, and economically wise to permit prisoners to entertain suits against the government. And such considerations may outweigh the possibility of damage to discipline in our penal system or other problems of administration. But that is for Congress to decide. This it has not done. We must be careful to avoid giving the impression that when judges think Congress has been too slow in legislating, they will assume the duties of "knights-errant," and will find the means (under the guise of "interpretation") to show their impatience. In an instance where legislative "intent" and judicial precedent is so clearly the other way, this is dangerous dogma. I would follow the course taken by the Supreme Court in Feres v. U.S., supra, which in denying relief to servicemen under the statute for reasons similar to those espoused in this dissenting opinion said:

"There are few guiding materials for our task of statutory construction. No committee reports or floor debates disclose what effect the statute was designed to have on the problem before us, or that it even was in mind. Under these circumstances, no conclusion can be above challenge, but if we misinterpret the Act, at least Congress possesses a ready remedy." 340 U.S. 135, 138, 71 S. Ct. 153, 155.

How much more forceful is this admonition when we observe the long line of cases interpreting the Act as affording no relief to prisoners asserting claims such as this one,*fn19 and that there has been no action by Congress over the years to "remedy" any "misinterpretation."

Rehearing En Banc

Before LUMBARD, Chief Judge, and CLARK, WATERMAN, MOORE, FRIENDLY, SMITH, KAUFMAN, HAYS and MARSHALL, Circuit Judges.

HAYS, Circuit Judge, with whom Judges CLARK, WATERMAN, SMITH and MARSHALL concur.

The question presented by this case is whether a prisoner in a federal penitentiary may sue the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2674-2680 (1958), for injuries incurred as the result of the negligence of prison officials. The case was originally heard by a panel consisting of Judges CLARK, HINCKS and KAUFMAN and the question was resolved, Judge KAUFMAN dissenting, in favor of the right of the prisoner to sue. The issue being important, and the decision of the panel in conflict with the decisions of two other Courts of Appeals*fn1a and several federal district courts,*fn2a rehearing en banc was ordered by a majority of the circuit judges of the Circuit who are in active service.*fn3a (See 28 U.S.C. § 46(c) (1958).) We have reached the same conclusion as did the majority of the panel. The order of the district court dismissing the complaint is reversed.

We adopt as our own the opinion of Judge HINCKS, appearing at 305 F.2d 254 (1962), and refer to it for a statement of the facts. We think it desirable, by way of response to certain arguments raised in the course of our reconsideration of this matter, to analyze briefly several of the considerations ...


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