United States v. Muniz

PETITIONER:United States
RESPONDENT:Muniz
LOCATION:Clauson’s Inn

DOCKET NO.: 464
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 374 US 150 (1963)
ARGUED: Apr 22, 1963 / Apr 23, 1963
DECIDED: Jun 17, 1963

Facts of the case

Question

  • Oral Argument – April 23, 1963
  • Audio Transcription for Oral Argument – April 23, 1963 in United States v. Muniz

    Audio Transcription for Oral Argument – April 22, 1963 in United States v. Muniz

    Earl Warren:

    Number 464, United States petitioner versus Carlos Muniz and Henry Winston.

    Mr. Doolittle.

    J. William Doolittle, Jr.:

    Mr. Chief Justice, may it please the Court.

    These two cases present a single question but an important one, whether damage claims by federal prisoners for personal injuries sustained as an incident to their confinement and allegedly caused by the negligence of federal prison officials are cognizable under the Federal Tort Claims Act.

    The facts are simple and the cases arose on grants of motions to dismiss.

    Respondent Winston filed a complaint, alleging that while he was an inmate in the United States Penitentiary at Terre Haute, Indiana, he suffered a brain tumor.

    That prison medical officers failed to use reasonable skill and care in examining him negligently arrived at a mistaken diagnosis of his condition and negligently failed to give him needed medical treatment, and that as a result he became permanently blind.

    Mr. Winston seeks damages in the amount of $1 million.

    Respondent Muniz complaint alleged that while he was an inmate in the Federal Correctional Institution at Danbury, Connecticut, he was chased by a dozen fellow prisoners into a dormitory into which he was — they were all thereafter locked by the guard.

    That he was beaten unconscious by these fellow inmates sustaining a skull fracture which led to his partial blindness, and that United States was negligent in failing to have available sufficient guards to prevent the incident and in allowing mentally and physically abnormal prisoners to mingle with other prisoners without adequate safeguards and supervision, and respondent Muniz claims damages of $250,000.

    Arthur J. Goldberg:

    [Inaudible]

    J. William Doolittle, Jr.:

    I would say that the inference to be drawn from the complaint is that the fellow prisoners somehow had it in for Muniz or as Mr. Muniz alleges they were — some of them were mentally and physically abnormal, but they — for some reason or other they wanted to get him and that they chased him.

    I might mention that the Danbury Institution is not a maximum security institution, it’s one in which there would be considerably more freedom of action on the part of the prisoners.

    Both complaints were dismissed on the ground that as the Federal Court had consistently held, the Federal Tort Claims Act does not apply to prisoner claims.

    The Second Circuit reversed both judgments, first by a divided panel and then by a five to four vote of the entire bench and this Court brought the case here on the government’s petition for a writ of certiorari.

    The question is of course one of statutory interpretation.

    We must come as close as we can to divining the intent of Congress.

    The face of the Tort Claims Act discloses no clear purpose on the part of Congress either to include or to exclude prisoner claims, nor does the legislative history provide very much more enlightenment.

    Both of the opinions of the courts below, I should say all four opinions of the courts below, and the government and the respondent have pointed to various circumstances in the history of the Act contending that there was one purpose or another on the part of Congress.

    I think it’s fair to say however that on balancing all of these competing assertions one is left with the rather clear impression that in passing the Federal Tort Claims Act Congress simply did not focus one way or the other on whether or not prisoner claims should be covered by the Act.

    There is one element in the statutory context of the Tort Claims Act as opposed to its specific history that we do think argues quite persuasively against the coverage of prisoner claims by the Act.

    Prior to the passage of the Federal Tort Claims Act, Congress had established an administrative compensation scheme for injured prisoners, which it did not repeal when it passed the Federal Tort Claims Act.

    Originally this program covered just accidents taking place in the course of prison industries, but recently in 1961 it was amended so that it now embraces all work related injuries, including institutional maintenance work at the prison.

    Now we believe this remedy is the exclusive one for prisoners, and our belief is strengthened by the fact that Congress provided both in the original Act and in the Act as amended.

    That compensation under this program should be no greater than that allowed by the Federal Employees Compensation Act.

    It would be anomalous we think under the circumstances to allow prisoners to bring suits under the Tort Claims Act, which is a remedy that is unavailable to government employees under the Federal Employees Compensation Act because of the exclusivity of the program there established.

    In short from the standpoint of a workable consistent statutory scheme of remedies against the government, we think the administrative compensation program for prisoners like those for government employees and soldiers should be considered exclusive and that no Tort Claims Act remedy should be available.

    I might also point out of course that the remedy of private bills is always available for cases of extreme inequity and in point of fact Congress has quite regularly passed private bills for the benefits of prisoners injured in prison.

    [Inaudible]

    J. William Doolittle, Jr.:

    In our brief or the statute?

    J. William Doolittle, Jr.:

    Well, the statute is 18 U.S.C. 4126, Your Honor.

    [Inaudible]

    J. William Doolittle, Jr.:

    In its entirety it is not, I’m afraid Your Honor the — a portion of it is quoted at page 14.

    [Inaudible]

    J. William Doolittle, Jr.:

    In 1961 is when it was brought to its present form of covering substantially all work related injury.

    [Inaudible]

    J. William Doolittle, Jr.:

    Neither before amendment, nor after would it cover these claims, no question about that, Your Honor.

    What we consider to be the most compelling reason for denying prisoners the privilege of suing under the Tort Claims Act is the serious consequences that would flow from the allowance of such suits.

    This Court in Feres against United States in 340 US, held that soldiers could not sue the government under the Federal Tort Claims Act for injuries incident to their military service.

    The Court’s reason for so ruling was that the allowance of such suits would have such an adverse impact on the unique federal relationship between soldiers and their superiors and would so undermine military discipline, that Congress could not be assumed to have intended them to be covered by the Act.

    That same approach should we believe govern this case.

    For to allow federal prisoners to sue the government would lead to such extreme results we do not see how Congress could knowingly have entertained such a design.

    Now I should like to make one matter clear at the outset.

    In resisting suits by federal prisoners, we are not reflecting any concern that such suits would cause an undue drain on the Federal Treasury.

    We believe that the incidents of genuinely tortuous actionable conduct on the part of federal prison officials is so small, that there would be no more than a handful of successful suits, nor does our resistance reflect a feeling that we have anything to hide.

    The federal prison system is one of the finest, if not the finest penal system in the world, and it proudly serves as a model not only for the States, but for other countries as well.

    There is no aspect of prison administration that the Bureau of Prisons would wish to conceal from public view, except of course to the extent necessarily dictated by considerations of prison security.

    And I might add that the bureau’s excellent program for the review of prisoner grievances quickly disposes of any notion that legitimate complaints on the part of prisoners will go unheard.

    What we are concerned about in resisting these suits is the same kind of concern that motivated this Court’s decision in the Feres case that merely to permit prisoners to file suit to obtain discovery and to secure trial on the merits irrespective of the outcome of the trial will seriously undermine prison discipline and have a profoundly adverse impact on prison administration.

    Arthur J. Goldberg:

    [Inaudible]

    J. William Doolittle, Jr.:

    There is no question Mr. Justice Goldberg but that the impact on prison administration and discipline would be substantially reduced by such a qualification.

    The problem would still be there to some extent, but certainly it would reduce the problem considerably.

    Potter Stewart:

    Mr. Doolittle, Judge Hanks in his opinion for the Court of Appeals said something, which is true I hadn’t realized and that is that the right of action of a prisoner against the warden or the jailer is well established as a common law, is that correct?

    Do you agree with that?

    J. William Doolittle, Jr.:

    The right of the prisoner to sue a Jailer or a Marshall or a Sheriff is relatively well established.

    There are a number of cases, a number of state cases, which hold that a prisoner who is negligibly mistreated in jail may bring a suit against his Jailer.

    Potter Stewart:

    In tort.

    J. William Doolittle, Jr.:

    In tort, that is right.

    Now, his right to do so with respect to a Federal Penal Official is not established.

    As a matter of fact, no case has so held and quite recently, quite the contrary was held in Golub against Krimsky which we cite in our brief, in which it was decided that no suit could be brought against a Federal Penal Official.

    Potter Stewart:

    To the extent there is, there might be such a common law right this case is different than from the — let’s call [Inaudible] the army case.

    There has been a right of a soldier to bring a tort action against his commanding officer, has there?

    J. William Doolittle, Jr.:

    Well, I would pose this qualification to that.

    The suits that have been recognized thus far have been against as I say Jailers, Marshals, Sheriffs, individuals who have the prisoner in custody only for a relatively short period of time and also I might note that they are usually bonded officials, which gives some indication as to the intention that they would be subject to such suits.

    As far as officials analogous to those that would be involved in the present, in the Federal Prison System, no such right is available.

    For example, we know of no cases even state cases where administrators of a General Integrated Prison System have been held liable.

    They always involved the local Jailers, the Sheriffs, the Marshals and whatnot.

    We think that this makes a very real difference in —

    [Inaudible]

    J. William Doolittle, Jr.:

    That’s right, that’s right.

    [Inaudible]

    J. William Doolittle, Jr.:

    Well —

    [Inaudible]

    J. William Doolittle, Jr.:

    Oh!

    No, no Your Honor, the –-

    [Inaudible]

    J. William Doolittle, Jr.:

    In New York there is a General Tort Claims Act, that’s – yes, that’s right yeah, this is true in other states as well.

    [Inaudible]

    J. William Doolittle, Jr.:

    Well I’m talking about the common law right of recovery against Jailers as such.

    Now, you are quite right that the New York Federal Tort Claims, I mean the New York Tort Claim Statute applies certainly across the Board subject only to the qualification that Mr. Justice Goldberg has indicated that a suit can be brought only after the prisoner has been released.

    [Inaudible]

    J. William Doolittle, Jr.:

    Against Federal Prison Officials?

    [Inaudible]

    J. William Doolittle, Jr.:

    None that we are aware of, Your Honor, none that we are aware of.

    Now, I want to emphasize this at the outset, and that is that, we do not feel that our fears as to the impact of these suits are idle speculation.

    They reflect that carefully considered and consistent judgment of the Director and other senior officials of the Bureau of Prisons based upon their educated appraisal, the size, the diversity, the complexity of the Federal Prison System and their intimate knowledge of its strengthens and weaknesses, its problems and its potential.

    It’s based upon their familiarity with the makeup of the Federal Prison population and the characteristics of its members, including a proved wet readiness on the part of the many of them to abuse remedial processes to the detriment of the discipline and administration.

    It is based on their long experience with the difficulty of maintaining the sensitive balance between discipline, order and security on the one hand and rehabilitation, and correction on the other.

    Their sincere conviction that to allow Tort Claims Act suits for prison incident injuries would have a severe and damaging effect on the prison system is we think a reasonable one that is entitled to considerable weight.

    Now if I may, I should like to suggest —

    Earl Warren:

    [Inaudible]

    J. William Doolittle, Jr.:

    Well, Your Honor —

    Earl Warren:

    [Inaudible]

    J. William Doolittle, Jr.:

    Well the thrust of our argument is Mr. Chief Justice that because of these problems that would be post by such suits, many of them obvious, Congress cannot have intended, it just could not have intended to impose liability under the circumstances.

    And we rely on the approach spelled out in the Feres case, where precisely the same thing was held with respect to Military claims.

    We think it is equally obvious there too.

    Congress couldn’t have intended Military claims to be covered in the Tort Claims Act.

    We believe this Court was eminently correct in so holding.

    Earl Warren:

    [Inaudible]

    J. William Doolittle, Jr.:

    Well, I emphasize two points Mr. Chief Justice.

    First, as I said before, we are not talking about the burden — the financial burden of such suits.

    But secondly and more importantly, the Indian Towing case and the Rayonier case, which followed it, disposed of the notion that conduct was beyond the scope of the Federal Tort Claims Act, merely because it was the kind of conduct that only Governments engage in, purely Governmental conduct.

    We do not make that claim here.

    We’re not saying that this is outside of the scope of the act, merely because it’s purely governmental.

    We are talking about the impact of prisoner suits on the Federal Prison system, on its day-to-day operations and administration, on the discipline of prisoners.

    And so, in that sense, we are talking in an entirely different realm from the Indian Towing and the Rayonier cases.

    Now if I may, I should like to suggest some of the problems that give raise to our fears.

    The maintenance of a high and pervasive degree of discipline is absolutely essential to the accomplishment of penological objectives; not only prison order and security, but also prisoner rehabilitation as well.

    And yet effective prison discipline is extremely difficult to achieve, far more so than Military discipline.

    Prisoners are typically hostile to the whole penal system and have no sympathy whatever for even its most beneficent objectives.

    While this hostility expresses itself in many ways, it naturally tends to focus upon the prison administrators and the guards right on up to the Warden.

    And it is in the face of this enmity and the tension that it breathes, that the prison administrators must achieve to maintain discipline and they must do so largely on the basis of their day-to-day personal relationships with the inmates, the confidence and the respect that they are able to inspire.

    For experience has shown that truly effective penal discipline cannot be grounded on the mere threat of punishment.

    Nothing we think could be better calculated to breakdown these delicate personal relationships on which disciplined thus so largely depends, than permitting prisoners to file Tort suits against their custodians challenging their actions and their policies, whenever the prisoners are so disposed.

    Inevitably the authority of a prison official who is entangled in litigation with a prisoner is undermined, in relation not only to the litigating prisoner himself, but to his fellow inmates as well.

    And whether or not his claim has a shred of merit, the prisoners would have the satisfaction of knowing that the challenged officers would be subjected to investigation by their superiors.

    They would see the prison officials forced to answer the charges, submit to discovery and defend their actions in Court.

    And perhaps the prisoner himself would even get a chance to question his custodians on the witness stand.

    And of course to the extent that the individual official status is downgraded in the prison community, the litigating prisoners would be enhanced to the further expense of effective discipline.

    Earl Warren:

    [Inaudible]

    J. William Doolittle, Jr.:

    That’s right Your Honor.

    Earl Warren:

    [Inaudible]

    J. William Doolittle, Jr.:

    Well in point of fact Your Honor we don’t know what their experience has been, the only basis we have is the reported cases and they frankly don’t tell us very much.

    Earl Warren:

    [Inaudible]

    J. William Doolittle, Jr.:

    There are not many reported cases.

    Earl Warren:

    [Inaudible]

    J. William Doolittle, Jr.:

    There again, we don’t know much more about their experience except the number of cases and of course, their statute is sufficiently recent, but we don’t have wide experience there as counsel for — as counsel for the respondent Winston points out, the suits there have always been with respect to prisoners who died.

    So we don’t really know what they would hold with respect to bringing suits in prisons.

    Earl Warren:

    [Inaudible]

    J. William Doolittle, Jr.:

    There again Your Honor, we don’t know more than what we can read in the reported cases.

    And so far as we know the prison system of New York is still there, but we do urge that the problems are significantly different when the remedy is limited as it is in New York, but there is the further qualification that the suits can only be brought in one Court, namely the Court of Claims which does have some effect in reducing problems of a lack of uniformity.

    Earl Warren:

    [Inaudible]

    J. William Doolittle, Jr.:

    Apparently a life-timer would be unable to sue Your Honor, that’s right.

    William J. Brennan, Jr.:

    [Inaudible]

    J. William Doolittle, Jr.:

    Yes Your Honor, it does.

    Another complication that we’ve referred to in our briefs is that if any disciplinary measure should be imposed on a litigating prisoner no matter, how justified it might be, it would be likely to be considered by the other members of the prisoner population as a form of retaliation on the part of the officials who’s conduct has been questioned in the Tort suit.

    And this would aggravate not only the hostility, intention in the prison atmosphere generally, but would no doubt lead to still further suits.

    In addition to these more or less indirect affects on discipline, it seems clear that a frequent subject of prisoner suits would be disciplinary acts and programs themselves.

    Again wholly apart from the question of whether or not any of these challenges could be successfully asserted, its very possibility would impose a grave inhibition on the freedom of action, which custodial personnel need in dealing with disciplinary problems in a prison.

    [Inaudible]

    J. William Doolittle, Jr.:

    I don’t believe so.

    Yes until he does.

    [Inaudible]

    J. William Doolittle, Jr.:

    It is our contention that they would have to allow pursuits of this character, in other words that there would have to be an analogous kind of liability.

    We find considerable support for that we think in the Rayonier case for example where the Court expressed a concern as to what the law of the State of Washington was in this regard.

    [Inaudible]

    J. William Doolittle, Jr.:

    That’s correct Your Honor.

    [Inaudible]

    J. William Doolittle, Jr.:

    Oh, not at all Your Honor.

    In this realm these principles must operate outside the question of sovereign immunity.

    J. William Doolittle, Jr.:

    So there is no —

    [Inaudible]

    J. William Doolittle, Jr.:

    Yes, Your Honor that’s right.

    [Inaudible]

    J. William Doolittle, Jr.:

    Oh, no.

    I think the concept of the Tort Claims Act is broad enough and liberal enough to include the analogy of the prisoner suits against jailers and prison officials.

    William J. Brennan, Jr.:

    [Inaudible]

    J. William Doolittle, Jr.:

    Not all states, I think only — a little over half of the states have actually ruled on the question one way or the other.

    And the majority of those that have ruled on it, over 20 states do allow such suits.

    William J. Brennan, Jr.:

    [Inaudible]

    J. William Doolittle, Jr.:

    That’s right.

    Connecticut is the other state in —

    William J. Brennan, Jr.:

    [Inaudible]

    J. William Doolittle, Jr.:

    There is a question with respect to the Muniz case in Connecticut.

    William J. Brennan, Jr.:

    [Inaudible]

    J. William Doolittle, Jr.:

    I would think not.

    The Indiana statutes — the Indiana cases do support liability both on the general tort principle of negligence of doctors of course, but also jailer suits.

    Arthur J. Goldberg:

    [Inaudible]

    J. William Doolittle, Jr.:

    No a federal prisoner who was in the Lexington facility would not under our contention be allowed to sue in the Berman case, holds that he may not sue under the Tort Claims Act.

    Non-prisoners in such facilities might be able to —

    Arthur J. Goldberg:

    [Inaudible]

    J. William Doolittle, Jr.:

    That’s right Your Honor.

    Arthur J. Goldberg:

    [Inaudible]

    J. William Doolittle, Jr.:

    Well the whole trust of our argument goes to that very point and that is that when you’re dealing with prisoners you do have the problem.

    That they are there involuntarily and there are these problems of discipline and of administrating a prison system, and of course to the extent that a prisoner must be sent to the drug addiction center, he is still a prisoner and this — for that purpose this must be considered an extension of prison system, but the same considerations just don’t apply when we’re dealing with such areas as civilian addicts who are being treated in the center.

    There maybe other provisions such as the discretionary functions provision that would apply in that case, but as far as the general applicability of the Act, the problems that we pose, the reasons why we think Congress couldn’t have intended prisoners to be covered would not apply with very much force to civilians who are in the addiction center.

    Arthur J. Goldberg:

    [Inaudible]

    J. William Doolittle, Jr.:

    That’s, right, that’s right.

    Arthur J. Goldberg:

    [Inaudible]

    J. William Doolittle, Jr.:

    Yes Your Honor.

    Arthur J. Goldberg:

    [Inaudible]

    J. William Doolittle, Jr.:

    On that point, no.

    Now the allowance of —

    Potter Stewart:

    Just before you –-

    J. William Doolittle, Jr.:

    Yes Your Honor.

    Potter Stewart:

    You go on Mr. Doolittle, I’m not — did I understand you to say that any event that this Court should hold against you in these cases, then the question of whether or not a suit could actually be filed would depend upon the State law and not upon just generally the substantive State law of assault and battery in the Connecticut case or malpractice in the Indiana case, but rather upon and initially upon the narrow question of whether under the State law, there is a right of action by a prisoner against the jailer.

    J. William Doolittle, Jr.:

    We believe that that would be the case Your Honor.

    Potter Stewart:

    Well, if that — if that is right, what was the — why did there have to be a Feres case, because if that’s right, I suppose there couldn’t have been right of action by a soldier against his government anywhere?

    J. William Doolittle, Jr.:

    Well, I might say that one of the points made in the Feres case is not central to the Court’s decision, one of the points made there was this very point that you have to look to the relationships of the parties and the status of both parties in order to determine what the circumstances are in which the government is being held liable.

    Potter Stewart:

    Now, I suppose though — let’s say the court had decided the Feres case the opposite way and said sure as far as the Federal Tort Claims Act goes, there is the Federal Courts have jurisdictions.

    If you are right as to your construction of the statute, there still could never been a suit, because no State allows a soldier to sue his employer or his commanding officer.

    J. William Doolittle, Jr.:

    Well, the — of course one of the problems in the Feres case was that there has been substantially no cases decided on the point and perhaps this is an area in which there would be some room for expansion, but I think the conclusion you stated is essentially correct, that as the laws stood and as the cases spelled out the law that would have been —

    Arthur J. Goldberg:

    Isn’t that exactly [Inaudible] no American law has ever has [Inaudible]

    J. William Doolittle, Jr.:

    That’s right.

    Arthur J. Goldberg:

    [Inaudible]

    J. William Doolittle, Jr.:

    Perhaps they could have Your Honor, but it didn’t and I suspect that one of the reasons, one of the most important reasons was that of course if that is the question, if the question must be determined whether or not there is an analogous of state liability, the case generally speaking must go to trial or at least there must be some preliminary litigation and the whole point of the Feres case is that this whole operation shouldn’t be allowed to get off the ground in the first place, a complete exclusion of military claims.

    The allowance of Tort Claims Act suits would, we believe, interfere in many ways with the sound and orderly administration of the prison system.

    It is predictable that such suits will be filed in very large numbers, although as I have indicated we’re confident, that but a very few could be successfully asserted.

    Experience of tests that many of them would be filed in outright bad faith, some to satisfy a grudge or to get revenge, some to obtain some excitement or to secure some relief from the tedium of prison life, some in the hope that somewhere along the line the prisoner’s chance of escape would be enhanced, as indeed it would be and were necessary to take him to trial.

    Had there been an increase in such suits since the Court of Appeals decision?

    J. William Doolittle, Jr.:

    I believe that a few have been filed, but —

    Any figures?

    J. William Doolittle, Jr.:

    I don’t believe.

    No I don’t have any figures.

    I’m told that four suits have been filed to our knowledge.

    Potter Stewart:

    Most of these difficulties and troubles with the engendered — if prisoners just sued each other, there is nothing to stop them from doing that.

    J. William Doolittle, Jr.:

    Well, I don’t think the problem would be nearly as severe if they merely sued each other.

    Potter Stewart:

    All right, it’s only if whether they have to get out of the prison and to have a trial and they get all this — the distractions from prisoner team writing their briefs and complaints.

    J. William Doolittle, Jr.:

    Well, I would suppose that the Courts, as it would be true in this situation, which has a considerable amount of discretion as to whether or not they would require that the prisoner be brought to trial, and we don’t suggest, for example, that in every case that even went to trial under the Tort Claims Act the prisoner would necessarily be brought to trial.

    Potter Stewart:

    Well, in this case arising in Connecticut, I suppose it is clear that the petitioner, the appellant has a — the petitioner has a claim of [Inaudible] against the 12 fellow prisoners would be [Inaudible] doesn’t it, ordinary claim.

    J. William Doolittle, Jr.:

    It would certainly seem that he would.

    Potter Stewart:

    And the Court couldn’t – it presumably shouldn’t, it closed its doors to him just because he is in prison, because he is going to be there for a long term.

    J. William Doolittle, Jr.:

    I might also suggest that while the problem frankly has not arisen, there has not been a state of prisoner suits against one prisoner against another.

    I do think that this would be an area that would be within the proper control of prison authorities that they could impose restrictions on the extent to which prisoners could do that.

    A number of the States, for example, do not allow prisoners to file civil suits.

    Now how does that apply to this case?

    It would seem to me quite inconsistent with a congressional purpose to allow prisoners to sue under the Tort Claims Act that this Court should find that Congress had such a purpose for the prison system to not to allow them to bring such suits.

    And therefore, we don’t assume that any such administrative remedy would be readily available in this situation.

    One of the problems with which we are most concerned and one of the administrative problems with which we are most concerned is the problem of discovery.

    The prosecution of most suits under the Tort Claims Act, most prisoner suits under the Tort Claims Act would probably depend to a considerable extent on discovery, involving, as they do, a unique kind of society operating wholly behind walls and barbed wire fences.

    Such discovery, apart from the administrative burden of compliance, would pose a great threat to prison security and order because security considerations are involved in almost every aspect of prisoner life, and this would be a problem in almost every case, but the Muniz Case here before the Court poses the question in a particularly striking way.

    The compliant there challenges the prison’s staffing procedures for dealing with breaches of order.

    Imagine the interest with which depositions and testimony in that case will be received by the prisoners as strategic intelligence to support a plan of escape or violence.

    I might add that the task of keeping such intelligence from them would be well nigh impossible.

    And of course, the suits that went to trial would present still further problems, and it would be difficult we think to keep these suits from going to trial no matter what their merit was.

    Because it is not difficult to spell out a colorable compliant in tort, especially in the unique context of prison life, for most Judges will be unfamiliar with what is generally considered necessary improper in prison administration.

    They will be unable to appraise the charges in the defenses without a considerable evidentiary presentation.

    And I have already alluded to the increased chances of escape; the prisoner should go to trial, the interferences with prison discipline and the problem that the exposure of prison procedures and policies would pose to prison order and security.

    Furthermore, the necessity of transporting guards and other officials to appear as witnesses would strain the already overburdened staffs of the prisons.

    We have covered some of the other problems posed by prisoner suits at some length in our brief and I shall not dwell long on them here today.

    One difficulty is that the Tort Claims Act makes liability turn on the law of the state in which the allegedly negligent conduct took place.

    And because of that, its application to prisoner suits would subject Federal Prison System to the varying laws on standards of care and actual liability of the 24 states in which federal prison institutions are located.

    Tom C. Clark:

    But the limitation of filing affidavit, dose the limitation also apply in states where —

    J. William Doolittle, Jr.:

    I don’t see how it would, Your Honor.

    Tom C. Clark:

    What about our case up in Massachusetts [Inaudible] where we applied I believe the state limitation on recovery of [Inaudible]

    J. William Doolittle, Jr.:

    Well the reason I don’t think it would is that the limitation in New York is not actually a part of the Tort Claims Act, it is a — that the provision that the prisoner is civilly dead while he is in prison, which is an entirely separate provision.

    Tom C. Clark:

    It instructs —

    J. William Doolittle, Jr.:

    I would not suppose that that could be applied in the Federal Court —

    Tom C. Clark:

    How many states did you say had the limitation?

    J. William Doolittle, Jr.:

    I couldn’t tell you, Your Honor.

    J. William Doolittle, Jr.:

    We think too that the application of the Act to prisoner suits would necessarily involve Federal Judges in the day-to-day management of internal prison operations.

    Prison administrators would have to run the prisons in light of what the Judges thought or might be expected to think with sound penal and correctional policy, whether or not it supported with the administrator’s ideas on the subject.

    Potter Stewart:

    They would be a bad thing for Federal Judges to learn more about prisons, they do?

    J. William Doolittle, Jr.:

    I — it quiet possibly would be a good idea for them to learn more but it seems to me it would be expecting too much of them to get into the details of prison management that you would have to for any of these suits.

    These suits are perfect examples of the extent to which genuine supervision over prisons that would be involved in this —

    Potter Stewart:

    It just occurred to me that Federal Judges are engaged almost daily in dealing out sometimes very generously other people’s time to be spent in prison and many of them are — that are sitting inside of the prison cells themselves and don’t know to what their sentencing needs to [Inaudible] might not be a bad thing at all for knowing more.

    J. William Doolittle, Jr.:

    Well, we think it will be regrettable if the ground on which they learn should be these Tort Claims Acts suits against the Government for prisoner claims, because by the time they really became experts the prison system might be in very sad shape indeed.

    Potter Stewart:

    [Inaudible]

    J. William Doolittle, Jr.:

    The short of our argument is that just as in the Feres case in relation to Military Claims, Congress cannot have indented to subject Federal Prison System to the extreme results that would attend prisoner suits under the Tort Claims Act.

    The corollary to that conclusion is that it is Congress that should decide and consciously decide what form of relief is appropriate for prisoners.

    Is the prisoner compensation scheme as recently expanded a sufficient remedy?

    Should it be further expanded to cover a wider range of injuries?

    If a judicial remedy is appropriate, should it be limited to suites filed after release as in New York or should the bringing of such suits be limited to a single specialized Court as in both New York and Illinois.

    What proceedings have taken — actually taking place in these cases other than the arguments as to whether such a suit lies? Have there been motions for examination and take deposition, discovery of what’s been going on?

    J. William Doolittle, Jr.:

    In the cases that have thus for been decided in Federal Court?

    No, no in these cases, cases that are before us?

    J. William Doolittle, Jr.:

    Oh, nothing but the dismissal of —

    Nothing.

    J. William Doolittle, Jr.:

    Nothing.

    Earl Warren:

    [Inaudible]

    J. William Doolittle, Jr.:

    Well if I might — may say there are several reasons Your Honor why we don’t think that the experience even if were available to us would be particularly applicable.

    Earl Warren:

    [Inaudible]

    J. William Doolittle, Jr.:

    Well, if we had and I don’t know whether how readily available such information would be, but what I am saying is this.

    Our fears are based on the considered and I might say acknowledgeable judgment of the senior officials of the Bureau of Prisons taking into account the system that they run, a system which is very different from the state systems, even the larger state systems and I might add also that in the case of each of the systems that you have named there are limitations on the remedy that considerably reduce the level of the problems that would be presented.

    They don’t eliminate them entirely, but they go a long way and of course this is something that would not be available under the Tort Claims Act, certainly would not be available without further legislation by Congress.

    In short, we think that the Federal prison officials knowing as they know their system, knowing as they know the prisoner population with which they are dealing has a considerable basis for making these judgments as to what the problems would be that they face. And we do seriously question that the experience of these states would be very helpful in varying on our problems.

    Thank you Your Honor.

    Earl Warren:

    Mr. Abt.

    John J. Abt:

    Thank you Mr. Chief Justice.

    May it please the Court?

    John J. Abt:

    I shall address my argument to the Winston complaint, which alleges that Winston suffered blindness and other injuries, because of the negligent and willful failure both of the prison officials and medical officers at the Terre Haute Penitentiary to provide him with timely and competent medical care for what proved to be a brain tumor.

    As the complaint alleges notwithstanding the fact that over a period of many months, Winston experienced and complained of extreme instability of — in his walking and suffered periodic losses of vision, the personnel at Terre Haute did nothing for him expect to administer Dramamine pills.

    It wasn’t the man who is involved in the Dennis case, the old Congress case.

    John J. Abt:

    In the Dennis case and also in the contempt case.

    Contempt case –-

    John J. Abt:

    Wasn’t until I saw him in prison some months later and saw the condition that he was in, and insisted that he’d be given a medical examination that this was done — was found that he had a benign tumor at the cerebellum and the operation came, but came too late to save his sight.

    Now the Government’s argument is based in the first instance on the premise that what they referred to in their briefs as the legislative context of the act discloses no indication that the Congress intended to include to the claims of prisoners.

    I think that this claim has patently — that this premise is patently false one.

    If we use the normal tools of statutory construction, what the act says on its phase and what its legislative history shows that it becomes pretty clear that Congress did intend so far as you can come to any assured conclusion about an attempt on any of these issues that Congress did intend to include the claims of prisoners.

    Arthur J. Goldberg:

    [Inaudible]

    John J. Abt:

    That it focused on the prisoners.

    No I don’t think we can say that Mr. Justice Goldberg.

    Arthur J. Goldberg:

    [Inaudible]

    John J. Abt:

    There is no testimony about prisoners, anything that you can say both from the text of the act and from the legislative history got to do by a way of inference, but that’s normal procedure in trying to construe a statute.

    And what I’d like to do first is to talk about the text of the statute and then say something about the legislative history.

    First as to its text, the act waives the Government’s immunity in very broad and general terms and makes the Government liable in tort for the acts of its employees while acting within scope of their employment to the same extent or under circumstances where a private person would be liable under the law, the place where the tort was committed.

    Now I would like to emphasize first of all that the conduct charged in the Winston complaint is not only conduct that’s clearly within the scope of the authority of the prison officials and medical officers at Terre Haute, but it’s also a violation of the expressed statutory duty imposed on the Bureau of Prisons by Section 40, 42 of the criminal code, which makes it the duty of the Bureau to provide for the care, protection, and safety being of Federal prisoners, the statute is in my brief.

    The act specifies 13 classes of claims which are excluded from coverage they now appear in Section 2680 of the judicial code.

    Since prisoner claims are not included among these, the inference is that Congress intended to include them.

    Arthur J. Goldberg:

    [Inaudible]

    John J. Abt:

    Yes, it can and I’ll come to the Feres case in a few moments if I may.

    The government, Mr. Doolittle this morning — this afternoon conceded that the fact that the operation of a prison is a uniquely governmental function that does not exempt the United States from liability under the act and that concession is necessary under the Indian Towing and Rayonier cases which held that the act embraces the claims resulting from the performance of governmental functions that have no parallel whatsoever in private activity.

    As I read those cases the test that they establish is whether a private person would be liable for similar negligence under the General Tort Law principles of the place or State where the tort was committed.

    The Winston complaint satisfies this test because malpractice by doctors and negligence by private hospitals is actionable in Indiana.

    Now, I disagree with Mr. Doolittle’s answer to your question Mr. Justice Goldberg.

    I don’t think that it’s necessary in order to establish a case within the framework of the act and the coverage of the act to show that there is an identical private liability.

    That’s exactly what Indian Towing and Rayonier said it was not necessary.

    All they said was — in the Rayonier case for example, Mr. Justice Black was dealing with – his opinion was dealing with the case of firefighting and he pointed out that under Washington law like as in most States, firefighting is considered to be a governmental function and there is no action not — no action for negligence either against the firefighters or against the State or Municipality, but nevertheless the government was held liable.

    Arthur J. Goldberg:

    [Inaudible] makes it even more difficult to [Inaudible] for the malpractice too.

    John J. Abt:

    That’s just perfectly correct, but I think and I’m trying to come to that, let me just foreshadow it.

    John J. Abt:

    I think pretty clearly that Feres was overruled with respect to that ground of the decision by Indian Towing and Rayonier.

    And not – let me say this you got the line of cases Feres and then Dalehite which relies on Feres and then came Indian Towing and Rayonier which overruled Dalehite and also must have overruled Feres in the process.

    I should say of course that Indian — that the present case seems to me presents a stronger case for liability than either Indian Towing or Rayonier in two respects.

    First, here there is the kind of parallel private liability that Mr. Doolittle says it necessary, if it should be necessary I don’t think it is and second, here also is the express statutory duty of care imposed on the Bureau of Prisons and there was no of course no express statutory duty in respect to the light housekeeper in the Indian Towing or the firefighters in Rayonier.

    For these reasons it seems to me that Winston’s claim was well within the act if you take — if you look at it that on space and that this conclusion is more than confirmed by the legislative history.

    And first I want to speak about the House and Senate reports which I quoted at page 12 of my brief.

    Those reports show, first of all that Congress deliberately meant to apply the principle of expressio unius, that is to say that the only classes of claims that it intended to accept from coverage was those which it specifically enumerated in what is now Section 2680.

    The report shows another important thing, the reports, both Senate and the House report and that is that those claims which Congress specified in 2680 and withdrew from the coverage of the act were those first of all which it felt as a matter of policy should be free from the threat of damage suits and second goes as to which is thought that there was an alternative adequate remedy for compensation.

    And it seems to me therefore that although the House reports speaks in general terms and — House and Senate reports, that the committees anticipated and rejected both of the arguments which Mr. Doolittle made here this afternoon; first, the argument that the administrative compensation remedy is exclusive and second the argument that running a prison is such a difficult job that it should be free of a threat of damage.

    Now the only way you can reconcile the statements in those reports with Mr. Doolittle’s position as to say, well this is a case of Congressional oversight and I think there are at least three reasons why you can’t say that.

    By Congressional oversight I mean that as you indicated earlier Mr. Justice Goldberg that Congress just wasn’t thinking about prisoners at all.

    I’d say I think there are three items of Legislative history that make that kind of a conclusion impossible.

    First of all there were 21 private bills for the relief of prisoners that the Congress passed in the decade to prior to the Tort Claims Act, and there must have been many, many more that were dealt within committee and defiled of passage, because the ratio of private bills introduced to private bills passed in those days was about 7 to 1.

    [Inaudible]

    John J. Abt:

    46.

    Potter Stewart:

    Did these bills — it has to do with the compensations for what would have been a Tort Claim?

    John J. Abt:

    Some of them did, some of them were like workmen’s comp –were claims —

    Injuries out of industrial accident inside the prison.

    All right, none of them was involved with compensating a man who had been wrongly in prison?

    John J. Abt:

    No, no [Inaudible].

    These are claims of the types that we’re talking about here.

    Potter Stewart:

    I see.

    Thank you.

    John J. Abt:

    21 of them, 21 bills such bills passed Mr. Justice Black and what I said was that the 21 passed there must have been many, many more that were introduced and didn’t pass.

    [Inaudible]

    John J. Abt:

    Injuries to prisoners, yes sir, Tort Claims of prisoners.

    So the Congress must have been perfectly aware from the volume of this business that there were such animals as prisoner’s claims.

    Arthur J. Goldberg:

    [Inaudible] other than Worker’s Compensation Act?

    John J. Abt:

    I really would be guessing and I don’t want to guess, I don’t know.

    Second and perhaps —

    Earl Warren:

    Mat I ask this?

    Has there been passage of that kind since 1942?

    John J. Abt:

    They passed three bills since three, three I believe, which the government has the number in their brief, I think three or four perhaps, since then, but I’d like to point out from that respect that each of those in a company that is the bill has been referred to the Department of Justice, has been accompanied by a letter from the Attorney General in which the Attorney General says that no relief, there is no other remedy available.

    So that Congress really has acted on the representation that’s being made to the Court here today, plus the fact of course that there have been a number of Lower Court decisions denying the coverage of prisoners, but Congress has never made any independent determination as to what its own intent was when it passed the act.

    Now there is a second reason why I think that it’s impossible to say this is a matter of oversight and that is that six Trot Claims bills that were antecedent to the bill that was finally enacted, the 46th Act, contained specific exemptions, which either excluded prisoner claims entirely from the Act or adopted the New York approach and excluded suits during the incarceration of the prisoner.

    Finally the report of a House committee shows that Congress was familiar with the operation of the New York Tort Claims Act, which was passed in 1929 and which is patterned exactly after the Federal Act.

    It waives the states immunity from — or to put the other way the Federal Act has patterned after the New York Act, the [Inaudible] Act.

    The New York Act waives the state sovereign immunity and makes the State’s liability the equivalent of the liability of private person.

    And the House report says and I quote after describing the New York Legislation, “such legislation does not appear to have had any detrimental or undesirable effect.”

    Now at the time that those words were written it was well established by decisions of the New York Court of Appeals that prisoners had a right of action under the New York Court of Claims Act.

    Nevertheless Congress didn’t exclude prisoner’s claims from the Federal Act.

    Where is that quoted in your brief there?

    John J. Abt:

    Page 14.

    Thank you.

    John J. Abt:

    Mr. Justice Harlan.

    Arthur J. Goldberg:

    [Inaudible]

    John J. Abt:

    That’s right.

    Arthur J. Goldberg:

    Not a specific [Inaudible]

    John J. Abt:

    No, no; that couched in the same terms of the Federal Act.

    Arthur J. Goldberg:

    And, the [Inaudible]

    John J. Abt:

    So called a civil debt statute.

    That’s a provision of the penal code that prohibits prisoners from filing suits while they are in prison.

    Arthur J. Goldberg:

    Well this condemnation [Inaudible]

    John J. Abt:

    Although Congress apparently at one time contemplated doing precisely that in one statute in one of these Tort claim bills that was a predecessor to the one was passed.

    Tom C. Clark:

    [Inaudible]

    John J. Abt:

    Measure, I’m sorry Mr. Justice Clark.

    Tom C. Clark:

    [Inaudible]

    John J. Abt:

    Oh, the Tort Claims Act specifically provides that punitive damages are not permissible.

    New York — I think New York does not have the same exception that the Tort Claims Act has so that I suppose theoretically punitive damages might be possible.

    I don’t know of any case which ordered – pardon?

    Tom C. Clark:

    Possibly get both.

    John J. Abt:

    Possibly get both, yes.

    Oh I don’t know of any New York case that’s ordered punitive damages.

    Arthur J. Goldberg:

    [Inaudible]

    John J. Abt:

    I think the history of Illinois is a little bit — is rather interesting and particularly in connection with both something that Judge Kaufman said in his dissent and something that the government says in its brief.

    Both of them say that what I said about this — about the reference to the New York statute really has no significance because Congress also referred to a California, Arizona, and Illinois statute under which prisoners were not allowed to be covered.

    It so happens however that those three statutes were held to be statutes which did not waive the sovereign immunity of the States.

    But the effect of those statutes were simply to give a new remedy through a suit for preexisting forms of state liability and it was because of the limitation of those statutes, that the Courts in those States held that prisoners couldn’t sue.

    Now this was true of the Illinois Statute, which was passed in 1917, Mr. Justice Goldberg and continued till 1945.

    In 1945 the same year the Federal Act was passed, Illinois passed a Tort Claim Statute substantially the equivalent of the federal statute.

    Under the old statute, the Illinois cases had held like California and Arizona the prisoners couldn’t sue because there was no waiver of the sovereign immunity.

    Under the new statute, which was similarly a general statute and which doesn’t talk about prisoners, Illinois has consistently held the prisoners can sue because the statute did waive, the only impediment to suit and that was the sovereign immunity of the state.

    Now I’d like — simply like to point out that the presumption that arises as I see it from the fact that the Federal Act followed the pattern of the New York Act and that at the time the Federal Act was passed it was well established in New York that prisoners could sue if there was a presumption or if you don’t want to raise it to the level of a presumption, at least a strong inference that Congress intended particularly in the light of the fact that it said it had taken a look at the New York statute it had no harmful effects, there’s a presumption or an inference.

    William J. Brennan, Jr.:

    Tell me Mr. Abt, are you suggesting that, that reference in the House or court of harmful effects had referenced particularly the prisoners or general?

    John J. Abt:

    No of course not, of course not, but the — it indicates to me that Congress mush have had a look at the operation of the New York statutes, otherwise it couldn’t have said that it had no harmful effect and if it taken a look, it must have encountered the cases construing the statute.

    Now I recognize of course that this mode of statutory construction —

    William J. Brennan, Jr.:

    It goes beyond harmful, doesn’t?

    John J. Abt:

    Pardon?

    William J. Brennan, Jr.:

    It goes beyond harmful.

    John J. Abt:

    Harmful or undesirable.

    William J. Brennan, Jr.:

    Have a detrimental or undesirable.

    John J. Abt:

    Detrimental or undesirable, yes sir.

    Now I recognize that this is not a conclusive measure of statutory construction, but it harmonizes first with the text of the Act and second with the rest of the legislative history and when you put it all together, I simply don’t see how you can say as the government does, that there is nothing in the legislative context that shows that Congress intended one thing or another about the claims of prisoners.

    Now I’d like to come to the decision in Feres because it seems to me that if it weren’t for that case nobody could stand before this Court and seriously argue that the claims of prisoners aren’t covered under the Tort Claims Act.

    Feres, if you read the opinion and I think you have to distinguish between the grounds that the Court assigned for its opinion and grounds that have subsequently been assigned to support the opinion, if you look at the opinion itself, it assigned two grounds.

    First of all it said that Congress has already provided a uniform compensation system for servicemen, which the Court described as comprehensive, uniform and certain and not negligible or negative.

    And it said that Congress having done that, it couldn’t have intended this uniform federal system to exclude a remedy under the Act based as the ex-remedy is on the vagaries of the state laws.

    Now first of all the result in the Feres case is inapplicable to the facts here because as Mr. Doolittle conceded that he must, neither Winston’s claim or Muniz’s claim is compensable under this administrative scheme for prisoners.

    Second, and I don’t want to go into it here, but I show in my brief starting at page 21 that the limited federal scheme authorizing administrative compensation for work related injuries lacks all of the characteristics that is comprehensiveness, uniformity and certainty and adequacy that were stressed in the Feres case as the grounds for making the remedy exclusive.

    Besides this and in any event, this ground for the decision in Feres, that’s to say the presence of a compensation system for servicemen is contrary both to the decision of this Court in Brooks versus United States, which preceded Feres and in the decision in United States versus Brown which followed Feres; both cases, both of those cases said that a service man, who incurred injuries while not on active duty could sue under the Tort Claims Act and they dismissed the argument that the compensation scheme, for veterans was an exclusive remedy.

    John J. Abt:

    Now —

    William O. Douglas:

    I don’t see you — that you discussed the Compensation Act here.

    John J. Abt:

    In my brief, oh yes I do.

    William O. Douglas:

    You do?

    John J. Abt:

    On Page 21 of the brief, I discuss — perhaps I misunderstood you, you mean the Competition Act for servicemen?

    William O. Douglas:

    No for prisoners.

    John J. Abt:

    For prisoners, yeah, page 21 of my brief.

    William O. Douglas:

    Yes, thank you.

    John J. Abt:

    Now the second ground for the Feres decision was the one that you called — you mentioned earlier Mr. Justice Goldberg, and that is that there is no precedent in American law for permitting a solider or militiamen on active duty to recover for negligence either from the superior officers or from his Government.

    And Mr. Justice Jackson in the opinion in that case said that the purpose, and I quote him, “That the purpose of the Act was not to visit the government with novel and unprecedented liabilities.”

    And therefore that it shouldn’t be construed to authorize, what he called a radical departure from established law.

    Now first of all that ground for the decision in Feres is inapplicable here, I don’t want to do repeat what was said during Mr. Doolittle’s argument, but we have the New York Court of Claims statute, the Illinois Court of Claim Statute, the North Carolina Court of Claim statute, there are three states in which the prisoner has been allowed to recover without benefits of a statute and furthermore there are there many cases, which allow recovery against jailers.

    Now it’s perfectly true as Mr. Doolittle says that most, if not all of those cases had referenced the local jails, but if you read the decisions nothing was made to hinge on the fact that they were local jails rather than penitentiaries.

    Also the Chief Justice I think inquired as to how many prisoner cases there had been in Illinois, unfortunately the Illinois Court of Claims is very late in reporting its cases, so there are considerably more.

    The clerk of the Court tells me on appearance of cases, I think there are six or seven perhaps reported cases, but the very positive of the number of cases that have been instituted there and in North Carolina as well seems to me, it tends completely to destroy Mr. Doolittle’s argument that prisoners are going to take advantage of Tort Claims statutes if they are permitted to sue under them, to raise all of kinds trouble, discovery proceedings and whatnot.

    There is a minimum or let’s put it this way, an easily manageable number of cases that have been instituted in these three states, which allow them under their Tort claim Act.

    But coming back to the Feres, the presence of this volume of judicial decision permitting prisoners to recover, distinguishes this case from the case of the serviceman whereas Mr. Justice Jackson said there wasn’t a single case anywhere permitting such recovery.

    Arthur J. Goldberg:

    [Inaudible]

    John J. Abt:

    Correct.

    Arthur J. Goldberg:

    [Inaudible]

    John J. Abt:

    That’s my second ground as to why that — the second ground for Feres is inapplicable.

    Arthur J. Goldberg:

    [Inaudible]

    John J. Abt:

    Well I didn’t go into it myself, because I assume that the Court had assumed that they were covered and it seems to me as I recall the decision now Mr. Justice Jackson at very end gives examples or indicates the recovery that was — or the payments that were made under the Compensation Act, in at least — it seems to me at least two of the cases, if not all of them.

    Now it may well be that as this Court indicated both in Brooks versus the United States and United States versus Brown, that the basic but unstated ground for the decision in Feres was a belief that allowing servicemen on activity duty to recover for tort injuries to themselves, would be so extreme and so outlandish that Congress just couldn’t have contemplated it.

    However, none of the considerations that are applicable to a solider on active duty has any bearing on the case of a prisoner.

    The difference in the two situations it seems to me are highlighted by the statute that imposes a duty of care, protection and safe keeping on Bureau of Prisons in its relation to prisoners.

    It’s inconceivable to me that Congress should impose a similar duty on the Department of the Army in relation to soldiers.

    And if there was nothing outlandish or absurd in the imposition of that duty by Congress on the Bureau of Prisons, then how can anyone say that it’s outlandish for Congress to permit a remedy for a breach of a duty which itself has prescribed.

    I don’t — I’ve dealt with in my brief at some length with the government’s discussion of all of these dire consequences, which it seems to me in the first place are refuted — that is the arguments are refuted by the point that the Chief Justice made while Mr. Doolittle was arguing, and that is to say that all of this is suppositions and we do have many years of experience in the three states with Tort Claims Act which allow prisoners to recover and there are many states which have permitted recovery against jailers.

    And out of that vast experience, long experience at least the government can give us no examples of anything undesirable or harmful that’s occurred.

    John J. Abt:

    And it seems to me though about all we have here is a splendid example of observation that Mr. Justice Jackson made in his dissent in the Dalehite case, in which he said the government as a defendant can exert an unctuous persuasiveness because it can close official carelessness with the public interest.

    And it seems to that that’s what Mr. Doolittle’s argument and the government’s argument in this case comes down to.

    Of course the Bureau of Prisoners — Prison has an administrator’s normal aversion to any form of supervision.

    Every administrator thinks he is doing a wonderful job, in a complex situation that only he himself can handle.

    And he fears that the job will be ruined if the heavy and untutored hand of court or a regulatory body is allowed to intrude.

    Now the only novelty in this case is that here it’s the Department of Justice, which has abandoned its normal role of poo-pooing these fears when they’re advanced on behalf of some private interests and urges instead that they be dignified and given status as a controlling principle of statutory construction.

    Finally I’d like to suggest that the proposal of this Court carve out an exception for prisoner claims is really inequitable.

    What is made at the time and the whole doctrine of sovereign immunity from Tort liability has fallen into such disrepute that even without waiting for an action by the legislature the highest Courts of five states California, Michigan, Wisconsin, Illinois, and Florida have advocated the doctrine by judicial decision, and significantly in the Florida case the Supreme Court of Florida sitting en banc took occasion to advocate the doctrine in a case involving a prisoner, and none of the other four states, which have advocated the doctrine by judicial decision have made any reservations either for the claims of a prisoner or of anybody else.

    Mr. Friedman will continue for the respondent Muniz.

    Earl Warren:

    Mr. Friedman.

    Richard D. Friedman:

    Mr. Chief justice Warren, may it please the Court.

    Mr. Muniz who I represent received a corrective sentence to cure him.

    He was in the eyes of the law a sick person and was sent to a particular type of institution in the state of Connecticut operated by the Federal Government.

    And on leaving that institution to which he was sent for cure, he walked through the gates blind for life in one eye and subject through the physical infirmities that the sequel of skull fracture causes.

    Potter Stewart:

    You said – you say this prisoner will be cured.

    Richard D. Friedman:

    The nature of the sentence and the type of institution was one way was expected to be cured from his addiction to narcotics.

    The nature of the sentence was not punitive in the sense that a sentence generally is taken to be but rather in an effort to have him in this environment resist the temptation to use drugs.

    Was he convicted for narcotics violation?

    Richard D. Friedman:

    He had been convicted for narcotics violation, yes.

    In the Federal charge.

    Richard D. Friedman:

    Pardon me sir.

    The charge in which he is incarcerated, how was he convicted?

    Richard D. Friedman:

    Under narcotics violation, yes.

    Incidentally the government in the District Court in Connecticut prosecuted the 12 people who were involved in the assault on Muniz.

    Now the government would disallow this —

    Earl Warren:

    I didn’t hear you, you dropped your voice.

    Richard D. Friedman:

    I am sorry.

    Earl Warren:

    What was it you said?

    Richard D. Friedman:

    The government prosecuted the 12 inmates concerned in this assault situation in the institution, and successfully and they were each sentenced to the maximum sentence or most of them were sentenced to the maximum sentence permissible under the statute which was the basis of the indictment.

    What was it?

    Richard D. Friedman:

    The maximum sentence or — five years I believe was the maximum.

    Some were sentenced — I think the least was two years.

    Now the government would disallow the claim by Muniz, well, why?

    They say that the diversity of the state laws create a lottery and that the state laws are different in the place of incarceration of an inmate should not determine his right to recover.

    They say secondly, to permit such action would destroy the uniform system and they then allude to the disciplinary problems which Mr. Doolittle has expressed great concern about.

    We disagree with the government’s contention.

    In the Lower Court briefs and here and in Winston’s brief, and the government’s briefs, all of the cases that deal with these situations I think have been quite fully discussed, but we have become convinced on behalf of Muniz that the heart of this matter involves what we would term the supremacy of Federal Tort law.

    The circumstances of this case are peculiar, they are peculiarly Federal and they are involved in a situation where there is Federal law which has uniformity throughout the 50 States and the territories.

    Now what do I mean by that?

    The basis of the Muniz claim is that by virtue of the cited statute in our brief creating the bureau of prisons and imposing the duties upon the superintendent of prisons and the bureau to safety prisoners, to safeguard those being held for arraignment and to safeguard the welfare of material witnesses.

    Those are the duties in the federal statute.

    Incidentally Mr. Muniz should be denied recovery here then so must you deny recovery to a material witness who was in custody of the United States Marshal, perhaps a very great peril to himself waiting to testify in a case involving national interest because the duties which are imposed by statute upon the U.S Marshals and the bureau of prisons extend to material witnesses as well as to prisoners.

    Arthur J. Goldberg:

    [Inaudible]

    Richard D. Friedman:

    No sir, I’m not asking you to disregard the language of the Federal Tort Claims Act.

    Arthur J. Goldberg:

    [Inaudible] doesn’t your argument goes to that federal liability and federal law run contrary to [Inaudible]

    Richard D. Friedman:

    Now, this is the one of the main points that we make.

    We don’t incidentally concede in this case that the Law of Connecticut fails to give us a cause of action, we claim it does.

    But we say that the words in the Tort Claims Act law of the place mean law of the place, it does not say law of the state.

    If Congress had wanted to use the words Mr. Justice Goldberg, law of the State, the choice was very simple for Congress to make.

    And so, we submit that under the position taken by the Solicitor General today that if the little words law of the place means law of the State, then under situations where there is an act of negligence occurring in a Federal enclave absent a specific statute making state law applicable the Federal Tort Claims Act would not apply on a Federal enclave and —

    Arthur J. Goldberg:

    Whole body of law [Inaudible]

    Richard D. Friedman:

    Well, that is true that there is such a body of law, but we would submit that under the interpretation expressed by the government in its brief where the statutory words — if the statutory construction in the Tort Claims Act is to be confined to law of the state, then where a state may not have a particular law even the duties which are imposed under the statute upon the bureau of prisons would have no applicability and there could be no cause of action under the Tort Claims Act for violation of a duty which Congress had imposed upon the Bureau of Prisons and its Superintendent.

    Now, we allege claim, intend that the Federal law is the law of the land, that this Federal law imposing the duty upon the Bureau of Prisons is uniform and that in this situation that it is the law or duties imposed upon the Bureau of Prisons, which becomes the law of the place and in the case of Muniz, Connecticut.

    And that beyond the point relative to the law of the place, I might say that the constitution of the United States plays a most vital part in our argument, because over 50 years ago in the case of Logan against the United States in 144 U.S. 263, the Court had said prior to the imposition by legislation of duties upon the Bureau of Prisons that the warden and that the prison has a duty of safekeeping and safeguarding a prisoner under the Constitution of the United States, ahortly thereafter did Congress enact the statute imposing the very duties expressed in the language used in Logan against the United States, which was based upon the Constitution.

    Now, we say that denial of the right of recovery for breach of the duty imposed by Congress negates the very existence of the duty imposed by the Bureau of Prisons.

    The government in this particular situation has assumed the burden by the creation of its uniform system of taking care of prisons or operating prisons.

    We claim that the existence of this duty gives rise to a remedy and that one who has the duty and assumes the burden must perform it properly.

    The existence of our comment in reference to Federal statutes creating a Federal Tort law maybe found to be supported in the United States against Standard Oil case on page 308 and in the Clearfield Trust case, which the government cites in its reply brief.

    And on page 308, the Court says, “In this sense therefore, there remains what may be termed for want of a better label, an area of federal common law or perhaps more accurately law of independent federal decision outside the constitutional realm untouched by the Erie decision.

    As the government points out, this has been demonstrated broadly not only by the Clearfield and National Metropolitan Bank Cases, but also by other decisions rendered here since the Erie case went down.

    Richard D. Friedman:

    Whether or not the government is also correct in saying the fact was foreshadowed the same day by Hinderlider versus La Plata Company in a unanimous opinion delivered likewise by Mr. Justice Brandeis.

    Now in the case of Hess against the United States and Hatahley against United States cited in our brief.

    The Hatahley case in particular makes reference to an act I believe it’s called a National Grazing Act, the words are used Grazing Act, this is an act which applies in every state where grazing of animals takes place and the Court in writing its opinion says that this is a matter of Federal concern.

    This is a law which is uniform over the United States and the uniform Federal law is applicable.