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language of the Assistant Attorney General's explanation. This paragraph characterizes the general exemption as “a highly important exception, intended to preclude any possibility that the bill might be construed to authorize suit for damages against the Government growing out of an authorized activity, such as a flood-control or irrigation project, where no negligence on the part of any Government agent is shown, and the only ground for suit is the contention that the same conduct by a private individual would be tortious . . . . The bill is not intended to authorize a suit for damages to test the validity of or provide a remedy on account of such discretionary acts even though negligently performed and involving an abuse of discretion."

II. Turning to the interpretation of the Act, our reasoning as to its applicability to this disaster starts from the accepted jurisprudential principle that no action lies against the United States unless the legislature has authorized it.22 The language of the Act makes the United States liable "respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances." 28 U. S. C. § 2674. This statute is another example of the progressive relaxation by legislative enactments of the rigor of the immunity rule. Through such statutes that change the law, organized government

scope of the bill to the same extent as torts of nonregulatory agencies. Thus, section 402 (5) and (10), exempting claims arising from the administration of the Trading With the Enemy Act or the fiscal operations of the Treasury, are not intended to exclude such common-law torts as an automobile collision caused by the negligence of an employee of the Treasury Department or other Federal agency administering those functions."

22 Feres v. United States, 340 U. S. 135, 139; United States v. Shaw, 309 U. S. 495; United States v. Eckford, 6 Wall. 484. Cf. Blackstone, Book I, c. 7 (Sovereignty).

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expresses the social purposes that motivate its legislation. Of course, these modifications are entitled to a construction that will accomplish their aim,23 that is, one that will carry out the legislative purpose of allowing suits against the Government for negligence with due regard for the statutory exceptions to that policy. In interpreting the exceptions to the generality of the grant, courts include only those circumstances which are within the words and reason of the exception." They cannot do less since petitioners obtain their "right to sue from Congress [and they] necessarily must take it subject to such restrictions as have been imposed." Federal Housing Administration v. Burr, 309 U. S. 242, 251.

So, our decisions have interpreted the Act to require clear relinquishment of sovereign immunity to give jurisdiction for tort actions.25 Where jurisdiction was clear,

23 United States v. Yellow Cab Co., 340 U. S. 543, 555; Keifer & Keifer v. Reconstruction Finance Corporation, 306 U. S. 381.

24 United States v. Dickson, 15 Pet. 141, 165; Walling v. Jacksonville Paper Co., 317 U. S. 564, 571; A. H. Phillips, Inc. v. Walling, 324 U. S. 490, 493.

25 In Feres v. United States, 340 U. S. 135, this Court held that the Act did not waive immunity for tort actions against the United States for injuries to three members of the Armed Forces while on active duty. The injuries were allegedly caused by negligence of employees of the United States. The existence of a uniform compensation system for injuries to those belonging to the armed services led us to conclude that Congress had not intended to depart from this system and allow recovery by a tort action dependent on state law. Recovery was permitted by a service man for nonservice disabilities in Brooks v. United States, 337 U. S. 49.

In United States v. Spelar, 338 U. S. 217, we held that our courts did not have jurisdiction to try a tort action for injury by a federal employee to a complainant because of an accident at our air base in Newfoundland. This conclusion was reached because of the exception, 2680 (k), of "Any claim arising in a foreign country." The sovereignty of the United States did not extend over the base.

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though, we have allowed recovery despite arguable procedural objections.2

26

One only need read § 2680 in its entirety to conclude that Congress exercised care to protect the Government from claims, however negligently caused, that affected the governmental functions. Negligence in administering the Alien Property Act, or in establishing a quarantine, assault, libel, fiscal operations, etc., was barred. An analysis of § 2680 (a), the exception with which we are concerned, emphasizes the congressional purpose to except the acts here charged as negligence from the authorization to sue.27 It will be noted from the form of the section, see p. 18, supra, that there are two phrases describ

26 United States v. Aetna Casualty & Surety Co., 338 U. S. 366. Insurance Company, as subrogee of the person injured, may bring suit under the Act in spite of Anti-Assignment Statute.

United States v. Yellow Cab Co., 340 U. S. 543. United States may be sued for contribution, and also be impleaded as a third party defendant.

27 The statute is unique in Anglo-American jurisprudence in its explicit exception for discretion. The English Crown Proceedings Act, 1947, contains nothing directly comparable, though see § 11, saving the "prerogative of the Crown," 6 Halsbury's Statutes of England (2d ed.) 56. The extent of this provision is not entirely clear, but 6 Halsbury's Laws of England (2d ed.) 443-590, assumes the term to cover a wide area of official activities, including "the rules and regulations [and] the exercise of discretionary authority" by "the customary officers and departments," under parliamentary enactments. Ibid., 459-460. Street, Tort Liability of the State, 47 Mich. L. Rev. 341, 353, however, seems to indicate that the principal protection for the exercise of official discretion will come through the accepted principles of the common law as to torts of public officials acting within their delegated authority. See also Barnes, The Crown Proceedings Act, 1947, 26 Canadian Bar Review 387, 390, and The Crown Proceedings Act, 1950, 28 New Zealand L. J. 49, 50, 52–53.

Australia and New Zealand had had similar statutes for some years. They left "open to grave doubt how far, if at all, it was intended by those Acts to give the subject rights of action which

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ing the excepted acts of government employees. The first deals with acts or omissions of government employees, exercising due care in carrying out statutes or regulations whether valid or not. It bars tests by tort action of the legality of statutes and regulations. The second is applicable in this case. It excepts acts of discretion in the performance of governmental functions or duty "whether or not the discretion involved be abused." Not only agencies of government are covered but all employees exercising discretion.28 It is clear that the justquoted clause as to abuse connotes both negligence and wrongful acts in the exercise of the discretion because the Act itself covers only "negligent or wrongful act or omission of any employee," "within the scope of his office" "where the United States, if a private person, would be liable." 28 U. S. C. § 1346 (b). The exercise of discretion could not be abused without negligence or a wrongful act. The Committee reports, note 21, supra, show this. They say § 2680 (a) is to preclude action for "abuse of discretionary authority. . . whether or not negligence is alleged to have been involved." They speak of excepting a "remedy on account of such discretionary

in the result would interfere seriously with the ordinary administrative work of the Government . . . Enever v. The King, 3 Com. L. R. 969, 988 (1906); see also Davidson v. Walker, 1 N. S. W. St. R. 196, 208-213 (1901), and Hawley v. Steele, 6 Ch. D. 521 (quoted therein): "In other words, I think the discretion is vested in the executive Government, having authority over military matters, to determine for which, of these various military purposes for which land may fairly be required, the particular land in question is to be appropriated. It is not for the Judge to say that they have made a bad selection."" 1 N. S. W. St. R. 211.

28" Employee of the government' includes . . . members of the military or naval forces of the United States, and persons acting on behalf of a federal agency in an official capacity." 28 U. S. C. § 2671.

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acts even though negligently performed and involving an abuse of discretion." 29

So we know that the draftsmen did not intend it to relieve the Government from liability for such commonlaw torts as an automobile collision caused by the negligence of an employee, see p. 28, supra, of the administering agency. We know it was intended to cover more than the administration of a statute or regulation because it appears disjunctively in the second phrase of the section. The "discretion" protected by the section is not that of the judge-a power to decide within the limits of positive rules of law subject to judicial review. It is the discretion of the executive or the administrator to act according to one's judgment of the best course, a concept of substantial historical ancestry in American law.30

This contention is met by petitioners with these arguments:

"To accept the foregoing close and narrow reasoning [of the Court of Appeals], which is unrealistic, is to say that a program and undertaking and operation, however like it may be to some private corporation or operation such as the manufacture of an explosive, is nevertheless throughout discretionary, if the concept thereof is born in discretion. .

29 Indeed, it has been so held by those district courts which have dismissed complaints charging negligence, following the Government's confession and avoidance plea that the acts alleged to be culpable fell within the exception. E. g., Boyce v. United States, 93 F. Supp. 866; Coates v. United States, 181 F. 2d 816; Denny v. United States, 171 F. 2d 365; Olson v. United States, 93 F. Supp. 150; Toledo v. United States, 95 F. Supp. 838; Thomas v. United States, 81 F. Supp. 881.

30 It seems sufficient to cite Marbury v. Madison, 1 Cranch 137, 170; Spalding v. Vilas, 161 U. S. 483, 498; Alzua v. Johnson, 231 U. S. 106; Louisiana v. McAdoo, 234 U. S. 627, 633; Perkins v. Lukens Steel Co., 310 U. S. 113, 131.

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